SBCWP2962/1996 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.2962/1996 Mohan Swaroop Saraswat Vs. The Rajasthan State Electricity Board, Jaipur through its Secretary Date of Order ::: 15th February, 2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri R.C. Joshi, Counsel for petitioner Shri Saugath Roy, Counsel for respondents #### //Reportable// By the Court:- This writ petition has been filed by petitioner Mohan Swaroop Saraswat praying therein that words “Gr.I” mentioned in Note No.2 below Item No.1 in Schedule appended to the Rajasthan State Electricity Board Service of Engineers (Recruitment, Promotion and Seniority etc.) Regulations, 1969 (hereinafter shall be referred to as 'the Regulations'), be declared ultra-vires of Articles 14 and 16 of the Constitution of India, and be accordingly struck down; further respondents be directed to consider his candidature against 1/3rd vacancies of direct recruitment quota meant for inservice Junior Engineers as provided in Note 2 (Supra), SBCWP2962/1996 // 2 // and appoint him on the basis of his merit amongst inservice Junior Engineers, with effect from 11.11.1994, when Junior Engineers below to him in the such merit, were appointed. Petitioner was serving with erstwhile Rajasthan State Electricity Board, which is now divided into five different electricity companies. He is a diploma holder in Electrical Engineering. He was appointed on the post of Junior Engineer Gr.II on 27.07.1983 after a regular selection as per the Regulations. After completion of 9 years of service, he was granted selection grade vide order dated 05.11.1992. Posts of Assistant Engineer (Electrical) in the Board were to be filled in 35% by direct recruitment and 65% by promotion at the relevant time when the advertisement in question was issued by the respondents for direct recruitment, on 07.04.1993. Clause 11 of the Regulations provides for method and the manner, which is relevant for the purpose and according thereto a candidate for direct recruitment to the service as Assistant Engineer must hold a degree in engineering (Electrical, Mechanical, Civil, Tele-communication or Electronics, as the case may be) of a University established by Law in SBCWP2962/1996 // 3 // India or a Degree or Diploma of Foreign University or Institution declared by the Board/Government to be equivalent to a Degree in Engineering (Electrical, Mechanical, Civil, Tele-Communication or Electronics as the case may be) of a University established by Law in India. An advertisement was issued on 07.04.1993 by the respondents inviting applications for appointment on the post of Assistant Engineer (Electrical). It may be significant to notice here that the Note No.2 below Item No.1 in the Schedule appended to the Regulations was inserted by resolution of the Board in its 338th meeting held on 10.10.1984. The aforesaid note provided that 1/3rd vacancies under direct recruitment quota shall be filled from amongst the existing JENs Gr.I who have served the Board at least for 2 Yrs., on the 1st of April of that year by holding a separate competitive examination. Due weightage shall be given to service experience and performance of such JENs for selection in such examination. An advertisement was issued by the respondent Board inviting applications for appointment on the post of Assistant Engineer SBCWP2962/1996 // 4 // (Electrical) on 07.04.1993. 1/3rd of that was meant for inservice Junior Engineers. The Diploma Holder Junior Engineers submitted representation to the respondent Board to allow them to appear in the examination. An internal Circular was issued by the Respondent Board on 30.03.1993, which is produced on the record by the respondents along-with reply to the writ petition as Annexure R/1, which says that, on consideration of representations of Junior Engineers, the respondent decided to allow Junior Engineer-I (Mechanical) as also Junior Engineer-II (Mechanical) with 7 years service in the Board to appear in the said examination. The petitioner also submitted his application for appointment for the post of Assistant Engineer (Electrical) against 1/3rd vacancies under direct recruitment quota because he was, apart from holding diploma qualification, had also 7 years experience. A written examination was conducted by the Rajasthan Public Service Commission on behalf of the respondent Board, in which the petitioner was declared successful. He was thereafter by letter dated 06.04.1994 called upon to appear for interview and personality test, which he successfully faced on SBCWP2962/1996 // 5 // 28.04.1994. Petitioner has also placed on record the select list containing names of 82 candidates from open market and 40 inservice candidates, in which his name did not appear, which was notified sometime in 1986. He immediately thereupon submitted a representation to the respondents pointing out that some degree holder Junior Engineers, who secured less marks than him in the common competitive examination on the basis of which common merit list was prepared, have been selected but he has