SHAILENDRA DANIA AND ORS. v. S.P. DUBEY AND ORS

Citation: [2007] 5 S.C.R. 190

Court: Supreme Court of India

Bench: B.N. AGRAWAL, P.P. NAOLEKAR, LOKESHWAR SINGH PANTA

Case summary

SHAILENDRA DANIA AND ORS. v. S.P. DUBEY AND ORS.pdf

Judgment text

SHAILENDRA DANIA AND ORS. v v. S. P. DUBEY AND ORS. APRIL 17, 2006 [B. N. AGRAWAL, P. P. NAOLEKARAND LOKESHWARSINGHPANTA,JJ. ] ,,, Service Law: Promotion-Service experience obtained prior to acquiring higher qualification-Counting of-For promotion from Junior Engineers to Assistant Engineers-Slum Wing Department ofDelhi Development Authority (DDA)- Degree-holder Junior Engineers vis-a-vis Diploma-holder Junior Engineers- Post ofJunior Engineers-The qualification prescribed was Diploma in C:'vil Engineering with two years· experience whereas no experience was prescribed for graduates in Civil Engineering-On 29. 9.

1990, a Memorandum was 'issued by the DDA which stipulated that a diploma-holder who had ~ / subsequently acquired a Degree in Engineering would be treated as a degreeholder for the purposes of promotion, irrespective of the date of acquiring graduate qualification-A Full Bench of the High Court held that the three years' experience gained by the diploma-holders as Junior Engineer had to be counted for promotion to the post ofAssistant Engineer, in the event they are duly qualified as degree-·holders-Correctness of-Held: It cannot be said that a diploma-holder who acquired a degree during the tenure of his service, has gained experience as a graduate Engineer just because he has acquired a Degree in Engineering-That would amount to saying that the -,;.

__ experience gained by him in his service as a diploma-holder is qualitatively the same as that ofthe experience ofa graduate Engineer-Service experience of a degree-holder Junior Engineer could not be equated to the service experience of a diploma-holder Junior Engineer nor could it be substituted for the service rendered as a degree-holder-Hence, Diploma-holder Junior Engineers would be required to complete three years' service on the post after having obtained a degree to become eligible for promotion to the .. ,. ,... _ higher post of Assistant Engineer. The appellants and respondents were employees of the Slum Wing SHAILENDRADANIA v. S. P. DUBEY 191 - 'v Department (SWD) which was a part of the Municipal Corporation of Delhi (MCD). SWD was transferred from MCD to Delhi Development Authority (DDA) in 1974 with the stipulation that its employees alone would be considered for confirmation and promotion against the posts in it.

In 1978, SWD was retransferred to MCD, but once again in 1980 it was transferred back to DDA with the stipulation that it would remain as a separate entity . and its emplo A. DDA, vide its Resolution, adopted Recruitment Rules of CPWD qua the posts of Junior Engineer, Assistant Engineer and Executive Engineer. The post of Junior Engineer was meant for 100% direct recruitment and the qualification prescribed was "Diploma-holders in Civil Engineering with two years' experience". However, there was no bar for persons possessing higher qualification, viz. , Degree in Engineering, for applying to the post of Junior Engineer and such persons were not required to have any prior experience for appointment to the cadre ofJunior Engineer in DDA. The next higher post was that of Assistant Engineer. The Rule provided filling up of 50% vacancies on the post of Assistant Engineer by those who acquired a Graduate Degree in Engineering by means of direct recruitment or by deputation.

The remaining 50% vacancies were to be filled up on promotional basis from the post of Junior Engineers. Out of50% of ) the promotional feeder cadre of Junior Engineers, one-half of such posts would be filled up by promotion of diploma-holders with eight years, qualifying ... ,. service and remaining 50% quota would be filled up from the Junior Engineers who were Graduate Engineering Degree-holders with thee years' qualifying service. Further promotion in the Engineering Branch was from the post of Assistant Engineer to the post of Executive Engineer. The minimum qualifying experience for promotion to the post of Executive Engineer for graduate Engineers was eight years' experience in the grade of Assistant Engineer, whereas for diploma-holders it was ten years' service in the grade ,. ;. ;of Assistant Engineer. The appellants were graduates with Engineering Degree and joined the Department of Junior Engineers as direct recruits.

In the year 1984, the Junior Engineers and the Assistant Engineers, who were diploma-holders, assailed the constitutional validity of the rules in the matter of requirement of differential service experience between the graduates and he diplomaholders for promotion to the higher cadres, viz. , Assistant Engineers and --r- Executive Engineers respectively before the High Court. Another writ petition was filed before the High Court challenging the resolution which allowed DDA to distinguish the diploma-holders and degree-holders in the matter of experience and promotion as Executive Engineers. The High Court allowed both the writ petitions and struck down the rule and the resolution. However, v- the judgment of the high Court was reversed by this Court in Roop Chand Adlakha's case.

