IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. J U D G M E N T 1) D.B. CIVIL WRIT PETITION NO.20/1993. Satya Veer Singh Vs. Rajasthan Housing Board. 2) D.B. SPECIAL APPEAL (CIVIL) NO.64/1993. R.K. Bhakar Vs. K.K. Dixit and ors. 3) D.B. SPECIAL APPEAL (CIVIL) NO.67/1993. Chandra Mohan Saharan and ors. Vs. K.K. Dixit and ors. 4) D.B.CIVIL SPECIAL APPEAL (W) NO.528/1993. R.K.Bhakar Vs. K.K. Dixit and ors. 5) D.B. CIVIL WRIT PETITION NO.7063/1993. Ranjeet Singh Godara and ors. Vs. Rajasthan Housing Board and ors. 6) D.B.CIVIL SPECIAL APPEAL (W) NO.497/1994. Faheem Ullah Khan Vs. Rajasthan Housing Board. 7) D.B.CIVIL SPECIAL APPEAL (W) NO.689/1996. Ramesh Chand Jain and ors. Vs. Rajasthan Housing Board. Date of Judgment : 25/5/2007. QUORUM HON'BLE THE CHIEF JUSTICE SHRI S.N. JHA HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ REPORTABLE Advocates who appeared in these cases:- Shri Marudhar Mridul Sr.Advocate with Shri Sanjay Pareek for appellants in D.B. Special Appeal (Civil) No.67/1993 & D.B. Civil Writ Petition No.7063/1993. Shri Mahendra Singh for appellants in D.B. Civil Special Appeal (W) No.528/1993 and D.B. Special Appeal (Civil) No.64/1993 and for Rajasthan Housing Board in D.B. Civil Special Appeal (W) No.689/1996. Shri Rajendra Soni for appellants in D.B. Civil Special Appeal (W) No.689/1996. Shri R.D. Rastogi for appellant in D.B. Civil Special Appeal (W) No.497/1994. Shri Prahlad Singh for petitioner in D.B. Civil Writ Petition No.20/1993 and private respondents in D.B. Special Appeal (Civil) No.67/1993. Shri Bajrang Lal Sharma, Sr.Advocate with Shri Rajendra Prasad and Ms. Raj Sharma for private respondents in D.B. Civil Writ Petition No.7063/1993. Shri J.K. Singhi and Shri R.L. Jain for Rajasthan Housing Board in all cases except in D.B. Civil Special Appeal (W) No.689/1996. Shri Mahendra Shah for private respondents in D.B. Civil Special Appeal (W) No.497/1994. Shri Akhil Simlote for private respondents in D.B. Civil Special Appeal (W) No.689/1996. Shri Sandeep Saxena for private respondents in D.B. Special Appeal (Civil) Nos.67/1993 and 64/1993. ****** BY THE COURT:(Per Hon'ble Mohammad Rafiq J.) **** Yearning for advancement in career, desire for outsmarting others and zeal to steal march over one another, has driven 'diploma holder' and 'degree holder' engineers, a potential class of employees into filing these writ petitions and special appeals, who have been perennially contributing to ever increasing litigation related to service jurisprudence in this country. Number of legal questions have been raised in all these matters for determination by this Court and though founded on different grounds but since all of them centres around the dispute of seniority amongst the Project Engineers (Junior) of Rajasthan Housing Board, therefore, these matters, five of which are appeals filed against different judgments passed by the single benches of this Court and two are writ petitions, were heard together and are being disposed of by this common judgment. FACTS OF THE MATTER Special Appeal Nos.67/1993, 64/1993 & 528/1993:- While Special Appeal Nos.67/1993 and 528/1994 have been filed against the common judgment dated 7/7/1993 passed by the learned Single Judge in the writ petition filed by K.K. Dixit and ors., Special Appeal No.64/1993 has arisen out of the order passed by the learned Single Judge in the petition seeking review of the judgment rendered in the aforesaid writ petition. Dispute arose when the Rajasthan Housing Board passed the Resolution No.6 dated 17/4/1979 wherein it was decided that the diploma holders upon acquiring the qualification of 'AMIE', would be entitled to count their earlier experience prior to acquiring such qualification in the ratio of 7 : 3 years only. The Rajasthan Housing Board in its 124th Meeting at Agenda Item No.12th added the Note below the 'Schedule Technical' of the Regulations of 1976 which provided for screening of Project Engineers (Junior) appointed on ad-hoc/officiating/ urgent temporary basis before 1/4/1986 with the stipulation that their inter-se seniority shall be determined on the basis of length of continued service and that they shall remain junior to those appointed in the prescribed manner uptill then as per Regulations of 1976. Resolution of the Board dated 17/4/1979 was challenged by K.K. Dixit and eight ors. in the writ petition on the premise that when the Project Engineers (Junior) were initially appointed on ad- hoc temporary basis, they were holding the qualification of Diploma only. Later on, they acquired the qualification of 'AMIE' which is equivalent to degree. Their claim in the writ petition was that they are entitled to count the experience of services rendered by them prior to their screening and consequential regularisation in service. They prayed that the respondent-Board be directed to issue separate seniority lists of Project Engineers (Junior) for degree and diploma holders on the basis of regular recruitment in the cadre and the Project Engineers (Junior) be regularised against the respective