R.C Tandon v. State Of Punjab .

V.K Bali, J.:— In these two connected petitions bearing C.W.P Nos. 15151 of 1992 (R.C Tandon v. State of Punjab) and C.W.P No. 3105 of 1987 (Kuldip Rai Ahluwalia v. The Punjab State), the order dated 23.4.1992 Annexure P-4 has been challenged. The order in terms relates to the grant of 14% quota to the employees possessing the qualification of A.M.I.E Consequential order dated 27.4.1992 Annexure P-5 issued by the Punjab State addressed to the Chief Engineer (Canal), Irrigation Works, Punjab asking the latter to send the names of 40 eligible employees possessing the qualifications of A.M.I.E has also been challenged.

2. The facts, as extracted from the C.W.P No. 15151 of 1992, reveal that the petitioners were appointed as Junior Engineers on the dates mentioned in para 2 of the petition. Their next avenue of promotion is to the post of S.D.O They are governed by the rules known as The Punjab Service of Engineers Class II (Public Works Department, Irrigation Branch) Rules, 1941. Rules 3, 4 and 5 of the aforesaid rules provide the method of recruitment and promotion to the higher post and inasmuch as the controversy involved in the present petition is based upon rules 3, 4 and 5 the same are thus need immediate notice:

“3. No person shall be appointed to the service unless he:

(a)(i) is a British subject as defined in Scction I of the British Nationality and Status of Aliens Act, 1941 is domiciled in the Punjab or Delhi. The condition regarding a Punjab or Delhi domicile may be waived in the case of a European or Anglo-Indian candidate if it is satisfactorily proved that such candidate was born of parents habitually resident of India and not established therefore temporary purpose only; or

(ii) is a person who is eligible under the provisions of Section 362 of the Government of Punjab or promotion from the Overseer Engineering Service Irrigation Branch, Punjab Provincial Draftsmen and Tracers Service Rules, Temporary Engineer, taken into the service.

(c) Officers directly appointed by Government Note:— Direct appointment means that only persons not already in pensionable service under Government are eligible for consideration under this category.

5. Appointment to the service. Govt. may make appointment to the service from the classes mentioned in Rule 4, provided that no person shall be appointed unless he possesses the qualifications specified in Rule 3, and provided further, that no temporary engineer shall be taken into and no member of the Overseers Engineering Service unless he has been declared by the Commission on the report of the Chief Engineer to be fit for the service, is serving in the Department and has held an appointment for not less than 2 years continuously before the date of entry into the service and is not less than 26 years or more than 50 years of age on the first day of the date on which taken into the service and is a member of the Overseer Engineering Service of D/Man Service unless he has passed both the Departmental Professional and Revenue Examination of Irrigation Branch:

Provided that this rule may be relaxed by Government on the recomendations of Chief Engineers in order to admit the promotion of member of the Overseer Engineering Service, of Irrigation Branch, Punjab Irrigation Branch (Provincial D/Man and Tracers) Service of Outstanding merit, who may not possess the qualifications specified in Rule 3.”

3. It is pleaded that since the Rules quoted above provide no quota to A.M.I.E, a joint seniority list of employees was circulated by the respondents. Extract copy of the said seniority list has been annexed as Annexure P-1 with the petition. On 23.12.1991, j the Chief Engineer (Canals), Department of Irrigation Works, Punjab (respondent No. 2) circulated a seniority list of the Junior Engineers possessing the A.M.I.E qualification. All the petitioners, it is further pleaded are eligibly for promotion to the post of S.D.O and being eligible, they were expecting promotion to the next higher post but to their surprise, they came across a letter dated 23.4.1992 whereby the respondents provided 14% quota to the Junior Engineers who were having A.M.I.E qualification. In pursuance of the order letter P-4, the Government addressed a letter to respondent No. 2 for sending a list of 40 eligible employees having A.M.I.E qualification for the purpose of promoting them against 14% quota. As mentioned above, this letter Annexure P-5 is in consequence of letter/order Annexure P-4 which has been challenged in this petition. Before filing the present writ petition, petitioner No. 1 had made a representation on 10.6.1992 but no action was taken in the matter. According to the learned counsel for the petitioners, the letter Annexures P-4 and P-5 which provide for 14% quota to the A.M.I.E qualifying Junior Engineers is contrary to the rules which provide method of recruitment as well as promotion, as no quota to the Junior Engineer holding A.M.I.E degree has been provided under the rules.