not been considered against 1/3rd quota meant for inservice candidates. The petitioner thereafter submitted number of other representations. Finally he received reply of Joint Secretary of the Board dated 29.09.1994, informing him that since only degree-holders would be considered against 1/3rd vacancies meant for direct recruitment, he being a diploma-holder could not be considered against that quota. The petitioner then submitted representation to the Chairman of the Board, which was forwarded by Superintending Engineer on 14.12.1995, followed by two more such representations. The respondents, however, did not accept his plea and, made appointment of SBCWP2962/1996 // 6 // other selected candidates by order dated 11.11.1994. Aggrieved thereby, petitioner approached this Court by filing present writ petition. Shri R.C. Joshi, learned counsel for petitioner has argued that respondents by restricting 1/3rd vacancies under direct recruitment quota only to be filled in from amongst Junior Engineer Gr.I and not allowing petitioner, who is Junior Engineer Gr.II, have subjected him to hostile discrimination inasmuch as diploma-holder junior engineer with 7 years experience is considered at par with degree-holder junior engineers with two years experience, and considered eligible in so far as promotion is concerned. There can be therefore no reason not to consider a diploma holder junior engineer with 7 years experience for appointment against 1/3rd vacancies under direct recruitment quota, when he is considered eligible both for promotion and direct recruitment against remaining 2/3rd vacancies. When several similarly situated persons submitted a representation, the Secretary of the Board, passed a Circular dated 30.03.1993 and reading of that Circular of the Board clearly shows that their representation was SBCWP2962/1996 // 7 // accepted and it was decided by the Board to allow Junior Engineer Gr.I (Mechanical) as also Junior EngineerGr.2 with 7 years service in the Board, to appear in the examination against direct recruitment quota of Assistant Engineers, which was held pursuant to advertisement issued on 07.04.1993. There was, therefore, no reason to deviate from that practice in the subsequently issued advertisement. Shri R.C. Joshi, learned counsel for petitioner, submitted that respondents, by their action, have treated junior engineers, who were otherwise similarly situated, in the matter of promotion, differently and thus equals have been treated unequally. Learned counsel further submitted that diploma holder junior engineers and degree holder junior engineers have acquired eligibility for appointment to the post of Assistant Engineer, both by way of promotion as well as direct recruitment by virtue of clause 11 and 19 of the Regulations. According to the Rules, in order to secure promotion, a degree-holder junior engineer must possess two years experience and that a diploma holder junior engineer must possess 7 years experience. They SBCWP2962/1996 // 8 // are both placed on same pedestal and fall in the same category. Clause 11 of the Regulations independently confers eligibility on degree- holder and diploma-holder junior engineers both. However, the respondents by restricting 1/3rd quota out of the direct recruitment only to degree-holder junior engineers, have treated inservice degree-holder junior engineers more favourably than inservice diploma-holder junior engineers. In the past, they have done away with such discrimination by issuing Circular dated 30.03.1993 with respect of Notification issued in January, 1993. However, with regard to advertisement in question, the discrimination was again made. Shri R.C. Joshi, learned counsel submitted that, in practice, however, degree- holder junior engineers with two years experience and diploma junior engineers with 7 years experience have been treated at par. The learned counsel in this connection referred to the minutes of 21st meeting of Coordination Committee held on 01.06.2001, and, in specific, referred to Agenda and Item No.5 thereof wherein it was noted that as per existing provision, the post of Assistant Engineer was being filled 50% by direct recruitment (2/3rd SBCWP2962/1996 // 9 // from amongst open market candidates and 1/3rd from amongst Junior Engineer Gr.I/Junior Engineer Gr.II working in the Board), and 50% by promotion in the ratio of 3:2 (30% from amongst diploma holders JENs and 20% from amongst degree holders JENs respectively). In that meeting, it was resolved that existing provision for filling up the post of AEN may be amended in so far as promotion part is concerned, and for direct recruitment, existing provision be retained as such. 50% is still retained for direct recruitment out of which 2/3rd from amongst open market candidates and 1/3rd from amongst Junior Engineer Gr.I/Junior Engineer Gr.II working in the Board). Shri R.C. Joshi, learned counsel submitted that in the selection held pursuant to advertisement dated 07.04.1993, in all 64 candidates were declared successful in which 63 candidates were