N. Suresh Nathan & Ors vs Union Of India & Ors

post of Assistant Engineer. In the letter dated

24.09.1968, the Chief Secretary sought the advice of the

Commission regarding the correct procedure to be

followed in such cases. The UPSC gave its advice in its

letter dated 06.12.1968 that the services of Section

Officers, who qualify as graduates while in service, 4

should be counted from the date they passed the degree

or equivalent examination or from the date they started

drawing Rs.225/- p.m. in the prescribed scale, whichever

was earlier and Section Officers may continue to be

considered in the diploma holders quota in case it is

advantageous to them and the Government followed this

advice of the UPSC.

5. In 1989, however, some Junior Engineers, who were

formerly Section Officers working in the Public Works

and Local Administration Department of Government of

Pondicherry, filed O.A. No. 552 of 1989 in the Central

Administrative Tribunal, Madras Bench, (for short `the

Tribunal') and in its judgment and order dated

09.01.1990 the Tribunal held that when the Recruitment

Rules require three years service in grade, the Section

Officers (now Junior Engineers) who ceased to be mere

diploma holders having acquired the degree qualification

have to be regarded as having total experience put in the

grade of Section Officers before and after acquiring the

degree qualification and there was nothing in the 5

Recruitment Rules to warrant the exclusion of a part of

the experience acquired by such Junior Engineers while

functioning in the grade of Section Officers (Junior

Engineers). The Tribunal accordingly directed that the

cases of the applicants in the O.A. be considered for

promotion to the post of Assistant Engineers on par with

other degree holders Junior Engineers taking due note of

their total length of service rendered in the grade of

Junior Engineers and such a consideration should be

along side other Junior Engineers, who might have

acquired the necessary degree qualification earlier than

the applicants while holding the post of Junior

Engineers.

6. The judgment and order dated 09.01.1990 of the

Tribunal was challenged by N. Suresh Nathan and

Others before this Court in Civil Appeal No. 4542 of 1991

and this Court interpreting Rule 11 of the Recruitment

Rules held in the judgment reported in 1992 Supp. (1)

SCC 584 that the period of three years' service in the

grade required for degree-holders as qualification for 6

promotion in the category of degree-holders must mean

three years' service in the grade as a degree-holder and,

therefore, that period of three years can commence only

from the date of obtaining the degree and not earlier and

this interpretation of Rule 11 was in conformity with the

past practice followed consistently by the Government

and that the Tribunal was not justified in taking the

contrary view and accordingly allowed the appeal.

Review Petition No.50 of 1993 was filed against the

judgment and order dated 22.11.1991 of this Court in

the aforesaid case but the same was dismissed on

31.01.1993.

7. Thereafter, appellant Nos. 1 to 7 were promoted to the

post of Assistant Engineer on 08.03.1997. Respondent

Nos. 2 to 7 challenged the promotion of the appellant

Nos. 1 to 7 before the Tribunal in O.A. No. 359 of 1997

contending inter alia that this Court in its judgment in N.

Suresh Nathan & Ors. v. Union of India & Ors. (supra) has

only held that three years' service required for eligibility

for the promotion quota reserved for the category of 7

degree-holders or equivalent should be considered from

the date of acquiring the degree or equivalent, but has

not decided the question of seniority as between degree-

holders or equivalent and diploma-holders in the grade. The Government of Pondicherry in its reply filed in O. A.

No.359 of 1997 before the Tribunal contended that the

Departmental Promotion Committee met on 29.09.1996

and keeping in view the direction of this Court in the

judgment in N. Suresh Nathan & Ors. v. Union of India &

Ors. (supra) selected the Section Officers/Junior

Engineers to the post of Assistant Engineers by preparing

two lists, one list for considering promotions to the post

of Assistant Engineer for the degree-holders quota and

another list for considering promotion to the post of

Assistant Engineers for the diploma-holders quota. The

Government of Pondicherry further clarified in its reply

that in the first list those who had joined as Section

Officers/Junior Engineers with degree in Civil

Engineering were placed above the Section

Officers/Junior Engineers who had joined the service 8

with diploma in Civil Engineering but had subsequently

acquired degree in Civil Engineering and in the second

list, the Section Officers/Junior Engineers who had

joined with diploma were placed in order of seniority

counted from the date of the joining in the grade. By the

judgment and order dated 27.08.1999, the Tribunal

dismissed O.A. No.359 of 1997 after holding that this

Court has already taken a specific view in N. Suresh

Nathan's case (supra) with regard to the procedure to be

adopted for promotion of Junior Engineers in the Public

Works Department of Pondicherry construing the

recruitment rules and the applicants in O.A. should not

be allowed to raise the point once again and that the

judgment of this Court in N. Suresh Nathan's case was

binding on the Tribunal and it was not open for the

Tribunal to hold otherwise insofar as the interpretation of

the recruitment rules for the post of Assistant Engineer

in the Public Works Department in Pondicherry is

concerned.

