Delhi High Court
Tirath Raj vs Municipal Corporation Of Delhi on 15 July, 1997
Equivalent citations: 1997IVAD(DELHI)652, 68(1997)DLT635, 1997(42)DRJ632
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
(1) The petitioners who are engineers holding degrees in Engineering (hereinafter referred to as the `Graduate Engineers') are aggrieved by the approval granted by the Union Public Service Commission (hereinafter referred to as the `UPSC') vide its letter dated 19.10.1989 bearing No. F/3/24(9)/89-RR to the Resolution of the Municipal Corporation of Delhi for amendment of the existing recruitment regulations for the post of Superintending Engineers. As a result of the aforesaid amendment, the existing requirement of possessing a degree in Engineering for promotion to the post of Superintending Engineer (Civil) was omitted and instead the minimum qualification of at least a Diploma in Civil Engineering was prescribed. The Upsc while giving approval further desired that the Municipal Corporation should review the existing Recruitment and Promotion Regulations for the post of Executive Engineer (Civil) keeping in view the position in the DWS&D Undertaking.
(2) The petitioners contend that the degree holders and diploma holders have consistently been treated as unequals in the post throughout. Junior Engineers are recruited directly from degree holders and from diploma holders with experience. Assistant Engineers are recruited 50% by way of promotion and 50% by way of direct recruitment. Executive Engineers are appointed on the basis of both promotion and direct recruitment. However, for direct recruitment, a degree with seven years experience is essential. From the cadre of Executive Engineers, Superintending Engineers are appointed by promotion and if no suitable officer is available, then the appointment is by transfer, deputation or direct recruitment in consultation with UPSC. Under the May 1973 Resolution of the Corporation, for being promoted to the post of Superintending Engineer (Civil), a degree in Engineering was an essential qualification. Sometime in September 1987, a private member had moved an unofficial Resolution, proposing that for promotion to the post of Superintending Engineer, 25% of the posts should be filled by diploma holders and 75% by degree holders. The petitioners contend that the Municipal Commissioner vide his report dated 20.5.1988 did not recommend the same and gave his report against the proposed Resolution. The Commissioner in his report recommended that it was not appropriate to make amendment in the Recruitment Regulations for the post of Superintending Engineer (Civil) to provide eligibility to diploma holders for promotion to the post. The Commissioner, it appears, relied on the fact that he Upsc, while considering the case of promotion of Assistant Engineers, had not agreed to provide for promotion of diploma holders even to the post of Executive Engineers. The Corporation, nevertheless, vide a Resolution dated 27.6.1988 bearing No. 343 accepted the recommendation of the Appointments, Promotion, Disciplinary and Allied Matters Committee, for amendment to the existing regulations to provide that 75% of the posts be filled up from the degree holders and 25% from Diploma Holder Executive Engineers. The Commissioner again vide his letter of 7.9.1988, reiterated his views that it would not be appropriate to have the qualification of diploma in Civil Engineering as eligibility condition in the Recruitment Regulations for promotion to the post of Superintending Engineer (Civil). Notwithstanding the recommendations of the Municipal Commissioner, the Appointments, Promotions Disciplinary and Allied Matters Committee of the Corporation vide its Resolution dated 6.10.1988, reiterated the proposed amendment in the Recruitment Regulations and desired that the same be referred to the Upsc for concurrence. The motion was carried on 28.11.1988. It is in this background that the Upsc gave the approval dated 19.10.1989, as noted earlier.