quota of diploma holders and degree holders and further that their cases be considered accordingly for promotion. In substance, they insisted on counting their service prior to acquiring the qualification of 'AMIE' both for eligibility and seniority. Learned Single Judge in his judgment held that the period of service rendered by the petitioners on the post of Project Engineer (Junior) on ad-hoc basis prior to screening cannot be taken into consideration for the purpose of eligibility of promotion. The petitioners, thereafter, filed a petition seeking review of the said judgment on the premise that some of the arguments raised by them have not been considered while deciding the writ petitions, especially the prayer for preparation of separate seniority list of degree and diploma holders Project Engineers (Junior). The learned Single Judge allowed the review petition and directed the Rajasthan Housing Board to prepare separate seniority lists of degree and diploma holders Project Engineers (Junior) and further directed that such of the diploma holders who acquire the qualification of 'AMIE' shall be placed below all degree holders Project Engineers (Junior) in that year. DBCSA(W) No.497/1994:- This special appeal has been filed by Faheem Ullah Khan against the judgment of the learned Single Judge whereby writ petition filed by him was dismissed. He had challenged the promotion of S.K. Singhal and Kalyan Prasad on the post of Project Engineer (Senior) in the quota of the year 1983-84. According to him, S.K. Singhal joined service on 23/10/1979 as Project Engineer (Junior) and was later promoted on the post of Project Engineer (Senior) upon his acquiring the qualification of 'AMIE' on 28/8/1982. He completed the requisite period of three years' experience on 28/8/1985 so as to become eligible for promotion on the post of Project Engineer (Senior) against the vacancies of the year 1985-86. Even otherwise, as per the policy of the Board, the experience being adjustable in the ratio of 7 : 3 out of the total experience which he was possessing prior to obtaining the qualification of 'AMIE' on 3/7/1984, therefore, even if proportionate experience of the service from 23/10/1979 to 28/8/1985 being taken into account, he could have been entitled to count only 14 months as experience and at any rate he could not acquire eligibility for promotion in June, 1984 and his promotion against the quota of the year 1983-84 was therefore, illegal. Regarding promotion of Kalyan Prasad, his objection was that he was appointed as Project Engineer (Junior) on 24/4/1982 and joined the service on 10/5/1982 as diploma holders. He passed the qualification of 'AMIE' on 3/3/1984. He became eligible for promotion on the post of Project Engineer (Junior) only in the year 1987-88. Hence, period of his experience of three years is countable only after he acquired the qualification of 'AMIE' in the year 1984. The learned Single Judge vide judgment dated 21/4/1994 rejected the writ petition holding that countable period of service with reference to the provisions contained in provisions of Regulations of 1976 need not necessarily be only subsequent to the acquisition of qualification of 'AMIE' and even earlier period would be countable. DBCSA(W) No.689/1996:- Shri Rameshwar Dayal Gupta and four others filed writ petition on 19/4/1996 inter-alia with the prayer that the Board be directed to prepare a final seniority list of Project Engineer (Senior) as per clause 11 of the Regulations of 1976 by placing them all above those who were appointed in the cadre of Project Engineer (Senior) by way of screening vide order dated 21/11/1987 and the Board be further directed to consider their case for promotion on the post of Project Engineer (Senior) in accordance with the relevant rules. Grievance of the petitioners was that such of the ad-hoc Project Engineers (Junior) who were screened and made members of the service were liable to be placed below them in seniority because at that time the petitioners were already appointed by regular mode of selection in the cadre and further that such Project Engineers (Junior) were entitled to be considered eligible for promotion only upon their completing the period of three years subsequent to their screening and regularisation. Learned Single Judge however disposed of the writ petition with certain directions but without giving any relief to the petitioners who have all in this appeal raised almost the same arguments again which were raised but not accepted. DBCWP NO.7063/1993:- This writ petition has been filed jointly by Ranjeet Singh Godara and T.C. Sevta who were originally appointed on the post of Project Engineer (Junior) diploma holders on ad-hoc basis and were later screened and appointed as such on regular basis. Ranjeet Singh Goadara was initially appointed on ad-hoc basis on 13/10/1982 and later again on 30/7/1984 and thereafter screened and appointed on regular basis w.e.f. 18/5/1987 vide order dated 19/5/1987. T.C. Sevta, petitioner No.2 was also appointed as Project Engineer (Junior) diploma holder on regular basis vide order dated 24/4/1982. He later acquired the qualification of 'AMIE' in the year 1989. They were both promoted as Project Engineer (Senior) though on ad-hoc basis vide order dated 9/1/1992. The Rajasthan Housing Board in its 124th meeting passed Resolution No.124.12 on 28/4/1986 thereby adding a Note below 'Schedule Technical' so as to provide for screening of 48 ad-hoc appointees. Pursuant thereto a letter was sent to the Government on 28/5/1986 for approval of the aforesaid Note followed by a reminder on 6/10/1986. The said Note was acted upon and screening was conducted on 17/2/1987 and 10/3/1987 and thereafter the Board in its meeting held on 18/4/1987 vide Resolution No.131.16 approved the screening of such candidates. Consequential order of the regular appointment was passed on 19/5/1987. Claim of the petitioners was that the respondents-K.K. Saraswat and R.K. Mishra who, though degree holders, were also initially appointed on ad-hoc basis and were subjected to screening alongwith the petitioners. Their names in the list of screened candidates were shown below that of the petitioners. They have challenged the decision of the Board to assign seniority to the Project Engineers (Junior) diploma holders acquiring 'AMIE' below existing degree holders in that cadre and quota. Alternatively, the petitioners have also challenged the decision of the Board to treat seven years experience of the diploma holders as equivalent to three years experience of degree holders. They have also challenged Clause (3)(d) of the Note inserted below the Schedule Technical of the Regulations of 1976 which upon their screening make them junior to those already appointed on regular basis. DBCWP No.20/1993:- This writ petition has been filed by Satyaveer Singh who has challenged the action of the respondent-Board in not considring experience of his ad-hoc service prior to acquiring 'AMIE' for the purpose of promotion to the post of Project Engineer (Senior). He was initially appointed on the post of Project Engineer (Junior) on ad-hoc basis on 26/5/1983 and was later appointed on the said post by direct recruitment after regular selection vide order dated 11/12/1987. Later, he acquired the qualfication of 'AMIE' on 9/10/2001. According to him, the moment he acquired such qualification, he became entitled for promotion to the post of Project Engineer (Senior) because he had already completed requisite period of three years experience earlier then acquiring the qualification of 'AMIE' He has also challenged the decision of the respondent-Board to treat seven years experience of the diploma holders as equivalent to three years experience of degree holders. QUESTIONS FOR DETERMINATION:- Questions which arise for our determination against the backdrop of the controversy recapitulated above can be summarised thus:- (i) Whether the Project Engineer (Junior) who were initially appointed on ad-hoc /officiating /urgent temporary basis, upon being screened and made members of service with reference to clause 3 of the Note below 'Schedule Technical' of the Rajasthan Housing Board Employees Condition of Recruitment and Promotion Regulations, 1976 are entitled to count the period of service rendered in that capacity for the purpose of seniority and experience for eligibility of promotion to the post of Project Engineer (Senior) as provided for in column No.6 of Sr.No.2 in the 'Schedule Technical' of Regulations of 1976? (ii) Whether the Project Engineers (Junior) recruited on the basis of diploma, upon their acquiring the qualification of 'AMIE', are entitled to count their experience of service prior to acquisition of such qualification for the purpose of eligibility of “three years total experience of service“ for promotion to the post of Project Engineer (Senior) as provided for in column No.6 of Sr.No.2 of 'Schedule Technical' of Regulations of 1976? (iii) Whether according to the Regulations of 1976 the diploma holders Project Engineers (Junior) on acquiring the qualification of 'AMIE' are liable to be placed in the seniority list of Project Engineers (Junior) below degree holders available as on the date of their acquiring such qualification and further whether according to the Regulations of 1976, a seperate seniority list of Project Engineers (Junior) based on their educational qualification, viz.