9

8. Aggrieved, respondents Nos.3, 4, 5 and 6 filed Writ

Petition No.11236 of 2000 before the Madras High Court

against the judgment and order dated 27.08.1999 of the

Tribunal in O.A. No.359 of 1997 and by the impugned

judgment and order, a Division Bench of the Madras

High Court held inter alia that in N. Suresh Nathan &

Ors. v. Union of India & Ors. (supra) this Court only

decided the question of eligibility for promotion to the

posts of Assistant Engineer meant for the category of

degree-holders or equivalent, but did not decide the

question of seniority of Section Officers/Junior

Engineers, who had acquired a degree in Civil

Engineering or equivalent after joining as Section

Officers/Junior Engineers and, therefore, the judgment

of this Court in N. Suresh Nathan & Ors. (supra) did not

operate as res judicata. The Division Bench of the

Madras High Court, relying on the decisions of this Court

in R. B. Desai & Anr. v. S. K. Khanolkar & Ors. [(1999) 7

SCC 54] and A. K. Raghumani Singh & Ors. v. Gopal

Chandra Nath & Ors. [(2000) 4 SCC 30], further held in 1

the impugned judgment and order that the entire service

of a person concerned even before acquiring the degree in

Civil Engineering or equivalent have to be counted for the

purpose of seniority and promotion and directed that a

review DPC should be held to consider the question of

promotion of the petitioners before the High Court vis-`-

vis respondents 2 to 8 and other eligible persons, who

had become eligible by the date of sitting of the DPC in

1996 and accordingly allowed the Writ Petition.

9. Mr. Jawahar Lal Gupta, Mr. L. Nageswar Rao and Mr.

M.N. Rao, learned senior counsel appearing for the

appellants, submitted that the view taken by the High

Court in the impugned judgment and order is the same

as has been taken by the Tribunal in its order dated

09.01.1990 in the earlier O.A. No.552 of 1989 and as the

order dated 09.01.1990 of the Tribunal in O.A. No.552 of

1989 has been set aside by this Court in N. Suresh

Nathan & Ors. (supra), the impugned judgment and

order of the High Court cannot be sustained. They

referred to the earlier order dated 09.01.1990 of the 1

Tribunal in O.A. No.552 of 1989 to show that the

Tribunal had directed the authorities to consider the

applicants in the O.A. for promotion to the post of

Assistant Engineer at par with other degree-holder

Junior Engineers taking due note of their total length of

service rendered in the grade of Junior Engineer, both

before and after acquiring the degree of Civil Engineering

or equivalent, and submitted that this Court set aside

this direction of the Tribunal in the judgment in N.

Suresh Nathan & Ors. (supra). They further submitted

that once this Court set aside the order dated 09.01.1990

of the Tribunal in O.A. No.552 of 1989 on the ground

that the order of the Tribunal was not in conformity with

Rule 11 of the Recruitment Rules and the practice

followed by the Department, the decision of this Court on

the issue constitutes res judicata and the interpretation

of Rule 11 of the Recruitment Rules by this Court was a

declaration of law binding on the High Court under

Article 141 of the Constitution.

1

10. Mr. M.S. Ganesh, learned senior counsel appearing for

the Government of Pondicherry, reiterated these

contentions of the learned counsel for the appellants.

11. Mr. Rakesh Dwivedi and Mr. K.V. Viswanathan, learned

counsel appearing for respondents No. 2 to 19, in their

reply, contended that the High Court has rightly held in

the impugned judgment and order that in N. Suresh

Nathan & Ors (supra), this Court only decided the

question of eligibility of Section Officers or Junior

Engineers for promotion to the post of Assistant

Engineers meant for the category of degree-holders and

not the method in which the eligible candidates will be

considered for promotion.

