ORDER
Hon'ble Mr. Tarun Shridhar, Member (A)
In all these O.A(s)., the applicants are challenging the same vacancy advertisement. The applicants are similarly placed and seek identical reliefs; the grounds and the issues flagged in the O.A(s) too are common and quite similar. Accordingly, with the request and consent of all the learned counsel, all the O.A(s) are being taken up together for disposal. However, the facts as contained in only O.A. No. 1741/2022 are being discussed.
2. The applicants who hold a degree in engineering are aspirants for the post of Junior Engineer (JE) in Delhi Development Authority (DDA). However, the advertisement inviting applications for the said post bars such candidates who possess Degree in Engineering until and unless they possess the Diploma too.
3. Aggrieved by such a condition stipulated in the advertisement, they seek the following reliefs by virtue of the present O.A. :
(a) Issue an appropriate Writ, Order or direction quashing the Note in the Advertisement No. 03/2022/Rectt.Cell/Pers./DDA dated 11.06.2022 issued by the Respondent to the extent that the impugned
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Advertisement permits only those candidates who are in possession of Diploma in Civil Engineering/Diploma in Electrical/Mechanical Engineering or equivalent qualification to apply for the post of Junior Engineer (Civil) and Junior Engineer (Electrical/Mechanical) while excluding candidates who are in possession of a Degree in Civil Engineering or Degree in Electrical, Mechanical Engineering from applying for the said posts of Junior Engineer.
(b) Issue an appropriate Writ, Order or direction directing the
Respondent to adhere and implement the Delhi Development Authority (Junior Engineer) Recruitment Rules, 2018 read with Recruitment Regulations of Assistant Engineer (Civil) and Assistant Engineer (Electrical), Delhi Development Authority, 2005 to consider and uphold the candidature of the degree holders/Petitioners under the Advertisement No. 03/2022/Rectt. Cell/Pers./DDA dated 11.06.2022 issued by the Respondent for the post of Joint Engineer (Civil), Joint Engineer (Electrical), Joint Engineer (Mechanical) in the Respondent.
(c) Pass such other orders as may be deemed fair and equitable in the facts of the case and in the interests of justice.
4. Vide advertisement dated 11.06.2022, the respondent has invited applications for various posts which include Junior Engineer (Civil), Junior Engineer (Electrical/Mechanical). The qualifications for the post of Junior Engineer (JE) is mentioned as "Diploma in
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Civil/Electrical/Mechanical Engineering from a recognized institution or equivalent"; however, there is a note placed below the table detailing posts and qualifications etc. which reads as under :
*For the post of Junior Engineer (Civil) [Post Code-2] & Junior Engineer (Elect./Mech.) [Post Code - 03]: Only those candidates who are in possession of the Diploma in Civil Engineering/Diploma in Elect./Mech. Engineering or equivalent qualification are eligible to apply for the post of Junior Engineer (Civil) or Junior Engineer (Elect./Mech.). The candidates who are in possession of Degree in Civil Engineering or Degree in Elect./Mech. Engineering cannot apply for the post since, the same has not been considered as equivalent qualification to Diploma. However, if a candidate has first obtained diploma in the respective trade and subsequently obtained the Degree in the respective trade are eligible to apply on the basis of Diploma qualification."
This effectively disqualifies such candidates as have directly obtained the Degree in Engineering instead of first obtaining a Diploma.
5. By way of an interim order dated 13.07.2022, the applicants were permitted to appear in the selection examination provisionally, making it clear that such participation by way of the interim direction shall not confer any right upon them for selection, and further directing that the result of the selection examination with
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respect to the applicants shall not be declared without the leave of this Tribunal.
6. Learned counsel for the applicants argues that the impugned note/condition set forth in the advertisement which seeks to exclude candidates possessing Degree in Engineering, is contrary to the recruitment rules governing recruitment to the post of Junior Engineer. Nowhere in the rules is contained any provision which either directly or obliquely excludes the degree holders. She argues that statutory rules cannot be amended or interpreted by way of an executive direction in contravention to the specific provisions set forth therein. She further argues that the rules have to be studied and appreciated in the context of rules governing appointment to other posts in the hierarchy, especially the promotional posts. In the present case, the recruitment rules for the post of Assistant Engineer (AE) are quite relevant, she argues. They provide for filling up of 75% of the vacancies of AE by way of promotion from JE, and 50% of these 75% which comes to 37.5% are to be filled up from amongst those JEs who possess a Degree in Engineering with 3 years of service and the rest 50% of these 75%, again
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37.5% will be filled up from Diploma holders with 8 years of service in the grade.