(3) The petitioners assail the amendment in the Recruitment and Promotion Regulations as being arbitrary, resulting in gross injustice and impropriety. The amendment, as per petitioners, suffers from complete non-application of mind, in as much as, even the original amendment proposed by the private member contemplated 75% quota for degree holders while 25% of the posts were proposed to be kept for diploma holders. The Upsc while giving its approval has completely ignored this aspect and made all diploma holders without any restrictions to be eligible for promotion to the post of Superintending Engineer. The petitioners contend that the said decision is in violation of the 1979 Central Government guidelines, stipulating that for appointment to all technical and scientific posts in the grade of Rs. 1100-1600, a degree was essential. The argument being the post of Executive Engineer being one and, as such, the requirement should have applied with greater rigour to the post of Superintending Engineer. Learned counsel argued that the respondent Corporation and Upsc have both failed to consider the level of skill, expertise and technical knowledge required for the post of Superintending Engineer. It was submitted that with the use of highly specialised and advanced technology in construction, a high level of knowledge in technical skills was required by the Engineers, especially at the level of Superintending Engineer. It was urged that even as a part of contract stipulation, in contracts involving more than Rs. 10 lakhs, the contractor is required to employ a graduate engineer.
(4) The petitioners contends that in the Automobile Wing of the Municipal Corporation as well as in Delhi Vidyut Board and Central Public Works Department, a degree was an essential pre-requisite for the post of Executive Engineer. The petitioners further submitted that exclusion of the eligibility condition would result in large number of diploma holders getting promoted to the post of Superintending Engineer to the detriment of the degree holders. This is attributed to the diploma holders acquiring seniority on account of joining employment earlier because of lesser numbers of years of education. The diploma holders having longer length of service would overtake their degree holder counter-parts.
(5) The petitioners also contend that the reliance by the Municipal Corporation on the decision in Kimti Lal Kathuria's case decided by a Division Bench of this Court and reported at 1988 Lic 434, was misplaced as the said judgment was overruled by the decision in Roop Chand Adlakha & Ors. Vs. D.D.A. & Ors. reported as 1989 Supp.(1) Scc 307. The petitioners contend that in K.L. Gupta Vs. M.C.D., Cwp No. 1258 of 1984, decided by a Single Judge of this Court, based on the recommendations of the Upsc, a degree was made a condition precedent for appointment to the post of Executive Engineer (Civil) in the DWS&SD Undertaking of the MCD. Only those diploma holder Assistant Engineers in service on the date of notification were protected. The degree holders were aggrieved by the Rules as earlier the position was that degree holders with five years and diploma holders with ten years service were eligible for promotion. The saving clause in the Upsc recommendation provided for protection both to diploma holder and degree holder Assistant Engineers with eight years service would be eligible. The petitioners' contention was that degree holders and diploma holders, who were unequals, could not be treated as equals and the same period of experience prescribed for them as Assistant Engineers for promotion to the post of Executive Engineers. The petitioners contend that in the said writ there was no challenge to the rest of the rules which made diploma holders ineligible for promotion in future and the same was not struck down. The quashing of the rules in the relief part must be read as confined only to the challenge to the rules in the writ petitioner. The petitioners further contend that simply because the Court in K.L. Gupta's case had struck down two parts of the rules, which created hostile discrimination against the degree holders, the Corporation has chosen to create total discrimination against the degree holders by treating ineligible diploma holders as eligible for the post of Superintending Engineers. The above submission would not be determinative as regards the challenge to the impugned amendment in the writ petition.
(6) The petitioners also submit that for the post of Executive Engineer in the Water Supply the minimum qualification is a degree. Even as regards the Cpwd the petitioners contend that it is clear from the Central Engineering Rules that the qualifications' for the post of Executive Engineer is a degree. There is only one exception in favour of "outstanding candidates" who can be selected as Executive Engineers. The petitioners submit that what is available as an exception for outstanding candidates, cannot be used to totally obliterate the spirit of the Rule.
(7) Learned senior counsel for the petitioners, Mr. Arun Jaitley, argued that the degree holders and diploma holders are essentially a class apart and even if they become a part of the same class for the purpose of a post, they can still be classified separately for the purposes of promotion. Reliance was placed on P. Murugesan & Ors. Vs. State of Tamil Nadu & Ors. . The amendment to the rules is stated to be a result of total non-application of mind. The Corporation and the Upsc have ignored the knowledge and talent required at the technical level of the post of Superintending Engineer by permitting the diploma holders to be eligible. The amendment being a subordinate legislation, suffers from manifest arbitrariness, partiality and tends to cause injustice. The rule is really an abuse of the subordinate legislation and the Legislature could not have contemplated empowering the rule making authority to make such a rule. It is stated that the reasons given for the amendment of the rule are extraneous and irrelevant.
