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2011 Supreme(All) 2480
[2011(9) ADJ 525 (DB)(LB)]
ALLAHABAD HIGH COURT
(Lucknow Bench)
RAJIV SHARMA AND DR. SATISH CHANDRA, JJ.
DIPLOMA ENGINEERS SANGH PWD AND OTHERS .....Petitioners
Versus
STATE OF U.P. AND OTHERS .....Opposite Parties
(Writ Petition Nos. 3314 (S/S) of 2009, 1212 (S/B) of 2009, 3422, 3173 (S/S) of 2008, 6943 (S/S) of 2007, 2018 (S/B) of 2009, 1511 (S/S), 342, 670 (S/B) of 2010, 5276, 3666, 4536, 3594, 7361, 3448, 3660 (S/S) of 2008, 7566, 2366 (S/S) of 2009, 7649 (S/S) of 2007, 679, 654, 447, 622 (S/B) of 2009, 676 (S/B) of 2010, 5799, 6017, 3506, 4151 (S/S) of 2008, 1698 (S/S), 918 (S/B) of 2009, 3578 (S/S) of 2008, 4459 (S/S) of 2009, 5880 (S/S) of 2008, 7702 (S/S), 252 (S/B) of 2009, 7232 (S/S) of 2007, decided on 8th September, 2011)
S.K. Kalia, Sameer Kalia, M.D. Singh Sekhar, C.B. Pandey, Dr. L.P. Misra, I.P. Singh, Deepak Srivastava, Vikas Budhwar, Rohit Tripathi, Arun Kumar Shukla, Rajeev Singh, S.K. Yadav Warsi, S.P. Singh, K.S. Pawar, Harshvardhan Singh and Ms. Madhumita Bose for the Petitioners; Prashant Chandra, Kapil Deo, J.N. Mathur (AAG), H.P. Srivastava, C.S.C., Rajnish Kumar, Siddharth Dhaon and Anupam Mehrotra for the Opposite Parties.
Headnote:(A) United Provinces Service of Engineers (Buildings and Road) Branch Class-II, Rules, 1936—Rules 5(iv) and 9(2)—U.P. Sub-ordinate Engineering Service Rules, 1951—Rules 3(g), 19 and 20—Promotion—Assistant Engineer—Diploma Holders Junior Engineer—Who passed AMIE examination (Part A and Part B) and B.E./B.Tech. Examination during service—No Junior Engineer could be promoted on the post of Assistant Engineer until or unless he passed the qualifying examination—Qualifying examination for promotion should be conducted in the month of October/November of every year and Junior Engineers having completed three years continuous service eligible for appearing in examination—Qualifying examination not conducted properly with due notice to all concerned—Therefore, qualifying examination have to be conducted against within a period of four months, so that all incumbents, who were eligible may appear in the examination and then candidates may be considered for promotion—Impugned order of Government and consequential orders for promotion and posting as Assistant Engineers of private respondents unsustainable—State Authorities directed to strictly act in accordance with the service Rules, relating to promotion on the post of Assistant Engineers. [Paras 37 to 35]
(B) Appointment—Substantive capacity—Becoming of a member of service—A person becomes a member of service when he is appointed in substantive capacity—For being substantively appointed, an incumbent has to be at least complete the period of probation and a person who is not substantively appointed cannot be a member of service. [Para 37]
Hon’ble Rajiv Sharma, J.—Heard Sri S. K. Kalia, Senior Advocate assisted by S/Sri Sameer Kalia, M.D. Singh Sekhar, Senior Advocate, C. B. Pandey, Dr. L.P. Misra, I.P.Singh, Deepak Srivatava, Vikas Budhwar, Rohit Tripathi, Arun Kumar Shukla, Rajeev Singh, S.K.Yadav Warsi, S.P.Singh, K. S. Pawar, Harshvardhan Singh, Ms.Madhumita Bose for the petitioners and S/Sri Prashant Chandra, Sri Kapil Deo, Senior Advocates, J. N. Mathur, Additional Advocate General assisted by Sri H. P. Srivastava, Additional Chief Standing Counsel, Siddarth Dhaon, Rajnish Kumar, Anupam Mehrotra etc. for the opposite parties.
2. The aforesaid bunch of writ petitions relates to promotion from the post of Junior Engineer to the post of Assistant Engineer in the Public Works Department. Promotion to the post of Assistant Engineer has long checkered history. In the past, the matter went upto Hon’ble Apex Court on a number of occasions and inspite of decisions rendered in the cases of Diploma Engineers’ Sangh, P.D. Agrawal and Anjani Kumar Misra, the matter could not be settled and now again the controversy relating to promotion has arisen.
3. In all these writ petitions, the dispute revolves amongst the Junior Engineers Degree Holders with Diploma holders (who subsequently obtained the degree) with regard to promotion on the vacancies pertaining to the year 1997-98 till selection year 2003-04.
4. Petitioners were appointed as Junior Engineers in the Public Works Department in the State of Uttar Pradesh in accordance with the United Provinces Service of Engineers (Buildings and Roads) Branch Class-II, Rules, 1936 (hereinafter called the ‘1936 Rules’). At the time of appointment, the petitioners were possessing only Diploma in Civil Engineering. However, it is stated that subsequently, the petitioners have also obtained Bachelors Degree in Civil Engineering.
5. Rule (iv) of the aforesaid 1936 Rules provides that for the post of Assistant Engineers, the recruitment can be made by direct recruitment as well as by promotion. As regard recruitment by promotion, Rule 5 (iv) specifically provides that the recruitment on the post of Assistant Engineer may be made by promotion from the members of United Provinces Subordinate Engineer Service or Upper Subordinates in the Public Works Department (Building and Roads Branch) which have shown exceptional merit. Further, Rule 9 (2) of the said Rules provides that for promotion under Rule 5 (iv) the qualifying examination has to be passed. Rule 9 (2) was amended vide United Provinces Service of Engineers (Buildings and Roads Branch) (Class-II) (Amendment) Rules, 1966 whereby under amended Rule, Rule 5 (iv) the incumbent should either pass qualifying examination or hold technical qualification as prescribed in Clause (I) of the Rules meaning thereby he may hold the Degree in Engineering. Rule 12 as amended by U.P. Service of Engineers (Buildings and Roads Branch) (Class-II) (Second Amendment) Rules, 1992 provided that recruitment by promotion to the post of Assistant Engineer shall be made on the basis of “seniority subject to the rejection of unfit” in accordance with U.P. promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time.
6. It has been urged that the department did not hold qualifying examination after the year 1970. Though initially no quota has been fixed for recruitment on the post of Assistant Engineers through promotion, but latter quota was fixed for recruitment on the post of Assistant Engineers through promotion and, therefore, the vacancies which were falling within the promotion quota were to be filled up only by way of promotion but the same could not be filled as the department did not hold qualifying examinations after the year 1970. The Rules referred to above, were subjected to various amendments and the department was helpless to cope up with the amended Rules for the purposes of making promotion on the post of Assistant Engineers and
