Appeal No 4542 1991
From the Judgment and Order dated 91
1990 of the Central Administrative Tribunal Madras in OA No 552 of 1989
PPRao Narsimha PS and Ms Vijaylakshmi Menon for the Appellants
Santosh Hegde AS Nambiar Ms Sangeeta Garg PPTripathi Mrs Shanta Vasudevan PK Manohar and KR Choudhary for the Respond ents
425 The Judgment of the Court was delivered by VERMA J
The Recruitment Rules for the post of Assist ant Engineer in the Public Works Department Pondicherry prescribe the educational and other qualifications for appointment by direct recruitment and promotion
For direct recruits the qualification prescribed is a Degree in Civil Engineering of a recognised University or Diploma in Civil Engineering from a recognised institution with three years  professional experience
For appointment by promotion of Section Officers now called Junior Engineers the qualifica tion prescribed is as under 1
Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years  service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years  service in the grade 50
Section Officers possessing a recognised Diploma in Civil Engineering with six years  service in the grade 50
The dispute in the present case is whether a Diploma holder Junior Engineer who obtains a Degree while in service becomes eligible for appointment as Assistant Engineer by promotion on completion of three years  service including therein the period of service prior to obtaining the Degree or the three years  service as a Degree holder for this purpose is to be reckoned from the date he obtains the Degree
The Diploma holders contend that they are entitled to include the earlier period and would be eligible for promotion in this category on obtaining the Degree if the total period of service is three years inclusive of the earlier period
The Degreeholders contest this position and contend to the contrary
According to the Degree holders these are two distinct categories
In the first category are Degree holders with three years  service in the grade as Degree holders the period of three years being subsequent to the date of obtaining the Degree as in the case of the Junior Engineers who join the service with a Degree and the other category is of Diploma holders with six years  experi ence
The Diploma holders went to the Central Administrative Tribunal with this contention and the Tribunals has upheld their claim and directed as under In the light of the above we hold that the applicants are entitled to the relief asked for and accordingly we direct the respondents to consider them for promotion to the post of 426 Assistant Engineer on par with the other Degree ho1ding Junior Engineers taking due note of their total length of service rendered in the grade of Junior Engineer
Such a con sideration should be along side other Junior Engineers who might have acquired the neces sary Degree qualification earlier than the applicants while holding the post of Junior Engineer
For this purpose the first three respondents shall take necessary action to convene a review DPC and pass orders on the basis of the recommendations of that DPC within a period of three months from the date of receipt of a copy of this order
The application is allowed as above
Hence this petition for grant of special leave by the Degree holders
Leave is granted
In our opinion this appeal has to be allowed
There is sufficient material including the admission of respondents Diploma holders that the practice followed in the Department for a long time was that in the case of Diploma holder Junior Engineers who obtained the Degree during service the period of three years  service in the grade for eligibility for promotion as Degree holders commenced from the date of obtaining the Degree and the earlier period of service as Diploma holders was not counted for this purpose
This earlier practice was clearly admitted by the respondents Diploma holders in para 5 of their application made to the Tribunal at page 115 of the paper book
This also appears to be the view of the Union Public Service Commission contained in their letter dated December 61968 extracted at pages 99 100 of the paper book in the counter affidavit of re spondents 1 to 3
The real question therefore is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it
If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate
It is in this perspective that the question raised has to be determined
The Recruitment Rules for the post of Assistant Engi neers 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 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 catego ries provided therein one is of Degree holder Junior Engi 427 neers with three years  service in the grade and the other is of Diplomaholder Junior Engineers with six years  service in the grade the provision being for 50 from each catego ry
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 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 Degreeholder and therefore that period of three years can commence only from the date of obtaining the Degree and not earlier
The serv ice 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 there fore 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 Degreeholder 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 followed consist ently
It has also been so under stood 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
Consequently the appeal is allowed
The impugned order of the Tribunal is set aside resulting in dismissal of the respondents  application made in the Tribunal
The Depart ment will now consider the question of promotion in accord ance with this decision
No costs
NPV Appeal al lowed


Summary:
The Union Territory of Chandigarh by its Memo dated 1951982 as modifited by another Memo dated 691990 reserved 5 of seats for childrenspouses of militarypars military personnel
Pursuant thereto the Punjab Engineering College reserved 15 seats for such candidates
For the purpose of admission the college categorised in its prospec tus these candidates into 5 sub categories
