Rajasthan High Court - Jaipur
Vijay Singh Deora vs The State Of Rajasthan And Anr. on 29 July, 1991
Equivalent citations: 1992(1)WLC188, 1991WLN(UC)469
JUDGMENT S.N. Bhargava, J.
1. As per the facts mentioned in the writ petition, Shri Vijay Singh Deora (Petitioner), after obtaining the Degree of B.E. (Civil) from M.B.M. Engineering College, Jodhpur, in 1976, got himself registered with the Department of Man Power, Government of Rajasthan. He was appointed as Junior Engineer (Civil) in the Irrigation Department vide order dated 28.1.1977 (Annexure-1) on purely temporary basis till the selected candidates were available. The petitioner joined the service on 4.2.1977 and since then, he is working as Junior Engineer. No selections service on 4.2.1977 and since then, he is working as Junior Engineer. No selections were held till 30.6.1978. An advertisement was issued on 26.7.1978. (Anx. 2) inviting applications for filling the vacancies of Junior Engineer (Civil). However, a note was appended in the advertisement that only those candidates who had joined service after 30.6.1978 could apply. The candidates who were selected in pursuance of the said advertisement were appointed on ad hoc basis as Junior Engineer vide order dated 24.11.1978 (Anx. 3), on purely temporary basis, till the persons duly selected were made available. A corrigendum (amendment) to this order was issued on 17.11.1980 (vide Annexure-4) whereby ad hoc promotions were declared to have been made regular. It was further stated that those who were working in the Department since prior to 30.6.1978, their cases were to be decided by screening for which the Rules were being amended and the regularisation vide order dated 24.11.1978 shall not adversely affect the seniority of those appointed prior to 30.6.1978. Similar orders were passed with respect to other ad hoc appointees appointed in pursunace of various advertisements issued after the advertisement (Annexure 2). The Rajasthan Engineering Subordinate Service (Irrigation Branch) Rules, 1967 (hereinafter referred to as the 'Rules of 1967') were amended vide notification dated 5.1.1981 and proviso (8) was added to Rules 6, which reads as under:
(8) Provided further that the persons who were appointed to the post included in Group II and in the posts of Ziledar included in Group-III of the Schedule, on ad hoc/officiating urgent temporary basis upto 30.6.1978 and continuously working as such or on higher posts or would have held these posts but for their deputation elsewhere on the date this proviso comes into force, shall be screened by a committee referred to in rule 24 for adjudging their suitability on the post held on 30.6.1978, provided they possess the qualifications prescribed in those Rules either for direct recruitment or for promotion on the prescribed qualifications on the basis of which the persons were selected for ad hoc/officiating/urgent/temporary/appointment. This provision shall be subject to the following conditions:
(a) that a person appointed on ad hoc basis shall not be entitled to screening for a post higher than to which he was initially appointed, if a person senior to him on lower post who fulfilled qualification prescribed for the post was cither not given such ad hoc appointment or is not entitled to screening under this proviso. Seniority of ad hoc employees for this purpose shall be according to length of continuous service on a post; and
(b)...
Rule 28 of the Rules of 1967 was also amended by adding two new provisions (8) and (9) as under:
(8) that the seniority inter se of persons appointed under proviso (8) and to Rule (6) shall be determinated on the basis of their length of continuous service.
(9) that the persons appointed under proviso (8) to Rule 6 shall rank junior to those appointed in accordance with Part IV of these rules before coming into force of the said proviso.
The afforesaid proviso (9) to Rule 28 of the Rules of 1967 was again substituted vide notification dated 24.9.1983, which runs as under:
(9) that the persons appointed under proviso (8) to Rule 6 shall rank junior to those appointed in accordance with Part IV of these rules before 25.9.1970 and shall rank senior to those appointed under the said part of the rules after 30.6.1978.
2. Junior Engineers who were appointed prior to 30.6.1978 were screened on 22.12.1984 and a seniority list of Junior Engineers appointed upto 30.6.1978 was issued on 27.12.1984 which shows that the screening was done for the appointees between July, 1966 to June, 1978. The petitioner's name appeared in the aforesaid seniority list at Serial No. 329. In the aforesaid seniority list, the names of those persons who were initially Diploma Holders but later on acquired the qualification of B.E./A.M.I.E. and who were appointed to the post of Junior Engineer by transfer, from the cadre of Sub Engineer, after the date of petitioner's appointment, were shown below the petitioner.
3. Another seniority list was issued on 20.2.1985 and 28.3.1985 wherein the names of those Junior Engineers who were appointed after 30.6.1978 came to be included but the position of those who were appointed prior to 30.6.1978 and who were screened as referred to above, were placed above them. The said seniority list dated 27.12.1984 was challenged before this Court byway of several writ petitions which were disposed of by a common order dated 3.2.1986 (Anx. 5) whereby the list dated 27.12.1984 was to be treated as tentative seniority list and it was directed that the objections may be invited and after hearing the objections, a fresh seniority list may be issued.
