T. VALSAN (D) THR. LRS. & ORS. versus K. KANAGARAJ & ORS.

[2023] 6 S.C.R.

T. VALSAN (D) THR. LRS. & ORS.

K. KANAGARAJ & ORS.

(Civil Appeal No. 3466-3468 of 2023)

BMAY 08, 2023

[SANJAY KISHAN KAUL, ABHAY S. OKA ANDMANOJ MISRA, JJ.]

Electricity Department, Group (Technical) Assistant Engineer(Electrical) Recruitment Rules, 1979 – Promotion to the post ofCAssistant Engineer (Electrical) – Under the Rules, 80% of thevacancies for the post of Assistant Engineer were to be filled up bypromotion and 20% by direct recruitment – Out of this 80%, 50%were earmarked for those Junior Engineers who possessed Degreein Engineering with regular service of 3 years and the other 50%Dfor those possessing Diploma with regular service of 7 years – JuniorEngineers-private respondents, who were originally Diploma holdersand had acquired degree during service, were promoted as AssistantEngineers immediately after acquiring their degree without insistenceon 3 years of continuous service from the date of acquisition of thedegree – Challenged by appellants who had joined the service asEJunior Engineers, having already acquired an Engineering Degreeprior to the said appointment – CAT held partly in favour of theappellants relying on Shailendra Dania case – High Court held infavour of the Respondents relying on D. Stephen Joseph case – Issuereferred by two-Judges Bench opining that D. Stephen Joseph caseFdid not reflect the correct opinion as while construing almostidentical Rules, the three-Judges Bench in Shailendra Dania casehad opined to the contrary – Answering the reference, held: Viewtaken in D. Stephen Joseph case is the applicable law – Under theRules, the distinction is between the diploma holder and the degreeholder and the period of service rendered as Junior EngineerGwithout any distinction between the years served prior to or afterhaving obtained the degree – View taken by High Court upheld –Service Law.

Service Law – Seniority – Held: In the absence of any statutoryprovision or rule made thereunder or under the proviso appendedH

to Article 309, once an incumbent is appointed to the post accordingto rules, their seniority has to be counted from the date ofappointment – Constitution of India – Article 309.

Service Law – Promotion – Two channels for promotion –Incentive to acquire the higher degree – Discussed.

D. Stephen Joseph v. Union of India & Ors. (1997) 4

SCC 753 : [1997] 3 SCR 1040 – held applicable.

C. Chakkaravarthy & Ors. v. M. Satyavathy, IAS & Ors.

(2015) 16 SCC 652 – relied on.

Shailendra Dania & Ors. v. S.P. Dubey & Ors. (2007)5 SCC 535 : [2007] 5 SCR 190; M. B. Joshi v. SatishKumar Pandey (1993) 2 Supp. SCC 419 : [1992] 2Suppl. SCR 1; K. K. Dixit & Ors. v. Rajasthan HousingBoard & Anr. (2015) 1 SCC 474 : [2014] 10 SCR 397;Anil Kumar Gupta v. Municipal Corporation of Delhi(2000) 1 SCC 128 : [1999] 4 Suppl. SCR 553;Chandravathi P. K. & Ors. v. C. K. Saji & Ors. (2004)3 SCC 734 : [2004] 2 SCR 330; Satpal Antil v. Unionof India (1995) 4 SCC 419 : [1995] 1 Suppl. SCR 1;A. K. Raghumani Singh v. Gopal Chandra Nath (2000)4 SCC 30 : [2000] 2 SCR 943; Pramod K. Pankaj v.State of Bihar (2004) 3 SCC 723 : [2003] 5 Suppl. SCR916 – referred to.

ACIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3466-3468 of 2023.

From the Judgment and Order dated 08.11.2010 of the High Courtof Judicature at Madras in WP Nos. 26525 of 2009, 221 and 7165 of2010.

Raghavendra S. Srivatsa, Venkita Subramoniam T. R., Likhi ChandBonsle, Rahat Bansal, Ms. Komal Mundhra, Advs. for the Appellants.

Anurag Dubey, Bhupendra Kumar Bhardwaj, Ms. Anjali Tiwari,Ms. Geetanjali Setia, Ms. Divya Bhardwaj, S. R. Setia, Aravindh S.,Ms. Uma Bhuvaneswari C., Abbas B., Advs. for the Respondents.

