Chattisgarh High Court
Prabhat Saxena vs State Of Chhattisgarh on 18 June, 2007
Author: Satish K Agnihotri
Bench: Satish K Agnihotri
IN THE HIGH COURT OF CHATTISGARH: BILASPUR
WP No 3277 of 2004 AND WP No 515 of 2005 AND WP No 5131 of 2005 AND WP No 246 of 2005 AND WP No 1053 of 2005
1 Prabhat Saxena
2 Dinesh Kumar Khandelwal
3 V N K Shashtri
4 Arun Deo
5 S K Gujrati
6 S K Chaturvedi
7 Krishna Nand Yadav
8 L N Shrivastava
9 S W Manurkar
10 Shri S J Moghe
11 Shri Anil Phirke
...Petitioners
VERSUS
1 State of Chhattisgarh
2 Engineer in Chief P W D Raipur
3 State of Chhattisgarh
4 Engineer in Chief P H E Department Raipur
5 State of Chhattisgarh
6 Engineer in Chief P H E Department Raipur
7 State of Chhattisgarh
8 Engineer in Chief Public Health Engineering Department Raipur
9 State of Chhattisgarh
10 Engineer in Chief Public Health Engineering Deptt Civil Lines Raipur
...Respondents
! Mr Goutam Bhaduri Mr Shashank Shankya Ms Deepali Pandey and Mr Saleem Kazi on behalf of Mr Sunil Otwani Advocates for
^ Mr Sushil Dubey Government Advocate for the respondents State
Shri N K Vyas and A K Shrivastava Advocates for the Intervener
Honble Mr Justice Satish K Agnihotri
Dated: 18/06/2007
: Order
(Writ Petition under Article 226/227 of the
Constitution of India)
ORDER
(Passed on this 18th day of June, 2007) The present batch of matters involve a common question of law and facts asto whether the circular dated 7-10-1992 (Annexure P/6) issued by the then State of Madhya Pradesh contemplates two gradation lists. One for Sub Engineers who had obtained B.E. degree prior to joining the service (hereinafter referred to as "Sub Engineer Degree Holders") and second for Sub Engineers who had diploma in engineering before joining the service and acquired B.E. degree in the course of their service (hereinafter referred to as "Sub Engineer diploma holders").
2) The indisputable facts in nutshell in all the petitions are that all the petitioners are graduate engineers joined the post of Sub Engineers after having obtained degree of B.E. The service conditions of the petitioners are governed by Chhattisgarh/Madhya Pradesh Public Works (Gazetted) Service Recruitment Rules, 1969 (hereinafter referred to as "the Rules 1969"). The petitioners seek for promotion to the post of Assistant Engineers under Rule 14 of the Rules 1969 read with Schedule IV annexed to the rules wherein qualification for promotion to the post of Assistant Engineers is eight years service as Graduate Sub-Engineers.
3) Mr. Goutam Bhaduri, Mr. Shashank Shankya, Ms. Deepali Pandey and Mr. Saleem Kazi on behalf of Mr. Sunil Otwani appearing for the petitioners (Sub- Engineers) would submit that there should be a separate gradation list for Sub Engineer degree holders as seniority of Sub Engineers diploma holders, who obtained degree in the course of their service would create anomalous situation. The, then, State of Madhya Pradesh issued a circular dated 7-10-1992 (Annexure P/6) providing for creation of two gradation lists separately for degree holders and diploma holders who obtained degree in the course of their service. The circular dated 7-10-1992 (Annexure P/6) contemplates option for the diploma holders who obtains B.E. degree for choosing the cadre of degree holders or diploma holders as their seniority shall be counted from the date diploma holders had obtained B.E. Degree.
4) Learned counsel would further contend that all the promotions made on ad hoc basis to the post of Assistant Engineers not in accordance with circular be quashed and the respondent/State be directed to prepare two separate gradation lists and take steps for promoting Sub Engineers to the post of Assistant Engineers in accordance with the circular dated 9th September, 1998 (Annexure P/1) passed by the then State of Madhya Pradesh. The State of Chhattisgarh has adapted the Rules 1969 and other circulars issued prior to 31-10-2000 before new State of Chhattisgarh came into existence.
5) Shri Sushil Dubey, learned Govt. Advocate for the respondent/State would, per contra, submit that decision of the Hon'ble Supreme Court in the case of M.B. Joshi and others Vs. Satish Kumar Pandey and others1 would be applicable in the present cases also as the Rules i.e., Madhya Pradesh Public Health Engineering (Gazetted) Service Rules, 1980 (hereinafter referred to as "the Rules, 1980") and the Rules, 1969 are identical. The decision of the Supreme Court in the matter of Chandravathi P.K. Vs. C.K. Saji,2 deals with Kerala Engineering Service (General Branch) Rules which is not para materia with the present rules.