4. The seniority list dated 27.12.1984 was also challenged by another batch of five appeals before the Rajasthan Civil Services Appellate Tribunal and the Service Tribunal quashed the seniority list by its order dated 24.3.1986, notwithstanding the order of the High Court dated 3.2.1986, having been brought to their notice. The aforesaid order of the Service Tribunal dated 24.3.1986 was challenged in Writ Petition No. 2443/1986 at Jodhpur and the operation of the order of the Tribunal was stayed vide order dated 30.10.1986. However, one Shri Amanat Rai Deewan, who was one of the respondents in that writ petition filed a writ petition in this Court at Jaipur Bench, being Writ Petition No. 204/1986, impleading only the Government and its officers as respondents. However, after 2 or 3 adjournments, ultimately, a direction was issued by this Court on 30th November, 1983, to implement the Tribunal's, order dated 24.3.1986 within a period of two months. In Writ Petition No. 2443/1986, the stay order dated 30.10.1986 was vacated during the lawyers' strike and therefore, the said Writ petitions was ultimately withdrawn on 2.5.1988, with liberty to file a fresh writ petition. Meanwhile, the Chief Engineer passed on order on 30.1.1988 (Anx. 6) directing that till the seniority list dated 27.12.1984 is not finalised, the seniority list dated 22.7.1980 shall remain provisional. Yet, another order was passed on 1.4.1988 (Anx. 7) whereby the order dated 30.1.1988 was amended to the effect that the statement with respect to the seniority list dated 22.7.1980 and 27.12.1984 was deleted and an order these orders, Writ Petition No. 1320/1988 was filed at Jodhpur, by Shri Dinesh Lal Mathur who had earlier filed Writ Petition No. 2443/1986. Another Writ Petition No. 2315/1988 was filed by Shri M.L. Kansara at Jodhpur. Shri Amanat Rai Deewan also filed Assistant Engineers (Civil), against the vacancies of the year 1978,1979 and 1980, on the basis of the seniority list dated 27.12.1984. The said appeal was accepted and the State was directed to consider the cases of promotion afresh.
5. In Writ Petition No. 1199/1981 Mahendm Pratap v. State of Rajasthan and Ors. a division bench of this Court vide its order dated 6.12.1988 relived the State Government of the undertaking given on 4.8.1987 and allowed the government to make promotions, subject to the final decision of the writ petition and also directed the petitioners in the connected matters to implead persons who will be affected by the order of this Court. The Chief Engineer issued a final seniority list of Junior Engineers (Civil), Degree Holders who were appointed upto 31.12.1984. In the said seniority list the names of those Junior Engineers Degree Holders who were initially diploma holders and working in the sub-engineering cadre and who were appointed by transfer in the cadre of Junior Engineer (Diploma Holder) from the cadre of Sub-Engineer and who were appointed after the petitioner's appointment in the cadre of Degree Holders by transfer, were shown above the petitioner on the ground that these degree holders who have been appointed upto 30th June, 1978 were screened under proviso (8) to Rule 6 of the Rules of 1967 and it is the date of screening which will be taken to be the date of appointment and this action has been challenged byway of this writ petition on several grounds. Lateron, the Government of Rajasthan issued a clarification on 16.1.1989 (Anx. 12) whereby it had been directed that the eligibility list of Junior Engineers (Degree Holders) shall be prepared for promotion to post of Assistant Engineer According to the length of experience (taking into consideration 1/3rd of his service) if a diploma holder with 15 years of service attains the degree of BEAMIE in 1986, he will be given benefit of five years' experience. It had, however, been directed/clarified that this seniority would continue to be amongst the Junior Engineers (Degree Holders) of 1986 but for the purpose of eligibility for promotion, he will be considered along with degree holder Junior Engineers of 1981. The present writ petition had been filed praying to struck down the amendment in Rule 6(1-A) of the Rules of 1967, by notification dated 7.12.1985 and to further struck down the clarification dated 16.1.1989 issued by the State Government, and a declaration that persons who acquire BE? AMIE qualification and transferred from cadre of Junior Engineer (Diploma Holder/Sub-Engineers) to the cadre of Junior Engineer (Degree Holder) after the date of the petitioner's appointment, cannot be treated as senior to the petitioner and a further declaration that the petitioner be treated as having been appointed in the cadre of Junior Engineer from the date he joined the service as Junior Engineer and not from 30th June, 1978.
6. Arguments in the present case, along with 17 other matters, were heard from 7th February, 1990 to 22nd February, 1990. Thereafter, the cases were listed on 1.5.1991 in the category of 'To be mentioned'. Again on 6.5.1991 the cases were listed as 'To be mentioned' and since the learned Counsels for the parties did not want to further argue the matter, the judgment was again reserved. Written arguments on behalf of the co-petitioner Kinchan Nath were filed on 18.4.1990, on behalf of respondents on 9.7.1990 and by the petitioner on 14.9.1990.