The Judgment of the Court was delivered by

SANJAY KISHAN KAUL, J.

1. Leave granted.

2. The Appellants herein joined the service as Junior Engineers inthe Electricity Department of the Government of Puducherry, havingalready acquired an Engineering Degree prior to the appointment to thepost of Junior Engineer. On the other hand, the private Respondentsjoined the service as Junior Engineers with Diploma and, in the courseof service, obtained an Engineering Degree.

EFactual Background:

3. As per the Government of Pondicherry, Electricity Department,Group (Technical) Assistant Engineer (Electrical) Recruitment Rules,1979 (hereinafter referred to as ‘the Rules’) for the post of JuniorEngineer, 50% of the vacancies are to be filled by promotion, and theFremaining 50% are to be filled by direct recruitment. The next avenueof promotion is to the post of Assistant Engineer (Electrical).

4. Under the said Rules, 80% of the vacancies for the post ofAssistant Engineer are to be filled up by ‘promotion’ and 20% by‘direct recruitment’. The promotion is made among Junior EngineersGwith three years of regular service for those with Degree inelectrical engineering and seven years of regular service for thosewith only Diploma in electrical engineering. subsequentamendment dated 07.10.1982 was made to Rule 4 read withParagraph 11 of the Recruitment Rules on the subject ofH‘promotion’. Thereafter, the amended Rules earmarked 50% for

those Junior Engineers who possess Degree in Engineering withregular service of 3 years. The other 50% was earmarked for thoseJunior Engineers who possess Diploma with regular service of 7years.

5. Significance of the aforesaid is that in order to earn theirpromotion to the post of Assistant Engineer, Junior Engineer, possessingan Engineering Degree, has to have fewer years of service while in theGcase of Diploma holder, the requisite period for service, to be eligiblefor promotion, was more. We may notice that while working as JuniorEngineer, there is no difference between Degree holder and Diplomaholder. The moot point, thus, which arises, is whether, for Diplomaholder, who acquires degree during the course of employment, theperiod of service as Junior Engineer prior to acquiring the degree is toH

Abe excluded for computing the eligible period of service for promotion tothe post of an Assistant Engineer.

6. The Puducherry administration construed the Rules to meanthat as long as the Diploma holder acquires degree, the period spent inservice as Junior Engineer, before the acquisition of an engineeringBdegree, would be counted. The Appellants, thus, approached the CentralAdministrative Tribunal, Madras Bench (hereinafter referred to as ‘the

CAT’) in O.A. No. 355/2008, challenging the decision of the Puducherryadministration to promote the Junior Engineers, who were originallyDiploma holders and acquired degree during service, as AssistantEngineers under the Degree quota, immediately after they acquired theirCdegree without insisting on three-years of continuous service from thedate of acquisition of the degree. This was alleged to have resulted indenying promotion to the Junior Engineers, who joined the service asDegree holders.

Procedural History:D

Before the Central Administrative Tribunal

7. The CAT, vide an order dated 20.11.2009, partly found in favourof the Appellants and opined that the qualifying service for JuniorEngineers, who obtained their degree during their service for the purposesEof promotion to Assistant Engineer under the Degree quota, would haveto be considered from the date when they obtained the degree. Thisview of the CAT was based on Shailendra Dania & Ors. v. S.P. Dubey& Ors.[1]. The CAT opined that the Rule in question in the present case isalmost identical to the Rule in the aforesaid case and, thus, concludedthat the Degree and Diploma holders are distinct, and both are entitledFto promotion in their respective quota. The CAT, in its wisdom, did notconsider the case of D. Stephen Joseph v. Union of India & Ors.[2]onthe ground that the issue requires fresh consideration in view of thesubsequent judgment of this Court in Shailendra Dania & Ors.[3]

8. The aforesaid view resulted in multiple writ petitions[4] beingGfiled before the High Court by several employees of the Puducherry

1 (2007) 5 SCC 5352 (1997) 4 SCC 7533 (supra)H4 W.P. No. 26525 of 2009 and W.P. Nos. 221 & 7165 of 2010

Electricity Department, who were affected by the order but were notimpleaded as party before the CAT.