(8) The respondents have refuted the contentions raised by the petitioners and certain assertions on facts which are discussed hereinafter. The respondent Municipal Corporation in an additional affidavit filed on 12.7.1995, together with the Annexures, have set out the sequence of events commencing from the Private Member's Resolution dated 9.9.1987. It is contended that from 1973, only those Executive who held the degree qualification in Civil Engineering were eligible for promotion to the post of Superintending Engineer. Avenues for promotion of diploma holders, who constituted nearly half the strength of the Executive Engineers, therefore, stood closed. The Resolution proposed in 1987, by the Private Member recognised the stagnation in the diploma holder Executive Engineers. It also noticed that the duties being performed by the degree holder Executive Engineers and diploma holder Executive Engineers were identical. The Resolution was in consonance with the policy of the Municipal Corporation to provide better promotional avenues to departmental officers, to give them sense of satisfaction. The respondent Mcd has refuted the contentions of the petitioners with regard to the requirement of a degree in Engineering as a qualification for promotion to the post of Superintending Engineer in the Cpwd, DWS&SDU, Flood Control & Irrigation Wing and the Delhi Vidyut Board. The respondents have filed, alongwith the additional affidavit, copies of the communications addressed to the agencies enquiring about the prevailing position therein as well as the response received thereto.
(9) From the averments made in para (4) and Annexure R-4 of the additional affidavit dated 12.7.1995 filed on behalf of Mcd averred that diploma holders were eligible to the post of Superintending Engineer in Delhi Water Supply & Sewage Disposal Undertaking. The requirement being for Executive Engineers to have five years experience in the grade. Vide column (8) of the schedule to the notification, educational qualifications prescribed for the direct recruits were not to apply to the case of the promotees. It is also clear from the documents annexed and the response received from the Cpwd, that diploma holder Executive Engineers with outstanding performance in the Cpwd were eligible for promotion to the post of Superintending Engineer. Reference be made to letter dated 25.1.1989, Annexure R-8, to affidavit dated 12.7.1995.
(10) As noticed earlier, the respondent Corporation notwithstanding the reservations recorded by the Commissioner on the proposal, reiterated its proposal vide Resolution No. 343 dated 27.6.1988. Vide the said Resolution, the Corporation Resolved that as recommended by the Appointments, Promotion, Disciplinary and Allied Matters Committee vide its Resolution No. 32 dated 27.4.1988, the existing Recruitment Regulations for the post of Superintending Engineer the amended so as to provide that 75% of the posts be filled from out of degree holder Executive Engineers and 25% from the diploma holder Executive Engineers. The Commissioner, Municipal Corporation, on 7.9.1988, again reiterated his opinion and expressed his reservation that in the interest of efficiency in administration, the requirement for degree qualification be not changed. The Corporation again considered the matter and vide another Resolution No. 830 dated 28.11.1988, reiterated the earlier Resolution and desired that the matter be referred to the Upsc for concurrence.