These belonging to the respective categories and obtaining qualifying marks in the entrance examination were to be admitted meritwise in the order of priority in descending order sub category 1 consisted of childrenspouses of defence personnel who were awardees of gallantry decorations of ParamvirMahavirVir Chakra in person or posthumously or dependent childrenspouses of defencepars military personnel who were killed or totally incapacitated in action while in service
Dependent childernspouses of defencepars military person nel who died in service were put in sub category 2
Subcate gory 3 comprised the dependent childrenspouses of defencepars military personnel incapacitated while in service Dependent childrenspouses of Ex servicemen mili tary and pars military were 323 placed in sub category 4 and those of serving defencepars military personnel found place in sub category 5
For the academic year 1991 92 out of the 15 seats 9 seats went to all the 9 qualified candidates belonging to sub categories 1 to 3 and remaining seats were allotted to 6 candidates meritwise out of 90 qualified candidates be longing to sub category 4
Sub category 5 went unprovided
Respondent no1 in SLP No1606691 who appeared in the entrance examination for the academic year 1991 92 but did not get admission filed a writ petition before the High Court contending that his father was an awardee of Shaurya Chakra  which was equivalent to Vir Chakra and therefore his case ought to have been considered in sub category 1
On behalf of the College it was stated that Shaurya Chakra  award was not covered under the rules and regulations and therefore respondent no1 being the son of an Exservice man could be considered only in sub category 4
Respondents no1 and 2 in SLP No1606591 the sons of the serving defence personnel filed another writ petition before the High Court challenging the categorization of defence personnel as unreasonable and contended that chil dren of serving defence personnel should have been preferred over the children of Exserviceman
The High Court allowed both the writ petitions and directed the College to admit all the three petitioners
It ordered that subcategory 5 should be treated as sub category 4 and sub categery 4 should be treated as sub category 5 and the admissions should be made accordingly
The petitioner in SLP No1645191 being the son of an serviceman was initially entitled to be considered under sub category 4 which by the order of the High Court was converted into sub category 5
He challenged the said con version of categories by yet another writ petition which was dismissed by the High Court
The Chandigarh Administration and the College filed SLPs No16066 and 16065 of 1991 against the orders of the High Court allowing the two writ petitions whereas SLP No 16451 of 1991 was filed by the petitioner in the third writ peti tion which was dismissed by the High Court
324 It was contended on behalf of Chandigarh Administration and the College that the High Court exceeded its jurisdic tion in granting the impugned order in as much as in writ jurisdiction the High Court does not sit as an appellate authority over the rule making body nor can it re write the rules
On 15111991 the three Special Leave Petitions were dis posed of
Giving reasons in support of its order dated 15111991 this Court HELD 1
While acting under Article 226 of the Constitu tion the High Court does not sit andor act as an appellate authority over the ordersactions of the subordinate author itiestribunals
Its jurisdiction is supervisory in nature
pp 335 H 336 A One of the main objectives of this jurisdiction is to keep the government and several other authorities and tribu nals within the bounds of their respective jurisdiction
The High Court must ensure that while performing this function it does not overstep the wellrecognised bounds of its own jurisdiction
p 336 A 21 In the instant case the High Court should not have indulged in the exercise of switching  the categories and that too without giving any reasons therefor
Thereby it has practicably assumed the role of rule making authority or at any rate assumed the role of an appellate authority
That is clearly not the function of the High Court acting under Article 226 of the Constitution of India
334 G H1 22 If the High Court was satisfied that the rule was discriminatory and bad the only course open to it was to strike down the offending rule
It could also have directed the authorities to reframe the rule and make admissions accordingly
p 333 F By directing that category 4 should be treated as cate gory 5 and conversely category 5 should be treated as cate gory 4 the High Court has prejudicially affected the rights of candidates falling under category 4 without even hearingthem particularly when these categories were men tioned in the order of priority
p 335 A 3
A rule making authority need not observe the rule of hear 325 ing but the High Court exercising its judicial power cannot dispense with the requirement
p 335 AB 4
Although the orders and directions made by the High Court were totally unsupportable in law yet in view of the subsequent developments the Special Leave Petitions could not be allowed
By the time the SLPs were taken up and stay granted the respondents were already admitted in the Col lege and they gave up their seats which they had obtained in other colleges
Depriving them of their admission in the College at such a late stage would result in grave and irreparable prejudice to them
The Administration and the College authorities ought to have acted with more alacrity and approached this court earlier than they did
p 336 B D 5
In matters where the High Court directs the students to be admitted in educational institutions it would be advisable if the High Court stays the operation of its order for a period of about 3 to 4 weeks if a request therefor is made by the educational institution or the State as the case may be
pp 336 GH 337 A