In 1989, on of the respondents filed a writ petition challenging the note appended by the Departmental Promotion Committee (DPC) in 1971 to relax the rules in favour of the diploma-holders, who, while in service acquired degree qualification so that they could be considered for promotion to the post of Assistant Engineer. In 1990, the Slum Wing Graduate Engineers' Association filed a writ petition before the High Court and sought direction against the DDA to fill up the posts of Assistant Engineers belonging to the degree-holders' quota and claimed that the diploma-holders were much in excess of their quota. A Division Bench of the high Court directed the DDA to convene a DPC for each of the three years in order that promotion is made and a parity of 1:1 is maintained between the promotees. A DPC was held in which the appellants were considered on the basis of their seniority. In the meanwhile, on 20. 9.

1990, a Memorandum was issued by the DDA ( which stipulated that a diploma-holder who had subsequently acquired a Degree in Engineering would be treated as a degree-holder for the purposes ( of promotion, inrespective of the date of acquiring graduate qualification. However, by giving effect to the said Memorandum a fresh DPC was convened which changed the seniority list in favour of the respondents. The said Memorandum was quashed by the High Court. A Division Bench dismissed the appeal preferred by the diploma-holders. An Establishment Order was issued to promote the diploma-holders on current duty chare basis. A writ petition challenging the said order was allowed by the high Court. This Court dismissed the Special Leave Petitions in /imine challenging the aforesaid order of the High Court. Pursuant to the High Court directions the DDA issued a final seniority list of the Engineers. The appellants were promoted as Assistant Engineers on the recommendation of the DPC.

One ofthe respondents filed a writ petition for quashing of the above-mentioned seniority list. A Full Bench of the High Court held that the note issued by the DPC in 1971 was in violation of the statutory rules, that the DPC had no jurisdiction as the same had not been approved by the DDA and that the practice which was followed pursuant to Note of 1971 till 1982 was illegal and without jurisdiction. The Full Bench further held that the experience gained by the diploma-holders as Junior SHAILENDRA DANIA v. S. P. DUBEY 193 Engineer has to be counted for promotion to the post of Assistant Engineer, in the event they are duly qualified as degree-holders. Hence the appeals.

The following question arose before this Court:- Whether a diploma-holder Junior Engineer, who obtained a degree while in service, became eligible for promotion to the post of Assistant Engineer on completion of three years of service after he obtained the Engineering Degree or on completion of three years of service prior to obtaining the Degree in Engineering? Allowing the appeals, the Court HELD: 1. 1. Taking into consideration the entire scheme ofthe relevant rules, it is obvious that the diploma-holders would not be eligible for promotion to the post ofAssistant Engineer in their quota unless they have eight years' service, whereas the graduate Engineers would be required to have three years' service experience apart from their degree. Ifthe effect and intent ofthe rules were such to treat the diploma as equivalent to a degree for the purpose of • promotion to the higher post, then induction to the cadre ofJunior Engineers .

I ~ from two different channels would be required to be considered similar, without subjecting the diploma-holders to any further requirement of having a further qualification oftwo years' service. At the time of induction into the service to the post ofJunior Engineers, Degree in Engineering is a sufficient qualification without there being any prior experience, whereas diploma-holders should have two years' experienceapart from their diploma for their induction in the service. As per the service rules, on the post ofAssistant Engineer,50% oftotal vacancies would be filled up by direct recruitment, whereas for the promotion specific quota is prescribed for a graduate Junior Engineer and a diploma-holderJunior Engineer. When the quota is prescribed under the rules, the promotion of graduate Junior Engineers to the higher post is restricted to 25% quota fixed. So far as the diploma-holders are concerned, their promotion to the higher post is confined to 25%.

As an eligibility criterion, a degree is further qualified by three years' service for the Junior Engineers, whereas eight years' service is required for the diploma-holders. Degree with three years' service experience and diploma with eight years' service experience itself indicates qualitative difference in the service rendered as degree-holder Junior Engineer and diploma-holderJunior Engineer. Three years' service experience as a graduate Junior Engineer and eight years' service experience as a diploma-holderJunior Engineer, which is the eligibility criteria for promotion, is an indication of different quality ofservice rendered. (Para 40] (217-H; 218-A-E] Kimti Lal Kathuria v. Delhi Development Authority, (1988) Lab IC 434 Del, Roop Chand Ad/akha v. Delhi Development Authority, [1989) Supp. 1 SCC 116, R. K. Milla/ v. Union ofIndia, 45 [1991) DLT 589 (Del), Slwn Wing Delhi Development Authority Graduate Engineers' Association (Regd). v. D. D. A. , 46 [1992) DLT 486 (DB) and f.!.

Suresh Nathan v. Union ofIndia, (1992) Supp. 1SCC584, referred to. 1. 2. In the given case, it cannot be said that a diploma-holder who acquired a degree during the tenure of his service, has gained experience as graduate Engineer just because he has acquired a Degree in Engineering. That would amount to saying that the experience gained by him in his service as a diploma-holder is qualitatively the same as that of the experience of a graduate Engineer. The rule specifically made difference ofservice rendered as a graduate Junior Engineer and a diploma-holder Junior Engineer. Degree holder Engineer's experience cannot be substituted with diploma-holder's experience.

