The educational qualification of a degree or equivalent is a mandatory requirement for promotion to the post of Assistant Engineer under the Punjab Service of Engineers, Class II (Irrigation Branch) Rules, 1941, unless relaxation is granted by the Government under the last proviso to Rule 5 read with Note 2 to Rule 3 of the Rules.

Judgment

NANAVATI, J.

( 1 ) LEAVE granted. Heard learned counsel for the parties.

( 2 ) THE appellants are working as Junior Engineers/overseers in the Punjab Overseers Service, Irrigation Branch, P. W. D. since about 1962. They hold diploma in engineering. For Junior Engineers/overseers the next post of promotion is the post of Assistant Engineer. In fact, the Assistant Engineers constitute Punjab Service of Engineers, Class II (Irrigation Branch ). The recruitment to the post of Assistant Engineer is governed by the Punjab Service of Engineers, Class II, (Irrigation Branch) Rules, 1941.

( 3 ) ON 20/08/1957 the Secretary to the Government of Punjab, P. W. D. (Irrigation Branch) issued a letter regarding recruitment to PSE Class II. It was stated therein that in view of large number of temporary engineers being in employment in irrigation branch due to heavy expansion of Bhakra Nangal and other projects, the Government has decided that till further orders no officer shall be appointed by direct recruitment to P. S. E. Class II and henceforth the same shall be filled by promotion from amongst temporary engineers and section officers and head draftsman in the ratio mentioned in the letter. Later on the said percentage was revised in Oct. 19 6/05/1972 and Feb. 1974 but it is not necessary to go into those details. Again by a notification dated 23/04/1992 the percentage was fixed as under :"i. DIRECT recruitment :temporary Engineers55 Per Centii. BY Promotioni) from Junior Engineers (Civil)20 Per Centii) from Junior Engineers (Mech.) 5 Per Centiii) from members of Drawing staff 6 Per Centiv) From A. M. I. E. , qualifiedjunior Engineers 11 Per Centdrawing Staff 3 Per Cent 14 Per Cent this notification was challenged by those Junior Engineers who are graduates in engineering by filing writ petitions in the Punjab and Haryana High Court on the ground that no promotion can be made of those Junior Engineers who do not have the requisite educational qualifications prescribed by Rule 3 and, therefore, no quota could have been legally fixed for their promotion. The Division Bench of the High Court agreeing with the reasoning of the single Judge of the High Court in R. C. Tondon v. State of Punjab, (1995) 6 Serv LR 307 held that the Junior Engineers who do not possess university degree or other qualifications prescribed in Appendix A to the Rules are not eligible for promotion under Rule 5 except in case where relaxation in that behalf is made by the Government in exercise of its power under the last proviso to Rule 5 read with Note 2 to Rule 3 of the Rules. Taking this view the High Court dismissed both the writ petitions.

( 4 ) MR. Tulsi, learned Senior counsel appearing for the appellants submitted that the High Court has not only overlooked the fact that if Junior Engineers, who do not possess graduate degree or an equivalent qualification is held ineligible for promotion then they will not have even one chance of promotion throughout their career but has also mis interpreted Rule 5. He submitted that the second proviso to Rule 5 which is in respect of promotion of temporary engineers, is an independent provision and keeping the object of the provision in mind it ought to have been held that for promotion of a temporary engineer to the post of Assistant Engineer the eligibility criteria is (1) he has been declared by the Commission on the report of the Chief Engineer to be fit for the service; (2) has held an appointment for not less than two years continuously before the date of entry into the service; (3) is not less than 26 years or more than 50 years of age on the first day of June, immediately preceding the date on which taken into the service and (4) in case of promotion of a member of the Overseers Engineering Service or Draftsmen Service unless he has passed both the departmental professional and revenue examinations of irrigation Branch. He also submitted that third or the last proviso to Rule 5 is again an independent provision