Hon'ble Dr. Satish Chandra, J.
(Delivered by Hon'ble Rajiv Sharma,J.) Heard Sri S. K. Kalia, Senior Advocate assisted by S/Sri Sameer Kalia, M.D. Singh Sekhar, Senior Advocate, C. B. Pandey, Dr. L.P. Misra, I.P.Singh, Deepak Srivatava, Vikas Budhwar, Rohit Tripathi, Arun Kumar Shukla, Rajeev Singh, S.K.Yadav Warsi, S.P.Singh, K. S. Pawar, Harshvardhan Singh, Ms.Madhumita Bose for the petitioners and S/Sri Prashant Chandra, Sri Kapil Deo, Senior Advocates, J. N. Mathur, Additional Advocate General assisted by Sri H. P. Srivastava, Additional Chief Standing Counsel, Siddarth Dhaon, Rajnish Kumar, Anupam Mehrotra etc. for the opposite parties.
The aforesaid bunch of writ petitions relates to promotion from the post of Junior Engineer to the post of Assistant Engineer in the Public Works Department. Promotion to the post of Assistant Engineer has long checkered history. In the past, the matter went upto Hon'ble Apex Court on a number of occasions and in spite of decisions rendered in the cases of Diploma Engineers' Sangh, P.D. Agrawal and Anjani Kumar Misra, the matter could not be settled and now again the controversy relating to promotion has arisen.
In all these writ petitions, the dispute revolves amongst the Junior Engineers Degree Holders with Diploma holders (who subsequently obtained the degree) with regard to promotion on the vacancies pertaining to the year 1997-98 till selection year 2003-04.
Petitioners were appointed as Junior Engineers in the Public Works Department in the State of Uttar Pradesh in accordance with the United Provinces Service of Engineers (Buildings and Roads) Branch Class-II, Rules, 1936 (hereinafter called the '1936 Rules'). At the time of appointment, the petitioners were possessing only Diploma in Civil Engineering. However, it is stated that subsequently, the petitioners have also obtained Bachelors Degree in Civil Engineering.
Rule (iv) of the aforesaid 1936 Rules provides that for the post of Assistant Engineers, the recruitment can be made by direct recruitment as well as by promotion. As regard recruitment by promotion, Rule 5 (iv) specifically provides that the recruitment on the post of Assistant Engineer may be made by promotion from the members of United Provinces Subordinate Engineer Service or Upper Subordinates in the Public Works Department (Building and Roads Branch) which have shown exceptional merit. Further, Rule 9 (2) of the said Rules provides that for promotion under Rule 5 (iv) the qualifying examination has to be passed. Rule 9 (2) was amended vide United Provinces Service of Engineers (Buildings and Roads Branch) (Class-II) (Amendment) Rules, 1966 whereby under amended rule, Rule 5 (iv) the incumbent should either pass qualifying examination or hold technical qualification as prescribed in Clause (I) of the Rules meaning thereby he may hold the Degree in Engineering. Rule 12 as amended by U.P. Service of Engineers (Buildings and Roads Branch) (Class-II) (Second Amendment) Rules, 1992 provided that recruitment by promotion to the post of Assistant Engineer shall be made on the basis of "seniority subject to the rejection of unfit" in accordance with U.P. promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time.
It has been urged that the department did not hold qualifying examination after the year 1970. Though initially no quota has been fixed for recruitment on the post of Assistant Engineers through promotion, but latter quota was fixed for recruitment on the post of Assistant Engineers through promotion and, therefore, the vacancies which were falling within the promotion quota were to be filled up only by way of promotion but the same could not be filled as the department did not hold qualifying examinations after the year 1970. The Rules referred to above, were subjected to various amendments and the department was helpless to cope up with the amended rules for the purposes of making promotion on the post of Assistant Engineers and this situation generated the litigation and after a long drawn litigation,ultimately the controversy was set at rest, on 3.11.2006, in Anjani Kumar Misra's vs. State of U.P. and others (2007)1 UPLBEC 260 case and the High Court has determined the vacancies of promotion quota from the year 1997-98 till selection year 2003-04. Of late, the qualifying examination was held and the result was declared on 24.10.2007.
The grievance of the petitioners in nutshell is that they were fully eligible for promotion on the post of Assistant Engineer as they were having Degree in Engineering on the date when the eligibility list was prepared but they were denied promotions solely on the ground that the petitioners did not possess Degree in Engineering on 1st July, 2003 and the private respondents were promoted on the post of Assistant Engineer. According to the petitioners, the posts were lying vacant and the petitioners having completed 7 years of satisfactory service on the post of Junior Engineer ought to have been promoted but on account of hostile treatment they were denied their legitimate claim.
Sri M.D. Singh Sekhar , Senior Advocate appearing on behalf of the some of the petitioners submitted that Rule 19 of The Overseer/Junior Engineer Service Rules, 1951, talks about the probation period of two years. Rule 22 talks about the departmental examination which is required to be passed within the prescribed period with condition that if any candidate does not pass the departmental examination within the said period the increment in pay shall be withheld. Rule 23 talks about the confirmation by clearly stating therein that the confirmation after completing a probation period would be subject to passing the departmental examination.
Another set of rules in the name and style of "Qualifying Examination Rules for Promotion in Class-II Engineering Service" were enacted. In the said rules in the heading of eligibility (ik=rk) contemplates a provision that all the Junior Engineers and Junior Engineers (Technical) shall be eligible for promotion on the post of Assistant Engineer after confirmation and completion of seven years service as Junior Engineer. Rule 6 of Appendix 25 in the head of eligibility makes a provision that those Junior Engineers who have passed AMIE Examination (Part 'A' and Part 'B') or passed B.E./B. Tech. Examination will be considered for their promotion on the post of Assistant Engineer and there would be no rider for rendering seven years of service as Junior Engineer.