(11) The Corporation on 5.5.1989 sent its proposal for concurrence to the Upsc (Annexure R-39 page 39 of the additional affidavit dated 12.7.1995 be referred to). Further information was supplied to the Secretary, Upsc, by the Corporation vide its letter dated 26.5.1989 enclosing the Cpwd manual as well as the clarification from the Cpwd and the Recruitment Regulations for the post of Superintending Engineer. The Upsc vide its Do No. D-3/24(9)/89-RR sought clarifications and called the Corporation officials for discussion. The Corporation vide its letter of 20.7.1989, furnished the clarifications sought and these, inter alia, included the number and strength of diploma holder Executive Engineers (Civil) respectively, details of their dates of appointment and the dates on which they were given current, ad hoc or regular charge as well as the date of retirement. The Upsc was informed that diploma holder Executive Engineers had been working in senior Group `A' on regular basis in the grade of Rs. 3,000-4500 since 1987 coupled with putting up an average five year current/ad hoc service, while some of them had even put up 8 years current/ad hoc/regular service in the post. It is after the receipt of the aforesaid material, clarifications and further data and deliberations that the Upsc vide its letter dated 19.10.1989, gave its concurrence to the amendment in Recruitment and Promotion Regulations to the post of Superintending Engineer (Civil). The Upsc agreed for amendment in column (B) in the following terms: "(WHETHERage and educational qualifications prescribed for direct recruits will apply in the case of promotees) of the existing R&P Regulations for the post of Superintending Engineer (Civil), M.C.D. to be in line with the corresponding provision in D.W.S. and S.D. undertaking. Existing Approved by the Commission Age : No. Age : No. Qualifications: Yes Eq : No. but should possess at least diploma in Civil Engineering. The above amendment may kindly be notified within 10 weeks of the receipt of this letter and 4 copies of the notification may be sent for Commissioner's record. The Commission have also desired that the Corporation should review the existing R&P Regulations for the post of Executive Engineer (Civil) keeping in view the position in the D.W.S. and S.D. Undertaking and send a proposal for amendment of the same."
(12) The Corporation, in response to the requirement of Upsc for review of Recruitment and Promotion Regulations for the post of Executive Engineer (Civil) clarified vide its communication bearing No. F.39(38)/CE/(2)/87-PT-IV-34447 dated 20.12.1989, that a perusal of the Recruitment and Promotion Regulations for Executive Engineer (Civil) in the General Wing of the Corporation and those in existence in DWS&SD undertaking revealed that educational qualifications prescribed for direct recruits are not applicable for promotees in both the organizations. As such, the Regulations for the post of Executive Engineers do not call for any amendment.
(13) Learned counsel for the respondent Corporation, Mr. V.P. Singh, Sr. Advocate, and Mr. S.C. Gupta, Sr. Advocate for respondents, argued that Commissioner's opposition to the proposed amendment in the Recruitment and Promotion Regulations for Superintending Engineers emanated from his mistaken belief that in the Cpwd, the pattern of which was followed in the Municipal Corporation, a degree in Engineering as an essential qualification for promotion to the post of Superintending Engineer. Considerable emphasis was put on the note of the Commissioner, where after noting of what he perceived as the eligibility condition in the Cpwd, he wrote, "As such, it would not be appropriate". It was submitted that in view of the clarification by the Cpwd, the objection would no longer survive. Learned counsel also argued that in view of their being no distinction between degree holders and diploma holders in DWS&SDU. Further considering that the Delhi High Court had vide its judgment dated 17-10-1984 in C.W.P. 1258/94 titled K.L. Gupta Vs. M.C.D. had quashed the amendment sought to be made to the Recruitment Rules of Executive Engineer (Civil) of the DWS&SDU, which would have deprived the diploma holders of their right to he considered for promotion, there was no impediment left and the Corporation thereupon proceeded to give effect to the proposed amendment in the Regulations for appointment of Superintending Engineers to which concurrence by Upsc had been given. The Corporation notified the said amendment vide notification dated 26.8.1991 published on 5.9.1991.
(14) Mr. V.P. Singh, learned senior counsel, while recognizing that a writ Court has jurisdiction to test the vires of the rule as framed, submitted that there were well-defined parameters of judicial review, namely, cases of complete and patent arbitrariness or unreasonableness or when there was no nexus between the material which was taken into consideration for amendment of the rules and the objective that was sought to be achieved. This as we shall shortly notice was obviously not the position in the present case.
