IMPORTANT POINTS
Rule making power under Proviso to Article 309 being Legislative in nature its constitutionality will have to be decided on touchstone of legislative competency.
Giving 10% quota out of direct recruits quota for accelerated promotion to JEs having degree does not curtail promotional quota of Diploma holder JEs.

JUDGMENT

SANJAY KISHAN KAUL, J.

Civil Appeal No.10194/2013

1. The dispute pertains to the Irrigation Department cadre of the Uttarakhand State, for promotion from the post of Junior Engineer (for short ‘JE’) to the post of Assistant Engineer (for short ‘AE’), with two groups of these JEs arrayed on opposite sides – one having the qualification of Diploma and the other having the qualification of Degree in Engineering. The promotion quota (the promotion quota is for AEs they are also being directly recruited) has carved out a provision for accelerated promotion to the extent of 7.33% for the JEs holding a more advanced qualification, of a Degree in Civil Engineering, with which the JEs holding a qualification of Diploma are aggrieved.

Facts:

2. On the State of Uttaranchal (now Uttarakhand) being carved out of the State of Uttar Pradesh, an emergent need was felt for appointing inter alia JEs in different departments of the State and thus, an advertisement was issued on 27.11.2001, inviting applications on behalf of the Public Works Department, Irrigation Department, Rural Engineering Service, Small Irrigation Department, Agriculture Department, District Village Development Agency and Panchayati Raj Department for the said purpose. The minimum qualification provided was for a Diploma in Civil/Electrical/Mechanical/Agriculture Engineering. We are, at present, concerned with the Irrigation Department, where 200 posts were advertised for. These posts were filled in by both, the Diploma-holders and the Degree-holders.

3. In order to govern the service conditions of the Engineers in the Irrigation Department, the Uttaranchal Service of Engineers (Irrigation Department) (Group ‘B’) Rules, 2003 (hereinafter referred to as the ‘said Rules’) were notified on 18.2.2003 by the State Government, exercising power under Article 309 of the Constitution of India (hereinafter referred to as ‘the Constitution’). The said Rules provided for recruitment to the next higher post, inter alia to the post of AE (Civil), through the process of 50% by promotion from the JEs and the balance 50% through direct recruitment for which the qualification was, inter alia, a Degree in Engineering. In this 50% by promotion, there was a further break up provided, i.e., 40% was to be through the normal route, on the basis of seniority, subject to rejection of unfit and the remaining 10% of the promotion quota was given to accelerated promotion. Out of this 10% accelerated promotions, 2.67% was meant for certain categories, with which we are not concerned, while 7.33% was meant for JEs (Civil) holding a Degree in Civil Engineering with three (3) years’ service, whereas normal promotion required a minimum service of ten (10) years. An amendment was brought into force on 4.12.2004, which sought to change the ratio of the appointment to the post of inter alia AE (Civil), thereby reducing the direct recruitment quota to 40% and increasing the promotion quota to 60%. The result was that the normal promotion quota was made 50% and the additional 10%, in a sense, was meant for accelerated promotion, as in any case the educational qualifications for direct recruitment was a Degree in Civil Engineering and the accelerated promotion was based on a Degree in Civil Engineering as well. 50% quota for normal promotion was, thus, incorporated instead of the earlier 40%.

4. The effect of this was that persons who were holding a Degree in Engineering were entitled to be considered for promotion as AEs with only three (3) years’ service, as against the requirement of ten (10) years’ service under normal promotion, but this accelerated promotion was confined to 7.33%.

5. We have already stated that the effect of reduction in the direct recruitment quota, from 50% to 40%, effectively meant that the 10% reduction in quota of direct recruitment, for which a Degree is the essential qualification, was allotted to accelerated promotion, so as to ensure that the normal promotion quota withou