7. Learned Counsel for the petitioner has submitted that the amendment vide notification dated 7.12.1985 is bad being violative of Articles 14 and 16 of the Constitution of India. The notification dated 7.12.1985 (Annexure 10) has been trative Reforms, in exercise of powers under proviso to Article 309 of the Constitution of India, amending the Rules of 1967, substituting proviso (1-A) below Rule 6, which is prospective in nature, in as much as in the notification, there is no mentione, that these rules will be retrospective in character. The working and operation of the amendment gives it retrospective effect in character as it will change the eligibility of the persons who have already become eligible as per the scheme of the Rules for promotion to the post of Asstt. Engineer and this will also affect and infringe earner right of the persons who have become eligible before 7.12.1985. Aright which has been once conferred can not be taken away by retrospective amendment which is not permissible under law and in this connection, he has placed reliance on Bhanwar Lal v. State 1985 W.L.N. (UC) 183), Capt. K.C. Arora v. State of Haryana 1984 (2) S.L.R. 97, Kailash Chand Goyal v. The State of Rajasthan (1988) (2) W.L.N. 446 and Writ Petition No. 1407/1989/. S. Parihar v. State decided on 22.3.1990. In Capt. K.C. Arora's case (supra) it has been held that though the rules can be framed with retrospective effect but the same cannot take away the acquired rights. He has also placed reliance on Harivansh Mishra Railway Board , Pyarelal Sharma v. Managing Director and P. Mahendran v. State of Kamataka wherein it has been held that if the notification amending rules do not contain any provision enforcing the amended rules with retrospective effect, the amendment in rules must be held to be only prospective in nature, and the rules which are prospective in nature, cannot take away or impair the earned rights of candidates holding diploma as on the date of the making appointment as well as on the date of scrutiny, they were qualified for selection and appointment.
8. He has further submitted that the amendment made vide notification dated 7.12.1985 is absolutely unworkable because as per the scheme of the rules, vacancies under Rule 9 are to be determined every year and are to be filled by the persons who are eligible on that date. If a diploma holder who is not eligible earlier is not selected in a particular year but becomes eligible in view of the substituted proviso (1-a) below Rule 6 of the Rules, he will become eligible then, he is treated as senior and will claim to be considered earlier also and this exercise will have to be taken every time as and when a diploma holder attains the qualification of B.E. or A.M.I.E. and the things which are settled for a number of years will become unsettle.
9. Learned Counsel for the petitioner has further submitted that the zone of consideration contemplated under Rule 9 provides for three times eligible candidates the number of vacancies. The petitioner, even though senior most, eligible and qualified is deprived of consideration and persons coming from indirect method by passing B.E. or A.M.I.E. are placed above them at the time of consideration in view of the present amendment dated 7.12.1985 and as such, the later part of the amendment runs contrary to the scheme of the rules and the same can be severed from the earlier part. He has further submitted that the posts of Junior Engineer. (Degree and Diploma holders) are separately created by the Finance Department and they are filled by a separate procedure of recruitment, separate advertisement and posts are ear-marked and shown separately in the Schedule with separate eligibility and the posts of Degree and Diploma Holders are not interchangeable in view of the said scheme of the rules. The Government for its administrative convenience do transfer from degree to diploma and diploma to degree but that can not dilute the provisions of the rules. He has further submitted that the clarification which has been issued by the Department of Personnel on 16.11.1989 is absolutely illegal, void and beyond the competence and its power. Department of Personnel is not the rule making authority and is not empowered to issue such circulars. The intention of the rule making authority in issuing the notification dated 7.12.1985 can be interpreted either by the rule making authority itself or by judicial review by the court. The State Government is empowered and competent to issue only executive instructions or orders to fill up the gap wherever, the rules are silent, as has been held in Sant Ram Shartna v. State of Rajasthan , but in the present case, there was no occasion as the rule is specific and clear. There is no ambiguity or any gap which could be filled by the State Government. The intention of the legislature was clear and unequivocal. The Department of Personnel cannot enlarge the scope of the statutory provisions by issuing administrative orders, instructions or clarifications. In the present case, it amounts to over-reaching the statutory rules.
10. The next point urged by learned Counsel for the petitioner is as to from which a person should be deemed to have been substantively appointed. According to the petitioner, if the appointment is not fortuitous and if the appointment is continued for sufficiently long period and if the appointment has further been regularised, he will be deemed to have been substantively holding the post from the date of his first appointment. The nature of the first appointment being temporary or ad hoc is not material and in support of this proposition, reliance has been placed on S.B. Patvardhan v. State of Maharashtra , Baleshwar Das v. Stale of U.P. , Narendra Chandha v. Union of India and Delhi Water Supply and Sewerage Disposal Committee v. R.K. Kashyap . He has further submitted that if any service rules provide otherwise, then those rules are invalid and this view has been taken in A. Janardana v. Union of India .
11. The other point submitted by the learned Counsel for the petitioner is as to whether t he benefit of service in previous cadre can be given to a person who has subsequently joined another cadre and in this connection our attention has been drawn to Gangaram v. Union of India which has been relied and followed in State of Gujarat v. C.G. Desai wherein their lordships have held in para 16 under:
If a person, like any of the respondents, to avoid the long tortuous wait leaves his position in the never ending queue of Temporary Officiating Deputy Engineers etc. looking for promotion; and takes a short out through the direct channel, to Class II Service, he gives up once for all, the advantages and disadvantages that go with the channel of promotion and accepts all the handicaps and benefits which attach to the group of direct recruits. He cannot, after his direct recruitment claim the benefit of his preselection service and thus have the best of both the worlds. It is well settled that so long as the classification is reasonable and the persons falling in the same class are treated alike, there can be no question of violation of the constitutional guarantee of equal treatment.