4. It is also argued that providing 14% quota to those who have degree of A.M.I.E would result into discrimination against the petitioners who are deploma holders. Both the sets of employees are discharging the same kind of duties and for that precise reason, a joint seniority list has also been prepared. Undue favour given to the Junior Engineers holding A.M.I.E degree without there being any distinguishing features, is thus, stated to be discriminatory and, therefore, violative of Article 14 of the Constitution.

5. The cause of the petitioners has been opposed and in the written statement filed on behalf of the respondents, it has been pleaded by way of preliminary objection that as per Rule 5 of the Rules of 1941, only those Junior Engineers are to be considered fit for promotion who are not less than 26 years and more than 50 years of age on the 1st day of June immediately preceding the date on which they were taken into service. The petitioners are above 50 years of age and cannot be considered for promotion. There are other preliminary objections as well-but the same need no consideration as this is the only preliminary objection which has been pressed at the time of the arguments.

6. On merits, the case of the respondents is that in accordance with the rules of 1941, the appointment to the service is to be made from the classes mentioned in Rule i.e from the existing members of the service, officers transferred or promoted from another State Service, whether in the same or another State, or promoted from the Overseas Engineer Service, Irrigation Branch, Punjab or promotion from the Overseer Engineering Service, Irrigation Branch, Punjab Provincial Draftsmen and Tracers Service Rules, Temporary Engineers, as also the officers directly appointed by the Government. The percentage of quota fixed vide letter dated 23.4.1992, it is pleaded is supplementary in nature and has been issued by the authorities to determine the due share of the classes enumerated in Rule 4 of P.S.E Class II Rules, 1941 for their appointment to P.S.E Class-II posts. As such, the point raised regarding joint seniority-list is not relevant. The petitioners are to be considered against the percentage quota fixed for Junior Engineers subject to the fulfilment of other conditions. Similarly, the Junior Engineers having A.M.I.E degree are to be considered from the quota of 14% fixed for them. As such the petitioners cannot claim similarity with the A.M.I.E qualified Junior Engineers as different quota is fixed for each category. It is also the case of the respondents that the percentage quota fixed for appointment to P.S.E Class-II is an executive action to supplement the statutory Rules of 1941. Since the percentage of posts to be shared by various categories enumerated in Rule 4 was not precribed in the Service Rule ibid, the Government was fully justified and competent to lay down the percentage keeping in view the administrative and technical requirements of the Department and to avoid any sort of confusion. The A.M.I.E qualified persons who are equivalent to Degree-Holders and are more qualified than the ordinary Diploma-Holders and who are eligible for ??? under Rule 5 from a class in themselves and the quota fixed for promotion from amongst them is in the interest of justice.