6) Shri N.K. Vyas, counsel appearing for the Intervener, Shri A.K. Shrivastava, per contra, would submit that the State of Madhya Pradesh as well as State of Chhattisgarh are bound by the decision of the Supreme Court in the matter of M.B. Joshi and others (supra). The intervener has been promoted on ad hoc basis to the post of Assistant Engineer, therefore, at this stage, his promotion cannot be disturbed.
7) I have heard learned counsel for the parties, perused the pleadings and the documents appended thereto. It is evident that the petitioners are Graduate Sub-Engineers who have obtained B.E. degree before joining of the services. The service conditions of the Sub-Engineers are governed by the Rules, 1969. It is beneficial to quote relevant provisions of the Rules, 1969. Rule 14 and Schedule IV of the Rules 1969 read as under
"14. conditions of eligibility for promotion - The Committee shall consider the cases of all persons (whether officiating or substantive) in the service mentioned in column 2 of Schedule IV or any other post or posts declared equivalent thereto by the Government.
Provided that the Committee shall consider the cases of Executive Engineers, Assistant Engineers, Junior Engineers and Overseers/Head Draftsman/Draftsman who on the first day of January of that year had completed service (whether officiating or substantive in the post or service) as under for the purpose of promotion to the next higher post indicated hereinafter:-
Provided further that the services of the released officers of the Emergency Commission and Short Service Commission, after their appointment in the Service, shall be counted from the date from which they have been deemed to have been appoint ed in the Service in accordance with the General Administration Department Memo No.2266/1987-1(3)/67, dated the 21st October, 1967). Provided further that the junior person shall not be considered for selection grade promotion in preference to the person senior to him lonely on the basis of his completing the prescribed service.").
Schedule IV (See Rule 14) Name Name of Minimum Name of Name of of Service of period service of members of Dept posts from to post to which the . which quality promotion is departmental promotion is for to be made promotion to be made promoti Committee on to vide Rule 14 be next higher post (1) (2) (3) (4) (5) Publ M.P.P.W. -- M.P.P.W. 1. Chairman, ic Engineering Engineering P.S.C. or a Work (Gazetted) (Gazetted)Ser member s Service vice nominated by Dept him-Chairman .
-- -- 2. Special Secretary PWD members).
(----- -- 3.
------) Secretary,
Govt. M.P.
Public Works
Department
Member.
Executive 5 years Superintendin
Engineer, g
Class I. Engineering,
Class I.
Assistant 6 years Executive 4. Head of Engineer, Engineer, Departments Class II Class I. concerned Member.
Junior 8 years Asstt 5.Deputy
Engineers Engineer, Secretary to
Class II Govt.
M.P.P.W.
Department
(Establishme
nt).
Convenor.
Overseers 12 Asstt.
years Engineer.
Class II.
Head 12 Asstt.
Draftsman/ years Engineer,
Draftsman Class II.
Graduates 8 years Assistant
Sub- Engineer
Engineers
and
Office --- Administrativ
Superintende e Officer,
nts in C.E'S C.E'S Office,
Office, Class II.
Class III
8) The circular dated 9-9-1998 (Annexure P/1) was
issued to supplement the provisions of the Rules for the purpose of promotion to the post of Assistant Engineers in following manners.