Arguments Before the High Court

9. In the proceedings before the High Court, the two parties reliedupon the aforesaid two judgments – the Appellants on Shailendra Dania& Ors.[5]case while the Respondents on D. Stephen Joseph[6] case.Shailendra Dania & Ors.[7]case is undisputedly latter judgment andpertains to different Rule, albeit it is stated to be almost similar, whileD. Stephen Joseph[8] case deals with the very same Rules, in question,as in the present case. The submission of the Respondents was that inthe Rules in question, there is nothing stipulated that the experience gainedafter the acquisition of the Degree in Electricity Engineering was aloneto be considered.

10. The High Court held in favour of the Respondents by allowingthe writ petition while relying on the judgment in D. Stephen Joseph[9]case. In this behalf, the judgment in M.B. Joshi v. Satish KumarPandey[10] was also relied upon by the High Court, which had been citedin D. Stephen Joseph[11]case qua the aspect of interpretation of servicerules. The said case opined that when Rule is quite specific, it wouldnot be proper to count the experience only from the date of acquisitionof the superior educational qualification because such an interpretationwill violate the purpose to incentivise the employee to acquire highereducation. The relevant past practice followed by the Department beingto the same effect, the practice of considering the tenure of JuniorEngineer as whole was said to have acquired the status of Rule ofthe department. Simultaneously, it was also observed that since the veryRule, in question, had been interpreted by this Court, it was not open forthe CAT to have relied upon the decision qua some other Rules. In thecontext of the two judgments of the Supreme Court so discussed, it wasobserved that Shailendra Dania & Ors.[12]case, being the latter judgment

5 (supra)

6 (supra)

7 (supra)

8 (supra)

9 (supra)

10 (1993) Supp. (2) SCC 419

11 (supra)

12 (supra)

Aof three-Judges, had distinguished itself from the earlier judgment in D.Stephen Joseph[13] case, being the judgment of two-judges, on the trueinterpretation of that Rule, in question.

11. The aforesaid resulted in the Special Leave Petition beingfiled before this Court.

Initial Proceedings Before this Court

12. The two-Judges Bench of this Court, in terms of the orderdated 30.01.2018, referred the issue to be considered by larger Bench.While making the reference, the two-Judges Bench opined that D.Stephen Joseph[14]case apparently was not reflecting the correct opinionCas while construing almost identical Rules, larger Bench of three-Judgeshad opined to the contrary in Shailendra Dania & Ors.[15]case as alsoin K.K. Dixit & Ors. vs. Rajasthan Housing Board & Anr.[16], whereinthis Court had opined that the period of experience must be reckonedfrom the date of acquisition of the Degree. This is how the matter cameDup before the three-Judges Bench, as now constituted for ourconsideration in the reference.

The debate before us

13. On behalf of the Appellants, it was sought to be canvassedthat the interpretation of the Rule ought to be governed by the twoEprinciples:

i.The prescription of an educational qualification and certainnumber of years of experience in the designated post is acumulative requirement. higher educational qualificationmakes qualitative difference in the service rendered by theFincumbent. Therefore, such prescription of lesser numberof years of experience for promotion has rational nexus tothe object sought to be achieved, namely, achieving efficiencyat work.

ii.Watertight compartments are created for the two classes ofGemployees - the ones with the higher educational qualificationrequiring lesser number of years of service, and the ones

13 (supra)14 (supra)15 (supra)H16 (2015) 1 SCC 474

with lesser educational qualification requiring higher numberof years of service. This demarcation has direct nexus withthe object stated above, and any breach of such demarcationwill amount to treating unequal’s as equals, thereby defeatingthe purpose of the Rule.

14. It was submitted that the three-Judges Bench in ShailendraDania & Ors.[17]case had taken into account the aforementionedprinciples and had interpreted an almost identical Rule. That judgmenthad been further followed and relied upon by this Court in K.K. Dixit &Ors.[18] case. It was further submitted that the two-Judges Bench judgmentin D. Stephen Joseph[19] case had no precedential value, and it is subsilentio as to the actual text of the Rule and the difference in the qualityof service rendered by Degree holder Junior Engineer vis-à-vis aDiploma holder Junior Engineer was neither placed nor covered by thisCourt. That judgment was stated to be completely based only on thearguments of past practice and not as to the actual meaning andinterpretation of the relevant Rule.

15. While referring to the Rule, it was submitted that the plain anddictionary meaning of the word “with” is “accompanied by”. Thesynonyms in the dictionary are “accompanied by, escorted by,alongside, in addition to, as well as”. Thus, the submission of theAppellants was that irrespective of the use of the word “with” or “and”,it is conjunctive phrase and in the light of settled principles, therequirement of educational qualification and service experience is acumulative requirement.

