IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No.45 of 2009 alongwith LPA Nos. 50, 52, 68, 69, 70 and 109 of 2009. Judgment reserved on: 9.10.2009. Date of Decision:8.1.2010 LPA No.45 of 2009: Anokhi Ram Verma ..Appellant. Versus. Arun Kumar and others ..Respondents. LPA No.50 of 2009: Raj Kumar and others ..Appellants. Versus. HPSEB and others ..Respondents. LPA No.52 of 2009: Chaman Lal Dhiman ..Appellant. Versus. HPSEB and others ..Respondents. LPA No.68 of 2009: HPSEB ..Appellant. Versus. Lal Chand Thakur and others ..Respondents. LPA No.69 of 2009: Raj Kumar and others ..Appellants. Versus. HPSEB and others ..Respondents. LPA No.70 of 2009: Rakesh Kumar Dhiman ..Appellant. Versus. HPSEB and others ..Respondents. 2 LPA No.109 of 2009: Om Parkash Thakur and others ..Appellants. Versus. HPSEB and another ..Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for Reporting? For the Appellant (s): Mr.Dalip Sharma, in LPA No.70 of 2009. Mr. K.D. Sood, Advocate in LPA No.45 of 2009. Mr.Rakesh Jaswal, in LPA No.50 of 2009. Mr.Tarlok Chauhan, in LPA No.52 of 2009. Sh.Baldev Singh, Advocate in LPA 68 of 2009. Ms.Ranjana Parmar, in LPA No.109 of 2009. For the Respondent(s): Mr.Baldev Singh, Advocate for HPSEB. Mr.Shrawan Dogra for respondents 93 to 96 in LPA 70/2009 and 1 to 4 in LPA 68 of 2009. Mr.R.M. Bisht, Dy.A.G. for respondent-State. Mr.Dalip Sharma, for respondents 1 to 11 in LPA 45 of 2009, 2 to 12 in LPA 50 of 2009, for respondent No.5 in LPA 68 of 2009, for respondents 2 to 6 in LPA 69 of 2009. Ms.Ranjana Parmar, for respondents No.3 to 5 in LPA No.52 of 2009. Deepak Gupta, J. These aforesaid appeals are being disposed of by a common judgment. CWP No.1358 of 2008 and LPA No.65 of 2009 were also heard along with these appeals. Though the points involved are similar, those cases are being disposed of by a separate judgment since different Departments are involved and the Rules are different. The present appeals relate to the H.P. State Electricity Board (hereinafter referred to as the Board). CWP No.750 of 2000 was filed 3 by 11 petitioners in this Court. The same was later transferred to the H.P. State Administrative Tribunal. On the abolition of the Tribunal the petition was again transferred to this Court and registered as CWP(T) No.53 of 2008. In the said case the petitioners were all graduate engineers appointed as Junior Engineers in the Board during the years 1985 to 1988. They challenged the seniority list issued by the Board whereby private respondents who are non-graduate Junior Engineers and had passed the AMIE degree during service and thus become graduate engineers, had been granted seniority by counting their service rendered as Junior Engineer before the acquisition of AMIE qualification. The learned Single Judge allowed the writ petition and upheld the contention of the petitioners in the said writ petition following the law laid down in Shailendra Dania and others vs. S.P. Dubey and others, (2007) 5 SCC 535. LPA Nos.45 and 50 of 2009 have been filed by persons who were private respondents in CWP(T) No.53 of 2008. LPA No.52 of 2009 arises out of the judgment passed in CWP(T) No.2158 of 2008 filed by respondents 3 to 5. Though the said respondents had also claimed seniority but they had not impleaded any person as a private party in the writ petition. The appellant contends that this judgment would adversely affect his rights since he would be rendered junior to respondents 3 to 5. Leave has been granted to the appellant to file the appeal. In this case the learned 4 Single Judge only held that the parties before him had not disputed the fact that the case was squarely covered by the judgment delivered in CWP(T) No.53 of 2008 titled Arun Kumar vs. H.P. S.E. B. LPA Nos.68, 69 and 70 of 2009 have been filed against the judgment passed by the learned Single Judge in CWP(T) No.2727 of 2008 wherein the learned Single Judge has held that it is not disputed by the learned counsel for the parties that the lis is squarely covered by the judgment rendered by him in CWP (T) No.53 of 2008 dated 26.3.2009. It would be pertinent to mention that in this case this statement was only made by the counsel for the petitioners and the Board. The appellants in LPA No.69 of 2009 were respondents in the case and the matter has been disposed of in their absence. In this case also the learned Single Judge has held that it is not disputed by the learned counsel for the parties that the lis is squarely covered by the judgment rendered by him in CWP (T) No.53 of 2008 dated 26.3.2009. It would be pertinent to mention that in this case this statement was only made by the counsel for the petitioners and the Board. There were a number of other parties before the learned Single Judge. They may have been ex-parte but no judgment on the basis of a statement of only two parties could have been recorded and the case should have been decided on merits. However, since we are dealing with the entire matter on merits we ourselves have gone into the merits of the case. 5 LPA No.70 of 2009 has been filed by the petitioners in CWP 9T) No.2727 of 2008 who now claim that in addition to the relief granted a further direction be issued to hold review DPC for filling up four vacancies which became available up to the year 1994 