IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.1358 of 2008 alongwith LPA No.65 of 2009. Judgment reserved on: 9.10.2009. Date of Decision: 8.1.2010 CWP No.1358 of 2008: S.S. Kutlehria and others ..Petitioners. Versus. State of H.P. and others ..Respondents. LPA No.65 of 2009: Nathu Ram Sharma ..Appellant. Versus. Bikram Singh Mehta and others ..Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for Reporting? Yes For the Appellant (s): Mr.Ajay Mohan Goel, Advocate in CWP No.135 of 2008 and Mr.Lokender Paul Thakur, Advocate in LPA No.65 of 2009. For the Respondent(s): Mr.Rakesh Jaswal, counsel for respondents 1 to 3 in LPA No.65 of 2009. Mr.Lokender Thakur, Advocate for respondents No.7, 9 and 10 in CWP No.1358 of 2008. Mr.R.M. Bisht, Dy.A.G. for respondents-State. Deepak Gupta, J. These aforesaid cases are being disposed of by a common judgment. LPA Nos.45, 50, 52, 68, 69, 70 and 109 of 2009 were also heard along with these cases. Though the points involved are similar, 2 those cases are being disposed of by a separate judgment since different Departments are involved and the Rules are different. These two cases relate to the HPPWD. CWP No.1358 of 2008 is directed against the order of the erstwhile H.P. State Administrative Tribunal dated 23.5.2008 passed in OA No.1975 of 1995. LPA No.65 of 2009 is directed against the judgment of the learned Single Judge passed in CWP(T) No.2275 of 2008. This petition arose out of the Original Application No.756 of 1994 filed by the original applicants before the Administrative Tribunal which was transferred to this Court after the abolition of the Tribunal. In both the cases the original petitioners were Graduate Engineers and the main reliefs prayed by them were that the judgment delivered by the Tribunal in TA Nos.89 and 91 of 1981 dated 7.6.1991 in Rattan Singh and others vs. State of H.P. and others may be recalled and re-considered. They also challenged the seniority list issued by the Respondent-State whereby private respondents who were non-graduate diploma holder Engineers and had passed the AMIE degree during service thus becoming graduate engineers have been granted seniority by counting their service prior to their obtaining the AMIE qualification. O.A. No.1975 of 1995 titled Rajesh Bhardwaj and others vs. State of H.P. and others was disposed of by the Tribunal on merits and the Tribunal by a reasoned judgment followed its earlier judgment and 3 rejected the O.A. As far as CWP(T) No.2275 of 2008 is concerned the same was disposed of by a short order which reads as follows: “It is not disputed by the parties that the present list is squarely covered by the judgment rendered by their Lordships of the Hon’ble Supreme Court in Shailendra Dania and others versus S.P. Dubey and others, (2007) 5 SCC 535. Accordingly, respondents No.1 and 2 are directed to do the needful within a period of eight weeks from today. In the light of above, the petition is disposed of. No costs.” One of the main grievances of the appellants in LPA No.65 of 2009 is that the learned Single Judge did not go into the merits of the case and disposed of the petition only on the statement made on behalf of the petitioner and respondents 1&2 and decided the rights of the private respondents without hearing them and without even deciding the case on merits. We are of the considered view that this judgment of the learned Single Judge is liable to be set-aside on the short ground that when private respondents were involved the case could not have been disposed of only on the basis of the statement made by the appearing parties. The learned Court was bound to give finding on the merits of the case. This has not been down. Instead of remanding the case, we are deciding the same on merits since we have heard detailed arguments in these cases and the accompanying matters which involve the same question of law. To appreciate and understand the controversy between the parties it would be relevant to make reference to the Recruitment and 4 Promotion Rules to the Post of Assistant Engineers in the H.P.P. W.D. and the H.P. Irrigation and Public Health, Department. The first Rules placed on record are the Rules of 1979. The Rules provide that 40% posts of Assistant Engineers shall be filled in by direct recruitment and 60% by promotion. Out of this 60%, 45% posts were to be filled in from amongst qualified Section Officers (Junior Engineers) having 7 years service or unqualified Section Officers having 15 years service. 5% posts were to be filled in from amongst the Draughtsman cadre. We are only concerned with 3rd category and the relevant Rules reads as follows: “From amongst the Graduate Junior Engineers having 3 years regular or ad hoc service or both as Junior Engineers and those Junior Engineers who have passed Sections A & B of AMIE with 5 years regular or ad hoc service or both as Junior Engineer…….10%” This Rule was amended in the year 1984 and both for graduate and junior engineers as well as for diploma holder engineers who had qualified AMIE the experience was equated and made 3 years but a foot note was added. The amended Rule reads as follows: “(iii)From amongst the Graduate Junior Engineers (University Graduate or AMIE) having 3 years regular or ad hoc service rendered up to 31.12.83 or both as such……..10%. Note: For purpose of promotion 3 years regular or ad hoc service rendered up to 31.12.83 shall be counted from the date of appointment of the Graduate Junior Engineer and from the date of passing sections A&B of AMIE Examination by in-service Junior Engineer, respectively.” Two writ petitions were filed in this Court being CWP Nos.298/84 and 90/87 challenging