from general category and 1 was from SC, and against which 40 persons were appointed, out of which 39 were from General Category and one from SC vide order dated 07.07.1994. Learned counsel submitted that in the common merit list of inservice candidates that was prepared by respondents, name of petitioner appeared at Serial No.78 with 556 marks, whereas out of 38 SBCWP2962/1996 // 10 // candidates selected and appointed under that quota, only 18 candidates secured higher marks than the petitioner and 20 were having lesser marks than him and last such candidate appointed at Serial No.38 Shri Ajay Kumar Malhotra merely secured 494 marks. The petitioner's name should have appeared immediately after Shri Vinay Baj, whose name appeared at No.18. Learned counsel for petitioner argued that for all the aforesaid reasons, inservice Junior Engineers, who otherwise fall in one class, cannot be bifurcated further because in so far as the respondent-employer is concerned, it has to treat both of them at par as per the mandate of clause 11 and 19 of the Regulations. An exception carved out by inserting wordings 'Gr.I' immediately after the word “Junior Engineer', the respondents have made unreasonable classification resulting into hostile discrimination against diploma holder Junior Engineers, by leaving them outside the purview of 1/3rd quota earmarked for inservice candidates. There is no reasonable nexus or object sought to be achieved for this differential treatment meted out to the petitioner. The learned counsel, in support of SBCWP2962/1996 // 11 // his arguments, relied on the judgments of Hon'ble Supreme Court in In re the Special Court Bill, 1978 – AIR 1979 SC 478, AIR India Vs. Nergesh Meerza & Others – (1981) 4 SCC 335 and Union of India and Another Vs. Tulsiram Patel – (1985) 3 SCC 398. Per contra, Shri Saugath Roy, learned counsel for respondent, opposed the writ petition and submitted that since petitioner was a diploma-holder Junior Engineers Gr.II, by virtue of clause 11 of the Regulations, he could apply as an open market candidate but he could not be treated as an inservice candidate falling within the purview of Note 2 below Item No.1 in the Schedule appended to the Regulations. Learned counsel submitted that no person lower than petitioner in merit of open market candidates has been appointed as Assistant Engineer. Only 82 persons were appointed out of which 70 were from general category, 6 from SC and 6 from ST quota. Last candidate appointed from general category secured 588 marks out of 1135, which comes to 51.80%, whereas petitioner secured only 556 out of 1135 marks, thus his percentage comes to only 48.98, and his merit in the general category was at Serial No.96. Special facility SBCWP2962/1996 // 12 // extended to degree-holder Junior Engineers by virtue of giving them opportunity to compete against 1/3rd vacancies under direct recruitment quota has an intelligible differentia and reasonable nexus sought to be achieved, because even then two years experience is required with due weightage is to be given to the service experience performance. The classification of Assistant Engineer on the basis of degree and diploma qualification does not violate the right to equality or Articles 14 of the Constitution of India as it is a reasonable classification. The learned counsel, in support of his argument, relied on the judgment of Hon'ble Supreme in the State of Jammu & Kashmir v. Triloki Nath Khosa and Others – AIR 1974 SC 1. Shri Saugath Roy, learned counsel submitted that the petitioner is estopped from challenging validity of Note No.2 below Item No.1 in the Schedule, which has restricted 1/3rd vacancies under direct recruitment quota to be filled in amongst existing Junior Engineer Gr.I, because having full knowledge of the said provision, he participated in the process of selection. Having failed to secure appointment against direct recruitment quota of open market SBCWP2962/1996 // 13 // candidates, he cannot now be permitted to assail validity of aforesaid provision. The learned counsel, in support of this argument, relied on decision of Hon'ble Supreme Court in University of Cochin vs. N.S. Kanjoonjamma & Others – (1997) 4 SCC 426. It is, therefore, prayed that the writ petition be dismissed. I have given my anxious and thoughtful consideration to the rival submissions and perused the material on record. For the ready reference, Clause 11 (1), 18, 19 of the Regulations and Note 2 below Entry No.1 of the Schedule appended to said Regulations, which are relevant for deciding controversy involved in the present matter, are reproduced here as follows:- “11. (1) A candidate for direct recruitment to the service as Assistant Engineer: Qualification: (a)(i) Must hold a degree in Engineering (Electrical, Mechanical, Civil, Tele- Communication or Electronics as the case may be) of a University established by Law in India or a Degree or Diploma of Foreign University or Institution declared by the Board/Govt. To be equivalent to a Degree in Engineering (Electrical, Mechanical, Civil, Tele- Communication or Electronics as the case may be) of a University established by Law in India. Provided that such diploma holders working in the various branches of Engineering in the Board who have rendered 7 years continuous service as Junior Engineers Gr.II will be also eligible and allowed to appear on making SBCWP2962/1996 // 14 // application in prescribed form and manner along with degree holders in the examination to be conducted for appointment of Asstt. Engineers against the direct recruitment quota. .... 