Clarifying the position, it has been submitted that from the Rules, referred to above, it is clear that no Junior Engineer could be promoted on the post of Assistant Engineer until or unless he passed the Qualifying Examination or passed AMIE Examination (Part 'A' and Part 'B') or passed B.E./B.Tech. examination. The combined reading of Appendix 25 of Qualifying Examination Rules for promotion on Class-II Engineering Services reveals that no Junior Engineer could be promoted on the post of Assistant Engineer until or unless he is confirmed on the post of Junior Engineer and had not passed either the Qualifying Examination, AMIE Examination (Part 'A' and Part 'B') or passed B.E./B. Tech. examination subject to relaxation of service of seven years as a Junior Engineer provided to the Junior Engineers who passed the AMIE Examination (Part 'A' and Part 'B') and B.E./B. Tech. Examination.
From the aforesaid Rules, it is further evident that even the Degree Holders who had been appointed as Junior Engineers until or unless they are confirmed on the said post of Junior Engineer, they cannot be promoted. Whereas in the present case, the incumbents who were not confirmed on 01.07.2003 and were not having the minimum criteria for promotion on the post of Assistant Engineer but de hors to the provisions of Act and Rules by the promotion order dated 2.08.2008, the appointees between the period August, 2001 to June, 2003 were promoted on the post of Assistant Engineer even prior to their completion of probation period and confirmation.
It has also been pointed out that some of the Junior Engineers who were appointed in April, 2003 and completed the probation period in the year, 2005 they have also been promoted on the post of Assistant Engineer treating them eligible for promotion on 1.7.2003 de hors to the provisions of Act and Rules by two promotion lists dated 2.8.2008 and 3.7.2009.
Replying to the argument raised by some of the respondents that for promotion on the post of Assistant Engineer, only appointment on the post of Junior Engineer on a substantive vacancy is sufficient, it has been argued on behalf of the petitioners that such an argument is absolutely contrary to the provisions of Rules contained in "Public Works Department, Uttar Pradesh Subordinate Engineering Service Rules, 1951" The relevant part of Rules 1951, Rule 3 (g) which defines Member of Service is as follows:-
"Rules, 1951 Part I Rule 3 (g) 'Member of the Service' means a person appointed in substantive capacity under the provisions of these rules or of rules enforced previous to the introduction of these rules of rules to a post in the cadre of the service. As such a member will be designated as an 'Overseer'. "
From the combined reading of Public Works Department, Uttar Pradesh Subordinate Engineering Service Rules, 1951 [in short referred to as '1951 Rules'], particularly, Rules 3(g),19,20 and 23, it is absolutely clear that Rule 3(g) talks about the substantive capacity, and not about the appointment on substantive capacity and any Junior Engineer appointed under the Rules, 1951 to gain substantive capacity for being member of the cadre of service required to fulfill the conditions as envisaged under the provisions of Rule 19, Rule 22 and Rule 23, i.e. any appointee on the post of Junior Engineer under the Rules, 1951 until or unless had not completed two years probation period and passed the departmental examination and had not been confirmed, will be deemed to continue as a probationer Overseer or Junior Engineer. Only after confirmation, any probationer could be said to be a member of service as defined in sub rule 3(g) of '1951 Rules'.
It has also been urged that if the arguments as advanced by the private respondents are accepted that the Diploma Holder Junior Engineer until or unless does not complete seven years service as a Junior Engineer would not be eligible for promotion on the post of Assistant Engineer then it will create an awkward situation, but in practice, the Diploma Holder Junior Engineers are always being permitted to appear in the Qualifying Examination for promotion after completion of three years service and in the case, any such Diploma Holder Junior Engineer passed the Qualifying Examination, but he would not be considered for promotion on the post of Assistant Engineer until or unless he completed the seven years service as Junior Engineer. It is only on account of the prevailing practice and interpretation of the provisions of Appendix 25, the Diploma Holder Junior Engineers who have been appointed during the period August, 2001 to June, 2003 have not been permitted to appear in the Qualifying Examination, 2007 on the pretext that they have not completed three years service on 1.7.2003. On the similar anomaly, the recruited Degree Holders on or against substantive vacancy are not eligible without there being confirmation for promotion on the post of Assistant Engineer.
It has also been asserted on behalf of the petitioners that in utter disregard of the statutory provisions of the Act and Rules, the Engineer-in-Chief (Head of the Department of P.W.D.) after the Qualifying Examination, 2007 prepared the eligibility list on 26.10.2007 wherein the names of the Degree Holder Junior Engineers appointed during the period August, 2001 to June, 2003 their names had not been included in the said list on the criteria of eligibility contemplated in the Manual and meaning of 'member of service' defined in Rules, 1951 (Part I) 3 (g). Surprisingly, later on, de hors to the provisions of Act and Rules the Degree Holder Junior Engineers appointed during the period August, 2001 to June, 2003 were promoted vide promotion list dated 2.8.2008 from serial no. 13 to serial no. 51. Further, twenty seven Degree Holder Junior Engineers appointed during the period August, 2001 to June, 2003 have been accorded promotion by order dated 3.7.2009.
It is an admitted position that Qualifying Examination as per Rules for Promotion in Class-II Engineering Services was held in the year, 2007 and the first eligibility list was prepared on 26.10.2007, and as per the direction of the Hon'ble Supreme Court in para 14 given in the Diploma Engineers Sangh's case (2007 (5) ADJ 63 SC), a list of all candidates in the feeder post mandatorily required to be prepared in order of seniority and, thereafter, the suitability for promotion of the candidate is required to be adjudged.
Inviting our attention towards the decision rendered by the Apex Court in Diploma Engineers' Sangh [supra] decided on 20.03.2007 (Civil Appeal No.3228 of 2005) and reported in 2007 (5) ADJ 63 (S.C.), it was urged that the question had already attained finality between the parties with regard to the promotion on the vacancies for the post of Assistant Engineer prior to 30.6.2004 and as per the order of Hon'ble Supreme Court, the date of eligibility for promotion, as per the Qualifying Examination Rule, 2007 is required to be seen on the day of preparation of the eligibility list i.e. on 26.10.2007, but surprisingly, the opposite party had discriminated and excluded the names of all those Junior Engineers, who passed the technical degree prior to the day of preparation of the eligibility list for promotion i.e. on 26.10.2007 and as such, it has been vehemently argued that the promotion accorded to the Degree Holder Junior Engineers who have been recruited during the period August, 2001 to 30th June, 2003 are liable to be set aside and the Junior Engineers who obtained the technical degree prior to the date of first eligibility list prepared on 26.10.2007 (after holding the Qualifying Examination and declaration of result by U.P.P.S.C. in pursuance of the direction of Hon'ble Supreme Court dated 20.03.2007) they are entitled to be considered for promotion on the post of Assistant Engineer in accordance with law.