The distinction between the experience of degree-holders and diploma-holders is maintained under the rules in further promotion to the post of Executive Engineer also, wherein then' is no separate quota assigned to degree-holders or to diploma-holders and the promotion is to be made from :r the cadre of Assistant Engineers. (Para 40] (218-F-G] MB. Joshiv. Satish Kumar Pandey, [1993] Supp. 2 SCC 419, D. Stephen Joseph v. Union of India, (1997] 4 SCC 753 and Anil Kumar Gupta v. Municipal Corporation ofDelhi, [2000) 1 SCC 128, referred to. 2. 1. The rules provide for different service experience for degree-holders and diploma-holders. Degree-holder Assistant Engineers having eight years ofservice experience would be eligible for promotion to the post of Executive Engineer, whereas diploma-holder Assistant Engineers would be required have ten years' service experience on the post of Assistant Engineer to become eligible for promotion to the higher post.

This indicates that the rule itself makes di. f}erentia in the qualifying service of eight years for degree-holders and 10 years' service experience for diploma-holders. The rule itself makes qualitative difference in the service rendered on the same post. It is a clear indication of qualitative difference of the service on the same post by a graduate Engineer and a diploma-holder Engineer. (Para 40( [218-H; 219-A-B( 2. 2. Different period ofservice attached to qualification as an essential criterion for promotion is based on administrative interest in the service. SHAILENDRA DANIA v. S. P. DUBEY 195 - ' the seniority position. :::- 16. SWD was transferred to MCD on 1. 9. 1992 and hence the appellants moved an application before the High Court. The High Court passed an order on 21. 9. 1992 that in view of the transfer, the decision of the High Court dated 12. 2. 1992 would be implemented by MCD within three months from 21. 9. 1992. 17. One of the respondents herein S. P.

Dubey - through writ petition before the High Court of Delhi (W. P. No. 1664of1993), prayed for quashing the above-mentioned seniority list and sought for a direction that promotions ' to the post of Assistant Engineers be made on the basis of the seniority list issued by the authority in 1984 and 1987. Several other writ petitions were filed before the High Court of Delhi, which questioned the above-mentioned seniority list. S. P. Dubey and others through another writ petition before the High Court ofDelhi (W. P. No. 1923of1993) prayed for quashing the promotions to the post of Assistant Engineers made by MCD vide orders dated 22. 3. 1993. .. -. 'I. 18. On 12. 3. 2001, a Division Bench ofthe Delhi High Court vide its order referred Civil Writ Petition Nos. 591of1989, 1427 of 1989, 1664of1993 and 1923 o! ' 1993 along with some other petition·s for decision by a Bench ofthree Judges of the High Court in view ofthe fact that it felt that the earlier decision of the High Court dated 12.

2. 1992 in Slum Wing Delhi Development Authority ,. __ Graduate Engineers Association (Regd. ) & Ors. v. D. D. A. & Ors. , (supra}, which followed the decision of this Court in N. Suresh Nathan and Anr. v. Union of India and Ors. , (supra), required to be considered as N. Suresh Nathan's Case had not been subsequently followed by this Court in other cases like M. B. Joshi and Ors. v. Salish Kumar Pandey and Ors. , [1993] Supp. 2 SCC 419; D. Stephen Joseph v. Union ofIndia and Ors. , (1997] 4 SCC 753; Anil Kumar Gupta and Ors. v. Municipal Corporation of Delhi and Ors. , [2000] I SCC 128; and A. K. Raghumani Singh and Ors. v. Gopal Chandra Nath and Ors. , [2000] 4 SCC 30 as regards the applicability ofeligibility criteria in the Recruitment Rules for promotion to the post of the Assistant Engineer. 19. Accordingly, the matter was placed before the Full Bench of the Delhi High Court.

The present appeals by special leave have been filed before this Court against the interim and common order dated 25. 1. 2002 passed by the Full Bench of the Delhi High Court. The Full Bench of the Delhi High Court after consideration of the relevant decisions, the rule in question and the facts found from the record has recorded the findings that (i) it cannot be said that the DDA followed a consistent practice to the effect that experience for the purpose of promotion to the post of Assistant Engineer would be counted only after a candidate acquires a degree; and (ii) the Note which was issued by DPC in 1971 was in violation ofthe statutory rules dated 13. 11. 1963. It was observed that DPC had no requisite jurisdiction therefor, the same had not been approved by the DDA and such Note was ultra vires. Consequently, the appropriate practice which was followed pursuant to the Note of 1971 till 6. 12.

1982 was held to ie wholly illegal and without jurisdiction and thus in the eye of law to be non est. The issue of res judicata was decided in the light ofthe aforementioned findings. With reference to the Note issued by the DPC in 1971, it was observed that in a case where the fundamental right of a person, by reason of a wrong interpretation of statute would be taken away, which would render a decision nullity, cannot operate as res judicata. It was further said that a candidate in terms of Article 16 ofthe Constitution oflndia does not have a right to pro. notion, but he has the fundamental right to be considered therefor. Right to be considered in terms of Article 16 would embrace within its fold consideration in accordance with law and in a fair, just and equitable manner.