7. The sole contention of the learned counsel for the petitioners is that once those who are holding diploma like the petitioners and the others who are holding the degree of A.M.I.E have been inducted into one Service known as Overseer Engineering Service, Irrigation Branch, Punjab and they constitute one single category having a common seniority list, the prescription of a separate quota for those who hold the A.M.I.E degree, who may, in some cases, be even junior to those who are diploma-holders, would be discriminatory, thus offending Article 14 of the Constitution of India. The aforesaid contention of the learned counsel for the petitioners, in the context of the relevant rules, however, in the considered view of this Court, has no substance. It is made out from sub-clause (c) to Rule 3(i) of the 1941 Rule: that no person can be appointed to the service, i.e P.S.E Class-II Servia unless he possesses one of the degrees or other qualifications prescribed ii Appendix-A to the rules. It is only by virtue of the Note to Appendix-A tha even a non-degree-holder can be promoted to Class-II from the member: constituting Overseer Engineering Service by waiving the condition of degree as provided in Rule 3(i)(c) of the rules of 1941. It is, thus, apparent that diploma-holder is not entitled to promotion as a matter of right. It is only ii he is of outstanding merit, as mentioned in proviso to rule 5 that he can be promoted and that too, by waiving the essential qualifications of holding degree as provided in Rule 3(i)(c) of 1941 Rules. A person with qualificatior of A.M.I.E is admittedly a degree-holder. He cannot be said to be constituting the same category so as to be equated with diploma-holders ever though the two sets of employees may be having a common seniority-list and be in the same class of service. A degree-holder is entitled to go to a highei class of service as a matter of right, whereas a diploma-holder has not on!) to be a person of outstanding merit, but in his case, the essential qualification for promotion has also be waived. It is true that Supreme Court in Punjab State Electricity Board v. Ravinder Kumar Sharma, 1986 (4) S.C 617 : [1986 (3) SLR 778 (SC)] held the rule, providing quota for diploma-holders to be bad, but the observations made in the aforesaid judgment were not approved by Supreme Court in another case P. Murugesan v. State of Tamil Nadu, J.T 1993 (2) S.C 115 : [1993 (1) SLR 830 (SC)]. The Supreme Court in the aforesaid matter, held as under:—

“The learned counsel for the respondent relied upon the decision in Punjab State Electricity Board v. Ravinder Kumar Sharma, a decision rendered by a Bench comprising of A.P Sen and B.C Ray, JJ. The category of linemen in the service of the Punjab State Electricity Board comprised both diploma-holders and others who may be referred to as non-diploma holders. They constitute one single category having a common seniority list. By means of the Rules issued under the proviso to Article 309, a quota was prescribed for diploma-holders the result of which was that diploma-holders who were far junior to the non-diploma-holders were promoted ignoring the non-diploma-holders. The rule was held to be bad by the learned Subordinate Judge, Patiala. On appeal, the Additional District Judge, Patiala affirmed the judgment. It was affirmed by the High Court as well. The matter was brought to this Court. This Court affirmed the judgment of the High Court. A perusal of the judgment shows that the attention of the Bench was not drawn either to T.N Khosa or to other decisions. Reference was made only to the observations in Shujat Ali quoted hereinbefore and it was held that the distinction made between the diploma-holders and non-diploma-holders was discriminatory and bad. Apart from the distinction on facts between that case and the case before us, it is evident that non-consideration of the T.N Khosa and other decisions relevant under the subject had led to the laying down of a proposition which seems to run counter to T.N Khosa. With great respect to the learned Judges who decided that case, we are unable to accept the bread proposition following from the case.”

8. The reliance of the learned counsel on another judgment of the Hon'ble Supreme Court in Mohammad Shujat Ali v. Union of India, (1975) 3 SCC 76 : A.I.R 1974 S.C 1631 : [1974 SLWR 557 (SC)] is also misplaced. The facts of the aforesaid case reveal that both the graduates and non-graduates were regarded fit and, therefore, eligible for promotion. It is in this context that the Hon'ble Supreme Court observed as follows:—

“A rule of promotion which while conceding that non-graduates Supervisors are also fit to be promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion graduate Supervisors as against non-graduate Supervisors would clearly be calculated to destroy the guarantee of equal opportunity. But even so, we do not think we can be persuaded to strike down the Andhra Pradesh Rules insofar as they made differentiation between graduate and non-graduate Supervisors. This differentiation is not something brought about for the first time by the Andhra Pradesh Rules. It has always been therein the Engineering Service of the Hyderabad and the Andhra States. The graduate Supervisors have always been treated as a distinct and separate class from non-graduate Supervisors both under the Hyderabad Rules as well as the Andhra Rules and they have never been integrated into one class. Under the Hyderabad Rules, the pay scale of graduate Supervisors was Rs. 176-300, while that of non-graduate Supervisors was Rs. 140-300 and similarly, under the Andhra Rules, that of non-graduate Supervisors was Rs. 100-250, but graduate Supervisors were started in this pay scale at the stage of Rs. 150/- because their pay scale was Rs. 150-250. graduate Supervisors and non-graduate Supervisors were also treated differently for the purpose of promotion under both sets of Rules. In fact, under the Andhra Rules a different nomenclature of Junior Engineers was given to graduate Supervisors. The same differentiation into two classes also persisted in the reorganised State of Andhra Pradesh. The pay-scale of Junior Engineers was always different from that of non-graduate Supervisors and for the purpose of promotion, the two categories of Supervisors were kept distinct and apart under the Andhra Rules even after the appointed day. The common gradation list of supervisors finally approved by the Government of India also consisted of two parts, one part relating to Junior Engineers and the other part relating to non-graduate Supervisors. The two categories of Supervisors were thus never fused into one class and no question of unconstitutional discrimination could arise by reason of differential treatment being given to them. Contention E cannot therefore, prevail and must be rejected.”