12. Para 5 of the judgment in N. Suresh Nathan & Ors.

(supra) which contains the ratio decided by this Court is

quoted herein below:

"5. The Recruitment Rules for the post of Assistant Engineers in the PWD (Annexure C) are at pages 57 to 59 of the paper book. Rule 7 lays down the qualifications for direct recruitment from the two sources, namely, degree-holders and diploma- holders with three years' professional experience. In 1

other words, a degree is equated to diploma with three years' professional experience. Rule 11 provides for recruitment by promotion from the grade of Section Officers now called Junior Engineers. There are two categories provided therein - one is of degree-holder Junior Engineers with three years' service in the grade and the other is of diploma- holder Junior Engineers with six years' service in the grade, the provision being for 50 per cent from each category. This matches with Rule 7 wherein a degree is equated with diploma with three years' professional experience. In the first category meant for degree-holders, it is also provided that if degree- holders with three years' service in the grade are not available in sufficient number, then diploma-holders with six years' service in the grade may be considered in the category of degree-holders also for the 50 per cent vacancies meant for them. The entire scheme, therefore, does indicate that the period of three years' service in the grade required for degree- holders according to Rule 11 as the qualification for promotion in that category must mean three years' service in the grade as a degree-holder and, therefore, that period of three years can commence only from the date of obtaining the degree and not earlier. The service in the grade as a diploma-holder prior to obtaining the degree cannot be counted as service in the grade with a degree for the purpose of three years' service as a degree-holder. The only question before us is of the construction of the provision and not of the validity thereof and, therefore, we are only required to construe the meaning of the provision. In our opinion, the contention of the appellants degree-holders that the rules must be construed to mean that the three years' service in the grade of a degree-holder for the purpose of Rule 11 is three years from the date of obtaining the degree is quite tenable and commends to us being in conformity with the past practice 1

followed consistently. It has also been so understood by all concerned till the raising of the present controversy recently by the respondents. The tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the department."

13. On a close reading of the aforesaid para 5 of the

judgment of this Court in N. Suresh Nathan & Ors.

(supra), we find that this Court confined its decision to

the qualification or eligibility for consideration for

promotion to 50% vacancies for the post of Assistant

Engineer meant for degree-holders or equivalent in the

grade of Section Officers/Junior Engineers and held that

only those Sections Officers or Junior Engineers, who

had completed three years' service after obtaining degree,

were qualified or eligible for consideration to the 50%

vacancies meant for the category of degree-holders or

equivalent. In the judgment in N. Suresh Nathan & Ors.

(supra), this Court did not decide on how the Section

Officers/Junior Engineers who had completed three

years' service in the grade after the degree in Civil

Engineering or equivalent and had the qualification or 1

eligibility for consideration for promotion to the 50%

vacancies meant for the category of degree-holders would

be considered for promotion.

14. Article 141 of the Constitution states that the law

declared by this Court shall be binding on all the courts

within the territory of India. In N. Suresh Nathan & Ors.

(supra) this Court has set aside the order of the Tribunal

dated 09.01.1990 in O.A. No.552 of 1989 after declaring

that Section Officers/Junior Engineers having three

years' service in the grade after they acquired degree in

Civil Engineering or equivalent will become qualified or

eligible for promotion to the 50% vacancies meant for the

category of degree-holders or equivalent. In N. Suresh

Nathan & Ors. (supra) this Court has not declared any

law on how these Sections Officers/Junior Engineers,

who had become qualified or eligible for promotion to the

post of Assistant Engineer under the category of degree-

holders or equivalent, would be considered for such

promotion. There was, therefore, no law declared by this

Court on how Section Officers or Junior Engineers, who 1

become qualified or eligible for promotion to the post of

Assistant Engineer would be considered for promotion,

which was binding on the courts under Article 141 of the

Constitution.

15. Section 11 of the Code of Civil Procedure Code (for short

`CPC') titled `Res judicata' states that no court shall try

any issue which was directly or substantially in issue

between the same parties and which has been heard and

finally decided by a competent court. Thus, unless an

issue directly and substantially raised in the former case

is heard and decided by the competent court, the

principle of res judicata will not be attracted. In N.

Suresh Nathan & Ors. (supra) this Court, while setting

aside the order dated 09.01.1990 in O.A. No.552 of 1989,

has decided that those Section Officers/Junior Engineers

who complete three years' service after acquiring the

degree in Civil Engineering or equivalent are qualified or

eligible for consideration for promotion to the 50% quota

of vacancies for the post of Assistant Engineer under the

degree-holders category but has not decided how such 1

Section Officers/Junior Engineers who are qualified or

eligible will be considered for such promotion under the

degree-holders category. The decision of this Court in N.

Suresh Nathan & Ors. (supra), therefore, did not

constitute res judicata on the issue regarding the manner

in which Section Officers/Junior Engineers who were

qualified or eligible for consideration for promotion to the

post of Assistant Engineer would be considered for

promotion.