On behalf of the private respondents, it has been submitted that the backlog vacancies existing in the promotional quota as on 30.6.2004 and are to be filled up in accordance with provisions contained in 1936 Rules as well as per provisions of U.P. Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970, which are also applicable to the U.P. Public Works Department, the promotion to the post of Assistant Engineer (Civil) is to be made after consultation with the Public Service Commission. In compliance of the order dated 20.3.2007 passed in the case of Diploma Engineer Sangh vs. State of U.P. and others (supra), qualifying examinations were held by the Public Service Commission from 12.8.2007 to 18.8.2007.
According to private respondents, the petitioners have no locus standi to maintain the writ petition as, admittedly, the petitioners have obtained degree in Civil Engineering in the year 2006-2007 and as such they cannot be considered for promotion against the backlog vacancies existing in quota of promotion for the year 2003-04. It is well settled principle of law that writ petition at the instance of persons, who on the cut-off date were not holding necessary qualification, is not maintainable.
Clarifying the position, it has been submitted that the eligibility list dated 21.1.2009 was prepared in accordance with the provisions of the U.P. Promotion By Selection in Consultation with Public Service Commission (Procedure) Rules, 1970, and the names of private respondents were incorporated in the said eligibility list as they were having requisite qualification of degree in Civil Engineering prior to 1.7.2003, which is the cut off date for having the requisite qualification for the purpose of being considered for promotion to the post of Assistant Engineer (Civil) against the backlog vacancies existing in the quota of promotion for the year 2003-04. On the other hand, some of the petitioners did not possess the degree in Civil Engineering on the cut off date and subsequently acquired degrees in the year 2007 and also because the petitioners could not pass the qualifying examination held by the department, therefore, their names were not incorporated in the eligibility list dated 21.1.2009. As the petitioners were not having requisite qualification on the cut off date, they were not considered for promotion against the 33 backlog vacancies existing in the quota of promotion for the year 2003-04, whereas the private respondents, who were fully eligible prior to cut off date in terms of Rule 9 of 1936 Rules, were promoted vide order dated 3.7.2009 and there is nothing wrong in it.
It has been next contended that the assertion of the petitioners that they were eligible for promotion and the impugned orders promoting the private respondents is invalid, is wholly incorrect as for the purpose of being considered for promotion to the post of Assistant Engineer (Civil), a Junior Engineer (Civil) is required to pass qualifying examination held by the department or to obtain degree in Civil Engineering from recognized institute in accordance with Rule 9(i) of 1936 Rules.
Elaborating further, it has been argued that the post of Assistant Engineer (Civil) in the Public Works Department is a selection post and as such seniority alone is not the criteria for promotion. The seniority of a candidate will be of relevance only once the candidate is having a degree in Civil Engineering in terms of Rule 9(i) of 1936 Rules read with Rule 4 and Rule 6 of U.P. Promotion By Selection in Consultation with Public Service Commission (Procedure) Rules, 1970. For the back vacancies existing in quota of promotion for the year 2003-04 the cut off date was 1.7.2003 and as on the said date, none of the petitioners possessed the minimum qualification and as such merely on the basis of seniority, they could not have been considered for promotion to the post of Assistant Engineer (Civil) and, therefore, their names were rightly not incorporated in the eligibility list on the claim raised by them on the basis of seniority.
As regard to the applicability of the judgment rendered in Diploma Engineers Sangh vs. State of U.P. and others(supra) decided on 20.3.2007, it has been argued that the issue decided by the Apex Court that qualifying examination would mean written examination. Therefore, it has no concern with the controversy involved in the present writ petitions and has nothing to do with the promotion of the private respondents as Assistant Engineer as they were fully eligible as per rules for promotion on higher post being degree holders before the cut-off date. Further, the assertion of the petitioners that in the said judgment direction given for filling up the vacancies is wholly incorrect. As a matter of fact, the direction for filling of backlog vacancies in quota of promotion was allegedly issued in Anjani Kumar Mishra vs. State of U.P. others (supra).
On behalf of the State Government, it has been stated that as per directions of the Hon'ble Supreme Court under 41.66% promotional quota the year wise vacancies of the selection year 1997-98 to selection year 2003-04 were calculated, which came to 186 and intimation was sent to the State Government by the Engineer-in-Chief, PWD, Lucknow. It has also been pointed out that this Court vide judgment and order dated 3.11.2006 passed in Writ Petition No. 2750 (SS) of 2004 and other connected writ petitions, had cancelled the promotions of the persons promoted on the post of Assistant Engineer pertaining to selection years 1997-98 (9 vacancies), 1998-99 (32 vacancies), 199-2000 (21 vacancies) and 2000-2001 (11 vacancies). Junior Engineers, who were promoted being aggrieved by the aforesaid judgment and order dated 3.11.2006 preferred Special Leave petitions and the Apex Court had granted stay orders, therefore, excluding 73 posts out of total 186 vacancies, selection was held to fill up 113 vacancies under the provisions of Rules of 1936. Consequently, 95 selected candidates were promoted vide order dated 2.8.2008.
It has been vehemently argued that there is no irregularity in the process of selection in making these promotions. The letter dated 27.2.2009 sent by the Engineer-in-Chief is perfectly legal and justified. It is also wrong to allege that the petitioners were not afforded opportunity to appear in the Test. In fact, members of the Sangh had deliberately not participated in the qualifying examination. Promotions of 33 candidates, whose names find place in the list appended to the letter dated 27.2.2009 were eligible and possess prescribed eligibility qualification.