fo"k; %& e0 iz0 bathfu;lZ dkaxzsl }kjk izLrqr ekax&i= esa mfYyf[kr ekaxks ij fopkj & ckny nkl lfefr ds izfrosnu dh vuq'kalkFkZ A e/;izns'k bathfu;lZ dkaxzsl }kjk izLrqr ekax ij rFkk ckny nkl lfefr ds izfrosnu ij fopkj dj fu.kZ; fy;k x;k gS fd dk;Z foHkkxksa esa dk;Zjr lgk;d ;af=;ksa ds in fuEukuqlkj Hkjs tkos %& 1- lh/kh Hkjrh }kjk 25 izfr'kr 2- fMIyksek/kkjh mi;a=h ls inksUufr }kjk 50 izfr'kr 3- ,sls mi;a=h ftUgksaus lsok esa 20 izfr'kr jgrs gq, fMxzh izkIr dh gS o ,sls mi;a=h ftUgksus lsok esa vkus ds iwoZ gh fMxzh lekIr dh Fkh] ls inksUufr }kjk 4- ekufp=dkj lanHkZ ls inksUufr 5 izfr'kr mijksDrkuqlkj lsok@Hkjrh fu;eksa esa vko';d la'kks/ku fd;k tk;s A e/;izns'k ds jkT;iky ds uke ls] rFkk vkns'kkuqlkj lgh@& gLrk{kj vLi"V ,,e0,e0 JhokLro+ mi&lfpo e0iz0 `kklu lkekU; iz'kklu foHkkx
9) The then State of Madhya Pradesh vide circular dated 7-10-1992 (Annexure P/6) provided for option to the diploma holders for choosing either the gradation list of graduate engineers or gradation list of the diploma holders, which reads as under:
fo"k; %& yksd fuekZ.k foHkkx ds fMIyksek/kkjh@xzstq;sV Lukrd mi;af=;ksa ds inksUufr ckcr~ A
mijksDr fo"k;kUrxZr mi;a=h ,fMIyksek/kkjh+ ,oa tks mi;a=h fMIyksek/kkjh jgrs gq, ckn esa os fMxzh izkIr dj yh gS rFkk tks mi;a=h fMxzh/kkjh fu;qDr gq, gS mUgsa mi;a=h ls lgk;d ;a=h ds in ij inksUufr gsrq 10 izfr'kr dksVk j[kk gS A inksUufr ls iwoZ fjDr inksa ij mijksDr dksVs ds vuqlkj in fu/kkZfjr dj ofj"Brk lwph vuqlkj fopkj fd;k tkrk gS A vr% iz'kklfud vfHkdj.k ds fu.kZ;kuqlkj mi;af=;ksa dh vyx ofj"Brk lwph mi;a=h fMIyksek/kkjh 2- mi;a=h fMxzh/kkjh ,xzstq;sV mi;a=h+ ds :i esa izdk'ku dj inksUufr dh] dk;Zokgh dh tkrh gS ,oa mi;a=h fMxzh/kkjh ds chp mudh ofj"Brk de fMxzh izkIr gksus ds frfFk ls nh tkuh gS A blds izfr] mi;a=h tks iwoZ esa fMIyksek/kkjh Fks ,oa ckn esa fMxzh izkIr djrs gS] dh lgefr izkIr djuh gksxh fd ;s fdl lwph esa jguk pkgrs gS A D;ksafd fMxzh/kkjh mi;a=h dh ofj"Brk dk fu/kkZj.k fMxzh izkIr djus dh frfFk ls gksxk u fd mi;af=;ksa dh ikjLifjd ofj"Brk ls A vr% mi;a=h tks iwoZ es fMIyksek/kkjh Fks ,oa ckn esa mUgksaus fMxzh izkIr dh gS mlls lgefr izkIr djsa fd ;s mi;a=h ,fMIyksek/kkjh+ ;k mi;a=h fMxzh/kkjh dh lwph esa viuk uke pkgrs gS mUgsa Li"V crk;k tkos fd mudh ofj"Brk fMxzh/kkjh mi;af=;ksa ds lkFk fMxzh izkIr djus ds fnukad ls ekU; gksxh A fMxzh/kkjh gsrq ^^v** lwph cuk;s rFkk fMIyksek/kkjh mi;af=;ksa gsrq ^^c** dh varfje lwph 15 fnol esa cuk;s rFkk ,d ekg dh le;kof/k vkosnu@izfrosnu izkIr djus gsrq nh tkdj bls vafre :i fn;k tkosa A rkfd e/; izns'k iz'kklfud vfHkdj.k ds fu.kZ; ds ikyu dh dk;Zokgh dh tk ldsA d`i;k fu/kkZfjr le;kof/k Ms<+ ekg dk fo'ks"k /;ku j[kk tkosaA larks"k feJ voj lfpo e/;izns'k `kklu yksd fuekZ.k foHkkx-
10) There was a clear contemplation of maintaining two gradation lists; one for the Sub-Engineers who have obtained B.E. degree before joining the service and second for those who were initially diploma holders and obtained B.E. degree in the course of service.
11) In the case of M.B. Joshi and others (supra) the provisions of the Rules 1980 were under consideration for determination of inter se seniority between the degree holders who joined the service and the diploma holders who had acquired Engineering degree in the course of their services.
12) Schedule IV of the Rules 1980 provides for promotion to the higher post from the post of Sub- Engineers in Civil or Mechanical. The minimum period of Sub-Engineers to qualify for promotion to the post of Assistant Engineer was 12 years for diploma holders and 8 years for such Sub-Engineers who obtained degree of graduation in the course of their services.