16. The High Court was, therefore, right in taking the view

that in N. Suresh Nathan & Ors. (supra), this Court was

concerned only with the question of eligibility but was not

concerned whether the past services rendered by the

diploma-holders would be counted for the purpose of

seniority and that neither Article 141 of the Constitution

nor the principle of res judicata was a bar for Tribunal or

the High Court to consider whether past services of

Section Officers/Junior Engineers who were diploma-

holders before they acquired degree in Civil Engineering

or equivalent could be counted for the purpose of 1

promotion for the 50% vacancies for the post of Assistant

Engineers meant for the category of degree-holders or

equivalent.

17. Learned counsel for the appellants next submitted that

Rule 11 of the Recruitment Rules provides for two

streams or channels of promotion to the post of Assistant

Engineer, Public Works Department, one stream or

channel is for Sections Officers or Junior Engineers

possessing a recognized degree in Civil Engineering or

equivalent and the other for Section Officers/Junior

Engineers holding diploma in Civil Engineering. They

submitted that it is for this reason that the UPSC in its

letter dated 06.12.1968 advised the Government that the

services of Section Officers/Junior Engineers, who

qualify as graduates while in service, should be counted

from the date they passed the degree or equivalent while

considering them for promotion for the channel or stream

of promotion meant for Section Officers or Junior

Engineers having degree in Civil Engineering or 1

equivalent and the Government of Pondicherry has acted

on this advice of the UPSC.

18. Mr. Nageswar Rao cited the decision in Chandravathi P.

K. & Ors. v. C.K. Saji & Ors. [(2004) 3 SCC 734] in which

the question for consideration was whether in terms of

the scheme of the Kerala Engineering Service (General

Branch) Rules, diploma-holders were entitled to claim

any weightage for the service rendered by them prior to

their acquisition of degree qualification in the matter of

promotion or transfer to higher posts when specific quota

is fixed for graduates and diploma-holders in the matter

of promotion and this Court, on a conjoint reading of

Rules 4 and 5 of the Kerala Engineering Service (General

Branch) Rules, held that a diploma-holder Assistant

Engineer who subsequently acquired a degree

qualification would be eligible for promotion as Assistant

Executive Engineer, only in the event he fulfils the

conditions precedent therefor and not otherwise and his

case could be considered only after the cases of 2

promotion of those who had been holding such degree

qualification have been considered.

19. Mr. Ganesh adopted these arguments of learned counsel

for the appellants and cited the decision in Shailendra

Dania & Ors. v. S. P. Dubey & Ors. [(2007) 5 SCC 535]

wherein this Court interpreting the rules for promotion to

the post of Assistant Engineers in CPWD, which has

adopted by the DDA, found that 25% of the total posts of

Assistant Engineers were to be filled up by promotion

from the category of graduate Junior Engineers and 25%

of the total posts were to be filled up by diploma-holders

with eight years' service and held that a separate quota

was, thus, prescribed for promotion of Junior Engineers

for degree and diploma-holders to the higher post of

Assistant Engineer. He submitted that in the aforesaid

case of Shailendra Dania & Ors. (supra), this Court

emphatically held that the service experience required for

promotion from the post of Junior Engineer to the post of

Assistant Engineer in the limited quota of degree-holder

Junior Engineers in the service experience of a degree- 2

holder and cannot be equated with the service rendered

as a diploma-holder. Relying on this decision, learned

counsel for the Government of Pondicherry submitted

that the prior service experience of a Section Officer or

Junior Engineer while he was diploma-holder and when

he had not acquired the degree in Civil Engineering or

equivalent cannot be counted for the purpose of

consideration for the 50% quota of promotion to the post

of Assistant Engineer meant for degree-holders.

20. Learned counsel appearing for the respondents 2 to 19,

on the other hand, submitted that Rule 11 of the

Recruitment Rules does not provide for two streams or

channels of promotion as contended by learned counsel

for the appellants and it only lays down the qualification

or eligibility of three years' service after degree in Civil

Engineering or equivalent as a qualification or eligibility

and once a diploma-holder acquires a degree in Civil

Engineering or equivalent, his entire length of service

both prior to acquisition of such degree in Civil

Engineering or equivalent and after acquisition of such 2

degree or equivalent has to be taken into consideration at

the time of consideration for promotion to the post of

Assistant Engineer meant for degree-holders.