If a candidate is deprived of his right to be considered for promotion on misinterpretation a~d misconstruction of a statutory provision, the same in the aforementioned situation would attract the wrath of Article 16 and on that ground an earlier decision would not attract the .. --\ principle of res judicata. An unreasoned order at the thresholcl does not constitute a binding precedent nor would such an order operate as res judicata. As for the interpretation of the rule regarding the past service of the diploma-holders, the Court held that the diploma-holders and the degreeholders were at par. The educational qualification was to be considered for the purpose of eligibility alone. Once it is held that both the degree-holders and the diploma-holders had been performing the same type of functions, there cannot be any doubt whatsoever that their experience would be counted .... , for the purpose oftheir promotion irrespective oftheir educational qualification.

As and when diploma-holders acquire qualification, only then they become eligible for consideration in the degree-holders' quota. It was observed that it was idle to contend that any anomaly existed and the answer to the question referred to the Full Bench was in the following terms: I. Principle of res judicata in the instant case has no application; and, 2. The experience gained by diploma-holders as Junior Engineer has to be counted for promotion to the post of Assistant Engineer, in the event they are duly qualified as degree-holders; •• ~ and the matter was remitted back to the Division Bench for consideration of the cases in the light of the findings arrived at by the Full Bench. 20. In the present case, we are concerned with the rule relating to promotion from the post ofJunior Engineer to the post of Assistant Engineer. 21. It is urged by Shri Jawahar Lal Gupta and Dr.

Rajeev Dhavan, the learned senior counsel for the appellants, that under the promotion rule promotion to the post of Assistant Engineer two separate channels are -" provided for diploma-holders and degree-holders within their respective quota and there would be no violation of rules if requisite experiences required on the post of Junior Engineer as diploma-holder and degree-holder are treated differently and it would be open for the Government to lay down and treat different period of experience as qualitatively different for two classes for further promotion to the post of Assistant Engineer. le -J. 22. On the other hand, it is urged by Shri G. D. Gupta, the learned senior counsel for the respondents, that 50% of the promotion quota for degree- _,.

holders Junior Engineers is provided under the rules irrespective of the fact whether a person has joined the post of Junior Engineer as a degree-holder or a diploma-holder and, therefore, on correct interpretation of the rule the period of three years' experience required is inclusive ofthe period ofservice >- -· on the post prior to the acquisition of the degree qualification. The plain meaning of the words in the rule suggests only one inter:iretation that two qualifications, namely, Degree in Engineering and three years' service are disjunctive. Therefore, a Junior Engineer who obtains degree while in service, is required to satisfy only two requirements to become eligible for promotion to the post of Assistant Engineer, i. e. , a Junior Engineer should have Degree in Engineering or its equivalent qualification in addition to three years' service experience as Junior Engineer.

The rule refers to three years' service experience ,-on the post of Junior Engineer and not the experience as qualified degreeholder Junior Engineer. It is further urged that even otherwise for appointment to the post of Assistant Engineer by direct recruitment, the qualification required is Degree in Engineering without there being any requirement of experience, which shows that the degree-holder with no prior experience is considered competent to perform the duties attached to the post of Assistant Engineer. There can be no justification that for promotion to the post of Assistant Enginee.. a Junior Engineer must possess three years' service experience as Junior Engineer after obtaining Degree in Engineering. While construing the relevant rule, the Court has to take into Consideration the fact •,..

situation in the service and on due consideration of the facts the experience required for promotion could only mean the experience on the post of Junior Engineer and not after obtaining the degree for the purpose of promotion in the quota of degree-holders. 23. Large number of authorities are cited by learned counsel appearing for both sides raising various issues, viz. , whether a diploma-holder after ' obtaining a degree would be compulsorily shifted to the group of graduate Engineers giving a go-by to their claim for promotion to diploma-holders quota or they have a choice to select and continue with either of them. What should be tte seniority position of the diploma-holders after they have qualified as graduates, etc. We have refrained ourselves from expressing any opinion on these points and have confined ourselves to the specific issue raised before us and answered by the High Court in the impugned judgment. 24. In the matter of N. Suresh Nathan and Anr. v.

Union ofIndia and Ors. , (1992] Supp. I SCC 584, a three-Judge Bench was called upon to decide . ;-.. ; similar question as involved in the present case, namely, whether the three years' service experience for promotion for graduate Engineers would mean r. three years' service prior to obtaining the degree or three years' service after obtaining the degree. The relevant Rule 11 provided for recruitment by • - -..... ~. the grade ofJunior Engineers. Two categories were provided therein, vi:. , one of degree-holder Junior Engineers with three years' service in the grade and the other of diploma-holder Junior Engineers with six years' service in the grade, the provision being for 50% from each category. While interpreting the rule, this Court said that the entire scheme did indicate that the period of three years' service in the grade as a degree-holder and, therefore, that period of three years can commence only from the date of obtaining the degree and not earlier.

The service in the grade as a diploma-holder prior to obtaining the --; degree cannot be counted as service in the grade with a degree for the purpose of three years' ! >ervice as a degree-holder. The Court observed as follows: "4. In our opinion, this appeal has to be allowed. There is sμfficient material including the admission of respondents diploma-holders that the practice followed in the department for a long time was that in the case of diploma-holder Junior Engineers who obtained the degree during service, the period of three years' service in the grade for eligibility for promotion as degree-holders commenced from the date of obtaining the degree and the earlier period of service as diploma- ~ holders was not counted for this purpose. This earlier practice was clearly admi ted by the respondents diploma-holders in para 5 of their ' application made to the Tribunal at page 115 of the paper book.