The same view has been reiterated in Ashok Gulati v. B.S. Jain .
12. It has also been submitted that once a person has sought appointment in a particular cadre, he can not change his cadre and if he wants to change his cadre, he will loose all his total seniority, therefore, giving benefit of 1/3rd experience to erstwhile diploma holders is wholly unconstitutional, illegal and violative of Articles 14 of 16 of the Constitution of India. It has also been submitted that a degree holder is always superior to a diploma holder and that is why a different length of service is prescribed for making them eligible for promotion. Since the holders of two posts are getting different pay in the same pay scales, therefore, the two must be treated as different classes and no benefit of experience can be given to the erstwhile diploma holders. Our attention was also drawn to State of Punjab v. Joginder Singh wherein it has been held that merely because two sets of employees arc given same scales and grades of pay, it does not amount to integration of the two cadres, either expressly or by necessary implication. The two services start as independent services, the qualifications prescribed for entering into each were different; the method of recruitment and machinery for the same were also different; general qualifications possessed, by and large, by the members of each class being different, they were two distinct classes and if they were distinct services, there is no question of inter se seniority between members of two services.
13. Our attention was also drawn to Roop Chand v. D.D.A. wherein it has been held that the rules prescribing different conditions of eligibility for diploma holders and graduates for promotion from the cadre of Junior Engineers to that of Assistant Engineer and from the cadre of Assistant Engineer to that of Executive Engineer was not violative of Articles 14 and 16 of the Constitution. The State is not precluded from conferring eligibility to diploma holders conditioning it by other requirements which may include certain quantum of service experience.
14. Supreme Court still in another case N. Abdul Bashir v. Union of India 1989 (2) S.C.C. (Suppl.) 344 without referring to Roop Chand's case (supra) has taken a different view. In this case, rule providing for quota of promotion between the graduate preventive officers and non-graduate preventive officers was held to be invalid being violative of Articles 14 and 16 of the Constitution of India because there was no evidence of any special responsibility being entrusted in Graduate Preventive Officers. Once they were promoted as Excise Inspectors, there was no distinction between graduate and non-graduate excise inspectors.
15. Learned Additional Advocate General has distinguished the cases relied by the learned Counsel for the petitioner and has read them in extensio, to show that on fact, they do not apply to the present case. On the other hand, they help to the non petitioners. Reliance has been placed on : Tlie Slate of J & K v. Triloki Nath Khoso which has been considered and referred in Mohd. Shujat Ali. v. State and this authority has been later followed in Punjab State Electricity Board v. Ravindra Kumar Sharma A.I.R. 1987 S.C. 367.
16. Learned Counsel for Shjri J.K. Mittal, respondent, has submitted that the appointment of the petitioner was purely temporary till the availability of candidate selected under the Rules, as per (Annexurfe-1). This appointment was not made after following the procedure for direct recruitment prescribed in Part - IV of the Rules of 1967. The post had not been advertised; no competitive test or interview had been held; no selection was made, the appointment was not made under Rule 26. It was only an appointment under Rule 27 which relates to urgent temporary appointment. If the petitioner had been appointed under Part-IV of the Rules of 1987, he would have been appointed on probation under Rule 29. A bare perusal of the definition of term 'substantive appointment.' contained in Rule 21 modes it clear that before an appointment can be treated as a substantive appointment, it must be against a substantive vacancy after due selection. Since no element of selection was involved before appointment of the petitioner, the appointment could not by any stretch of imagination be treated as a substantive appointment under the Rules of 1967 and therefore, such an ad hoc or temporary appointment cannot be counted for the benefit of seniority as per the Rules regarding seniority as it stood upto 19.7.1979 which provided that the seniority shall be determined by the year of substantive appointment. After the amendment on 20.7.1979, the rule provided that seniority in the lowest post shall be determined from the date of confirmation and thus the petitioner has no right to claim seniority on the basis of length of service. Moreover, the petitioner has not challenged the constitutionality of the rule regarding seniority nor he has challenged the order dated 22.12,1984 issued under proviso (8) of Rule 6 of the Rules of 1967. If the petitioner had been substantively appointed, there was no occasion for screening. Reliance has been placed on the judgment of this Court in D.B. Civil Special Appeal No. 769/1974 State of Rajasthan v. Hero Badlani and D.B. Civil Special Appeal No. 53/76 State of Rajasthan v. A.K. Garg decided on 1.4.1981. It has further been submitted that cases of S.B. Patvardhan, Baleshwar Das and R.K. Kashyap (supra) are not applicable to the facts of the present case and they arc distinguishable on facts because here the seniority is governed by specific Rule 28 of the Rules of 1967.