the foot note added to the Rules of 1984. These writ petitions were transferred to the H.P. State 5 Administrative Tribunal and disposed of vide judgment dated June 7, 1991. The learned Tribunal held that the foot note was discriminatory and anomalous and accordingly struck down the same. It would be pertinent to mention that the Special Leave Petition filed against the judgment was dismissed by the Apex Court as being time barred. Thereafter, on 28.12.1993 pursuant to the judgment passed by the Tribunal, the State again amended the Recruitment and Promotion Rules and the foot note in question was deleted. The revised Rule reads as follows: “(iii)From amongst the Graduate Junior Engineers (University Graduate or AMIE) having 3 years regular or ad hoc service or both as Junior Engineer. ……10%”. The question which arises for decision in these cases is whether in the case of AMIE Engineers i.e. Diploma Holder Engineers who have qualified AMIE, the three years service has to be counted only after they qualified AMIE or even the previous service can be counted. The question as to whether service of an employee rendered prior to the obtaining of the higher qualification should be considered to be qualifying service or not was considered in a number of cases. In N.Suresh Nathan and another vs. Union of India and others, 1992 Supp (1) SCC 584, the Rule provided that Section Officers possessing a recognized degree in Civil Engineering or equivalent with three years’ service in the grade would be eligible for promotion. The dispute was whether the service rendered prior to 6 obtaining the degree or equivalent qualification should be taken into consideration while counting 3 years service or only the service rendered after obtaining the requisite qualification should be so considered. The Apex Court held that three years service in the grade means three years from the date of obtaining the degree and the previous service could not be counted. In this case the Apex Court also relied upon the previous practice being followed by the Department. Thereafter, a similar question came up for consideration before the two Judge Bench of the Apex Court in M.B. Joshi and others vs. Satish Kumar Pandey and others, 1993 Supp (2) SCC 419. The Rule under consideration before the Apex Court in that case reads as follows: “Graduate Engineers completing 8 years of service” The State Government in the case before the Apex Court had been counting the entire service rendered by a Graduate Sub Engineer irrespective of the date on which the Diploma Engineer acquired the degree of graduation in Engineering. Reference was made to N.Suresh Nathan’s case and the Apex court held as follows: “11. A perusal of the above observations made by this court clearly show that the respondents diploma-holders in that case has admitted the practice followed in that department for a long time and the case was mainly decided on the basis of past practice followed in that department for a long time. It was clearly laid down in the above case that 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 was clearly said "it is in this perspective that the question raised has to be determined". It was also observed as already quoted above that the tribunal was not justified in taking the contrary view and 7 unsettling the settled practice in the department. That apart the scheme of the rules in N. Suresh Nathan case was entirely different from the scheme of the Rules before us. The rule in that case prescribed for appointment by promotion of Section Officers/Junior Engineers provided that 50 per cent quota shall be from 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. The aforesaid rule itself provided in explicit terms that Section Officers possessing a recognised Degree in Civil Engineering was made equivalent with three years' service in the grade. Thus, in the scheme of such rules the period of three years' service was rightly counted from the date of obtaining such degree. In the cases in hand before us, the scheme of the rules is entirely different. 12. xxxxxxx 13. xxxxxx 14. It is further important to note that in the cases before us, the government itself has been adopting the practice and making promotion as contended by the appellants and we are upholding such practice. In YV. Suresh Nathan case also this court had upheld the practice followed by the government. It is also a well- settled principle of service jurisprudence that in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstance. 15. xxxxxx 16. In these circumstances mentioned above, we are clearly of the view 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 State government was right in doing so and there was no infirmity in the orders passed by the government. ….” In D. Stephen Joseph vs. Union of India and others, (1997) 4 SCC 753, the Rule provided that Assistant Engineers who had attained higher qualification or degree during service could be promoted after completion of 3 years regular service prescribed in the grade of Junior Engineers. The judgment in Suresh Nathan’s case was distinguished, the judgment in M.B. Joshi’s case was followed 8 and it was held that even the service rendered prior to attaining the higher qualification should be counted. In Anil Kumar Gupta and others vs. Municipal Corporation of Delhi and others, (2000) 1 SCC 128, the Apex Court considered the question whether the experience gained while holding Diploma could also be counted in addition to the experience gained after obtaining of the Degree. After considering the judgments in the cases of N.Suresh Nathan, M.B. Joshi and D.Stephen Joseph, the Apex Court held that the service rendered