18. Ratio and basis of Promotion: Appointments (permanent or in a temporary/officiating capacity) by promotion to the posts of Asstt. Engineers shall be made on the basis of seniority-cum-merit 19. Qualifying Service for promotion: No Junior Engineer Gr.I/Junior Engineer Gr.II shall be eligible for promotion to the Service unless he possesses the qualifications and experience prescribed in column 6 of Schedule-I. S.No. Name of appointment Scale of Pay (w.e.f. 1.9.81) Method of recruitment Post from which selection is to be made Qualifications and experience for promotion Qualifications and experience for direct recruitment 1. 2. 3. 4. 5. 6. 7. Junior Posts: 1. Asstt. Engineer (Electrical) including Asstt. Controller of Stores 1000-30- 1300-40- 1500-50- 1800-60- 1860 1. 25% by direct recruitment 2. 75% by promotion on the basis of seniority cum merit. Note No.1: The persons will be promoted from Degree Holders and Diploma Holders in the ratio of 3:1 Note No.1: 1/3rd vacancies under direct recruitment quota shall be filled from amongst the existing JENs Gr.I who have served the Board at least for 2 Yrs., on the 1st of April of that year by holding a separate competitive Exam. Due weightage shall be given to service experience and performance of such JENs for selection in such examination Junior Engineer Gr.I/II (Electrical) B.E.(Elec) or A.M.I.E. (Elec) or qualification declared equivalent by Govt. with 2 years service as Junior Engineer (Elec.) or Diploma holder from a recognized Institution with 2 Yrs. Requisite experience as JEN (Gr.I/II (Electrical) Note: The specified qualification of the B.E. Degree, A.M.I.E. And the Diploma in Engineering as also the requirement of experience in a particular service will not apply in case of those who are assigned to the service by the Board on the basis of their options given by 31st July, 1975 Board's decision 1/3rd period of total regular service subject to maximum of two yrs. Put in by a person as JEN Gr.I/II in the Board before passing the AMIE Exam., be counted towards the minimum eligibility period of 2 years. For appointment as EEN. This will however not give such employee any claim for seniority. In the list of Degree Holders he will be placed Junior to all the degree holders recruited before the date of his passing the AMIE Examination and will be senior to those who are recruited, after the date of his passing the examination Perusal of Clause 11 of the Regulations shows that this Regulation confers eligibility SBCWP2962/1996 // 15 // on both degree-holder and diploma-holder junior engineers; while in the case of degree-holders, who may or may not be serving the respondents, no insistence has been made for possessing experience of service; if an inservice diploma- holder Junior Engineer has to apply for appointment by virtue of proviso to Regulation 11, he could do so in case he possesses experience of 7 years continuous service as Junior Engineer Gr.I. Clause 19 of the Regulations, however, provides that a Junior Engineer Gr.I/Junior Engineer Gr.II shall be eligible for promotion to the service unless he possesses qualification and experience prescribed in column 6 of Schedule-I, which, inter-alia, requires degree qualification with experience of 2 years service in the case of Junior Engineer Gr.I and diploma qualification with experience of 7 years service in the case of Junior Engineer Gr.II. The respondents have thus treated the degree holders and diploma- holders at par both for the purpose of direct recruitment in so far as open market category is concerned, and for the purpose of promotion subject of-course to requisite additional experience of 5 years in the case of diploma- holders Junior Engineers, over and above mere SBCWP2962/1996 // 16 // 2 years' experience required for degree-holder junior engineers. The respondents have placed on record Circular dated 30.03.1993, which was issued in the context of advertisement issued by them sometime in January, 1993, where only degree-holder Junior Engineers with 2 years experience and diploma-holder Junior Engineers with 7 years experience of service in the Board, were held eligible to apply for direct recruitment. Some of the junior engineers with mechanical degree represented to the Board; their representation was considered and the Board allowed the Junior Engineer Gr.I as also Junior Engineer Gr.II with 7 years experience of service with the Board, to appear in the said examination. Subsequently also, as would be evident from the minutes of 21st meeting of