16. The Appellants contended that they had qualified as JuniorEngineers holding Degrees for much longer period of time than theprivate Respondents, who had entered the service only as Junior Engineersholding Diplomas and actually earned their promotions almost immediatelyonce they acquired their Degrees by coming into the Degree quota. Thiswas stated to permit the private Respondents to infiltrate into the quotameant for the Degree holders based on wrong interpretation of theRule and relying on the earlier judgment of this Court in the case of D.Stephen Joseph[20].

17 (supra)18 (supra)

19 (supra)

20 (supra)

A17. On the other hand, it was urged on behalf of the Respondentswhile commending the view taken in D. Stephen Joseph’s[21]case thatthe view in that case and Shailendra Dania & Ors.[22]case is really notin variance. The Rule was stated to be different. Apart from that,observations made in Shailendra Dania & Ors.[23]case, which wouldshow that the view taken in D. Stephen Joseph[24] case has not beenBfaulted. reference was also made to two other judicial pronouncementsof this Court in Anil Kumar Gupta v. Municipal Corporation of Delhi[25]and Chandravathi P.K. & Ors. v. C.K. Saji & Ors.[26], which had alsoendorsed the view taken in D. Stephen Joseph[27]case and, thus, thatcase cannot be said to be sub silentio. These two judgments are onceCagain of three-Judges Bench, and the latter judgment had set down theprinciples to be followed as regards the counting of the service period ofDiploma holders.

18. The effect of the aforesaid pronouncements was stated to bethat in case of the Electricity Department of the Union Territory ofDPuducherry, the principle that has emerged in respect of the Rules isthat for the purpose of the eligibility for promotion as Assistant Engineer,Diploma holders can count their service prior to the acquisition of theirdegree.

Analysis of the aforesaid judgments and our view:E

19. On examining the controversy in the context of the argumentsurged and the judicial precedents, we can say that actually, the issue isno more res integra in view of the judgment of this Court in C.Chakkaravarthy & Ors. v. M. Satyavathy, IAS & Ors.[28] Though it isa two-Judges Bench view, the very issue has been examined, which isFreally sought to be debated before us. It was observed in para 10 asunder:

“There is, in our opinion, considerable merit in that submission ofthe petitioners. There is no gainsaying that this Court has

21 (supra)G22 (supra)23 (supra)24 (supra)25 (2000) 1 SCC 12826 (2004) 3 SCC 73427 (supra)H28 (2015) 16 SCC 652

unequivocally declared that promotion to the post of AssistantEngineers in the service shall be on the basis of merit and meritalone and that seniority of the candidates cannot be taken as aninput for determining such merit. This Court has also very clearlyrejected the procedure followed by the Government whereby thedate on which the candidate had acquired his degree qualificationwas taken as determining factor. That being so, and given thelarge number of candidates eligible for consideration theGovernment was entitled to adopt the method of restricting thezone of consideration based on the number of vacancies. Inasmuchas the Government relied upon the DoPT guidelines for achievingthat objective it committed no fault. The question, however, iswhether the Government could draw-up list of eligible candidatesnot by reference to the length of service in the cadre but byreference to the date on which the candidates acquired the eligibilitywhich, as noticed earlier, was itself dependent upon the date onwhich the candidate acquired the degree qualification. Since,however, the acquisition of degree qualification itself was notbased on any consistently uniform criterion, test or procedure, thedate on which such qualification was acquired and resultantlythe date on which the candidate attained their eligibility was alsobound to be anything but uniform and non-discriminatory. Asbetween the date of acquiring eligibility and the date of enteringservice as Section Officer/Junior Engineer the latter was, in ouropinion, more intelligible, fair and reasonable yardstick to beapplied for drawing-up the list of eligible candidates by the reviewDPC. Inasmuch as the review DPC relied upon the date ofacquiring eligibility as the basis for preparation of the list of eligiblecandidates, it committed mistake which needs to be corrected.”