13) Hon'ble the Supreme Court in the case of M.B. Joshi and others Vs. Satish Kumar Pandey and others has observed as under:
"16. In these circumstances mentioned above, we are clearly of the view that the Tribunal was wrong in determining the seniority from the date of acquiring degree of engineering and it ought to have been determined on the basis of length of service on the post of Sub-Engineer and the State Government was right in doing so and there was no infirmity in the orders passed by the Government."
14) Subsequent circulars dated 7-10-1992 (Annexure P/6) and 9-9-1998 (Annexure P/1) were not in existence when the decision in the case of M.B. Joshi and others (supra) was passed, even the provisions of law is also not para materia as Schedule IV of Rules 1969 does not distinguish between the degree holders and diploma holders before joining the post of Sub-Engineers. The circulars dated 7-10-1992 (Annexure P/6) was considered by the High Court of Madhya Pradesh in the matter of Jayant Kumar Jain Vs. State of M.P. and others. The High Court of Madhya Pradesh held that D.P.C. will be convened only after finalization of the gradation list as per circulars dated 19.2.03 and 7.10.1992. The said circular dated 07.10.1992 and provisions of the Rules 1969 are applicable in the case of the present petitioners also as the same were issued prior to creation of the State of Chhattisgarh i.e. 1-11-2000 and the same have been adapted by the State of Chhattisgarh subsequently. Subsequent circulars issued by the State of Madhya Pradesh are not relevant for the purpose of these cases.
15) The Supreme Court while considering identical issue in the case of Chandravathi P.K. and others (supra) has considered the Rule 4 of Kerala Public Health Engineering Service Rules and Rule 5 of Kerala Engineering Service (General Branch) Rules. The short question which arose for consideration before the Supreme Court was asto whether in terms of the scheme of the Kerala Engineering Service (General Branch) Rules, diploma-holders are entitled to claim any weightage in (sic for) the service rendered by them prior to their acquisition of degree qualification in the matter of promotion or transfer to higher posts when specific quota is fixed for graduates and diploma- holders in the matter of promotion.
16) Hon'ble the Supreme Court noticed earlier decisions including decision in M.B. Joshi's case (supra) in the case of Chandravathi P.K. and others (supra) and observed as under:
"43. The State as an employer is entitled to fix separate quota of promotion for the degree-holders, diploma-holders and certificate- holders separately in exercise of its rule-making power under Article 309 of the Constitution of India. Such a rule is not unconstitutional. The State therefore, in our opinion, cannot be said to have acted arbitrarily by giving an option to such diploma-holders, who acquired a higher qualification, so as to enable them to either opt for promotion in the category of degree holder or diploma holder. Such option was to be exercised by the officer concerned only. He, in a given situation, may feel that he would be promoted in the diploma holders' quota earlier than degree-holders' quota and vice versa but once he opts to join the stream of the degree-holders, he would be placed at the bottom of the seniority list."
17) The State Government has taken a policy decision to have separate gradation lists for degree holders and diploma holders under the circular dated 7-10-1992 (Annexure P/6) in exercise of its rule-making power under Article 309 of the Constitution of India. Applying well settled principles of law as laid down by the Supreme Court to the facts of the present case, it is held that the circular dated 7-10-1992 (Annexure P/6) contemplates two gradation lists. One for Sub Engineers degree holders who had obtained B.E. degree prior to joining the service and second for Sub Engineers diploma holders who had diploma in engineering before joining the service and acquired B.E. degree in the course of their services. The said circular is unambiguous and clear and capable of only one meaning as above-stated.
18) Accordingly, the State Government is directed to prepare two gradation lists and to consider for promotions in the category of degree holders and diploma holders. The diploma holders, who opt for the stream of degree holders, they would be placed at the bottom of the seniority list. This Court, by the order dated 9.4.2007 in W.P. No. 5131 of 2005, has directed as under :-
"In the meantime, if a Departmental Promotion Committee holds its meeting for consideration of Sub Engineers for promotion to the post of Assistant Engineers with regard to the subject matter of these petitions, the recommendation of Departmental Promotion Committee and order thereof shall be subject to ultimate decision of these petitions"
19) Accordingly, all the promotions made during pendency of these petitions on ad hoc basis, shall be considered after drawing a fresh gradation lists for promotions to the post of Assistant Engineers.
20) As a result and for foregoing reasons, all the petitions are allowed. No order as to costs.
21) A copy of this order be placed on record in other connected writ petitions.
Judge