Courts cannot direct rule-making authority to amend rules or issue clarificatory orders, as it is a legislative function; ambiguity in promotion eligibility rules to be resolved by executive.

JUDGMENT :

Manoj Kumar Tiwari, J.

1. Petitioner filed Claim Petition No. 40/D.B./2020 before Uttarakhand Public Services Tribunal, challenging rejection of his representation by Chief General Manager, Uttarakhand Jal Sansthan, vide order dated 03.07.2020, whereby petitioner’s claim for promotion to the post of Assistant Engineer against 7.33% posts reserved for degree-holder Junior Engineer/Additional Assistant Engineer, was rejected.

2. The reason assigned for rejecting petitioner’s representation was that petitioner obtained B.Tech Degree before his appointment as Junior Engineer, while as per the Rules, Junior Engineers, who obtained B.Tech Degree with prior permission of Jal Sansthan alone are eligible for promotion against the posts earmarked for degree-holder candidates.

3. It was further observed in the rejection order that petitioner appeared in the examination held by N.I.T. Jalandhar (Punjab) for validating B.Tech Degree, obtained by him through distance mode, between 03.06.2018 to 06.06.2018; however, he did not obtain prior permission of Jal Sansthan for appearing in that examination also.

4. The Claim Petition No. 40/D.B./2020 filed by petitioner was disposed of with a direction to Secretary, Payjal, Govt. of Uttarakhand to get a clarificatory order or amendment to the Rules issued within two months.

5. Before the Tribunal, it was argued on behalf of respondents that separate quota of promotion to the post of Assistant Engineer is provided in the Rules to incentivize Junior Engineers to upgrade their qualification after their appointment; candidates with Diploma in Engineering alone are to be appointed as Junior Engineer, who with a view to avail the benefit of accelerated promotion, would acquire Bachelor’s degree in Engineering, and in the process, their efficiency/skill would improve which would be in public interest; 7.33% promotion quota is meant for persons who were appointed as Junior Engineer on the strength of Diploma qualification and it is not meant for persons who had B.Tech Degree at the time of appointment as Junior Engineer, as is apparent from Rule 6(3)(c) of applicable Rules which provides that anyone who obtained B.Tech Degree with the prior permission of Jal Sansthan alone would be eligible for promotion against 7.33% posts.

6. Learned Tribunal came to the conclusion that there is some ambiguity in the Rules and the expression “with the prior approval of Jal Sansthan” cannot be overstretched to exclude persons who were having Bachelor’s Degree in Engineering at the time of their appointment as Junior Engineer.

7. Learned Tribunal further came to the conclusion that reading of Rule 6(3)(c) does not include persons who had Bachelor’s degree at the time of appointment as Junior Engineer within its fold in order to claim promotion under 7.33% quota.

8. It was further observed by learned Tribunal that intention of the rule maker appears to give accelerated promotion to persons with higher qualification, as such it would be immaterial whether such higher qualification was obtained before or after appointment as Junior Engineer. In that background, learned Tribunal directed the Secretary, Payjal to remove the ambiguity in the rules by issuing clarificatory order or by amending the rules.

9. Rule 6(3) of the Rules, as notified on 02.12.2011 is extracted below:

“(3) Assistant Engineer- Recruitment to the posts of Assistant Engineer shall be made from following sources -

(a) 45% posts by direct recruitment through the Public Services Commission;

(b) 50% posts by promotion on the basis of seniority subject to