17. As regards validity of amendment dated 7.12.1985 it has been submitted that in fact this amendment was caused serious injury to those persons who have been appointed under Rule 6(1-a). Experience was being counted in full till 6.12.1975. Under the original Rule 6 (1-a) only they were being deprived of their seniority; now by virtue of the amendment not only they are being deprived of the seniority but they are being deprived of their 2/3 experience also. The degree of A.M.I.E. and B.E. have been treated to be at par and equivalent to each other through out while the cadre was unified till 1.11.1976. Bifurcation is brought about only on 2.11.1976. Therefore, it is not a ease of change of cadre at all and therefore, the case of C.G. Desai (supra) is not applicable since in that case, some persons ;re initially appointed on temporary basis on the post of Deputy Engineers against the promotion quota. Thereafter, they were appointed by direct requirement. The claim which is made in that case was that after appointment by direct recruitment they should be given benefit of their previous service as promotes. The Supreme Court held that once a person 10 was entitled to be promoted in his own turn breaks the queue and comes byway of direct recruitment, he cannot claim for grant of benefit of past services. Thus, in a way, this judgment supports the non-petitioners.
18. It has further been submitted that the case of Joginder Singh (supra) does not apply the facts of the present case and is clearly distinguishable. Similarly, it has been submitted at the observations of the Supreme Court in Roop Chattel's case (supra) also are not applicable to the facts of the present case. In the present case, the cadre was common, sources recruitment were the same and continue to be the same, the of recruitment is same, the pay scales are the same, their posts are common, they are inter-transferable. He has also aced reliance on Devi Prasad and Ors. v. Government of A.P. 1980 (2) S.L.R. 558 wherein the direct recruits had challenged the provision by which benefit of 50% of the service was given to those diploma holders who acquired qualification of A.M.I.E. or B.E. that case, their Lordships of Supreme Court after considering C.G. Desai (supra), observed as under:
4. It is apparent from this new rule that nothing unreasonable or shocking, nothing arbitrary or violative or fair play is done because what has been prescribed is that if a Supervisor acquires A.M.I.E. while in service and renders service as Supervisor he is given credit as Junior Engineer for half the period of his service as Supervisor subject to a maximum of four years. It is common ground that A.M.I.E. is equal to an engineering degree. Thus virtually the Supervisor acquires and engineering degree and discharges functions which are substantially similar to that of a Junior Engineer yet there is inequality of opportunity. The Government has tried to mitigate the hardship by framing this rule which accords to such new Junior Engineers or up graded Supervisors the benefit of half the length of service as Supervisors. This weightage is challenged as arbitrary, unjust and therefore, violative of Article 14.
5. It is contended by counsel for the Junior Engineers who are the appellants before us, relying on the decision we have earlier referred to, namely, The State of Gujarat v. C.G. Desai (supra) that if the date of up gradation is prior to the date of commencement of probation of the regular Junior Engineers, such upgraded Junior Engineers cannot be treated as seniors to the directly recruited Junior Engineers and promotions cannot be ordered on that footing. This grievance may be or may not be but it is impossible to hold that there is, anything arbitrary or violative of Article 14.
6. After all we must remember that Supervisors and Junior Engineers discharge substantially similar functions. We must further remember that Supervisors get the special weightage only if they acquire AMIE which is equivalent to an engineering degree. Further more, the weightage given is only for half the period they have served as Supervisors. In the light of their wide experience and basic qualification, we are unable to say that there is anything capricious, in giving them the limited benefit or weightage under the new rule. We therefore do not agree that there is any merit in the appeal.
19. Our attention was drawn to a judgment of this Court in State of Raj. v. Amanat Rai S.B. Civil Writ Petition No. 186/1979 and four connected matters, decided on 29.1.1980, wherein this Court has observed as under:
From a perusal of the Schedule (in which the Note has been inserted) I find that it prescribed the qualifications and the experience which a person must possess in order to be promoted to the post of Assistant Engineer. Prior to the amendment, the 1954 Rules provided that a person holding a degree of B.E. (Civil) or qualifications declared equivalent by the Government and having 3 years' service as Engineering Subordinate or a person holding diploma in Civil Engineering from a recognised institution with ten years experience as Engineering Subordinate, was eligible for promotion to the post of Assistant Engineer. After the amendment of the Rules by Notification, dated November 2, 1976, it has been provided that a person having degree of B.E. (Civil) or qualification declared equivalent by the Government and three years experience as Junior Engineer (Civil). A person holding diploma in Civil Engineering from a recognised institution with 10 years experience as Sub Engineer (Civil), is eligible for promotion to the post of Assistant Engineer. The note which has been appended to the Schedule X clarifies the position by providing that service as Engineering Subordinates prior to the bifercation of the cadre of Engineering Subordinates into Junior Engineer and Sub-Engineer, shall be counted as experience or service. In my opinion, the Tribunal was right in holding that the said note related to the eligibility of persons who were holding the post of Engineering Subordinates before the amendment of the 1954 Rules and the bifurcation of the cadre of Engineering Subordinates and it clarifies that the service rendered as Engineering Subordinates shall be counted as experience or service for the purpose of their eligibility for promotion to the post of Assistant Engineer.
This judgment has become final.
20. Our attention was also drawn to the following observations of this Court in Writ Petition No. 891/1978 D. C, Gupta v. State, decided on 23.3.1987:
In the present case I find that for the purpose of promotion to the post of Assistant Engineer under the 1954 Rules, three years' service as Junior Engineer is necessary and a note has been inserted in the Schedule to the 1954 Rules by Notification dated 2nd November, 1976, which reads as under:
Prior to the date the cadre of Junior Engineers has been separated as Sub Engineers and Junior Engineers shall count as experience or service in view of Rule 28 as hither to fore.