(15) Mr. S.C. Gupta, learned senior counsel, elaborately argued the matter, citing the following judgments of the Supreme Court in support of the respondents' contentions, on limitation on judicial review. It was stressed that this was not a case warranting interference by the Court in writ jurisdiction. (i) In Maharashtra State Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupesh Kurmarseth wherein the Apex Court has highlighted the following guidelines: "THE Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulation-making body ....the Court cannot strike it down on the ground that in its opinion it is not wise or prudent policy ......." (Para 16). "In view of the conclusion expressed by us that regulations cannot be regarded as mere bye-laws, the contention raised of alleged unreasonableness does not really call for consideration..." (Para 19)." (ii) In Indian Express Newspapers Vs. Union of India & ors. . the Apex Court has held as follows: "A distinction must be made between delegation of a legislative function in the case of which the question of reasonableness cannot be enquired into and the investment by statute to exercise particular discretionary powers. In the latter case the question may be considered on all grounds on which administrative action may be questioned, such as, non-application of mind, taking irrelevant matters into consideration, failure to take relevant matters into consideration, etc. etc. One the facts and circumstances of a case, a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. This can only be done on the ground that it does not conform to the statutory or constitutional requirements or that it offends Article 14 or Article 19(1)(a) of the Constitution. It cannot, no doubt, be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant."
(iii) In V.K. Sood Vs., Secretary, Civil Aviation & Ors. (1993 Supp.(3) Scc 9) the Apex Court observed the following on the issue of challenge to the Rules prescribing qualifications and eligibility conditions: "THE Rules thus having been made in exercise of the power under proviso to Article 309 of the Constitution being statutory, cannot be impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal. Suffice to state that it is settled law that no motives can be attributed to the Legislature in making the law. the rules prescribed qualifications for eligibility and the suitability of the appellant would be tested by the Union Public Service Commission." (Para 6). "We are afraid that we cannot enter into nor undertake responsibility in that behalf. It is for the expert body and this Court does not have the assistance of experts. Moreover, it is for the rule-making authority or for the Legislature to regulate the method of recruitment, prescribe qualifications etc."
(Para 7). (iv) In the case of State of Jammu & Kashmir Vs. Triloki Nath Khosa (1974 (1) Slr 536 the Apex Court upheld the classification of Assistant Engineers for promotion to the cadre of Executive Engineers on the basis of educational qualifications. The rule providing that graduates would be eligible for such promotion to the exclusion of diploma holders did not violate Articles 14 & 16 of the Constitution was also upheld. The Court held that classification made on the basis of educational qualification with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of classification. Even in this case as regards limitations on judicial review the Court observed as under: "JUDICIAL scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation of the basis of classification, for were such an enquiry permissible it would be open to the Courts to substitute their judgment for that of the legislature or the rule-making authority on the need to classify or the desirability of achieving a particular object."
(16) The challenge to and validity of Recruitment and Promotion Rules prescribing the eligibility conditions and the quota for diploma holders and graduates in difference services has been a subject-matter of number of judicial pronouncements. Reference is invited to the decision of the Apex Court in Roop Chand Adlakha & Ors. Vs. D.D.A. & Ors. reported at 1989 Supp.(1) Scc 116. In this case the Court was considering the appeals filed by Dda as well as Graduate Engineers who were aggrieved by the decision of the Division Bench of this Court in Kimti Lal Kathuria & Ors. Vs. Dda & Others (1988 Lab.I.C. 434). Under the Recruitment and Promotion Rules, for promotion to the post of Superintending Engineer, from the post of Executive Engineers, degree holder Executive Engineers with eight years experience were eligible and diploma holder Executive Engineers with ten years experience were eligible. The High Court had taken the view that once the diploma holders and degree holders were considered to be one class for the purposes of promotion, there could not be any differentiation between the two vis-a-vis the qualification for promotion. It could be that for reasons of efficiency in administration the authorities may lay down that the diploma holders were not eligible for promotion to the higher post, but once they were considered eligible for promotion, there could not be any rationale in making further distinction between degree holders and diploma holders.