- degree and diploma, is required to be maintained? We have had the benifit of hearing battery of enlightened lawyers representing the rival parties and perused the cited precedents, relevant rules and the material available on record. RELEVANT RULES:- Before we proceed to notice the rival submissions, it would be apposite to extract relevant provisions relating to promotion, seniority and screening etc. Clause 9 of the Regulations of 1976 which pertains to promotion provides as under:- “(9) (A) Promotion: In respect of first promotion to higher post, promotion of eligible person shall be made on the basis of seniority-cum-merit. Second promotion shall be made on the basis of merit and seniority- cum-merit in the promotion of “50:50“ (120.12). (B) Seniority lists for each category of employees will be prepared and maintained. (C) Merit of employees will be judged on the following basis:- (I) Capacity to do hard work with sincerity, honesty, objectivity & result orientation. (II) Originality of thinking to increase productivity and efficiency in the organisation. (III) Sense of alertness combined with courage, initiative and decision making power, tact and organising capacity. (IV) Previous record of service. (D) While considering promotions on the basis of merit with due regard to seniority, list of senior most employees eligible for promotion not exceeding five times the number of vacancies will be taken into consideration. (E) The Departmental Promotion Committee to consider the cases of promotion of employees shall consist of Chairman, two members of the Board, Housing Commissioner and Secretary of the Board in case of officers. For other categories of staff a committee appointed by Chairman shall consider the cases of promotion.“ Clause 10 provides for determination of seniority which is reproduced hereinbelow:- “10) Seniority : Amongst the persons recruited in the same year, the promotees will rank senior to those who will be appointed by direct recruitment. Amongst the promotees those who are appointed on the basis of seniority cum merit will rank senior to those who are appointed on the basis of merit with due regard to seniority. The interse seniority of those appointed on the basis of merit will be in accordance with their relative seniority in the lower cadre.“ Relevant entry at S.Nos.1 and 2 in the 'Schedule Technical' and the note therebelow is reproduced hereunder:- 1 Project Engineer (Jr.) 97% by direct recruitme nt (144.4) 3% by Board Employee (144.4) Must hold a degree or diploma in Civil Engineering preferably in Ist Division. Preference will be given to persons having two years experience in design and construction of building. 1. Required Qualification same and by in employee with Board Permission. 2. He should not more than 45 years in age. 2 Project Engineer (Sr.) Direct 50% Must hold a degree in Civil Engineering in 1 Division and must have at least one year's experience in design and construction of building. Project Engineer (Jr.). Post to be filled in by promotion from amongst the P.E. Jr.'s who are degree hlders with 3 years total experience of service. Post to be filled in by promotion from P.E. Jr.'s who are diploma holders with 7 years total experience of Note:- (1) Where suitable candidates are not available either by direct recruitment or by promotion, the Board will take suitable officers / officials on deputation. (2) All other things being equal, preference will be given to the candidates who are already working in the organisation. (3) The appointment of Junior Project Engineers made by the competent authority on adhoc / officiating urgent temporary basis before 1-4-86 and continuously working against the sanctioned vacant post can be regularised by Screening Committee appointed by the Board. The suitability for the post held by such persons shall be screened by the Screening Committee provided they possess the qualifications prescribed in the RHB Employees Conditions of Recruitment and Promotion Regulations, 1976 either on direct recruitment or for promotion on the basis of which the persons were selected for adhoc /officiating urgent temporary appointment. This provision shall be subject to the following conditions namely:- (a) That a person appointed on adhoc basis shall not be entitled to screening for a post higher than to which he was initially appointed, if a person senior or him or lower post who fulfilled, qualifications prescribed for the post was either not given such adhoc appointment or is not entitled to screening under this revised seniority of adhoc employees for this purpose shall be according to length of continuous service on a Post. (b) That the committee appointed under this revised for adjudging suitability by screening either as an exception of general methods of recruitments or as initial constitution of service, may ex-gratia recommend, if any of the employee with more than three years of service on a post for which he is to be screened is not adjudged suitable and if, thereafter has no right to be appointed on lower post. (c) That the seniority interse of persons appointed under this provision shall be determined on the basis of their length of continuous service. (d) That the persons appointed under the process of screening shall rank junior to those appointed in accordance with the prescribed manner as per Rajasthan Housing Board Rules. “(approval awaited 124.12).