This note envisages that previous service in the cadre of Engineering Subordinate (Junior Engineers) prior to the bifurcation of the cadre of a person holding the post of Junior Engineer is the bifurcated cadre is to be taken into account for counting the experience for the purpose of promotion to the post of Assistant Engineer. In this context, it may be stated that under the 1954 Rules the experience required for promotion to the post of Assistant Engineer is three years for a Junior Engineer (who holds a degree of B.E. (Civil) or equivalent qualification, and ten years for a Sub Engineer This means that the rule making authority has treated three years service as Junior Engineer as equivalent to ten years' service as Sub Engineer. On the basis of the aforesaid criterion a person holding the post of Sub Engineer in the bifurcated cadre, on his being appointed as Junior Engineer under proviso 2A of Rule 6 of the 1967. Rules after his acquiring the qualification prescribed for the post of Junior Engineer can reasonably claim that while fixing his seniority in the cadre of Junior Engineers his previous service in that cadre of Sub Engineer and in the old cadre of Engineering Subordinate must be counted in the same proportion and the said service cannot be completely ignored. Proviso (1-A) to Rule 6 of the 1967 Rules, however, completely ignores the earlier service of a Sub Engineer who is appointed as Junior Engineer under the said proviso in the matter of fixation of seniority in the cadre of Junior Engineer. Such a provision cannot be held to be just and reasonable and suffers from the vice of arbitrariness. As a result, a Sub Engineer who has put in service as Engineering Subordinate and Sub-Engineer before obtaining the B.E. (Civil) Degree is equated with a raw graduate having no experience at all. In other words, unequals are being treated as equals. This impermissible. In my opinion, therefore, the latter part of the proviso (1-A) to Rule 6 of the 1967 Rules, namely but in that case his seniority amongst Junior Engineers shall be counted from the date of actual appointment on occurrence of vacancy of Junior Engineer can not be upheld and must be quashed as being violative of the provisons of Articles 14 and 16 of the Constitution. The rule making authority should prescribe the principle of fixation of seniority in the cadre of Junior Engineers by striking a just balance so as to take into account a part of the earlier service in the old cadre of Engineering Subordinates and the bifurcated cadre of Sub Engineers for the fixation of seniority of a person who is appointed as Junior Engineer under proviso 1-A of Rule 6.
21. Our attention has further been drawn to Mohd. Shujat Ali v. Slate of A.P. wherein after noticing T.C. Kliosa's case (supra) it has been observed as under:
A rule of promotion which, while conceding that nongraduate Supervisors are also fit to be promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion for graduate Supervisors as against non-graduate Supervisors, would clearly be calculated to destroy the guarantee of equal opportunity. But even so the Andhra Pradesh Engineering Service Rules (1966) in so far as they make differentiation between graduate and non-graduate Supervisors cannot be struck down as violative of Article 14 of the Constitution. It is true that under the Andhra Pradesh Rules, graduate Supervisors are given a preferential, treatment over non-graduate Supervisors, in that two out of every three vacancies initially and after the amendment, three out of every four vacancies in the posts of Assistant Engineers are reserved for promotion of graduate Supervisors and only the remaining one vacancy is left to be filed by promotion of non graduate Supervisors. But this differentiation is not something brought about for the first time by the Andhra Pradesh Rules. It has always been there in the Engineering Services of the Hyderabad and the Andhra States. The graduate Supervisors have always been treated as a distinct and separate class from non-graduate Supervisors both under the Hyderabad Rules as well as the Andhra Rules (Mad. Engineering Service Rule 811953) and they have never been integrated into one class. The same differentiation into two classes also persisted in the re-organised State of Andhra Pradesh. The pay scale of Junior Engineers was always different from that of non-graduate Supervisors and for the purpose of promotion, the two categories of Supervisors were kept distinct and apart under the Andhra Rules even after the appointed day. The common gradation list of Supervisors finally approved by the Government of India also consisted of two parts, one part relating to Junior Engineers and the other part relating to non-graduate Supervisors. The two categories of Supervisors were thus never fused into one class and no question of unconstitutional discrimination could arise by reason of differential treatment being given to them.
22. We have given our thoughtful consideration to the whole matter and have also gone through the writ petition, its reply and the documents submitted therewith, as also the various authorities referred by the learned Counsel for the parties.