by the Diploma holders before obtaining the degree can also be counted. In A.K. Raghumani Singh and others vs. Gopal Chandra Nath and others, (2000) 4 SCC 30, the Rule provided that promotion to the post of Superintending Engineer shall be done by promotion from Executive Engineer possessing degree in Engineering or its equivalent with 6 years regular service in the grade. The writ petitioner-respondent before the Apex Court had put in 6 years regular service in the grade but out of the 6 years only two years service was rendered after he had passed the AMI Examination. The Apex court after considering the entire law held that the service rendered prior to obtaining the degree could also be taken into consideration. In Indian Airlines Ltd. and others vs. S. Gopalakrishnan, (2001) 2 SCC 362, a similar question again arose and the Apex court held that when in addition to qualification, experience is prescribed, 9 only the experience earned after obtaining necessary qualification could be counted. All these cases were considered by a three Judge Bench of the Apex Court in Shailendra Dania and others vs. S.P. Dubey and others, (2007) 5 SCC 535. The Apex court formulated the following question in para 37: “37. The only question involved in these appeals and transferred cases can be stated thus : Whether a diploma-holder Junior Engineer, who obtains a degree while in service, becomes 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.” Thereafter, the Apex court held as follows: 43. Taking into consideration the entire scheme of the relevant rules, it is obvious that the diploma-holders would not be eligible for promotion to the post of Assistant Engineer in their quota unless they have eight years' service, whereas the graduate Engineers would be required to have three years' service experience apart from their degree. If the effect and intent of the rules were such to treat the diploma as equivalent to a degree for the purpose of promotion to the higher post, then induction to the cadre of Junior Engineers from two different channels would be required to be considered similar, without subjecting the diploma-holders to any further requirement of having a further qualification of two years' service. At the time of induction into the service to the post of Junior Engineers, Degree in Engineering is a sufficient qualification without there being any prior experience, whereas diploma- holders should have two years' experience apart from their diploma for their induction in the service. As per the service rules, on the post of Assistant Engineer, 50% of total vacancies would be filled up by direct recruitment, whereas for the promotion specific quota is prescribed for a graduate Junior Engineer and a diploma-holder Junior Engineer. When the quota is prescribed under the rules, the promotion of graduate Junior Engineers to the higher post is restricted to 25% quota fixed. So far as the diploma-holders are concerned, their promotion to the higher post is confined to 25%. As an eligibility criterion, a degree is further qualified by three years' service for the Junior Engineers, whereas eight years' service is required for the diploma-holders. 10 Degree with three years' service experience and diploma with eight years' service experience itself indicates qualitative difference in the service rendered as degree-holder Junior Engineer and diploma-holder Junior Engineer. Three years' service experience as a graduate Junior Engineer and eight years' service experience as a diploma-holder Junior Engineer, which is the eligibility criteria for promotion, is an indication of different quality of service rendered. In the given case, can it be said that a diploma-holder who acquired a degree during the tenure of his service, has gained experience as an Engineer just because he has acquired a Degree in Engineering. That would amount to say that the experience gained by him in his service as a diploma-holder is qualitatively the same as that of the experience of a graduate Engineer. The rule specifically made difference of service rendered as a graduate Junior Engineer and a diploma-holder Junior Engineer. Degree-holder Engineer's experience cannot be substituted with diploma-holder's experience. The distinction between the experience of degree-holders and diploma-holders is maintained under the rules in further promotion to the post of Executive Engineer also, wherein there is no separate quota assigned to degree-holders or to diploma-holders and the promotion is to be made from the cadre of Assistant Engineers. The rules provide for different service experience for degree-holders and diploma-holders. Degree-holder Assistant Engineers having eight years of service experience would be eligible for promotion to the post of Executive Engineer, whereas diploma-holder Assistant Engineers would be required to have ten years' service experience on the post of Assistant Engineer to become eligible for promotion to the higher post. This indicates that the rule itself makes differentia in the qualifying service of eight years for degree-holders and 10 years' service experience for diploma-holders. The rule itself makes qualitative difference in the service rendered on the same post. It is a clear indication of qualitative difference of the service on the same post by a graduate Engineer and a diploma-holder Engineer. It appears to us that different period of service attached to qualification as an essential criterion for promotion is based on administrative interest in the service. Different period of service experience for degree-holder Junior Engineers and diploma-holder Junior Engineers for promotion to the higher post is conducive to the post manned by the Engineers. There can be no manner of doubt that higher technical knowledge would give better thrust to administrative efficiency and quality output. To carry out technical specialized job more efficiently, higher technical knowledge would be the requirement. Higher educational qualifications develop broader perspective and therefore service rendered on the same post by more qualifying person would be qualitatively different. 