20. reading of the aforesaid paragraph shows that the promotionto the post of Assistant Engineer was to be based on merit and meritalone. The seniority of candidates could not be taken into account fordetermining such merit. In this merit-based selection, there was aqualifying prescription to be so considered on merits. The time periodspent in the service as Junior Engineer was at variance dependent onwhether the person had qualifying Degree or qualifying Diploma.There was no necessity for Degree to perform the job of JuniorEngineer, and all persons were alike. The distinction only came into playwhen the merit-based promotion had to take effect. Thus, as to when

ABC

Athe person obtained the degree as method of advancement of hisknowledge and entitling him to an earlier consideration in the time periodwould not be relevant.

21. The Department of Personnel and Training, “Instructions andGuidelines on Seniority”, have been placed before us. As far as theBseniority of promotees is concerned, the relevant portion is as under:

“2.2. SENIORITY OF PROMOTEES

.........

2.2.1 Where promotions to grade are made from more than oneCgrade and quotas have been laid down for each feeder grade, theeligible persons shall be arranged in separate lists in the order oftheir relative seniority in their respective grades. The officers ineach grade, assessed as fit by the Departmental PromotionCommittee shall be interpolated in the ratio prescribed for eachgrade in the recruitment rules for the post.”D

22. three Judges Bench of this Court in Chandravathi P.K. &Ors.[29] referred to number of earlier judgments on the issue, includingD. Stephen Joseph[30], Satpal Antil v. Union of India[31], Anil KumarGupta[32], A.K. Raghumani Singh v. Gopal Chandra Nath[33] andPramod K. Pankaj v. State of Bihar[34]and quoted with approval of theElast of these judgments. The principle laid down is that in the absence ofany statutory provision or rule made thereunder or under the provisoappended to Article 309 of the Constitution of India, once an incumbentis appointed to the post according to rules, their seniority has to be countedfrom the date of appointment.

F23. In Shailendra Dania & Ors.[35] case, it was noticed in para36 that the past practice would be relevant aspect while construing theservice rule. The aforementioned judgment distinguished itself from D.Stephen Joseph[36] case on the ground that the interpretation of the rules

29 (supra)G30 (supra)31 (1995) 4 SCC 41932 (supra)33 (2000) 4 SCC 3034 (2004) 3 SCC 72335 (supra)H36 (supra)

would be determined on case-to-case basis, and the wordings of therules as well as past practices are important criteria. Similarly, in thepresent case, the Electricity Department has past practice of consideringthe years of service prior to the acquisition of the degree.

24. The principle of past practice being of significance has alsobeen noticed in M.B. Joshi[37] case. This judgment also discusses theaspect where there are two channels for promotion (as in the presentcase) and illustrates that if the total time period of service was not to becounted, then there could not be said to be any incentive to acquire thehigher degree except as an academic pursuit. The incentive is that if youacquire higher degree as compared to diploma, you come into achannel which entitles consideration, albeit on merit, in fast lane withless number of years of service required in the cadre.

25. In our view, one of the important aspects is the wording of theRule itself. According to the Rules, 50 percent of the promotion quota isfrom Junior Engineers with three years of regular service in the grade“and” possessing degree in Electrical Engineering. The Rule does notsay from which date the time period of regular service has to be counted,but there is twin requirement of three years of regular service as alsoa degree. As against this, the second scheme of 50 percent promotionfrom Junior Engineers uses the word “with” seven years of regularservice in the grade and possessing diploma in Electrical Engineering.Thus, the distinction is between the diploma holder and the degree holderand the period of service rendered as Junior Engineer without anydistinction between the years served prior to or after having obtainedthe degree. Accepting the plea of the Appellant would amount to insertioninto the requirement of the Rules, which is not stipulated. Further, this ishow the Rule has been understood by the Department, the framers ofthe Rules, and accordingly, the Rules have been uniformly implementedin the Electricity Department over period of time. In view of the above,due weightage must be given to the view of the framers of the Rules.

Conclusion:

26. In view of the aforesaid, we uphold the view taken by theHigh Court opining that there is no distinction between the time periodserved before or after the acquisition of the degree so long as the degreeis acquired and is the basis for consideration of the promotion. We are,

[2023] 6 S.C.R.

Athus, of the view that for all the aforesaid reasons for the Department inquestion, the view taken in D. Stephen Joseph[38] is held to be applicablelaw, and we answer the reference accordingly.

27. The appeals are accordingly dismissed.

BDivya Pandey

(Assisted by : Shevali Monga, LCRA)

Appeals dismissed.

38 (supra)