23. The first point that we shall like to discuss is as to from which date a person should be deemed to have been substantively appointed. We have already given the history of the case earlier and it is not necessary to reproduce the same here. The Rules of 1967 govern the service conditions of the petitioner. Even before the Rules of 1967 were promulgated, persons were being appointed as temporary Junior Engineering Subordinates/Junior Engineers and the minimum qualification was Diploma. Such appointments continued to be made even after the promulgation of the Rules of 1967. It was in the year 1976 that an amendment was introduced by notification dated 2.11.1976 when the service was bifurcated into two-Junior Engineer and Sub Engineer. Even after this amendment of 1976, persons were being appointed on purely temporary basis, to the two posts designated as Junior Engineer or Sub Engineer, as and when the government felt the necessity of making some appointments. An advertisement was, issued on 20th July, 1978, inviting applications for filing the vacancies. However, a note was appended to the advertisement that only those candidates who had joined service after 30.6.1978 could apply. The candidates who were selected in pursuance of the said advertisement were appointed on ad hoc basis as Junior Engineers vide order dated 24.11.1978, on purely temporary basis, till persons duly selected were made available. A corrigendum to this order was issued on 17.11.1978 whereby ad hoc promotions were declared to have been made regular. It was further mentioned that those who were working in the Department since prior to 30th June, 1978, their cases were to be decided by screening for which the Rules were being amended and the regularisation vide order dated 24.11.1978 shall not adversely affect the seniority of those appointed prior to 30th June, 1978. Similar orders were passed with respect to other appointments also. The Rules of 1967 were amended by notification dated 5.8.1981 and proviso (8) to Rule 6 was added. By the said notification, proviso 8(8) & (9) lo Rule 28 were also added. Proviso (9) was further amended and substituted by notification dated 24.9.1983. Junior Engineers who were appointed prior to 30th June, 1978 were however screened only on 22.12.84. The petitioner's case is that if the appointment is not fortuitous and if the appointment has continued for sufficiently long period and further if the appointment has been regularised, the incumbent should be deemed to have been substantively holding the post from the dale of his initial appointment and the nature of the first appointment, even though temporary or ad hoc, is not material. In this connection, learned Counsel for the petitioner has relied on several authorities quoted in the earlier part of this order. This submission of the learned Counsel for the petitioner cannot be accepted. Rule 2(i) of the Rules of 1967 which defines, 'substantive appointment' reads as under:
(1) Substantive appointment" means an appointment made under the provisions of these Rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these Rules and includes an appointment on probation or as a probationer followed by confirmation on the completion of the probationary period.
Appointments were made purely on temporary basis till the availability of the candidates selected under the Rules. They were not made after following the procedure for direct recruitment prescribed in the Rules of 1967. The posts had not been advertised; no competitive test or interview was held and such appointments could not be said to have been made under Rule 26 of the Rules of 1967 but could only be said to have been made under Rules 27 of the Rules 1967 relating to urgent temporary appointments. If a person had been appointed under Part-IV of to Rules, he could have been appointed on probation under Rule 29 but it was not so. A bare perusal of the definition of the term 'substantive appointment' contained in Rule 2(i) makes it clear that such appointments cannot be treated as substantive appointments as they were not made against substantive vacancies after due selection and therefore, such an ad hoc or urgent temporary appointments cannot be treated as substantive appointments from the date of their initial appointment. They will be treated as substantively appointed after they were screened by order dated 22.12.1984 and that will be the date of their substantive appointment. We find support in this view from the judgments of division bench of this Court in Hero Badlani and A.K. Garg (supra). The other cases relied by the learned Counsel for the petitioner in this connection are differentiate & are not applicable to the facts of the present case & are clearly distinguishable because here the seniority is governed by specific Rule 28 of the Rules of 1967.
24. Now, the next question that is involved in this writ petition is about the vires of the amendment of Rule 6(1-A) of the Rules of 1967, made in the year 1985, and the circular issued on 16 1.1989. Initially, Rule 6(1-A) of the Rules of 1976 which was substituted vide notification dated 27.5.1975, was as under:
(1-A) If a Sub Engineer attains the qualifications required for Junior Engineer, he shall be entitled on his application and subject to availability of vacancies, to be appointed as Junior Engineer by transfer against the quota of direct recruitment but in that case his seniority amongst Junior Engineers shall be counted from the date of actual appointment on occurrence of vacancy of Junior Engineer.
Thereafter, the definition of 'Junior Engineer' was 'SubEngineer' was inserted vide notification dated 2.11.76. These three provisions remained as such till 6.12.1985 and according to the aforesaid provisions, as and when a Sub Engineer attained the qualifications required for promotion to the post of Junior Engineer, he, on his application, became entitled to be appointed as Junior Engineer, by transfer against the quota of direct recruitment subject to the availability of the vacancy, but in that case, his seniority amongst Junior Engineers shall be counted from the date of actual appointment on occurrence of vacancy of Junior Engineer. Rule 6 (1-A) of the Rules of 1967 came to be further amended (substituted), by notification dated 7.12.1985 in the following manner:
(1-A) If a Diploma Holder Junior Engineer attains the qualification of B.E. (Civil/Mechanical/Electrical), or A.M.I.E. he shall be entitled on his application and subject to availability of vacancy, to be appointed as Junior Engineer (Degree Holder) by transfer against the quota of direct recruitment but in that case his seniority amongst the Junior Engineers (Degree Holders) shall be determined from the date of occurrence of vacancy against which such Junior Engineers have been appointed on the post of Junior Engineer (Degree Holder) and one third of his previous experience shall be counted as experience on the post of Junior Engineer for the purpose of promotion to the next higher post.