21. Mr. Viswanathan cited this Court's decision in R. B.

Desai & Anr. v. S. K. Khanolkar & Ors. [(1999) 7 SCC 54]

for proposition that if at the time of consideration for

promotion, the candidates concerned have acquired

eligibility, then unless a rule specifically gives an

advantage to a candidate with earlier eligibility, the date

of seniority should prevail over the date of eligibility. He

submitted that in the present case, the rules for

promotion from the post of Section Officer or Junior

Engineer to Assistant Engineer did not give any such

priority to the candidates acquiring earlier eligibility. He

submitted that Chandravathi P. K. & Ors. v. C.K. Saji &

Ors. (supra) was a case where the rules, namely, the

Kerala Engineering Service (General Branch) Rules, were

different from the Recruitment Rules in the present case

and the Kerala Engineering Service (General Branch)

Rules clearly provided for two different streams or 2

channels of promotion for the posts of Assistant

Engineer, i.e. for diploma-holders and degree-holders. He submitted that in Shailendra Dania & Ors. v. S. P.

Dubey & Ors. (supra) cited by the learned counsel for the

appellants and the Government of Pondicherry, the

question for consideration was whether a diploma-holder

Junior Engineer, who obtained a degree while in service,

became eligible for promotion to the post of Assistant

Engineer on completion of three years of service after he

obtained the Engineering degree or on completion of

three years of service prior to obtaining the degree in

Engineering and while answering this question, this

Court held that a diploma-holder Junior Engineer

became eligible for promotion to the post of Assistant

Engineer on completion of three years' service after he

obtained the Engineering degree. He submitted that the

decision of this Court in Shailendra Dania & Ors. (supra),

therefore, is not an authority for proposition that the

service of diploma-holders put in prior to the acquisition

of the degree or equivalent by him will have to be ignored 2

while considering them for promotion to the post of

Assistant Engineer meant for degree holders.

22. Rule 11 of the Recruitment Rules in the present case is

quoted herein below :-

"11. In case of recruitment Promotion by promotion/deputation/ 1. Section Officer Transfer grades from which possessing a promotion/deputation/ recognized degree transfer to be made. in Civil Engineering or Equivalent with 3 Years service in the grade failing which Section Officers holding diploma in Civil Engineering with 6 years service in the grade - 50%.

2. Section Officers possessing a recognized diploma in Civil Engineering with 6 years service in the grade - 50%"

23. A plain reading of Rule 11 of the Recruitment Rules

quoted above would make it clear that for the 50% quota

for the posts of Assistant Engineer mentioned under 2

Clause 1 of Rule 11, Section Officers (now Junior

Engineers) possessing recognized degree in Civil

Engineering or equivalent with three years' service in the

grade, failing which Section Officers possessing diploma

in Civil Engineering with six years' service in the grade

would be eligible for consideration for promotion. All that

the Rule provides is that if for vacancy in the post of

Assistant Engineer, Section Officers possessing

recognized degree in Civil Engineering or equivalent with

three years' service in the grade are not available, Section

Officers holding diploma in Civil Engineering with six

years service in the grade could be considered for

promotion. Clause 1 of Rule 11 is, therefore, only a

provision laying down the qualification or eligibility for

promotion to 50% of the posts of Assistant Engineer and

the qualification or eligibility provided therein is either

three years service in the grade of Section Officers or

Junior Engineers after degree in Civil Engineering or

equivalent or six years service in the grade of Section

Officers or Junior Engineers with diploma in Civil 2

Engineering. This provision also has a rider that if there

are Section Officers/Junior Engineers, who have put in

three years service after acquiring degree or equivalent,

available for consideration for vacancies, then they will

be considered first for promotion and the turn for

consideration for promotion of diploma-holders in Civil

Engineering with six years service in the grade of Section

Officers/Junior Engineers will come only thereafter.

Thus, the Rule itself provides that if for vacancies in the

post of Assistant Engineer, Section Officers possessing a

recognized degree in Civil Engineering or equivalent with

three years' service in the grade are not available, then

Section Officers holding diploma in Civil Engineering with

six years' service in the grade would be eligible for

promotion. We, therefore, cannot accept the submission

of learned counsel for the appellants and the Government

of Pondicherry that Clause 1 of Rule 11 provides for a

separate stream or channel of promotion exclusively for

degree-holders, who have completed three years service

and we are of the opinion that learned counsel for the 2

respondents 2 to 19 are right in the submission that

Clause 1 of Rule 11 only lays down the qualification or

eligibility for consideration for promotion to 50% of the

posts of Assistant Engineers.

