By the Court.—Heard Sri K.N. Tripathi, Senior Advocate assisted by Sri Rajeev Mishra, learned Counsel on behalf of petitioners, learned Standing Counsel on behalf of respondent Nos. 1 and 2, Sri M.A. Quadeer, learned Counsel on behalf of respondent No. 3 and Sri M.D. Singh ‘Shekhar’, Senior Advocate assisted by Sri Vikash Budhwar, learned Counsel on behalf of respondent Nos. 4 to 8.

2. Petitioners have to their credit a diploma in Engineering and also have a degree in the subject concerned. Petitioners were selected by the U.P. Public Service Commission and were appointed as Junior Engineers in the Minor Irrigation Department of the State of Uttar Pradesh on 1st February, 2000. The appointment so offered to the petitioners is stated to be substantive in nature.

3. In accordance with the provisions of Uttar Pradesh Abhiyantran Sewa (Laghu Sinchai Vibhag) Niyamawali, 1991 (hereinafter referred to as the ‘Niyamawali, 1991’), appointment on the post of Assistant Engineer is to be made from following sources :

(a) 67% by direct recruitment

(b) 25% by promotion from amongst substantively appointed Junior Engineers (Minor Irrigation), and

(c) 8% by promotion from amongst substantively appointed Junior Engineers, who possess degree in Civil Mechanical or Agricultural Engineering or a degree recognised as equivalent thereto.

4. Petitioners, by means of present petition, have prayed for a writ of mandamus commanding the State-respondents to forward their names in the eligibility list to the U.P. Public Service Commission for promotion on the post of Assistant Engineer in accordance with the Niyamawali, 1991 and further to restrain the respondents from making any promotion on the strength of the eligibility list already sent by the department for the purpose to the U.P. Public Service Commission.

5. The grievance raised before this Court is confined to the issue as to whether the Junior Engineers referred to in Rule 5 (1)(ii)(b) of Niyamawali, 1991, would include the Junior Engineers, who at the time of appointment possessed a degree in Engineering only or not in the subject concerned.

6. According to the petitioners, if a person was not possessed of a diploma in the subject concerned at the time of induction into service as Junior Engineer, stands excluded from consideration for promotion on the post of Assistant Engineer in terms of Rule 5 (1)(ii)(b) i.e. 8% promotion for the purpose and the reason furnished for such contention before us is that for substantive appointment on the post of Junior Engineer, the minimum essential qualification prescribed was a diploma in the subject concerned. Such candidates, who had a diploma, alone are to be treated as substantively appointed Junior Engineers and it is such appointees alone, who have a degree in the subject concerned (obtained either prior to induction into service or thereafter) are to be considered for promotion under Rule 5 (1)(ii)(b) of Niyamawali, 1991. Therefore, Rule 5(1)(ii)(b) of Niyamawali, 1991 excludes from its consideration, persons, who are not possessed of a diploma in the subject concerned and have only a degree of Engineering in the subject concerned at the time of induction into service.

7. On behalf of State as well as private respondents, in reply it is contended that Rule-5 (1) (ii) (b) talks of no such distinction as has been suggested by the learned Counsel for the petitioners and any degree holder working on substantive basis as Junior Engineer in the Minor Irrigation Department is entitled to be considered for promotion against the feeding cadre contemplated under Rule 5 (1) (ii) (b) of Niyamawali, 1991, irrespective of the fact that where he has a diploma in the subject concerned in addition to his degree or not.

8. After having heard learned Counsel for the parties and after having examined the records, the issue up for consideration is as to who would constitute the feeding cadre for promotion against 8% quota provided for promotion on the post of Assistant Eng