against AMIE quota with all consequential benefits. In LPA No.109 of 2009 has been filed by the petitioners in CWP (T) No.2158 of 2008. In this case there were no private respondents and an order was passed on the statement of the counsel for the parties that the matter is covered by the judgment passed in CWP(T) No.53 of 2008. The petitioners have filed this appeal claiming that the instructions dated 18.8.1995 should also be quashed and consequential benefits be granted to the appellants. To understand the controversy between the parties, it would be relevant to make reference to certain Rules and Instructions. The Recruitment and Promotion Rules for the post of Assistant Engineer in the HPSEB provided that 54% of the said posts would be filled in by direct recruitment and 46% by promotion. The promotional quota was further sub divided in the following manner: “i)Junior Engineers (Qualified) having 7 years in the grade =28% ii)a)J.Es (unqualified) with ITI qualification having =8% 12 years service in the grade. b)J.Es (unqualified) with 15 years service in the grade. iii)From amongst those who pass Section A&B of =6% the examination of Institution of Engineers (India) during service period & have minimum one year service in the grade. 6 iv)Drawing Staff. Circle HDM possessing diploma in Civil/Mech =4% Engineering or diploma certificate of D/Manship from a registered institution having 5 years service in the grade failing which 10 years service as D/man/HDM/CHDM & failing both total 15 years service in the D/man cadre.” The Board had also issued instructions on 5.12.1980 that the seniority list of Junior Engineers who pass Sections A&B of AMIE during service may be prepared from the date of declaration of the result of passing Section A&B. Admittedly the Board was preparing a separate list of AMIE qualified Junior Engineers and seniority in this list was being maintained on the basis of the date of passing of the examination and after Junior Engineers had completed one year service after obtaining the AMIE qualification they were considered for promotion as Junior Engineers. 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 obtaining the degree or equivalent qualification should be taken into consideration while counting 3 years service or only the service 7 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 unsettling the settled practice in the department. That apart the scheme of the 8 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. ….” It would be pertinent to mention that in the H.P. Public Works Department also there was a Rule which provided that non-graduate Junior Engineers who had passed Sections A&B of AMIE with five years service as Junior Engineers could be considered for promotion. On June 11, 1984 the Rule was amended to reads as follows: “From amongst the graduate junior engineers (University graduate or AMIE) having three years regular or ad hoc service rendered up to December 31, 1983 or both.” 9 Below this Rule a foot note was added which read as follows: “For purpose of promotion three years regular or ad hoc service rendered up to 31.12.1983, shall be counted from the date of appointment of the graduate junior engineers and from the date of passing Section A& B of AMIE Examination by in service junior engineers respectively.” This foot note was challenged as being ultra vires by a number of petitioners in two writ petitions which were later transferred to the Tribunal. The Tribunal vide its judgment dated June 7, 1991 held that such Rule was discriminatory and highly anomalous. It was held that both the graduate engineers and junior engineers perform the same duties and therefore it would be highly absurd to hold that service put in by non-graduate junior engineers prior to their attaining the AMIE qualification could not be taken into consideration. Therefore, the said foot note was quashed and set-aside. Following the aforesaid judgment of the Tribunal in Rattan Singh’s case (supra) and the judgment passed in M.B. Joshi’s case (supra) the Board passed fresh instructions on 18.8.1995: “Subject: Preparation of Seniority list of JEs (AMIE). According to the instructions issued vide this office letter No.HPSEB (SECTT)/4-11/80-102613-15 dated 5.12.80, the seniority of JEs (C/M) and JEs (E) who pass AMI Examination during service is being maintained batchwise from the dates of declaration of result of passing Section A&B. Some of JEs had represented against the said decision and had claimed that seniority of JEs who pass AMIE during service should be according to the length of service in the grade of JEs. After careful consideration of the matter and taking into consideration the judgment of Hon’ble H.P. Administrative Tribunal in the case of Sh.Rattan Singh & others vs. State of H.P. (Secretary, PWD) and judgment of Hon’ble supreme Court of India in the appeal of Sh.M.B. 10 Joshi & Sh.Satish Kumar Pandey, contained in AIR-1993 SC, it has now been decided that the seniority of the JEs who pass AMI Examination during service shall be determined according to the length of their service in the grade of JEs. These instructions will become operative from the date of decision of Hon’ble supreme Court judgment i.e. 1993 and batch- wise seniority of JEs AMIE Holders already