“ ARGUMENTS OF THE APPELLANTS/PETITIONERS:- Shri Marudhar Mridul, learned Senior Advocate assisted by Shri Sanjay Pareek for petitioners- Ranjeet Singh Godara and ors. and appellants-Chandra Mohan Saharan and ors. argued that use of the word “total“ in the 'Schedule Technical' is of great significance which reflects intention of the rule making authority to count entire experience irrespective of the fact whether such experience is acquired by a Project Engineer (Jr.) while he was holding diploma or a degree. Clause 9(a) of the Regulations of 1976 gives a complete picture having no lacunae, inconsistency or anomaly. There does not therefore arise any occasion for the Board to issue general instructions regarding promotion and eligibility therefor because clause 12 of the Regulations of 1976 empowers the Board to do so only in the event of any lacunae, inconsistency or anomaly being discovered in implementing or giving effect to the Regulations of 1976. On the contrary, the instructions which have been issued by the Board to count experience for promotion in the ratio of 7 : 3 would be hit by clause 12 according to which such general instructions cannot be inconsistent with the Regulations of 1976. It was therefore, argued that the resolution of the Board passed on 17/4/1979 being in conflict with the provisions contained in clause 9 read with 'Schedule Technical' of the Regulations of 1976 is ultravires of the Regulations of 1976 and is therefore liable to be struck down being void ab-initio. Only consequence of diploma holder acquiring degree would be that his claim for promotion would shift from one quota (30%) to another (20%) and the required eligibility of experience would undergo a favourable change. While earlier he was required to possess seven years total experience of service so as to be eligible for promotion, now, he would be required to have only three years total experience of service. It was further argued that the said Resolution No.6 dated 17/4/1979, even otherwise, cannot be applied because the same has not been approved by the State Government as yet which according to Section 53 of the Rajasthan Housing Board Act, 1970 is a mandatory requirement. After implementation of the said resolution, the diploma holder who acquire degree would get transposed into the seniority list of degree holders Project Engineers (Junior) for the purpose of promotion and their names will be placed at the bottom below all pre-existing degree holders of the year in which he obtained degree and in this manner his entire earlier service as Project Engineer (Jr.) would be rendered inconsequential. Aforesaid resolution is clumsily and vaguely worded besides being contrary to clauses 9 and 10 of the Regulations of 1976 and the Note below 'Schedule Technical'. There is no reason or rhyme for not counting experience of diploma holder which he gains prior to acquiring the degree. Even otherwise, there is no qualitative or quantitative difference between the experience which the employees in these two categories acquire because both of them discharge same duties on the post of Project Engineer (Jr.) which are inter-changeable. This would amount to treating equals unequally and, therefore, such an action would be discriminatory being violative of Articles 14 and 16 of the Constitution of India. It was argued that the consequence of regularisation of service on the basis of screening takes effect from the date of initial appointment. Clause 3(d) of the Note below 'Schedule Technical' of the Regulations denies the Project Engineer (Jr.) upon being made regular seniority of their earlier period and therefore, this would also be hit by Articles 14 and 16 of the Constituion of India. It is, therefore, prayed that writ petition be allowed. Shri Mahendra Singh, learned counsel appearing for the appellants in DB Civil Special Appeal Nos.528/1993 and DB Special Appeal (Civil) No.64/1993 argued that the seniority is an attribute of service which flows out of appointment in accordance with law. Eligiblity is an altogether different concept and takes within its purview various factors including qualifications, age, experience etc. While in the context of direct recruitment, experience and qualifications are those acquired prior to appointment. A distinction has to be however made in the case of promotion. The rule making authority may prescribe total experience to be counted for the purpose of eligibility, whether acquired before or after apointment on the feeder post. The issue will have to be therefore necessarily examined on the basis and in the light, of the rules on the subject. The prescription under the Regulations specifically Schedule in the “total experience“ clearly show the intention of the rule making authority that total experience irrespective of the nature of appointment and qualification held by the incumbent is required to be counted for the purpose of eligibility of promotion. Learned Single Judge however in the impugned-judgment on his own sought to add the word “regular“ whereas the words used in the rules are “total experience“. It is argued that the direction given by the learned Single Judge for preparation of separate seniority list for each category of degree holders and diploma holders is contrary to clause 10 of the Regulations of 1976. Both, diploma holders and degree holders are equally eligible for appointment