Coordination Committee of all newly formed electricity companies held on 01.06.2001, at Item No.5 of which it was decided as follows:- “5. Revision in criteria for filling up the post of AENs: It was informed to the committee that legal difficulties were being faced in promotion of degree and diploma holder JENs to the post of AEN. As per the existing provisions, the post of Asstt. Engineer was being filled as follows: SBCWP2962/1996 // 17 // (i) 50% by Direct Recruitment (2/3rd from amongst open market candidates and 1/3rd from amongst JEN-I/JEN-II working in the RSEB), and (ii) 50% by promotion in the ratio of 3:2 (30% from amongst diploma holders JENs and 20% from amongst degree holders JENs respectively). The problem had arisen in the promotions of diploma and degree holders since the existing ratio of promotion of diploma and degree holder JENs was not commensurate with the actual strength of the diploma and degree holders, causing dissatisfaction among the degree holder JENs. The matter was, therefore, placed before the Committee to decide upon the criteria for the promotions to instill the spirit of equality among the degree and diploma holder JENs. The matter was discussed in detail and it was unanimously decided that the existing provisions for filling up the post of AENs may be amended as follows:- (A) Direct Recruitment No change and Existing provision to be continued, i.e. 50% by direct recruitment (2/3 from open market and 1/3 from Junior Engineer Gr.I, Junior Engineer Gr.II, working in Company. (B) Promotion (50% quota) Existing provisions to be replaced by the following provision:- 50% by promotion as follows:- “The promotion ratio of the diploma & degree holders shall be in proportionate to the actual working strength of the degree and diploma holders working as on 19.01.2001. The number so arrived at, if being a fraction shall be rounded off to nearest one. The strength of Sub-Engineers working as on above date shall also be included in counting the above strength to arrive at the promotion ratio.” All the respective five companies may obtain the necessary approval of their respective Board of Directors to effect the above amendments.” The respondents have themselves been thus treating Junior Engineer Gr.I having 2 SBCWP2962/1996 // 18 // years' experience and Junior Engineer Gr.II having 7 years' experience at par. Of course degree-holder junior engineers and diploma holder Junior engineers broadly fall within two different categories and their classification on the basis of their qualification has to be held reasonable. However, having treated them equal in the matter of promotion and having granted them both eligibility for applying against direct recruitment quota, could the respondents treat them differently by carving out a special provision for inservice Junior Engineer Gr.I, is the question which is to be answered in the present matter. In so far as prescription of separate quota for promotion on the basis of degree and diploma qualification is concerned, there can be no quarrel with the proposition that this was permissible by law as that would be reasonable classification based on their qualification. Classification on the basis of eligibility qualification has been held to be a valid criteria by the Supreme Court in State of Jammu & Kashmir v. Triloki Nath Khosa and Others (Supra), and series of judgments rendered by the Supreme Court thereafter. What however appeals to the court is SBCWP2962/1996 // 19 // that when the degree-holder junior engineers join the service of respondent Board as also diploma holders did, both would fall in the category of inservice candidates. When the respondents have given eligibility to both inservice degree and diploma holder category to compete against direct recruitment by virtue of Clause 11 of the Regulations by insisting upon additional experience of 7 years in so far as the diploma-holder junior engineers are concerned, and also conferred upon them the right to consideration for promotion, how could they place degree holder junior engineers in a more advantageous position by exclusively setting apart 1/3rd out of total posts meant for direct recruitment, who like the former, were also inservice candidates for them, is difficult to understand. For the respondents, both, degree and diploma holder, were their employees falling under inservice category and, if at all there was any deficiency or lack in qualification possessed by diploma holder, that was made up by insisting on more amount of experience i.e. 7 years experience. Once that hurdle was crossed by petitioner diploma- holder, he could not be, for the purpose of consideration of his name, denied the right to SBCWP2962/1996 // 20 // compete side by side degree holder junior engineers as far as 1/3rd vacancies under direct recruitment quota is concerned. In other words, the respondents, by devising special mode of recruitment for degree-holder junior engineers, have evolved, by virtue of Note No.2 below Item No.1, a special mode for them, who were inservice candidates,