Promotion to the post of Assistant Engineers in the Department of Public Works was governed by the U.P. Service of Engineers (Building and Road Branch) Rules, 1936 [ in short referred to as 1936 Rules]. Later on the said 1936 Rules were superseded by U.P. Public Works Department Group-B Civil Engineering Service Rules, 2004 (in short referred to as '1936 Rules). The said 1936 Rules were amended vide notification dated 4.8.1987 prescribing the promotion quota. This Rule again went under alteration vide notification dated 25.9.1997 modifying the promotion quota of Degree holder junior Engineers and Diploma holder Junior Engineers. Both the aforesaid notifications were quashed by this Court vide its judgment and order dated 22.3.2002.
Later on, the State Government issued a Government Order dated 11.2.2003 whereby the provisions were made for holding interview examination for the purposes of eligibility test of Junior Engineers, who were not covered under the provisions of Rule 9(1). Validity of the aforesaid government order dated 11.2.2003 was again questioned before this Court in writ petition no. 9127 of 2003; Vijay Kumar & others vs. State of U.P. and others and vide judgment and order dated 16.7.2004 this Court set-aside the Government Order dated 11.2.2003 and provided that promotions shall be made strictly in accordance with the '1936 Rules' at the earliest.
Against the above said judgment and order of the High Court, Diploma Holder Engineers' Sangh filed Special Leave Petition No. CC 8440 of 2007, before the Apex Court, which was converted into Civil Appeal No. 3228 of 2005. Initially, an interim order was granted by the Hon'ble Supreme Court providing that any promotion made would be subject to the outcome of the Special Leave Petition. But this SLP which was converted into Civil Appeal filed before the Hon'ble Supreme Court was, however, finally, dismissed vide judgment and order dated 20/3/2007 by upholding the judgment of the Division Bench of this High Court with a further direction to the State Government to hold the qualifying examination qua diploma holders Junior Engineers within a period of four months. It was further provided that any Junior Engineer who has been promoted in pursuance of the interim order granted by the Hon'ble Supreme Court referred to above would continue on the promoted post on ad hoc basis only subject to his being regularly promoted in accordance with the Rules, 1936 and in case they fail to clear the qualifying examination such persons shall stand reverted to the original post of Junior Engineers.
After the dismissal of the aforesaid Civil Appeal, one Lakhan Lal has approached this Court at Allahabad seeking promotion on the post of Assistant Engineer in terms of the Government Order dated 24/9/2007 and judicial verdicts in this regard. Total 84 vacancies were required to be filled up by promotion in accordance with the Rules, 1936, and, therefore, required the Chief Engineer, Administration 'K', P.W.D. Lucknow to forward the list of suitable candidates category wise so that further action may be taken. The State Government also refers to writ petition filed before this Court by one Shri Anjani Kumar Mishra, being Writ Petition No. 2750 of 2004 wherein the High Court vide judgment and order dated 03/11/2006 cancelled the promotion granted in respect of the 32 vacancies of the year 1998-99, 21 vacancies of the year 1999-2000; and 11 vacancies of the year 2000-2001. This led to filing of Special Leave to Appeal No. 8786 of 2006 before the Hon'ble Supreme Court, namely, Atibal Singh & Ors Vs. State of U.P. and Special Leave to Appeal No. 19037 of 2006, Jang Bahadur Singh & Ors Vs. B.D. Tripathi & Ors. The Hon'ble Supreme Court vide order dated 10/8/2007 has directed status quo to be maintained in respect of the aforesaid appellants.
Before proceeding further, it would be apt to reproduce various provisions of Service Rules governing the recruitment, confirmation etc. Rule 5 of the '1936 Rules' deals with the source of recruitment to the post of Assistant Engineer and it reads as under:-
"5. Recruitment to the service shall be made by the Government :-
(i)by direct appointment from amongst engineer students who have passed out of the Thomson Civil Engineering College, Roorkee and who have completed a course of training the in the Buildings and Roads Branch as engineer students after consulting a permanent Board of Selection.;
(ii)by direct appointment after advertisement and after consulting a permanent Board of Selection;
(iii)by the appointment of officers in the temporary service of the United Provinces Public Works Department, Building and Roads Branch, after consulting a permanent Board of Selection;
(iv)by promotion of members of the united Provinces Subordinate Engineering Service or of Upper Subordinates in the Public Works Department, Buildings and Roads Branch, who have shown exceptional merit."
Rule-9 deals with the possession of qualification by a person for being considered for promotion on the post of Assistant Engineer and says as under:-
"9. (i) No person shall be recruited to the service under the provisions of rule 5 (i), 5 (ii) or 5 (iii) unless :-
At this juncture it would be relevant to point out that determining the eligibility for the post of Junior Engineer is governed by Uttar Pradesh Public Works Department Subordinate Engineering Services, 1951 ( in short referred as '1951 Rules'). Rule 3(g) defines 'Member of the Service' and it means a person appointed in substantive capacity under the provisions of these rules or of rules in force previous to the introduction of these rules. Rule 19 talks about the probation period of two years. Rule 22 provides about the departmental examination which is required to be passed within the prescribed period with condition that if any candidate does not pass the departmental examination within the said period the increment in pay shall be withheld. Rule 23 deals with confirmation and provides that the confirmation after completing a probation period would be subject to passing the departmental examination. Relevant rules reads as under:-
"19. Probation:- A person on appointment in or against a substantive vacancy shall be placed on probation for a period of two years.
Provided that officiating and temporary service, is it is continuous, shall count towards the period of probation to the maximum extent of one year.
22.Department examination- (1) All temporary and officiating overseers must pass the department examination prescribed in the Manual of Orders, Public Works Department, Volume I, within three years of jointing their appointment. If they fail to pass the above examination within the prescribed period their increment in pay shall be withheld. Subject to the orders of the Chief Engineer a stopped increment may be allowed to be drawn when the overseer has passed the examination, with effect from the first day of the month following that in which the examination, with effect from the first day of the month following that in which the examination is held, and the period during which the increment was withheld may also be allowed to be counted for purposes of further the increment in the time-scale. Arrears of increments may also be granted in special cases where failure to pass the examination was due to circumstances beyond the overseer's control.
