Punjab-Haryana High Court
Vinod Kumar And Others vs State Of Punjab And Others on 24 July, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
CWP No.13778 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION : 24.7.2012
Vinod Kumar and others
...Petitioners
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR.JUSTICE RAJIV NARAIN RAINA
PRESENT: Mr.Vishal Gupta, Advocate for the petitioners
....
Notes: 1.Whether to be referred to the reporters or not? Yes
2.Whether the judgment should be reported in the Digest? Yes
....
RAJIV NARAIN RAINA, J.
The challenge in this petition is to the validity of Appendix "B" of the Punjab Public Works Department (Irrigation Branch) Junior Engineers (Group B) Service Rules, 2011 (for short "2011 Rules") notified on 21.11.2011, in exercise of powers conferred by proviso to Article 309 of the Constitution of India. These rules repeal the Punjab Public Works Department (Irrigation Branch) Overseers Engineers State Service Class-III Rules, 1955 (for short "the old Rules"). The few facts necessary to appreciate the controversy raised in this petition lie in a narrow compass, are noticed hereafter and the change brought about by the 2011 Rules in the matter of promotion to the post of Junior Engineer is dwelt upon.
The petitioners are Junior Draftsmen working under the Chief Engineer (Drainage), Punjab and are currently posted at Ranjit Sagar Dam, District CWP No.13778 of 2012 2 Pathankot. They were initially appointed as Tracers on different dates ranging from 1.4.1985 to 31.12.1990. The post of Tracer was re-designated as Junior Draftsman and that is how the petitioners came to occupy that post. In the old Rules which governed Class III service in the respondent department prior to 15.7.1997, Junior Draftsmen who did not hold the qualification of Diploma in Civil, Mechanical and Electrical Engineering from a recognized institution were not entitled to promotion as Junior Engineer. On 15.7.1997, the 1955 rules were amended and Junior Draftsmen and Surveyors who had experience of working as such in the department for a minimum period of five years and who had obtained diploma in Civil or Mechanical or Electrical Engineering meanwhile from a recognized institution were granted a right to promotion as Junior Engineer under Rule 10 (iv) by carving out a quota of 10% of the posts in the cadre strength of Junior Engineers from amongst Junior Draftsmen and Surveyors (for short "the old Group") as feeder category posts to their exclusive advantage. The petitioners assert that they acquired the Diploma qualification during service after permission to study further. They were awaiting promotion to the next higher post of Junior Engineer when the 1955 Rules were repealed and replaced by the 2011 Rules w.e.f. 21.11.2011. A vital change was brought about in the new Rules. Apart from the post of Junior Draftsmen and Surveyors, there were posts of Work Mistri, Earth Work Mistri and Technical Supervisor as well, in the respondent department who had the experience of a minimum period of five years service on regular basis and who had obtained diploma in Civil or Mechanical or Electrical Engineering from a State Technical Education Board or from a recognized University or institution. Both the categories came to be clubbed together, equated and placed at a level playing field for consideration for promotion as Junior Engineers to the extent of 10% of the cadre strength of the promotional posts. Though not relevant, it may not be out of place to mention that 3% of the posts of Junior Engineer have been granted to Foreman/Assistant Foreman, Pump Operator, Dumper/Dozer Operator and Supervisor and 2% from amongst the Electrician and Chargeman (Electrical) under the new rules. But, for CWP No.13778 of 2012 3 these categories the experience level has been increased to 10 years with the uniform policy that they should be also holders of diplomas in their respective fields of engineering. Appendix B, where the change has been brought about, draws strength from Rule 5 of the new rules which deals with the method of appointment, qualification and experience. It has been laid down in Rule 5 that appointment to the service shall be made in the manner specified in Appendix B and the method of appointment by promotion shall be on the basis of seniority- cum-merit.
The new rules have been challenged in this petition on various grounds.The basic complaint is against the creation of a new source of promotion from amongst the new group of Work Mistri, Earth Work Mistri and Technical Supervisor (new group) in the feeder cadre, and therefore, sharing of the 10% quota for consideration for promotion as Junior Engineer.
The grounds of challenge are that the work content and profile of Junior Draftsmen and Surveyors is different from that of the new group and the two cannot be placed at par. It is argued that the new group and particularly Work Mistri and Earth Work Mistri are semi-skilled workers and cannot be equated or clubbed with Junior Draftsmen and Surveyor which are highly skilled jobs. The merger effected is contrary to the nature of jobs. It is pleaded that the pay scales of both the groups are different, and therefore, they should not be clubbed together merely on having acquired higher qualifications. Furthermore it is claimed that the petitioners have an exclusive right to promotion against vacancies, de hors the challenge to the rules, which arose prior to the amended rules and by this amendment, the respondent-authorities have sought to defeat the accrued rights of the petitioners and other similarly situated employees in the respondent-department. The decision in Y.V.Rangaiah vs. J.Sreenivasa Rao, (1983) 3 SCC 284 is relied upon in support of the plea inasmuch as it is urged that vacancies which accrued prior to the amended rules, have to be filled in accordance with the un-amended rules and not by the new rules.