This a_lso appears to be the view of the Union Pubiic Service Commission contained in their letter dated December 6, 1968 extracted at pages 99- 100 of the paper book in the counter-affidavit of respondents 1 to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined. " 25. From a reading of the aforesaid judgment, it is apparent that after construing the relevant rule the Court has found that the past practice followed in the Department is consistent with the interpretation provided to " ---j. the relevant rule by the Court. 26. The same question once again came before another two-Judge Bench of this Court in M. B.

Joshi and Ors. v. Satish Kumar Pandey and Ors. , [1993] Supp. 2 SCC 419. This time an interpretation was required with reference to a quota of I0% for the graduate Sub-Engineers completing eight years of -~ service. The relevant rule provided for Sub-Engineers to qualify for promotion to the post of Assistant Engineer and qualifying service provided was twelve years for diploma-holders and eight years for such Sub-Engineers who had obtained Degree of Graduation in the course of service. By an Executive Order, 50% ofthe quota was provided for direct recruits and the balance 50% quota by promotion was sub-divided prescribing 35% for diploma-holders completing twelve years of service, 5% for Draftsmen and Head Draftsmen completing twelve years ofservice and 10% for graduate Engineers completing reight years of service.

The Court was called upon to consider whether the period of eight years can only be counted from the date when the diplomaholder Sub-Engineers acquired the Degree of Engineering and not prior to the said date. The controversy arose between the parties is summarized in paragraph 5 of the judgment as under :- "The short controversy ansmg in these cases relates to the determination of seniority amongst the diploma-holder Sub-Engineers who acquired the degree of graduation in engineering during the period of service qualifying them for promotion in 8 years to the post of Assistant Engineer...... " • From the aforesaid, it is clear that the Court was considering the experience/ qualifying service of eight years and twelve years amongst the diploma- holder Sub-Engineers and not vis-a-vis the degree-holder Sub-Engineers.

The reduction of the qualifying service from twelve years to eight years simply accelerated the entitlement to promotion for the post of Assistant Engineer by Sub-Engineers from twelve years to eight years. The qualifying service which was required to be considered under the rule was that of diplomaholder Sub-Engineers. The qualifying service has no relation with the Degree JL... of Engineering and it is said by the judgment in N. Suresh Nathan's case (supra) that the rule does not contemplate any equivalence of any period of service with the qualification ofacquiring Degree ofGraduation in Engineering. 27. In paragraph 11 of the judgment, the Court discussed the ratio and held:- "A perusal of the above observations made by this Court clearly show that the respondents diploma-holders in that case had admitted . ;-- . the practice followed in that department for a long time and the case was mainly decided on the basis of past practice followed in that ... department for a long time.

It was clearly laid down in the above case that if the past practice is based on one of the possible constructions SHAILENDRADANIA v. S. P. DUBEY [P. P. NAOLEKAR, J. ] 209 - -, which can be made of the rules then upsetting the same now would not be appropriate. It was clearly said "it is in this perspective that the question raised has to be determined". It was also observed as already quoted above that the Tribunal was not justified in taking the contrary view and unsettling the settled practice in the department. That apart the scheme of the rules in N. Suresh Nathan case was entirely different from the scheme of the Rules before us.

The rule in that case prescribed for appointment by promotion of Section Officers --1 I Junior Engineers provided that 50 per cent quota shall be from Section Officers possessing a recognized degree in Civil Engineering or equivalent with three years' service in the grade failing which Sections Officers holding Diploma in Civil Engineering with six years' service in the grade. The aforesaid rule itself provided in explicit terms that Section Officers possessing a recognized Degree in Civil Engineering was made equivalent with three years' service in the grade. Thus, in the scheme of such rules the period of three years' service was rightly counted from the date of obtaining such degree. In the cases in hand before us, the scheme of the rules is entirely different". ~ '· In the above decision (i. e. MB. Joshi's case), the matter ofN. Suresh Nathan (supra) was distinguished mainly on the basis of past practice and the Court further held that the rule under consideration in N.

Suresh Nathan (supra) was entirely different from the scheme of the rule which the Court was considering in MB. Joshi (supra). We have carefully considered the case of N. Suresh Nathan and it is not correct to say that the decision rendered in that matter was based on past practice. The Court, in fact, has considered and interpreted the relevant service rules and then found that such an interpretation is fortified by the practice followed in that department. - '"' 28. Similar issue once again came before a two-Judge Bench of this Court in D. Stephen Joseph v. Union ofIndia and Others. , [1997] 4 SCC 753. The exact question was as follows :- "....... whether for promotion to the post of Assistant Engineer in the 50% promotion quota reserved for the person possessing degree in l- Electrical Engineering from a recognized University or an equivalent ,.

with three years' regular service in the grade of Junior Engineers in the Electricity Department, Government of Pondicherry, three years' experience as Junior Engineer in the grade is to be counted from the date of acquisition of the degree in Electrical Engineering or the ;,- length of service in the grade of Junior Engineers is to be reckoned if the incumbent at the time of promotion to the 50% quota also possesses degree in Electrical Engineering. " 29. The ambit of N. Suresh Nathan"s case (supra) is explained in D. Stephen Joseph (supra), wherein it is said in paragraph 5 that the State Government is labouring under a wrong impression as to the applicability of the past practice as indicated in N. Suresh Nathan's case. This Court, in the ysaid decision, has only indicated that the past practice should not be upset if such practice conforms to the rule for promotion and consistently followed for some time past. The rule has been interpreted in a particular manner and N.