(2)Candidate appointed to a substantive vacancy shall be required to pass the examination during the period of probation, if they have not already done so.
23.Confirmation- Subject to the provisions of rule, 22 a probationer shall be confirmed in his appointment at the end of his period of probation, or extended period of probation, if the Chief Engineer considers him fit for confirmation and his integrity is certified."
Thus, a person becomes a member of service when he is appointed in substantive capacity. For being substantively appointed, an incumbent has to at least complete the period of probation and a person who is not substantively appointed cannot be treated to be a member of service. This aspect of the matter has been considered by the Apex Court in Baleshwar Das and others etc. v. State of U.P. and others, AIR 1981 SC 41 on which reliance has been placed by the petitioners' Counsel. In paragraph 26 and 33 of the report, the Apex Court held as under:
"26. .... it falls that merely because the person is a temporary appointee, it cannot be said that he is not substantively appointed if he fulfills the necessary conditions for regular appointment such as probation and consultation with Public Service Commission etc. From this stand of the State Government if falls that temporary appointees, whose appointments have received the approval of the Public Service Commission and who have run out the two years of probation, must be deemed to be appointed in a substantive capacity.
33.Once we understand 'substantive capacity' in the above sense we may be able to rationalize the situation, if the appointment is to a post and the capacity in which the appointment is made is of indefinite probation, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and opposed, if probation has been prescribed and has been approved, one may well say that post was held by the incumbent in a substantial capacity."
As per Rules of Qualifying examination an eligible person can qualify the same in three years and the said examination be conducted each year. It is not in dispute that no qualifying examination was conducted since 1972 and for the first time it was conducted pursuant to the notification dated 3.8.1987.
At this juncture, it is pertinent to mention that in Anjani Kumar Mishra and others vs. State of U.P. and others [(2007) 1 UPLBEC 260], this Court disapproved the allocation of vacancies in the quota of promotion for the recruitment years 1997-98 to 2003-04 and directed for allocation of vacancies in accordance with quota as provided in the G.O. dated 20.2.2003, which prescribed 41.66% quota for promotion and 58.34% quota for direct recruitment and ultimately calculated the number of vacancies in the quota of promotion as 186. Paragraphs 117 to 120, which are relevant in the present context are reproduced herein:-
"117. In view of the aforesaid settled legal position we further hold that there exists no statutory rule 5 and 6 in old 1936 rules with regard to the allocation of quota of direct recruitment and promotees and in our considered opinion the field is occupied and supplemented by executive order issued by the Government in this regard on 20.2.2003, as contained in Annexure 7 of Writ Petition No. 53133 of 2004 Pramod Shanker, which provides 58.34% quota for direct recruitment and 41.66% quota for promotees without demarcation of any separate quota for graduate and non-graduate incumbents of feeder cadre within the quota of promotion. It appears that the aforesaid Government order has been issued in compliance of direction of this Court contained in the decision of Aruvendra Kumar Garg's case, thus the vacancies falling in the quota of promotion were intended to be filled by the incumbents of feeder cadre without allocating any separate quota for promotion for graduate and non-graduate incumbents. The aforesaid Government order dated 20.2.2003 was still in force prior to commencement of new 2004 Rules as there is no material on record to show that the said Government order has ever been modified or superseded till 3.1.2004 by the Government itself. Therefore it is necessary to examine the determination of vacancies in the quota of promotion under old existing law occupying the field.
118. From the perusal of supplementary counter affidavit sworn by Sri Tribhuwan Ram, Engineer-in-Chief, Government of U.P. on 25.7.2006 on behalf of State-respondents filed in the writ petition No.53133 of 2004. Pramod Shanker Upadhyay and others Vs. State of U.P. and others, it indicates that break up of year-wise vacancies on the post of Assistant Engineer in question has been given in chart enclosed as Annexure S.C.A-I and S.C.A.II which demonstrates that w.e.f. 1.7.1997 to 30.6.2004, total 446 vacancies have occurred on the post in question. Out of which total 316 vacancies are allocated in the quota of direct recruitment and only 130 vacancies are allocated in the quota of promotion for feeder cadre. Against 316 vacancies falling in the quota of direct recruitment 62 vacancies have been filled up by regularisation and remaining 254 vacancies are left for selection through Commission, whereas against total 130 vacancies falling in the quota of promotion only 102 vacancies are shown as filled up while 28 vacancies are still remaining to be filled up. From perusal of Annexure S.C.A.III enclosed with the aforesaid supplementary counter affidavit, it transpires that in respect of total vacancies occurred for the year 1997-98, 66.67% vacancies allocated in the quota of direct recruitment, 33.33% vacancies in quota for promotion, whereas in respect of vacancies occurred during the year 1998-2003, 75% vacancies allocated in the quota of direct recruitment and remaining 25% vacancies in the quota of promotion. Thereafter for year 2003-2004, total vacancies are divided and split into two parts, first part for the period w.e.f.1.7.2003 to 2.1.2004 and out of total vacancies occurred during this period, 75% vacancies are allocated in the quota of direct recruitment, whereas 25% vacancies are allocated in the quota of promotion. However the vacancies occurred w.e.f. 3.1.2004 to 30.6.2004, 50% are allocated in the quota of direct recruitment and 50% vacancies in the quota of promotion.