circulated will no longer be operative w.e.f. 1.1.93. However, the cases of AMIE holders JEs who have already been promoted as Assistant Engineers against 6% quota of available vacancies up to 31.12.92 will not be re-opened. Accordingly the instructions issued vide this office letter dated 5.12.80 are superseded to the extent and in future no separate seniority lists of Junior Engineers AMIE holders would be prepared.” The petitioners allege that they are only aggrieved by the misinterpretation of sub-head (iii) of the R&P Rules and according to them only the service rendered by the Junior Engineers after passing the AMIE examination could be taken into consideration while considering them for promotion to the post of Assistant Engineers. It is not disputed that there was a ban on direct recruitment and no direct recruitment was being made in HPSEB from 1988-89 onwards. In order to carry out day to day work a number of directly recruited graduate Junior Engineers and those diploma holders who had obtained AMIE degree were promoted as ad hoc Assistant Engineers. The petitioners in CWP(T) No.53 of 2008 were also promoted as Assistant Engineers. As per the previously issued instructions the qualifying service of the Diploma Holders who had obtained AMIE degree was to be considered only from the date of having passed the AMIE. According to the petitioners none of the appellants in LPA No.45 of 2009 had passed AMIE when the 11 petitioners were promoted as ad hoc Assistant Engineers. According to the petitioners, the Board erred in changing the criteria for determining the countable service of Diploma Holder Junior Engineers who had qualified the AMI Examination in accordance with the law laid down by the Tribunal in Rattan Singh’s case and by the Apex Court in M.B. Joshi’s case. On 31.12.1997 the Board took a decision to grant one time relaxation in the R&P Regulations in the following terms: “As a one time relaxation to the R&P Regulations 50% AMIE/Graduate Junior Engineers (E) and 27 AMIE/Graduate JE(C/M) who are working as Assistant Engineers on Adhoc or Acting basis shall be considered for regular promotion as Assistant Engineers if otherwise found fit against vacant posts falling to the share of Graduate meant for direct recruitment. Similarly another 56 Junior Engineers (Elect.) and 22 (C/M) who obtained AMIE/Degree qualification after the above Adhoc/Acting A.Es but became senior to them, AMIE Holders, as a result of Supreme Court decision/Board’s order shall be considered for regular promotion as A.E. (E) against vacancies meant for the direct recruitment category.” The Board is further pleased to order that:- “25 posts of Junior Engineers (Elect.) and 5 posts A.Es(C/M) upgraded as Assistant Engineers shall be filled up by promotion on regular basis from amongst Diploma holders only as one time relaxation to the R&P Regulations.” As a result of this decision the Board decided to grant one time relaxation for granting regular promotion as Assistant Engineers to 50 AMIE/Graduate Junior Engineers in Electrical Division and 27 AMIE/Graduate Junior Engineers in Mechanical who were already working as Assistant Engineers on ad hoc/acting basis. At the same time it was also decided to grant regular promotion to those AMIE 12 Junior Engineers who had become senior to the ad hoc Junior Engineers on the basis of M.B. Joshi’s judgment (supra). Thereafter, regular promotion of the petitioners and private respondents were made on 31.12.1997 and the seniority list was issued wherein the petitioners were shown junior the private respondents. Hence, the petition. According to the petitioners the judgment in M.B. Joshi’s case did not lay down any absolute proposition of law that whenever quota is prescribed for diploma holder Engineers who acquired higher qualification during their service, that the service rendered prior to acquisition of such qualification, must be counted. Further according to the petitioners, they were promoted on ad hoc basis at a time when there was a ban on direct recruitment and the decision for relaxation was made with a view to promote them in such a situation. According to the petitioners their initial promotion not being fortuitous and having been regularized by the Board the respondents could not take benefit of the decision dated 18.7.1995. The matter was contested both by the Board as well as the private respondents who contended that the past service rendered even prior to acquisition of the AMIE qualification should be taken into consideration and counted while reckoning the seniority. The learned Single Judge allowed these petitions by the impugned judgment. Reliance has been placed by the learned Single Judge mainly on the 13 judgment of the Apex Court in the case of Shailendra Dania and others vs. S.P. Dubey and others, (2007) 5 SCC 535. Before referring to Shalendra Dania’s case, it would be pertinent to make reference to some other judgment of the Apex Court. 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 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 14 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, 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 15 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. 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