Suresh Nathan's case only indicates that past practice must be referable to the applicability of the rule as interpreted by the Court's order in a particular manner consistently for some time and would lend support to the interpretation of the rule. The Court emp:iasized that any past practice de hors the rule cannot be taken into consideration as past practice consistently followed for long by interpreting the rule and N. Suresh Nathan's case was distinguished in the facts of that case and the language of the rule which came up for consideration. D. Stephen Joseph (supra) provides for promotion • • to 50% quota froni Junior Engineers possessing Degree in Electrical Engineering from a recognized university with three years' regular service in the grade of Junior Engineers. On the plain language of the rule, this Court has held that the requirement ofthe rule is three years' experience as Junior Engineer in the grade and not the acquisition of Degree in Electrical Engineering.

Thus, it cannot be said that in MB. Joshi and D. Stephen Joseph (supra) the Court . has taken a different view than what was taken by a 3-Judge Bench in N. Suresh Nathan's case. In N. Suresh Nathan's case, the Court has interpreted the rule which provides for a particular length of service in the feeder post as qualifying service completed with educational qualification to enable the candidates to be considered for promotion and, thus the experience so obtained in the service would necessarily mean the experience obtained after the requisite qualification was acquired. Thus, the decision turns on the language of the rule and has distinguished N. Suresh Nathan's case on that basis. 30. In Anil Kumar Gupta and Ors. v. Municipal Corporation ofDelhi .. ,_, and Ors. , [2000) 1SCC 128, the relevant rules which came up for consideration provided for essential qualification for appointment, viz. , (a) Degree in Civil ~ Engineering ; and (b) two years' professional experience.

The age was not to exceed 30 years (relaxable for government servants and MCD employees). The applications were received for appointment to the post of Assistant ·- ' Engineer (Civil) in the Engineering Department of MCD. The applications were received from the departmental candidates as well as others. The Selection Board of MCD had prescribed the norms for awarding marks. Sq "far as the experience part was concerned, break-up was : Upto two years experience - 'no marks'; 3 to 12 years' and above experience at the ra:te of 1/2 mark, i. e. , for I0 years - 5 marks; and Viva-voce - 15 marks. The·question for consideration was whether the pre-degree experience of the candidates can be taken into consideration for awarding the marks or whether the candidate's experience --1 gained after obtaining the degree is to be taken into consideration for awarding the marks.

In paragraph 20 of the judgment, the Court has said that the provision regarding experience speaks only of professional experience of two years and does not, in any manner, connect it with the degree qualification. Further, the Court has considered N. Suresh Nathan's case (supra) and said in para 22 that N. Suresh Nathan's case was based initially on the practice followed in the department over a long number of years when the rules were understood as full service of three years after obtaining the degree and on that basis it was held that the service was not to include the service while holding a diploma. In paragraph 23, the Court cautioned that any practice t which is de hors the rules can be no justification for the department to rely •. upon.

Such past practice must relate to the interpretation of the rule in particular manner and while interpreting the language of the notification, the Court held that two years' professional experience need not entirely be the experience obtained after obtaining the degree. Requirement is only degree and two years' professional experience and not the experience as degreeholder. We are afraid that the observation ofthe Court that N. Suresh Nathan's case was decided mainly on the past practice followed in the department, would not be a correct reading of N. Suresh Nathan's case. This case was essentially decided on the interpretation of the rule and the court found support to that interpretation from the past practice followed in the Department. Thus, it appears from this judgment that essentially N.

Suresh Nathan's case was not followed on the interpretation ofthe rule, which came in question for consideration before the Court and it was held that the professional experience required cannot be read to have any connection with the Degree in Civil Engineering and, therefore, the professional experience in service irrespective ,.. ..... of a Degree in Civil Engineering would be considered for allotting marks by the Selection Board. 31. A two-Judge Bench ofthis Court gave its considered opinion on the subject by means of interpretation ofthe word "with' that appeared before the . H stated requirement of given period of experience in A. K. Raghumani Singh and Ors. v. Gopa/ Chandra Nath and Ors. , [2000] 4 SCC 30.

The Court considered the rules called "The Manipur PWD/lrrigation and Food Control/ Public Health Engineering (Superintending Engineer (C)/Superintending Surveyor of Works) Recruitment Rules" wherein it is provided that the post of Superintending Engineer shall be filled up by promotion from Executive Engineer and Surveyor of Works possessing Degree in Civil/Mechanical Engineering or its equivalent from a recognised institution with six years' regular service in the grade. The contention was that six years' regular service in the grade as eligibility criteria should be after the educational qualification was obtained. The Court interpreted the rules and said that the rule prescribed the eligibility criteria to be a prescribed educational qualification and six years' experience as well. Giving a plain meaning to the phrase, it would not be justified in reading 'a qualification' into a conjunctive word and imply the word 'subsequent' after the word 'with'.