119. Thus there appears no legal basis for such determination and computation of vacancies. We have already held that on declaration of rule 5 and 6 of old 1936 rules as ultra-vires of the provisions of Articles 14 and 16 of Constitution of India by Hon'ble Apex Court in P.D. Agrawal's case as brought about by 1969 amendment rules there exist no statutory rules under aforesaid 1936 rules for allocation of different quota for different sources of recruitment. Rule 5 and 6 of old 1936 Rules as stood while 1969 amendment rules came into force could not be revived automatically without their fresh enactment for the purpose of determination of rights and obligations arise therefrom, as the substituted rules were declared ultra-vires after their substitution for the aforesaid rules, therefore, aforesaid earlier rules could not be treated to be revived as existing before their substitution without fresh enactment. Similarly, Rule 5 (iii) brought about by1987 and 1997 was also declared ultra-vires of the Part III of the Constitution in Aruvendra Kumar Garg's case, thus no rights and obligations arise therefrom. Therefore, prescription of quota for direct recruitments and promotees existing in the rules 5 and 6 of old 1936 Rules prior to the aforesaid amendments for substituting the said rules cannot be revived for the same reasons. Thus, the approach of Government while computing and determining the vacancies in question and in doing so taking assistance from rule 5 and 6 of old 1936 rules as stood at the time of amendment of rules by amending rule 1969 palpably incorrect and demonstrably wrong, therefore, cannot be sustained. Thus, in view of the aforesaid discussion, we are of the considered opinion that except the Government order dated 20.2.2003 there existed no statutory rule or Government order during 1997 to 2004 for determination and allocation of the aforesaid vacancies in the quota of promotion and direct recruitment. By the aforesaid Government Order, the Government has intended to fill up vacuum in existing statutory rules and the existing vacancies in the said quota, we are of the further opinion that all the vacancies in the quota for promotion from year 1997 to 30.6.2004 are liable to be filled up according to the quota prescribed under Government order dated 20.2.2003. As we have already held that vacancies falling in the quota of promotion earlier and also w.e.f. 3.1.2004 to 30.6.2004 are also liable to be filled up under old law occupying the field, thus, according to the Government order dated 20.2.2003.
120. Applying the aforesaid Government order in respect of prescription of different quota for direct recruitment and promotion out of total 446 vacancies of Assistant Engineers occurred during the aforesaid period, 58.34% quota for direct recruitment and 41.66% quota for promotion, the total number of vacancies would come to 260 in the quota of direct recruitment and 186 in the quota of promotion. Since 62 vacancies in the quota of direct recruitment have already been filled by regularisation as shown in the chart contained in Annexure S.C.A. -II of the Supplementary Counter Affidavit. Thus only (260-62) = 198 vacancies are still remaining to be filled in the quota of direct recruitment and total 186 vacancies in the quota of promotion are liable to be filled up according to the G. O. dated 20.2.2003 and rule 12, of rules 1936 prescribing criterion seniority subject to rejection of unfit as amended by U.P. Service of Engineers (B. and R.B.) class II (Amendment Rules) 1992. Therefore, determination of vacancies in the quota of direct recruitment and promotion is wholly erroneous and illegal, thus cannot be sustained, consequently requisition dated 2.2.2006 sent by the Government to the Commission for holding selection on the posts of Assistant Engineers through direct recruitment and pursuant advertisement published in daily newspaper Amar Ujala dated 5.9.2006 so far as it pertains to the aforesaid posts are hereby quashed. The State Government is directed to undertake re-exercise of determination of vacancies under quota of direct recruitment and promotion both according to the observations made herein before and take further steps to hold selection for direct recruitment and promotion as indicated herein before."
In paragraph 171 of the report rendered in Anjani Kumar Mishra's case [supra] this Court held as under:-
"171. In view of foregoing discussions and observations our conclusions are summarized as under:
(1) The provisions of Rule 5(ii) and Rule 16 of new 2004 Rules are held to be valid.
(2) Although, the provisions of new 2004 Rules are prospective in operation and shall apply w.e.f. 3.1.2004 but the vacancies occurred on or after 1.7.2004 only shall be filled up under new 2004 Rules and vacancies occurred prior to 30.6.2004 in the quota of promotion shall be filled up under old 1936 Rules. However, the existing vacancies prior to 30.6.2004 in the quota of direct recruitment shall be filled up as backlog vacancies under new 2004 Rules as the process of selection for direct recruitment were not initiated prior to commencement of new 2004 Rules, but without any further allocation of vacancies in the quota for promotion for period in question.
(3) There exists no statutory rule for prescription of quota for direct recruitment and promotion after decision of Hon'ble Apex Court in P.D. Agrawal's case and this court in Aruvendra Kumar Garg's case under old 1936 Rules. However, in order to fill up vacuum and supplement the remaining existing provisions of old 1936 Rules, the G.O. dated 20.2.2003 has been issued to fill up the remaining existing vacancies available at relevant time by prescribing 41.66% quota for promotion which shall be applicable to fill up the existing vacancies alone not covered by new 2004 Rules as indicated in judgement.
(4) The respondent-State authorities are directed to redetermine the vacancies for years 1997-1998 to 2003-2004 according to G.O. dated 20.2.2003 and take further steps within a month from the date of production of certified copy of the order passed by this court before Secretary, P.W.D., Government of U.P.
(5) While undertaking re-exercise for determination of remaining vacancies for year 1997-98, the promotions made at Sl. No. 32 to 40 by G.O. No. 4023/23-4-98 N.G./97 T.C. Lucknow dated 30th June 1998 shall be ignored. Similarly 53 promotions made vide G.O. No. 2220/23-4-2002-24 N.G./2002 Lucknow dated 2.5.2002 in respect of vacancies of years 1998-99 to 2000-2001, 10 promotions made vide G.O. No.8651/23-4-2002-24 N.G./02 dated 6.12.2004 pertaining to vacancies of year 1998-99 and 1999-2000 and one promotion made vide G.O. No. 8021/23-4-05-24 N.G./02 dated 25.5.2005 shall also be ignored.
(6) As a result of striking down the promotions made on the post in question from Sl. No. 32-40 contained in G.O. dated 30.6.1998, G.O. dated 2.5.2005, G.O. dated 6.12.2004 and G.O. dated 25.5.2005 the degree holder junior engineers who were promoted by the aforesaid Government orders shall not be reverted at once to their original posts until the vacancies against which they were promoted shall be filled up according to rule-12 of old 1936 Rules by incumbents of feeder posts irrespective of their having diploma or degree in engineering.