7. She points out that if the present recruitment were allowed to take place in accordance with the conditions set forth in the advertisement, it would seriously jeopardize the availability of Junior Engineers to the post of Assistant Engineer. The fact that half of the promotional quota has been reserved for degree holders and with lesser number of years as experience required as compared to diploma holders, the intent of the rules was very clear that preferential treatment is to be accorded to degree holders for promotion from JE to AE. However, the condition of exclusion of Degree Engineers in the present advertisement effectively overturns this well established Principle of Service Jurisprudence. The authority framing the rules had consciously appreciated that possession of a higher degree amounts to higher merit and thus deserved preference and this is borne out from the recruitment rules for the post of AE.
8. She goes on to argue that possession of a higher qualification presupposes a lower qualification and finds further support to her argument from the judgment rendered by the Hon"ble Supreme Court in State of
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Uttarakhand and Ors. vs. Deep Chandra Tewari and Anr. Civil Appeal No. 9902/2013.
9. Learned counsel also extensively quotes from the judgment of the Hon"ble Supreme Court in Puneet Sharma and Ors. Vs. Himachal Pradesh State Electricity Board Ltd. & Anr. 2021 SCC Online SC 291. In the said case also, the post of AE which was next in the hierarchy of promotion, provided for a quota for those JEs who possess a Degree in Engineering. However, there too, the condition to exclude the degree holders for recruitment to the post of JE was imposed. The Hon"ble Supreme Court had categorically held that the fact that a separate quota was kept for degree holders amongst Junior Engineers clearly showed the intent of rule makers not to exclude the degree holders for consideration for the lower post of JE. Accordingly, the Court had upheld the candidature of the degree holders.
10. Learned counsel for the respondent on the other hand argues that the recruitment rules require a careful reading and such a reading would indicate that the respondent by virtue of the impugned note/condition, have merely interpreted the rules in letter and spirit. He submits that the recruitment rules as notified on
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02.05.2018 stipulate Diploma in relevant discipline of Engineering as the only qualification. He specifically argues that consciously the rule makers have not chosen to either prescribe a minimum qualification or prescribe an equivalent qualification. The word equivalent used in the rules and also referred to in the advertisement dated 11.06.2022 refers to the equivalence of the institution and not the qualifications. Therefore, according to the learned counsel, the condition set forth which is under challenge in the advertisement, is not inconsistent with the recruitment rules. He reiterates that as per these rules, Diploma in Engineering is the only qualification, hence, the candidates who do not possess this qualification are not eligible. He further submits that there could be no other interpretation; and if candidates not possessing the diploma were allowed to hold the position of JE, the entire exercise of the framing of recruitment rules would be rendered futile.
11. Continuing the arguments, he submits that the rules have been framed by the Central Government through the Ministry of Housing and Urban Affairs in the exercise of powers conferred under clause (d) of sub- section (2) of section 56 of the Delhi Development Act,
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1957, therefore, the Union of India through the Ministry of Housing and Urban Affairs should have been a necessary party in the present proceedings.
12. He also draws attention to file notings wherein the issue of eligibility of degree holders has been considered and points out that Member (Engineering), the highest authority in the engineering cadre has clearly recorded on file that the Recruitment Rules cannot be held to be restrictive as Graduation in Engineering is not the prescribed educational qualification for the post of JE. Quoting extensively from the said note of the Member (Engineering), learned counsel argues that this note is a clear indication that the matter has been carefully considered and decided. For the sake of clarity, the said note is reproduced below :
"Graduation in engineering is not the prescribed educational qualification for the post of JE. Diploma in engineering and degree in engineering are not equivalent. Prescription of degree in engineering has led to anomalies in pay structure which has attracted avoidable litigation in the past. For a post which required diploma in engineering, if opened to degree in engineering eering holders will certainly reduce the intake of diploma engineers. The assertion that the provisions of RRs are restrictive is myopic as the two are not comparable. Allowing degree in engineering as eligibility criterion shall entail under employment on one hand and higher pay
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scale for the post on the other hand which can be attained at a lower one with diploma as eligibility criterion. Let us carry the RRs forward."