Thus, according to this amendment, a Junior Engineer (Diploma Holder) after passing his A.M.I.E. or B.E. has to submit application and subject to the availability of the vacancy of Junior Engineer, he can be transferred against the quota of direct recruitment and his seniority amongst the Junior Engineer (Degree Holders) has to be determined from the date of occurrence of the vacancy on which such Junior Engineer has been appointed. If further provides that 1/3rd of his previous service shall be counted as experience on the post of Junior Engineer, for the purpose of promotion to the next higher post. This latter part of the amended Rule 6(1-A) is under challenge.
25. We have already mentioned the events and the litigation that had been going on in this regard, in the earlier part of this judgment. Since various departments were facing difficulties in the implementation of this Rule, the Department of Personnel & Administrative Reforms (Department of Personnel (A-II), issued a circular dated 16.11.1989 clarifying as under:
A point has been raised as to how the eligibility list of Junior Engineer (Degree Holder) for promotion to the post of Assistant Engineer on regular basis or on urgent temporary basis will be prepared if 1 1/3rd of previous experience is counted even though they may be lower in seniority list for the particular year.
In this connection, it is clarified that for the purpose of promotion to the post of Assistant Engineer in Irrigation, P.W.D. and P.H.E.D. from Junior Engineer (Degree Holders), the eligibility list of Junior Engineer shall be prepared according to the length of experience (taking Into consideration 1/3 of previous service) e.g. if a Diploma holder with 15 years of service attains Degree of AM. I.E. in 1986, he will be given benefit of 5 years experience. His seniority may continue to be amongst the junior Engineer (Degree Holder) of 1986 but for the propose of eligibility for promotion, he will be considered along with Degree Holders Junior Engineers of 1981.
The aforesaid circular dated 16.1.1989 giving clarification is also under challenge before us.
26. Rule 6(1-A) of the Rules of 1967, when read is prospective in nature but the 'operation' and working of the said amendment is retrospective in character as it will change the eligibility of the persons who have already become eligible as per the scheme of the Rules for promotion to the the next higher post of Assistant Engineer. The amendment contemplates for giving them 1/3 service experience for their services rendered as Junior Engineer for the purpose of promotion, meaning thereby that if a Diploma Holder Junior Engineer with 15 years of service attains Degree or A.M.I.E. he will be given benefit of five years' experience. For example, if a diploma holder Junior Engineer attains his B.E. or A.M.I.E. in the year 1986 after saving 15 years, as per the amendment in the Rules, he will be given benefit of five years and his seniority may continue to be amongst the Junior Engineers (Degree Holders) of 1986 but for the purpose of eligibility for promotion, he will be considered along with the Degree Holders (Junior Engineers) of 1981 and supposing that the D.P.C. has already been held in the year 1985 before he had attained the decree of B.E. or A.M.I.E. but as soon as he passed the degree or A.M.I.E. in 1986 the earlier DPC held in 1985 will have to be reviewed and he will have to be considered along with the degree holder Junior Engineers of 1981. This will make settled things un-settle every time. Any one diploma holder attaining the degree or A.M.I.E. the whole exercise will have to be taken up again and thus this amendment is wholly unworkable and will create complications every now and then and will invite a lot of litigation. Secondly, those who were eligible in 1981 for promotion as Assistant Engineer and this substantive right is being taken away in the year 1986, when the diploma when the diploma holder was not qualified, will not have any right for being considered for promotion as Assistant Engineers holder attains B.E. or A.M.I.E. because he will also be eligible for consideration alongwith the degree holder Junior Engineers of 1981 and it is a settled principle of alw that a right which is once conferred cannot be taken away by retrospective amendment. Several authorities have been relied on by the learned Counsel for the petitioner mentioned in earlier part of this order and we need not reproduce them here again. The amendments which have been made with retrospective effect have been quashed by this Court as well as the Supreme Court on the reasoning that the rights once conferred cannot be taken away by retrospective amendment. Since the notification dated 7.12.1985 is in two parts, the earlier part of the notification is perfectly valid and justified, but the latter part of the notification giving advantage of only 1/3rd service experience for the purpose of seniority cannot be upheld, and since the latter part can be severed, the notification dated 7.12.1985 as such need not be quashed and only the latter part of the notification dated 7.12.1985 is hereby quashed and struck down.
27. So far as the clarification which has been issued by the Department of Personnel (A-II), dated 16.11.1989 is concerned, it is sufficient to say that since we have already quashed and struck down the latter part of the notification dated 7.12.1985 the clarification in the said amendment also goes and is hereby quashed and struck down.
28. In the result, this writ petition is allowed in part, we hold that ad hoc or urgent temporary appointments not made against substantive vacancies after due selection cannot be treated as the substantive appointments form the date of initial appointment but such persons will be treated as substaintively appointed after they were screened by order dated 22.12.1984 and they will be treated as substantively appointed w.e.f. the date of their screening i.e. 30.6.1978. The diploma holder Junior Engineers shall be treated as substantively appointed from the date they were appointed as such after having passed A.M.I.E. and when there would be a substantive vacancy of the post of Junior Engineer.
29. The latter part of Rule 6 (1-A) of the Rules of 1967 as amended by notification dated 7.12.1985 i.e. "1/3rd of his previous experience shall be counted as experience on the post of Junior Engineer for the purpose of promotion to the next higher post," is hereby quashed and struck down. The clarification dated 16.1.1989 (Anx. 12) is also quashed. No order as to costs.