24. In Chandravathi P. K. & Ors. v. C.K. Saji & Ors. (supra),

cited by Mr. L. Nageshwara Rao, on the other hand, this

Court held that under Rules 4 and 5 of the Kerala

Engineering Service (General Branch) Rules there were

separate avenues of promotion for the degree-holders and

the diploma holders. This will be clear from the

observations of the Court in para 30 of the judgment in

Chandravathi P. K. & Ors. v. C.K. Saji & Ors. (supra),

quoted herein below:

"A bare perusal of Rules 4 and 5 of the Kerala Engineering Service (General Branch) Rules would clearly go to show that the avenues for promotion for the degree- holders and the diploma holders were separate. ......"

[(2004) 3 SCC 734 at 748]

25. In Shailendra Dania & Ors. v. S. P. Dubey & Ors. (Supra)

cited by learned counsel Mr. Ganesh, this Court similarly

found that there were two different channels or streams

of promotion for degree-holders and diploma holders to 2

the post of Assistant Engineer in the relevant rules. This

will be clear from the findings in para 44 of the judgment

quoted herein below:

"...... There is watertight compartment for graduate Junior Engineers and diploma-holder Junior Engineers. They are entitled for promotion in their respective quotas. Neither a diploma-holder Junior Engineer could claim promotion in the quota of degree-holders because he has completed three years of service nor can a degree-holder Junior Engineer make any claim for promotion quota fixed for diploma-holder Junior Engineers. [(2007) 5 SCC 533 at 560)]"

26. In the present case, on the other hand, Clause 1 of

Rule 11 of the Recruitment Rules does not provide for

"separate avenues" or "watertight compartments" for

promotion to the post of Assistant Engineers for degree-

holders and diploma-holders. As we have seen Clause 1 Rule

11 of the Recruitment Rules only lays down the qualification

or eligibility for consideration for promotion to the post of

Assistant Engineers earmarked for the 50% quota. The two

decisions of this Court in Chandravathi P. K. & Ors. v. C.K.

Saji & Ors. (supra) and Shailendra Dania & Ors. v. S. P. Dubey

& Ors. (Supra) are, therefore, of no assistance to the

appellants.

2

27. In R. B. Desai & Anr. v. S. K. Khanolkar & Ors. (supra)

cited by Mr. Viswanathan, this Court found that the amended

rules of 1988 pertaining to the promotion to the cadre of

Assistant Conservator of Forests provided that Range Forest

Officers with five years regular service in the grade and

possessing diploma of Forest Rangers' Training from Forest

Rangers College in India or equivalent were eligible for

promotion to the post of Assistant Conservator of Forests and

the Court held in para 9:

"............. that if at the time of consideration for promotion the candidates concerned have acquired the eligibility, then unless the rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority should prevail over the date of eligibility. The rule under consideration does not give any such priority to the candidates acquiring earlier eligibility and, in our opinion, rightly so. In service law, seniority has its own weightage and unless and until the rules specifically exclude this weightage of seniority, it is not open to the authorities to ignore the same. [(1999) 7 SCC 54 at 58]

28. In the passage of the judgment of this Court in R.B.

Desai & Anr. V. S. K. Khanolkar & Ors. (supra) quoted above, it 3

is laid down that in service law, seniority has its own

weightage and unless and until the rules specifically exclude

this seniority, it is not open to the authorities to ignore the

same. In the aforesaid case though the post of ACF was

mentioned to be a selection post in the amended rules of 1988,

the question whether for a selection post seniority would have

weightage or merit would have weightage while considering the

eligible candidates for promotion was not raised or decided

and the only question which was raised before this Court was

whether ranking assigned in the eligibility list or the ranking

assigned to the seniority list should be given weightage and

this Court held that between the candidates who are eligible,

ranking in seniority must be given weightage irrespective of

the date for which the candidate becomes eligible.

29. In the present case, we find that Rule 5 of the

Recruitment Rules states that the post of Assistant Engineer

in the Public Works Department, Pondicherry, is a selection

post. The Recruitment Rules, however, do not lay down that

seniority-cum-merit would be the criteria for promotion to the

selection post of Assistant Engineer. In Dr. Jai Narain Misra v. 3

State of Bihar & Ors. [(1971) 1 SCC 30] a three-Judge Bench of

this Court held that the question of seniority was not relevant

for promotion to the selection post in the language of the

judgment of this Court in Dr. Jai Narain Misra v. State of Bihar

& Ors. (supra):

"It was not disputed before us that the post of Director of Agriculture is a selection post. Therefore, the question of seniority was not relevant in making the selection. It is for the State Government to select such officer as it considers as most suitable. In this view we think the High Court was not justified in going into the question of seniority nor will we be justified in going into that question."