13. Learned counsel draws attention to the judgment rendered by the Hon"ble Supreme Court in Chief Manager, Punjab National Bank and Another vs. Anil Kumar Das Civil Appeal No. 3602/2022, wherein it was held that the eligibility is to be determined strictly in accordance with what has been laid down in the relevant rules. He also finds support in the judgment rendered by the Hon"ble High Court of Bombay in case titled Sangram vs. State of Maharashtra Writ Petition No. 2908/2016, wherein the Court in a similar controversy had held that the candidates who were degree holders could not be presumed to be possessing the lower qualification of Diploma.
14. He goes on to discuss that the issue of a higher degree presupposing the possession of a lower degree was considered by the Hon"ble supreme Court in State of Punjab Vs. Anita (2015) 2 SCC 170 which held that it has to be seen whether the recruitment rules have a specific provision for appointment of persons with a higher qualification. Since there is no such provision in the rules
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governing recruitment to the post of Junior Engineers, the Degree in Engineering cannot be held to include or presuppose the Diploma, he argues. Moreover, the rules do not provide for any equivalent or higher qualification.
15. The learned counsel informs that the anomaly as pointed out by the learned counsel for the applicant which may arise for promotion to the post of AE is being corrected by the respondent and the required amendment to the recruitment rules of the post of AE is already being processed.
16. Moreover, pointing out to the documents placed on record which indicate that there is a window of lateral entry available to degree holders for the post of Assistant Executive Engineer, he claims that the applicants cannot state that the DDA has shut the doors upon degree holders for direct recruitment.
17. Learned counsel contesting the arguments of learned counsel for the applicants points out that the judgment of Puneet Sharma (supra) case relied upon by the learned counsel for the applicant, would not be relevant in the instant case as the factual premise in the Puneet Sharma case was entirely different. He draws
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attention to para 8 of his counter affidavit wherein he has given in tabular form the factual differences in the two cases. He particularly reiterates that whereas the recruitment rules for the post of JE in Himachal Pradesh State Electricity Board (HPSEB) mentioned a minimum qualification, there is no mention of such a minimum qualification in DDA"s Recruitment Rules. He further points out that HPSEB had initially allowed the degree holders to participate in the selection process, however, the DDA at the outset has clarified that only Diploma holders are allowed to apply for the post of Junior Engineer.
18. He reiterates that DDA has already initiated the process of amendment of Recruitment Rules for the post of AE by providing for filling up of 100% vacancies by promotion from amongst JE"s, irrespective whether the candidate is a Diploma holder or a Degree holder. He clarifies that even in the present condition/note which is impugned, there is no blanket/bar on degree holders; the condition merely states that a degree holder is eligible provided he has obtained Diploma also in the respective trade.
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19. Learned counsel concluding his arguments submits that the scope for judicial review is limited in the matters of framing the Recruitment Rules which is the exclusive prerogative of the executive, and hence this Tribunal should not be interfering in the same. He submits that there is no challenge to the rules in the instant O.A. and what is impugned is an interpretation of the rules; this interpretation is strictly in terms of what is stated in the rules and what the apparent meaning is. Therefore, there is no scope for any intervention whatsoever by this Tribunal or for interpreting it in a manner which is neither the intent of the rule makers nor stated expressly anywhere in the rules.
20. We have given careful consideration to the arguments put forth by the learned counsel for the parties as also to the voluminous documents on record.
21. Although both the counsel have led extensive arguments, we are consciously referring to and opining about the ones directly related to the issue at stake which in our view, is a limited one i.e. whether the higher qualification is to be considered a disqualification for appointment to a post which carries as an essential qualification, a lower degree. The post in question here is
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Junior Engineer and the Recruitment Rules mention the educational qualification as Diploma in the relevant field of engineering.
22. We agree with the interpretation explained by the learned counsel for the respondent to the term „equivalent"
that the equivalence mentioned in the Recruitment Rules refers to the equivalence of institution rather than the degree. The learned counsel for the respondent is correct in pointing out that the essential qualification is only Diploma in the relevant field of engineering and not any other equivalent or higher degree, and substantiated his argument by reiterating that the intention of the makers of the rules gets demonstrated effectively since they have not mentioned any other qualification either for an equivalence or for according any preference. Accordingly, if one were to go with the very strict and narrow interpretation, the person to be eligible for appointment to the post of JE should essentially possess a Diploma in Engineering. However, we also note and as has been highlighted by the learned counsel for the applicants that while there may not be any mention of an equivalent or higher degree as a qualification for holding the post of JE, there is also no express disqualification. The relevant
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rules in Rule 4 deal with the disqualifications and the list of incidences which amount to disqualification, does not include a higher degree. Moreover, we find it hard to digest that a higher qualification should act as a disqualification instead of being an incentive. The language of the impugned note in the vacancy advertisement which has been quoted in para 3 of this order, is also rather curious; while denying the opportunity to degree holders to apply for the post, it also allows such degree holders to apply as have first obtained Diploma in the respective trade. This is rather convoluted, as also absurd.