The Court was of the view that six years' regular service in the grade would not mean the service subsequent to obtaining the prescribed educational qualification. Para 9 of the judgment gives the Court's reasoning as follows :- "Even on a point of principle it would be unreasonable to distinguish between the nature of the regular service required, as if the service in the grade subsequent to the obtaining of the necessary educational qualification were qualitatively different from the service in the grade prior thereto. In fact no such case has been made out. " · The decision rendered by the Court is based on interpretation of the rule. 32. In Indian Airlines Ltd and Ors. v. S. Gopalakrishnan, [200 I] 2 SCC 362, a Division Bench of this Court had an occasion to consider the relevant Service Rules in the fact situation where the Indian Airlines Ltd. had invited applications for the post of Junior Operator. The respondent, who made an application for the said post, possessed an !

Tl certificate since 1994 and a Diploma in Mechanical Engineering. Under the relevant rule, the qualification prescribed was 'SSC or its equivalent with three years' Government-recognized diploma in Mechanical/Electrical/Automobile Engineering and having two years' experience in equipment operations or driving and possessing current heavy vehicle driving license' or ' SSC with ! TI certificate or equivalent in associated trades of mechanical/electrical/automobile courses and having five years' experience in equipment operating or driving and possessing current heavy vehicle driving license'. The Court said that when in addition to qualification, experience is prescribed, it would only mean acquiring experience after obtaining the necessary qualification and not before obtaining such qualification. In the - ' case of the respondent, he obtained the ! TI certificate in 1994 and, therefore, did not possess five years of experience as required under the relevant rule.

The experience required to be gained by a candidate of five years was held to be after obtaining the requisite qualification. 33. From a reading of the decisions rendered by this Court, one thing is clear to us that the decisions in N. Suresh Nathan, MB. Joshi, D. Stephen Joseph, Anil Kumar Gupta, A. K. Raghumani Singh and Indian Airlines Ltd. (supra), are based on the interpretation of the respective rules called in question, giving meaning to the words used in the context of the entire scheme governing service conditions and the facts involved in each case and it cannot be said that the decisions rendered by this Court after the decision ofN. Suresh Nathan's case, have taken a different view than what has been decided in N. Suresh Nathan's case.

Thus, we are required to decide the matter on the basis of the entire scheme of the rules, the facts and circumstances at the relevant time and the rules called in question before us, independently giving meaning to the words, the principle involved and the past practice, if any, which is in consonance with the interpretation given by us to the rule. Ifwe find that two views are possible after interpreting the rule, then the rule would be interpreted keeping with the practice followed in the Department for a long time and thus the practice practically acquired status of rule in the Department. 34.

The only question involved in these appeals and transferred cases can be stated thus : Whether a diploma-holder Junior Engineer, who obtains a degree while in service, becomes eligible for promotion to the post of Assistant Engineer on completion of three years of service after he obtained the Engineering Degree or on completion of three years of service prior to obtaining the Degree in Engineering. 35. The following table shows the effect and intent of the rules adopted under Resolution Nos. 574 and 105 dated 13. 11. 1963 and 16. 6. 1971 respectively. It also shows the inanner of initial recruitment to the cadre ofJunior Engineers: Executive Engineers ,..

(By promotion) - I Assistant Engineers Assistant Engineers (Degree)+ 8 years' (Diploma) + 10 years' service service Assistant Engineers Graduates and Diploma Holders r- [-- 50 per cent by 50 per cent by direct recruitment promotion 25 per cent 25 per cent Junior Engineers Junior Engineers (Degree) + 3 (Diploma) + 8 years' service years' service Junior Engineers ~ criterion of a certain educational qualification plus a particular quantum of service experience. Thus, as per the Court, the requirement for promotion is the educational qualification plus a particular quantum of service experience. The Court further observed that ifthe educational qualification by itself is the only criterion conferring eligibility for promotion, then the superimposition of further conditions such as a particular period of service, selectively, on the diploma-holders alone, to their disadvantage, might become discriminatory, but as it is the eligibility criteria it cannot be held as a discrimination.

The Court has made distinction between the service rendered as diploma-holder and graduate Engineer and thus has not found any discrimination in different period of experience provided for promotion for degree-holder and diplomaholder. Degree and a diploma with different period of service is held to be valid classification whereby a different period of service has been made eligibility criteria along with educational qualification for promotion to the higher post. ) --~ 40. Taking into consideration the entire scheme of the relevant rules, it is obvious that the diploma-holders would not be eligible for promotion to the post of Assistant Engineer in their quota unless they have eight years' service, whereas the graduate Engineers would be required to have three years' service experience apart from their degree. If the effect and intent of .. ,.

the rules were such to treat the diploma as equivalent to a degree for the purpose of promotion to the higher post, then induction to the cadre of Junior Engineers from two different channels would be required to be considered similar, without subjecting the diploma-holders to any further requirement of having a further qua! ification of two years' service. At the time of induction into the service to the post of Junior Engineers, Degree in Engineering is a sufficient qualification without there being any prior experience, whereas ,_. diploma-holders should have two years' experience apart from their diploma for their induction in the service. As per the service rules, on the post of Assistant Engineer, 50% of total vacancies would be filled up by direct recruitment, whereas for the promotion specific quota is prescribed for a graduate Junior Engineer and a diploma-holder Junior Engineer.