Thus, the question of seniority in the grade of Section Officers

or Junior Engineers is not at all relevant for promotion to the

post of Assistant Engineer in the Public Works Department,

Government of Pondicherry. The practice adopted by the

Government of Pondicherry in consultation with the UPSC of

counting the services of Section Officers or Junior Engineers,

who qualified as graduates while in service from the date they

passed the degree or equivalent examination and placing them

in order of seniority accordingly for the purpose of

consideration for promotion to the post of Assistant Engineer 3

under Clause 1 of Rule 11 of the Recruitment Rules is

contrary to Rule 5 of the Recruitment Rules. Similarly, the

direction of the High Court in the impugned judgment and

order to count the entire service of a person concerned even

before acquiring degree in Civil Engineering for the purpose of

seniority and promotion to the post of Assistant Engineer

under Clause 1 of Rule 11 of the Recruitment Rules is

contrary to Rule 5 of the Recruitment Rules.

30. The person, who is most meritorious, is the most

suitable person to be promoted for the selection post. Merit,

in other words, is the sole criteria for promotion to the

selection post. In Guman Singh, etc. v. State of Rajasthan &

Ors. [1971 (2) SCC 452] a five-Judge Bench of this Court

speaking through Vaidialingam, J. explained how merit of

candidates for promotion is to be assessed in para 35 at page

408 of the judgment in the following words:

"........... No doubt the term `merit' is not capable of an easy definition, but it can be safely said that merit is a sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction in the University, his character, integrity, devotion to duty and the manner in which he discharges his official duties.

3 Allied to this may be various other matters or factors such as his punctuality in work, quality and outturn of work done by him and the manner of his dealings with his superiors and subordinate officers and the general public and his rank in the service. We are only indicating some of the broad aspects that may be taken into account in assessing the merits of an officer. In this connection it may be stated that the various particulars in the annual confidential reports of an officer, if carefully and properly noted, will also give a very broad and general indication regarding the merit of an officer. "

Where, therefore, there are large number of eligible candidates

available for consideration for promotion to a selection post,

the Government can issue executive instructions consistent

with the principle of merit on the method to be followed for

considering such eligible candidates for promotion to the

selection post.

31. Learned counsel for the appellants however submitted

that when the Recruitment Rules are silent on the procedure

to be adopted by the Government in selecting the candidates

for promotion, the Government is the best authority to decide

what procedure to be adopted in such promotion and the

Court will not interfere with the procedure so adopted unless it

was unconstitutional, arbitrary, unreasonable or otherwise 3

illegal. In support of this submission, Mr. L. Nageswar Rao

cited the decisions of this Court in Suman Gupta v. State of

J & K [(1983) 4 SCC 339], Munidra Kumar v. Rajiv Govil

[(1991) 3 SCC 368], Satya Narain Shukla v. U.O.I. [(2006) 9

SCC 69], P.U. Joshi v. Accountant General [(2003) 2 SCC 632],

U.O.I. v. Pushpa Rani [(2008) 9 SCC 242], Inderjeet Khurana v.

State of Haryana [(2007) 3 SCC 102] and U.O.I. v. A.K. Narula

[(2007) 11 SCC 10]. Learned counsel for the appellants

submitted that in the present case the Government of

Pondicherry in consultation with the UPSC has adopted the

procedure since 1968 that the services of Section

Officers/Junior Engineers who qualified as graduates while in

service should be counted from the date they passed the

degree or equivalent examination for the promotion under

clause 1 Rule 11 of the Recruitment Rules and this procedure

is not unconstitutional, arbitrary, unreasonable or illegal and,

therefore, the High Court by the impugned judgment and

order should not have interfered with this procedure and

should not have directed that the entire service of a person

concerned even before acquiring the degree in civil engineering 3

or equivalent has to be counted for the purpose of seniority

and promotion to the post of Assistant Engineer under clause

1 of Rule 11 of the Recruitment Rules. Learned counsel

appearing for the Government of Pondicherry adopted this

contention of the learned counsel of the appellants.