(7) Against total remaining vacancies falling in the quota of promotion for year 1997 and for year 1998-2004 as indicated herein above, separate year wise eligibility and select list shall be prepared in respect of vacancies of each recruitment year.
(8) While preparing year wise eligibility list, the persons whose promotion have been quashed, shall also be considered and placed in the eligibility lists if fall within zone of consideration according to their seniority position in the seniority list irrespective of their having degree in engineering or equivalent qualification and while considering their case the period of services rendered by them on higher post shall be taken into account while computing their seniority on feeder cadre and their Annual Confidential Reports and other service records shall also be taken into account on notional basis on feeder cadre.
(9) However it is made further clear that rejection of relief to the petitioners in separate quota for promotion for degree holders on alleged ground of discrimination would not disentitle them to be considered for promotion provided they are otherwise found eligible for consideration for promotion according to their seniority position under rule 12 of old 1936 Rules, in that event of the matter they will also be considered alongwith other eligible candidates irrespective of their degree in engineering or equivalent qualification.
(10) The respondents-State authorities are directed to undertake aforementioned exercise and complete it within a period of three months from the date of production of certified copy of order passed by this court before Secretary of concern department of the Government.
(11) After aforesaid exercise is over, if the claim of promotions of degree holder junior engineers whose promotions have been quashed, are found not acceptable either because of their lower seniority position or found otherwise not suitable according to the rules of promotion, they shall be reverted to their original posts forthwith on completion of aforesaid exercise."
As regard the vacancies, the consistent stand of the State Government, as comes out from various affidavits and letters including the letter dated 22.4.2009, is that there were only 186 vacancies in the quota of promotion for the period 1997-98 to 2003-04. In the case of Anjani Kumar Mishra, the Court has determined the total vacancies to be 186. It is admitted fact that the State Government has promoted 29 persons vide order dated 30.6.1998, 1 by order dated 20.8.2007, 95 by the order dated 2.8.2008, 1 by the order dated 3.2.2009 and 27 persons were lastly promoted by the order dated 30.7.2009. It is also not in dispute that 73 persons are working under the Court's Order. It may also be pointed out that 21 vacancies were carried forward by the authorities. Thus, in all, 249 promotions have already been made. Therefore, there was no justifiable and valid reason for the authorities to act when the Court in the case of Anjani Kumar had already adjudicated the vacancies.
We are of the considered opinion, the vacancies existing in promotional quota as on 30.6.2004 are to be filled in accordance with provisions contained in United provinces Service of Engineers (Buildings and Roads Branch) Class-II Rules, 1936 in view of the judgment and order passed by this Court in the case of Anjani Kumar Mishra, which has been approved by the Apex Court.
Even at the cost of repetition, it may be stated that once the determination of vacancies, i.e. 186 after the judgment in Anjani Kumar Mishra's case had attained finality, which was determined applying the quota of 41-66% on the occurred vacancies during the period. There was no occasion or valid reason for the Government to make selection in excess of the determination. Moreover, it is not open for us to re-determine the vacancies as it would amount to review of the aforesaid final judgment.
It may be clarified that '2004 Rules' do not prescribe any qualifying examination as condition precedent for being eligible for considered for promotion, but as indicated above the said Rules are prospective in nature as such the vacancies occurring prior to that year are to be filled in by old Rules. The State government while making promotion under Old Rules have considered only degree holder Junior Engineers for promotion to the vacancies existing prior to 30.6.2004.
As per Rule 12 of the '1936 Rules' as amended in the year 1992, recruitment by promotion to the post of Assistant Engineer shall be made on the basis of "seniority subject to rejection of unfit" in accordance with U. P. Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970. As per Rule-6 of the '1970 Rules' a person who is being subjected to selection for a particular recruitment year has to fulfill the condition of eligibility on the first day of commencement of the year of recruitment. Rule 4(f) of the said Rules defines ' year of recruitment' as the period of 12 months beginning from first day of July of calendar years. As per Rule 19 of the 'Service Rules 1951' a person upon being appointed under the Rules has to be placed on probation for a period of two years and thereafter under Rule 22, he is required to undergo a departmental examination and only thereafter under Rule 23 he can be confirmed on the expiry of period of probation or to extend period of probation, which may further be for a period of one year. Rule 22 of '1951 rules' provides that a person recruited as a Junior Engineer under the Rules is required to undergo a departmental examination and without passing the same, he is not entitled for an increment.
It is not in dispute that the petitioners are the Junior Engineers and have acquired B.E./B.Tech./AMIE degree during the course of service. A reading of the provisions of Service Rules makes it clear that promotion on the post of Assistant Engineer shall be made on the basis of seniority, subject to rejection of unfit. As averred above, it is also not in dispute that from 1997-98 to 2003-04, no qualifying examination was held and as such, no promotion on the basis of qualifying examination could be made. The qualifying examination was held in August, 2007 pursuant to the judgment dated 20.3.2007 of the Apex Court in Appeal (Civil) No. 3228 of 2005, Diploma Engineers Sangh v. State of U.P. and others. In the said judgment, it was clearly provided that while conducting the exercise for promotion, list of all candidates of the Feeder Post should be prepared in order of seniority and each candidate as per rank in seniority is to be considered on merit. To judge the suitability, candidate can be required to undergo qualifying examination.
In the Public Works Department, Schedule - 25 of the U. P. Manual of Public Works Department Rules provides that qualifying examination for promotion should be held in the month of October/November of every year and Junior Engineers having completed three years continuous service are eligible for appearing in the examination. To the detriment of the petitioners, the examination was not conducted for number of years.