(17) The Apex Court accepted the argument of the appellants that the eligibility for promotion to the higher rank was based on a combination of factors which varied according to the basic educational qualification of the two classes of engineers and the distinction was germane to the requirement of higher technical and academic qualification for higher posts which involved expertise in structural design, etc. The Court accepted the argument that even where recruitment to a particular cadre was made from different sources resulting in the formation of a single homogeneous cadre, it was not permissible to make further classification amongst members of such a cadre for purposes of further promotion based on higher educational qualifications of the candidates. The Apex Court reviewed, amongst others, its earlier decisions in Mohd.Shujat Ali Vs. Union of India ; State of Jammu & Kashmir Vs. Triloki Nath Khosa ; Bidi Supply Co. Vs. Union of India 1956 Scr 267; H.C. Sharma Vs. Municipal Corporation of Delhi and Punjab State Electricity Board Vs. Ravinder Kumar Sharma (1986) 3 Scr 372. It would be relevant to quote the observations made by the Apex Court in paras 18 and 29 of the said judgment: "THE inherent distinction between a person with a degree and one who is merely a Diploma Holder is much too obvious. But the question that falls for consideration, in the context such as the present one, is whether the differences have a reasonable relation to the nature of the office to which the promotion is contemplated. The idea of equality in the matter of promotion can be predicated only when the candidates for promotion are drawn from the same source. If the differences in the qualification have a reasonable relation to the nature of duties and responsibilities, that go with and are attendant upon the promotional post, the more advantageous treatment of those who possess higher technical qualifications can be legitimised on the doctrine of classification. There may, conceivably, be cases where the differences in the educational qualifications may not be sufficient to give any preferential treatment to one class of candidates as against another. Whether the classification is reasonable or not must, therefore, necessarily depend upon facts of each case and the circumstances obtaining at the relevant time. When the State makes a classification between two sources, unless the vice of the classification is writ large on the face of it, the person assailing the clarification must show that it is unreasonable and violative of Articles 14. A wooden equality as between all classes of employees irrespective of all distinctions or qualifications, or job requirements is neither constitutionally compelled nor practically meaningful."
(Para 18). "HERE,in the present case, the possession of a diploma, by itself and without more, does not confer eligibility. Diploma, for purposes for promotion, is not considered equivalent to the degree. This is the point of distinction in the situations in the two cases. If Diploma Holders -- of course on the justification of the job requirements and in the interest of maintaining a certain quality of technical expertise in the cadre -- could validly be excluded from the eligibility for promotion to the higher cadre, it does not necessarily follow as an inevitable corollary that the choice of the recruitment policy is limited to only two choices, namely, either to consider them "eligible" or "not eligible". State, consistent with the requirements of the promotional posts and in the interest of the efficiency of the service, is not precluded from conferring eligibility on Diploma Holders conditioning it by other requirements which may, as here, include certain quantum of service experience. In the present case, eligibility determination was made by a cumulative criterion of a certain educational qualification plus a particular quantum of service experience. It cannot, in our opinion, be said, as postulated by the High court, that the choice of the State was either to recognise Diploma Holders as "eligible" for promotion or wholly exclude them as "not eligible". If the educational qualification by itself was recognised as conferring e (Para 29).
(18) The Apex Court in the above decision upheld the requirement of additional experience for diploma holder engineers as compared to degree holder engineers, as a condition of eligibility for promotion of diploma holder Executive Engineers to the post of Superintending Engineers in Delhi Development Authority. While recognising the significance of higher technical and academic education, it had also to be seen that the requirement of higher qualification had a reasonable nexus and relationship to the nature of duties and responsibilities that go with and are attendant upon the promotional post. Reference may also be made to the decision of the Apex Court in T.R. Kothandaraman & Others Vs. Tamil Nadu Water Supply & Drainage Bd and others , wherein while the Court recognised the significance of higher educational qualifications as a condition of eligibility for promotion for restricting the scope of promotion, it also recognised that the restriction should not go to the extent of jeopardising the chances of promotion and it would have to be seen whether the restriction was reasonable.