32. Learned counsel for the respondents No.2 to 19, in

their reply, submitted that the Government cannot adopt a

procedure for selection by way of promotion to the post of

Assistant Engineer contrary to the Recruitment Rules. They

submitted that the Recruitment Rules do not provide that for

promotion under clause 1 of Rule 11, the services of Section

Officers/Junior Engineers who qualified as graduates while in

service, would be counted from the date they passed the

degree or equivalent examination and their services prior to

the date of passing the degree or equivalent examination

would be ignored. They further submitted that the

Government also cannot adopt the procedure of selection

which violates the fundamental right guaranteed under Article

16 of the Constitution of India to equality of opportunity in

matters of public employment. They submitted that once a 3

candidate became eligible or qualified to be considered for

promotion to the post of Assistant Engineer under clause 1 of

Rule 11 of the Recruitment Rules, he has a right to be

considered for such promotion and such consideration cannot

be denied by laying down a procedure which ignores his

seniority in the grade of Section Officer/Junior Engineer.

They relied on the decision of this Court in M.B. Joshi v. Satish

Kumar Pandey [1993 Supp.(2) SCC 419].

33. In M.B. Joshi v. Satish Kumar Pandey (supra), the

State Government had been applying the principle of counting

the seniority of Graduate Sub-Engineers from the date of their

continuous officiation irrespective of the date on which such

diploma-holder Sub-Engineer acquired the degree of

graduation in Engineering and on the basis of such seniority,

the Departmental Promotion Committee was considering

Graduate Sub-Engineers for promotion to the post of Assistant

Engineers. When this method adopted by the State

Government was challenged by some of the Sub-Engineers

before the Madhya Pradesh Administrative Tribunal, Jabalpur,

the Tribunal held that the seniority of such Sub-Engineers 3

must be determined from the date of acquiring the degree of

graduation in Engineering and this Court held that the

Tribunal was wrong in determining the seniority from the date

of acquiring degree of Engineering and it ought to have been

determined on the basis of length of service on the post of

Sub-Engineer and the Government was right in doing so and

there was no infirmity in the orders passed by the

Government. In this case also, the question did not arise

whether for selection post seniority would have weightage or

merit would have weightage while considering the eligible

candidates for promotion.

34. As we have seen, Rule 5 of the Recruitment Rules in

the present case states that the post of Assistant Engineer is a

selection post and the Recruitment Rules no where provide

that seniority-cum-merit would be the criteria for promotion.

In the absence of any indication in the Recruitment Rules that

seniority in the grade of Section Officers / Junior Engineers

will be counted for the purpose of promotions to the post of

Assistant Engineer, consideration of all Section Officers /

Junior Engineers under Clause 1 of Rule 11 of the 3

Recruitment Rules who are eligible for such consideration has

to be done on the basis of assessment of the comparative merit

of the eligible candidates and the most suitable or meritorious

candidate has to be selected for the post of Assistant Engineer.

Such a method of selection will be consistent with Rule 5 of

the Recruitment Rules and Article 16 of the Constitution

which guarantees to all citizens equality of opportunity in

matters of public employment. In our considered opinion,

therefore, the practice adopted by the Government of

Pondicherry on the advice of the UPSC of counting the service

of the eligible candidates from the date of acquisition of the

degree in Civil Engineering by them and the impugned

judgment and order of the High Court directing that the entire

service of eligible candidates, both prior and after acquisition

of the degree of Civil Engineering by them, would be counted

for the purpose of promotion to the post of Assistant Engineer

under Clause 1 of Rule 11 of the Recruitment Rules are

contrary to the rules made under Article 309 of the

Constitution and the fundamental right guaranteed under

Article 16 of the Constitution.

3

35. For the aforesaid reasons, we set aside the impugned

judgment of the High Court and direct the Government

of Pondicherry to consider the cases of all Section

Officers or Junior Engineers, who have completed

three years' service in the grade of Section Officers or

Junior Engineers, for promotion to the vacancies in

the post of Assistant Engineer, Public Works

Department, Government of Pondicherry, in

accordance with their merit. We make it clear that the

promotions to the post of Assistant Engineers already

made pursuant to the judgment and order of the High

Court will not be disturbed until the exercise is carried

out for promotion in accordance with merit as directed

in this judgment and on completion of such exercise,

formal orders of promotion to the vacancies in the

posts of Assistant Engineer which arose during the

pendency of the cases before this Court are passed in

case of those who are selected for promotion and after

such exercise only those who are not selected for 4

promotion may be reverted to the post of Section

Officer or Junior Engineer.

The appeals are disposed of accordingly with no order

as to costs.

..........................J. (J. M. Panchal)

..........................J. (A.K. Patnaik) New Delhi, April 22, 2010.