Petitioners' claim for promotion was rejected merely on the ground that the vacancies are related to the recruitment years 1997-98 to 2003-04 and as the petitioners have obtained their degrees in the years 2004-07 and as such, they were not eligible for being considered for promotion. This approach of the State Government was contrary to the dictum of the order passed by this Court in Writ Petition No. 4640 (SS) of 2009 whereby the eligibility was to be considered in the concerned recruitment year. The year of recruitment will not be the year in which the vacancies had accrued but in the year, when process for recruitment is started, as would be evident from Rule 6 of U. P. Selection by Promotion in Consultation with the U. P. Public Service Commission (Procedure) Rules, 1970. There is no provision either in '1936 Rules' or in '1970 Rules', referred to above, which provide that eligibility of a candidate has to be seen with reference to the year of vacancy. In these circumstances, there was no justification to exclude the petitioners from the recruitment exercise. There was also no justification for excluding the petitioners from the impugned eligibility list because the petitioners had obtained their technical qualification prior to 30.6.2008 and as per provisions of '1970 Rules' they fall within the zone of eligibility.
It is an admitted position that the first eligibility was prepared on 26.10.2007 after the declaration of qualifying examination result, as such, the date of eligibility, as per provisions of Rule 3 (i) Rules, 1969 would be the 31st December, 2007. Therefore, non-inclusion of the names of Junior Engineers, who possessed the technical degree, prior to 31.12.2007 is wholly unjustified as these Junior Engineers were having technical degree prior to the preparation of the eligibility list for promotion, i.e. 26.10.2007.
It may be stated that it is not the case of private respondents that they acquired degree during the course of service. Therefore, the State government fell into error in judging the suitability or merit on the basis of possession of degree. In any circumstance, persons appointed later on, cannot steal march over the incumbents, i.e. Junior Engineer having acquired degree during the course of service in the matter of consideration of promotion. It is not in dispute that the petitioners have put in 15-20 years of service as Junior Engineer but their claim of promotion has unlawfully been denied. Similar view has been taken by a learned Single Judge of this Court, on 1.8.2001, in a Writ Petition No. 3428 (SS) of 2001 Diploma Engineers Sangh, Public Works Department Versus State of U.P. and others, wherein it has been observed that persons who have been appointed at a later point of time irrespective of their qualification of Degree in Engineering cannot be promoted before considering the case of such Junior Engineers, who have acquired the necessary Degree in Engineering during the course of employment. It may be pointed out that the said judgment is still intact. Relevant paragraphs read as under:-
(i)a Junior Engineer so long as he does not enhance his qualification of acquiring a Degree in Engineering or complete the course of AMIE cannot become eligible for promotion on the post of Assistant Engineer in the prescribed quota of 8.33% and therefore, such Junior Engineers cannot have any grudge or complaint against the promotion of any Junior Engineer, who either secured a Degree in Engineering or pursued his course of AMIE during the course of employment or such Junior Engineers who are already possessing the Degree in Engineering.
(ii)In case the Junior Engineers possessing the Diploma acquired necessary qualification of Degree in Engineering or AMIE, they would become entitled for consideration to the next higher post of Assistant Engineer under 8.33% quota and in that event, these Diploma Engineers being senior to the new incumbent or persons who have been appointed at a later point of time irrespective of their qualification of Degree in Engineering cannot be promoted before considering the case of such Junior Engineers who have acquired the necessary Degree in Engineering during the course of employment.
In the instant case, perusal of eligibility list dated 9.4.2008 reveals that names of certain persons were included, who, undoubtedly, at the relevant time were working on probation and have not become members of service. We are unable to accept the assertion of the private respondents that all the persons who have been appointed against substantive vacancy were fully eligible for promotion even without being confirmed on the post.
Before parting, it is relevant to point out that the petitioners have also asserted that the qualifying examination was not conducted properly with due notice to all concerned. It is not in dispute that after the judgment and order dated 16.7.2004 in the case of Vijay Kumar vs. State of U.P. and others, the Engineer-in-Chief on 15.5.2007, issued a letter notifying that qualifying examination would be conducted by the U.P. Technical Board of Education. Subsequently, the examinations were held on 18 and 19.7.2007 at the U.P.S.C. Centre, Lucknow. Later on, due to some discrepancies, the examination held on 18 & 19.7.2007 was cancelled by the State Government vide order dated 30.7.2007. Consequently, a notice was published on 3.8.2007 that the examination would be held on 12,14 and 16th August, 2007. In the notice, it was also provided that the admit card which was issued at the time of qualifying examination by the U.P. Technical Board would be treated to be valid and no separate admit card would be required. As the candidates are posted in the remote areas of the State of U.P., they were not aware with the date of examination as no proper communication was made by the concerned authorities of Department and as such large number of candidates could not participate in the examination. It has been asserted by the petitioners that in the absence of proper information, only one candidate was able to appear in the first paper in forenoon and two others joined in the second paper in the afternoon. Similarly, on 13.8.2007, only 9 candidates appeared in the first session and 11 in the second session. It has also been pointed out that the Department has provided that the admit card issued earlier will be treated as valid wherein the centre of examination was mentioned as U.P.S.C. Lucknow but the examination was held at Allahabad. Thus all these happening deprived/prevented the bonafide and eligible candidates to participate in the examination. Therefore, in the fitness of things, it is imperative that the qualifying examination will have to be conducted again within a period of four months so that the incumbents, who are eligible may appear in the examination and their candidature may be considered for promotion.
In view of the aforesaid discussions and legal position, the impugned government orders dated 3.7.2009 and 5.2.2010 and the consequential orders for promotion and posting as Assistant Engineers of private respondents are not sustainable, which are hereby quashed. State Authorities are directed to strictly act in accordance with the Service Rules relating to promotion on the post of Assistant Engineer and as per wish mentioned in the earlier judgments and particularly the directions given by the Apex Court, contained in the order dated 20.3.2007. It may be added that the Junior Engineers who acquired Degree during the course of service and have put in more than 20 years of service, without a single promotion and now they are at the fag end of their service and as such, ends of justice would be served, if the State Government conducts the exercise for promotion afresh as per provisions of law as was in force upto the recruitment year 2003-04 with utmost expedition.
With the aforesaid observations and directions all the writ petitions stands disposed of finally.
Dated:September 8 ,2011 Ajit/Lak/HM