(19) Keeping in mind the principles laid down in the above judicial pronouncements of the Apex Court as regards the validity of the rules prescribing higher educational qualifications and experience as eligibility condition or for restricting promotion, we would need to consider whether the competent bodies examined and took into consideration the relevant facts and circumstances before framing the impugned rule. The need for the impugned rule, the requirement for higher academic qualification in relation to the nature of duties to be performed can be examined in a limited manner in consonance with the limitations of judicial review of subordinate legislation.
(20) The impugned amendment sought to cater and give relief in the stagnation that was prevalent amongst the diploma holder Executive Engineers, whose avenue for future promotion stood blocked. It is not in dispute, that at all the stages in the hierarchy of engineering cadre in question, there were common seniority list, common feeder grades and identical duties and responsibilities. There was complete inter-changeability of postings, no distinction was made in any of these respects. The reason for so treating them is not far to seek. The difference in qualification can adequately be made up by prescribing of additional experience and length of service in case of diploma holders. By the time a diploma holder, becomes eligible for being considered for the post of Executive Engineer, he put in considerable longer length of service, longer by at least 7 years, as compared to their counter-parts. This is in addition to the requirement of two years additional experience of diploma holders for selection as Junior Engineers. This made up a total of nine years of additional experience in the case of diploma holders as compared to their Graduate Engineer counter parts.
(21) The duties and responsibilities of a Superintending Engineer, as prescribed in the Cpwd manual (Annexure R-16) as well as the duties of the Superintending Engineer in the Municipal Corporation, have been placed on record vide Annexure R-19. In the Cpwd manual it is stated that the Circle Office is an administrative office under the charge of a Superintending Engineer. The Circle Officer coordinates the activities of four to six divisions employed on construction and/or maintenance works. Liaison with the office of the Chief Engineer in technical matters and with Central Office in administrative matters concerning personnel of various categories is required. The Superintending Engineer also works in close contact with architectural wing and with Central Design Office for lay out designs and drawings. The budgetary control of each circle is under the Superintending Engineer. It would be seen that the duties are essentially of supervision, liaison and not those which require a higher academic degree. Moreover, proficiency even in structural design and other allied fields requiring higher technical knowledge and skill can be and is usually acquired by an Executive Engineer discharging his functions for over a decade.
(22) Coming to the list of duties for Superintending Engineer, a perusal of the 17 duties, as listed in Annexure R-17, shows that the first eight duties relate to sanction of increments, casual leave, loans and disciplinary action against the staff. From items nine to seventeen, these relate to granting sanction of estimates of works upto Rs. 2 lakhs, sanction of substituted items, refund of security, dealing with disputed cases relating to security, exercise of supervisory control over the works, etc. It would be seen that the nature of duties in the assignment cannot be said to be such, which cannot be performed by a diploma holder engineer who has had extensive experience of over two decades in working as Assistant Engineer and Executive Engineer. The nature of work and duties are such which, it appears, can be adequately performed by a person having the qualification of a diploma in engineering coupled with extensive practical experience in the field of Civil Engineering. The opinion and conclusion reached by Mcd and Upsc that diploma holders with extensive experience of over 16 years or more would be in a position to discharge the aforesaid duties of a Superintending Engineer after having successfully functioned as Executive Engineer cannot be said to be arbitrary or unreasonable. On the other hand, it would appear that insistence on a degree in Engineering as a pre-qualification would result in unjustly blocking the promotion avenues of a large number of deserving candidates. From the nature of duties, as outlined above, it cannot be said that these require a high degree of proficiency or excellence in scientific and technical skills or knowledge, in the field of Engineering. The Government of India instructions of 1979 prescribing a degree qualification for promotion to the Scientific and Technical post in the pay scale of Rs. 1100-1600 or equivalent would not have application in the instant case having regard to the nature of duties.
(23) The Apex Court had recognised the value of practical experience in assessing suitability of a candidate for holding a post. Reference may usefully be made to the decision in the case of Bhagwati Prasad Vs. Delhi State Mineral Development Corporation : "THE main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts..... The undisputable facts are that the petitioners were appointed between the period 1983 and 1986 and ever since they have been working and have gained sufficient experience...... Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of initial entry into the service......"