9. As observed earlier, the non-degree-holders are ineligible for promotion to P.S.E Class II Service, as provided in rule 3(i)(c) of the 1941 Rules. It is only by relaxing the qualification in individual cases and that also, where the diploma-holders are found to be persons of exceptional merit that they can be promoted.

10. Prior the inssuance of the impugned order Annexure P-4, the matter with regard to direct recruitment and promotion to Class-II Service was governed by the instructions/order as contained in Annexure R-1 dated 4/5th May, 1972. The Government had decided to fix the following percentage for promotion to the P.S.E Class-II:—

1. Direct recruitment from TEs. 65%

2. By promotion from members of Overseer Engineering Service (Civil and Mech.) 22%

(18% Civil & 4% Mech.)

3. By promotion from Circle Head Draftsmen belonging to Draftsman and Tracers Service Class-III P.W.D (I.B) 5%

11. By promotion from members of Overseers Engineering Service and Draftsmen and Tracers Service Class III (P.W.D.I.B) 8% possessing qualification of A.M.I.E or its equivalent.

12. It is only in supersession of Annexure R-1 that the order/letter Annexure P-4 impugned in the present writ came into being and the Government vide aforesaid letter, decided to fix the following percentage from various sources, namely:—

I. Direct Recruitment. Temporary II. By Promotion 55% (i) from Junior Engineers (Civil) 20% (ii) from Junior Engineers (Mech.) 5% (iii) from Members of Drawing Staff 6% (iv) from A.M.I.E qualified: Junior Engineers 11% Drawing Staff 3%

13. It is thus, apparent that the quota for direct recruitment was not fixed by the rules and the same was done by various letters/instructions issued from tune to time. The quota of direct recruitments vide Annexure P-4, has certainly been reduced to 55, as is clear from Annexure R-1, which was 65% earlier. It is not understandable as to how the quota of promotees who were basically in-eligible for promotion, and who, for their promotion, had necessarily, to obtain an order waiving the conditions of qualifications, was fixed. The rules clearly debar such persons of promotion to next higher post, and only in individual cases, the order waiving the qualification could be passed. The prescription of percentage, it seems is not permissible. However, I do not wish to express any final opinion on the mattter as the challenge in the present petition is of providing quota for those who have obtained the qualification of A.M.I.E The observation is made only with a view to demonstrate that there is no force in the plea of the petitioners that a separate quota for A.M.I.E persons could not be provided.

14. In view of the fact that there is no merit in the contentions raised on behalf of the petitioners, I am not inclined to deal with the preliminary objections raised by the respondents. The petitioners, who are only diploma-holders, cannot ask for their equation on all counts with those who have A.M.I.E qualifications. There is a basic distinction between the two, i.e whereas a diploma-holder under the rules is in-eligible for promotion till such time, the qualifications in his case are waived and that too, if he is of exceptional merit, a person holding the degree of A.M.I.E is entitled to promotion as a matter of right. The prescription of quota was always governed through instruction and a change thereof through alone cannot be termed to be illegal.

15. Finding no merit in the petition, I dismiss the same, leaving the parties however, to bear their own costs.

16. Petition dismissed.