When the quota is prescribed under the rules, the promotion of graduate Junior Engineers to the higher post is restricted to 25% quota fixed. So far as the diplomaholders are concerned, their promotion to the higher post is confined to 25%. As an eligibility criterion, a degree is further qualified by three years' service for the Junior Engineers, whereas eight years' service is required for the diploma-holders. Degree with three years' service experience and diploma with eight years' service experience itself indicates qualitative difference in • • the service rendered as degree-holder Junior Engineer and diploma-holder Junior Engineer. Three years' service experience as a graduate Junior Engineer and eight years' service experience as a diploma-holder Junior Engineer, which is the eligibility criteria for promotion, is an indication of different quality of service rendered.

In the given case, can it be said that a diplomaholder who acquired a degree during the tenure of his service, has gained experience as an Engineer just because he has acquired a Degree in Engineering. That wc.. uld amount to say that the experience gained by him in his service as a diploma-holder is qualitatively the same as that of the experience of a graduate Engineer. The rule specifically made difference of service rendered as a graduate Junior Engineer and a diploma-holder Junior Engineer. Degree-holder Engineer's experience cannot be substituted with diploma-holder's experience. The distinction between the experience of degreeholders and diploma-holders is maintained under the rules in further promotion to the post of Executive Engineer also, wherein there is no separate quota assigned to degree-holders or to diploma-holders and the promotion is to be .. \" . ' made from the cadre of Assistant Engineers.

The rules provide for different service experience for degree-holders and diploma-holders. Degree-holder Assistant Engineers having eight years ofservice experience would be eligible for promotion to the post of Executive Engineer, whereas diploma-holder Assistant Engineers would be required to have ten years' service experience on the post of Assistant Engineer to become eligible for promotion to the higher post. This indicates that the rule itself makes dif! erentia in the qualifying service of eight years for degree-holders and 10 years' service experience for diploma-holders. The rule itself makes qualitative difference in the service rendered on the same post. It is a clear indication of qualitative difference of the service on the same post by a graduate Engineer and diploma-holder Engineer. It appears to us that different period of service attached to qualification as an essential criterion for promotion is based on administrative interest in the service.

Different period ofservice experience for degree-holder Junior Engineers and diploma-holder Junior Engineers for promotion to the higher post is conducive to the post manned by the Engineers. There can be no manner of doubt that higher technical knowledge would give better thrust to administrative efficiency and quality output. To carry out technical specialized job more efficiently, higher technical knowledge would be the requirement. Higher educational qualifications develop broader perspective and therefore service rendered on the same post by more qualifying person would be qualitatively different. 41. After having an overall consideration of the relevant rules, we are of the view that the service experience required for promotion from the post ..

of Junior Engineer to the post of Assistant Engineer by a degree-holder in the limited quota of degree-holder Junior Engineers cannot be equated with the service rendered as a diploma-holder nor can be substituted for service rendered as a degree-holder. When the claim is made from a fixed quota, the condition necessary for becoming eligible for promotion has to be complied with. The 25% specific quota is fixed for degree-holder Junior Engineers with the experience of three years. Thus, on a plain reading, the experience so required would be as a degree-holder Junior Engineer. 25% quota for promotion under the rule is assigned to degree-holder Junior Engineers with three years' experience, whereas for diploma-holder Junior Engineers eight years' experience is the requirement in their 25% quota. Educational qualification along with number ofyears ofservice was recognized as conferring eligibility for promotion in the respective quota fixed for graduates and diploma-holders.

There is watertight compartment for graduate Junior Engineer5 and diploma-l\'11der Junior Engineers. They are entitled for promotion in their respective qtfotas. Neither a diploma-holder Junior Engineer could claim promotion in the quota of degree-holders because he has completed three years of service nor can a degree-holder Junior Engineer make any claim for promotion quota fixed for [2007] 5 S. C. R. diploma-holder Junior Engineers. Fixation of different quota for promotion from different channels of degree-holders and diploma-holders itself indicates that service required for promotion is an essential eligibility criterion along with degree or diploma, which is service rendered as a degree-holder in the present case. The particular years of service being the cumulative requirement with certain educational qualification providing for promotional avenue within the specified quota, cannot be anything but the service rendered as a degreeholder and not as a diploma-holder.

The service experience as an eligibility criterion cannot be read to be any other thing because this quota is specifically made for the degree-holder Junior Engineers. 42. As a necessary corollary, we are of the view that the diploma-holder Junior Engineers who have obtained a Degree in Engineering during the tenure of service, would be required to complete three years' service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diplomaholder Junior Engineers for promotion to the post of Assistant Engineers. 43. For the above reasons, the appeals are allowed and the impugned judgment of the High Court is set aside. The writ petitions shall now be .... decided by the Division Bench of the High Court in accordance with law laid down herein.

The writ petitions which were transferred to, and registered as - Transferred Cases in, this Court, shall also be sent back to the High Court for their decision in accordance with law. v. s. s. Appeals allowed.