(24) As noted earlier, the Apex Court in Roop Chand Adlakha Vs. Dda reported as 1989 Supp.(1) Scc 116, recognised that the State was not precluded from conferring eligibility on diploma holders, conditioning it with other requirements, including quantum of service. It further recognised that these were matters essential of policy and unless the provision is shown to be arbitrary, capricious or to bring about grossly unfair results, judicial policy should be one of judicial restraint. The Apex Court in this case had sustained the prescription of different lengths of service for eligibility for promotion of degree holders and diploma holders. The Apex Court further reiterated this principle in Dda Grade Engineers Association & Others Vs. Lt.Governor and Ors. (1993 Supp.(1) Scc 674).
(25) Another contention of the petitioners is with regard to the Upsc having acted inconsistently in as much as it reversed its own opinion as given for the Automobile Engineering Department wherein for the post of Executive Engineer a degree was insisted upon. It appears unreasonable to compare a Civil Engineering Department with Automobile Engineering Department when comparisons with Civil Engineering posts in Cpwd as also in Dda and MCD's own Department of DWS&SDU are available. Especially when in comparable departments there is no insistence on a degree. Accordingly, the insistence on Engineering qualification for Automobile Engineering Department of Mcd would not advance the case of the petitioners.
(26) Another criticism of the impugned amendment in Recruitment Rules has been that while the Corporation proposed in its Resolution amendment providing for 75% posts for degree holders and 25% for diploma holders, the Upsc did not accept this part of the recommendation and simply deleted the minimum qualification of engineering degree, making all diploma holders eligible for the post of Superintending Engineer. It would be seen that Upsc had been furnished details of the Diploma Holders and Degree Holder Executive Engineers together with their years of experience and nature of charge and duties performed. If upon consideration of the material furnished, including the prevalent regulations in other departments it reached the conclusion that diploma holders who had put in sufficiently more years of service than their counter-part degree holders, by virtue of the experience gained were sufficiently equipped to work as Superintending Engineers. These persons have successfully functioned as Executive Engineers and in some cases held the current duty or ad hoc charge as Superintending Engineer. These persons were, therefore, eligible and qualified to be promoted as such cannot be faulted with. It cannot be said that non-prescription of a quota in these circumstances would be fatal. Besides, the post of Superintending Engineer is a selection post and it cannot be assumed that simply by permitting diploma holders to be eligible, less meritorious candidates will be selected and there will be fall in efficiency in service. The petitioners in this case are anyway assailing an amendment which nullified the 100% exclusion of diploma holders from the post.
(27) As noticed earlier, sufficient material had been placed before the Corporation as well as the UPSC. There had been deliberations and consideration for sufficient length of time, which included the projection of the petitioners' view point through their representations as well as in the notes of the Commissioner, the charge of non-application of mind and non-consideration are, therefore, not sustainable. An expert body has duly considered the matter and reached a conclusion which cannot be termed as arbitrary or irrational. It is not for this Court to substitute its opinion for that of the employer and the UPSC.
(28) During the course of pendency of the writ petition from time to time interim directions had been issued on 29.12.1993, 27.1.1994, 29.9.1995, 5.10.1995 and finally on 29.5.1997 when the counsel for the Mcd submitted that the question of look-after charge of the applicant in CM. 7455/95 be disposed of in the writ petition and till then the look-after charge will continue. The application of the Mcd to fill up vacancies from the common seniority list for the post of Superintending Engineer was allowed. The same being subject to the final outcome of the writ petition.
(29) In view of the foregoing discussion, the challenge to the impugned amendment in the Recruitment and Promotion Regulations, as notified, must fail. The petition is accordingly liable to dismissed and is dismissed but with no order as to costs.
(30) In view of the dismissal of the writ petition, the respondent Municipal Corporation would give consequential effect to the impugned amendment in the Recruitment and Promotion Rules, making the diploma holders eligible for the post of Superintending Engineer.