We have heard Mr. Vishal Gupta, learned counsel for the petitioners at CWP No.13778 of 2012 4 considerable length on the grounds of challenge laid in the petition. The matter of equivalence of different posts is a purely administrative function which normally does not call for interference on judicial review unless it is shown to be grossly arbitrary or unreasonable and would defeat logic or common sense. In the present case the amended rules seek to balance the competing interests of the two groups i.e. Junior Engineers/Surveyors (old group) on the one hand and Work Mistri, Earth Work Mistri and Technical Surveyors (new group), on the other in an equitable manner. By balancing out those interests on the bedrock of higher educational qualifications acquired whilst in service together with the experience gained, the new group created as a feeder category is guarded by longer length of experience of five years on regular basis coupled with the higher qualification of diploma earned in order to bring both groups at par with each other. Higher qualifications as a basis of classification in the matter of promotion has received judicial approval from time to time and reference may be had to Roop Chand Adlakha v. D.D.A., 1989 Suppl. (1) SCC 116; State of Jammu & Kashmir v. Triloki Nath Khosa, (1974) 1 SCC 19; Mohd. Shujat Ali v. Union of India, (1975) 3 SCC 76, P. Murgesan v. State of Tamil Nadu (1993) 2 SCC 340, M. Rathinaswami v. State of Tamil Nadu, (2009) 5 SCC 625 etc The respondent-department is the best judge of its needs consistent with the efficiency of administration. Manpower planning is a purely executive function. The matter of equation of posts is best left to the informed judgment of expert bodies and the court is least equipped to poke its nose into policy matters. If the State Government in its wisdom has clubbed both the posts and merged the cadre for the purpose of consideration for promotion to the next higher post of Junior Engineer to best serve the interests of State, it cannot be said that such a decision is perverse, unreasonable or arbitrary and violative of Articles 14 and 16 of the Constitution. Un-equals can also be made equal provided sufficient thought is paid in striking out the balance and various equalizing inputs are built in to the decision making. This would be more in sync with progress and dynamism. It has long been trite that mere chances of CWP No.13778 of 2012 5 promotion are not conditions of service and do not constitute a fundamental right enforceable in a court of law; see Mohd Shujat Ali supra. It is always open to the Government to create two sources of recruitment by promotion as it thinks fit in its wisdom and in exercise of its legislative power.
We find in this case, with some surprise, that the petitioners have themselves reaped the benefit of higher qualifications acquired whilst in service to obtain the benefit of promotion for the first time through the first amendment to the 1955 rules carried out by notification dated 15.7.1997. Assuming arguendo that what has been conferred by the 2011 Rules in creating a promotional avenue for the new group had been given to them on 15.7.1997 the petitioners, we dare say, could possibly not have complained. If it has been done now, the petitioners may suffer disappointment or heart burn, but that would not make their grievance per se judicially remediable. We are afraid the petitioners would have to learn to share the same compartment with the new group in their onward march to the higher post. We do not see any unconstitutionality in Rule 5 read with 'Appendix B' of the Rules or any cogent reason to declare them bad and instead would uphold them as constitutionally valid, non-arbitrary and such as practice no discrimination within the range of selection.
We also do not think that the ratio of law laid down in Y.V.Rangaiah case, supra would apply to the facts of this case as suggested and pressed by the learned counsel. In Y.V.Rangaiah, the statutory service rules considered were Rule 4 (a) (1) (i), Rule 34 and amended Rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules, which required drawing up a list of approved candidates for promotion and such list was to be prepared in the month of September every year so as to remain in force until the list of approved candidates for the succeeding year was prepared. The purpose of preparing the said list was to satisfy claims of promotion of as many eligible candidates as such authority considered necessary during the currency of the list. The rules examined in that case further enjoined that the list of approved candidates would be drawn in such number as are approximately equal to the number of vacancies CWP No.13778 of 2012 6 expected to arise during the currency of that list. This legitimate expectation based on approved list formed the basis of the direction issued that in the circumstances old rules would govern old vacancies and the amendment could not take away those rights. We, however, find no such rule in this case which gives an accrued right to the petitioners by way of a panel position or select list involving some process of selection which cannot be taken away by amendment and that too before filling in the existing vacancies. In the present case, we repeat, no panel or select list has been prepared in which names of the petitioners find mention after screening before they can be heard to urge that they have an accrued or vested right to promotion against old vacancies. Y.V.Rangaiah case is, therefore, clearly distinguishable on facts and would not help the petitioners to stop the onward march of the new group as their cadre mates. Besides, no factual foundation has been laid in the petition to raise the argument with respect to vacancies existing prior to the amendment of the rules. Therefore, in any case it is not possible to return any finding thereon.
There is yet another reason why this petition deserves to be dismissed which is not far to see. The new group which has been brought into the feeder category is neither party nor is represented in this petition and therefore, no order can be passed adverse to their interest in their absence.
For the foregoing reasons, we see no merit in this writ petition sufficient to call upon the respondents to defend what appears to us to be apparent on the face of the new Punjab Public Works Department (Irrigation Branch) Junior Engineers (Group B) Service Rules, 2011 as being ex facie progressive and forward looking. Consequently, this petition deserves to be dismissed in limini and it is so ordered.
(RAJIV NARAIN RAINA) (HEMANT GUPTA)
JUDGE JUDGE
24.7.2012
MFK
CWP No.13778 of 2012 7