11 44. After having an overall consideration of the relevant rules, we are of the view that the service experience required for promotion from the post of Junior Engineer to the post of Assistant Engineer by a degree-holder in the limited quota of degree-holder Junior Engineers cannot be equated with the service rendered as a diploma-holder nor can be substituted for service rendered as a degree-holder. When the claim is made from a fixed quota, the condition necessary for becoming eligible for promotion has to be complied with. The 25% specific quota is fixed for degree-holder Junior Engineers with the experience of three years. Thus, on a plain reading, the experience so required would be as a degree-holder Junior Engineer. 25% quota for promotion under the rule is assigned to degree-holder Junior Engineers with three years' experience, whereas for diploma-holder Junior Engineers eight years' experience is the requirement in their 25% quota. Educational qualification along with number of years of service was recognized as conferring eligibility for promotion in the respective quota fixed for graduates and diploma-holders. 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. Fixation of different quota for promotion from different channels of degree-holders and diploma-holders itself indicates that service required for promotion is an essential eligibility criterion along with degree or diploma, which is service rendered as a degree-holder in the present case. The particular years of service being the cumulative requirement with certain educational qualification providing for promotional avenue within the specified quota, cannot be anything but the service rendered as a degree-holder and not as a diploma-holder. The service experience as an eligibility criterion cannot be read to be any other thing because this quota is specifically made for the degree-holder Junior Engineers. 45. As a necessary corollary, we are of the view that the diploma-holder Junior Engineers who have obtained a Degree in Engineering during the tenure of service, would be required to complete three years' service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diploma-holder Junior Engineers for promotion to the post of Assistant Engineers.” The Apex Court in Dalip Kumar Garg and another vs. State of Uttar Pradesh and others, (2009) 4 SCC 753, dealt with the 12 question as to whether Diploma Holders can be treated at par with Degree holders. In the case before the Apex court the Government decided to dispense with the requirement of passing qualifying examination by the Diploma Holders . Thus, the Diploma Holders and Degree Holders were treated to be equal. The Apex court held that this was not unconstitutional. It would be relevant to refer to paras 15 and 16 of the Judgment which read as follows: “15. In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a Court of Appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. (See Union of India vs. Pushpa Rani and others 2008 (9) SCC 242 and Official Liquidator vs. Dayanand and others 2008 (10) SCC 1). 16. The decision to treat all Junior Engineers, whether degree holders or diploma holders, as equals for the purpose of promotion is a policy decision, and it is well-settled that this Court should not ordinarily interfere in policy decisions unless there is clear violation of some constitutional provision or the statute. We find no such violation in this case.” It is thus obvious that it is the State which must decide as to what qualifying service should be rendered by the Diploma Holders or Degree Holders. The Court cannot substitute its opinion for that of the Administrative Authority which is in the best position to take such a decision. The decision in Rattan Singh’s case taken by the learned Tribunal in our opinion was not correct. The Tribunal could not have 13 substituted its own opinion for the opinion of the State. It was for the State to decide what experience should have been taken into consideration. In Shalendra Dania’s case the Apex Court clearly held that when both degree holders as well as Diploma holders who had obtained degree were being considered under the same Rule and Rule previously provided for different service experience the experience had to be counted from the date the Diploma holder obtained the graduate degree. We have decided other matters of the H.P. State Electricity Board today itself. In those cases the facts were different inasmuch as there were certain instructions issued by the Board from time to time. In this case no such instructions have been brought to our notice. The Tribunal gravely erred in quashing the foot note in Rattan Singh’s case. On behalf of the original respondents i.e. appellants in LPA No.65 of 2009 it is urged that firstly the judgment in Rattan Singh’s case has now obtained finality and secondly following the doctrine of prospective over-ruling even if we hold that judgment in Rattan Singh’s case is incorrect this should be given only prospective effect. As far as the first objection is concerned it would be pertinent to mention that none of the petitioners in these two cases decided by the Tribunal by the judgment which is alleged to be