23. Moreover, the respondent has admitted that by their denial to the degree holders to seek appointment as JE, there would be an anomaly created when it comes to appointment to the higher post of Assistant Engineer, since half of the promotion quota posts are reserved for degree holders. The statement that the respondent may have commenced the exercise for amendment to the Recruitment Rules, does not come to their rescue in view of the clear admission of the anomaly having arisen. Moreover, even though a window may be available to the degree holders for appointment to the post of Assistant
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Executive Engineer, we cannot fail to notice that the number of posts of Assistant Executive Engineer are minuscule which would deprive a very large numbers a fair opportunity for such an appointment.
24. No doubt, we recognize our limitation when it comes to the issue of framing of rules, however, we need to interpret the rules in a manner which is rational, equitable and adheres to the principles of justice and fairness. Depriving a person possessing a higher technical qualification can certainly not to be called fairness. Rules also do not provide for such a disqualification.
25. If the rules are silent on this issue, as they are in the instant case, we have to interpret them in the larger public interest and in accordance with the Principles of Rule of Law. While making such a consideration, we are not inclined to accept the argument that the essential qualifications as set forth in the rules unambiguously reflect the intent of the makers of the rules. If we allow the interpretation given to the rules by the respondent, we shall, infact, be discouraging young persons from attaining higher education and higher qualifications. The justification given in the relevant file by the Member (Engineering), as quoted in para 13 of this order, is
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unreasonable, to say the least. The post of the JE being a technical post required a technical qualification. If it were a case of recruitment for an unskilled job, we may have been inclined to accept such a reasoning. How could a higher qualification be made into a disqualification for an enginner"s position ?
26. The purpose of the Recruitment Rules is to set out the qualifications and conditions for recruitment to a post in government and ensure that the recruitment/ selection, is made in a transparent manner. The purpose of recruitment rules is certainly not to watch the interests of a particular section vis a vis others. The justification given that allowing engineering graduates to apply for the post of JE would reduce the intake of diploma engineers and thus, the degree holders should be disqualified, goes beyond the purpose and scope of the rules. Moreover, the concerned officer has given under employment and higher pay scale for the post that allowing engineering graduates would entail as one of the reasons. We cannot fathom this argument.
27. Moreover, the said recording of the Member (Engineering) gives a clear indication that the authorities are pressing for lower qualifications whereas they should
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actually be encouraging merit. Further, the fact that the promotional quota of the post of AE requires 50% of the posts to be filled up from amongst the degree holders, adequately establishes that there would be a desirability of having adequate number of degree holders at the level of JE. Even though a large number of judgments may have been quoted by the respective learned counsel, the case of Puneet Sharma (supra) adequately covers the instant matter and does not gives us much scope to take any divergent view, nor are we otherwise inclined to.
28. In the light of the facts and discussion detailed above, we have no hesitation in allowing the present original application. The note titled "*For the post of Junior Engineer (Civil) [Post Code-2] & Junior Engineer (Elect./Mech.) [Post Code - 03]:" marked at page 75 of the O.A., and as reproduced in Para 3 of this order, is quashed as being in contravention to the provision of the Recruitment Rules. Holders of degree in engineering are declared qualified and eligible for recruitment to the post of JE, irrespective of the fact whether they also possess a Diploma in relevant field or not. The respondent is accordingly directed to allow them to participate, without any impediment, in the selection
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process set in motion pursuant to the above referred to advertisement as also any other future selection process that may be initiated for the post of JE. The result with respect to the applicants who may have appeared in the selection examination in compliance of the interim direction given in this O.A. shall be declared and if they have been successful, they shall be offered appointment to the post of Junior Engineer if they meet all other criteria set forth in the relevant rules.
29. The original application stands allowed in the light of these directions. Associated M.A.(s), if any, stand disposed of accordingly.
30. A copy of this order be placed in the file of all the connected O.A(s).
There shall be no orders as to costs.
(Tarun Shridhar) (R.N. Singh) Member (A) Member (J)
/NISHA/