IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE Ag. CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 20TH DAY OF DECEMBER 2011/29TH AGRAHAYANA 1933 WPC.No. 4410 of 2007 (S) OA.102/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONERS : 1 ENGINEER-IN- CHIEF, DIRECTORATE GENERAL (PERSONNEL)/EI (DPC) MILITARY ENGINEER SERVICES ENGINEER-IN-CHIEF'S BRANCH KASHMIR HOUSE DHQ PQ NEW DELHI- 110011. 2 COMMAND CHIEF ENGINEER, HEAD QUARTERS SOUTHERN COMMAND PUNE- 411 001. 3 CHIEF ENGINEER, NAVAL WORKS, MILITARY ENGINEER SERVICES NAVAL BASE KOCHI-4. 4 UNION OF INDIA, REPRESENTED BY ITS, SECRETARY MINISTRY OF DEFENCE NEW DELHI-11. BY ADV.SRI.ALEX VARGHESE, CGC RESPONDENTS: 1 K.C.OMANA, D/O.LATE CHEERAMAN K.M. ASSISTANT ENGINEER (CIVIL) O/O THE CHIEF ENGINEER NAVAL WORKS, MILITARY ENGINEER SERVICE NAVAL BASE, KOCHI-4. 2 THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH, KALOOR KOCHI-17, REPRESENTED BY ITS REGISTRAR. W.P.(c) 4410 OF 2007 BY ADV. SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH SRI.K.V.JOY SRI.K.RAMACHANDRAN (THYKOODAM) SRI.JOHN VARGHESE, ASSISTANT SG THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(c) NO. 4410 OF 2007 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF O.A. NO. 102/2004 ALONG WITH ANNEXURES. EXT. P2 : TRUE COPY OF JUDGMENT DATED 25.03.2003 IN O.P. NO. 24594/2002 EXT. P3 : TRUE COPY OF REPLY STATEMENT DATED 27.07.2004 FILED BY PETITIONERS. EXT. P4 : TRUE COPY OF REJOINDER DATED 13.11.2004 FILED BY 1ST RESPONDENT. EXT. P5 : TRUE COPY OF ADDITIONAL REPLY STATEMENT DATED 22.02.2005 FILED BY PETITIONERS. EXT. P6 : TRUE COPY OF ORDER DATED 19.06.2006 IN O.A. NO. 102 OF 2004 OF 2ND RESPONDENT. /TRUE COPY/ P.A. TO JUDGE MANJULA CHELLUR, Ag. C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~ W.P(C) No. 4410 Of 2007 ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 20th day of December, 2011 JUDGMENT Ramachandra Menon .J. Ext. P6 order passed by the Central Administrative Tirbunal (CAT), Ernakulam is under challenge at the instance of Union of India and the departmental authorities. 2. Whether passing of 'test qualification' is mandatory for the Degree holders in Engineering or it is confined only to the Diploma holders is the main question to be considered and decided. The incidental question that arises for consideration is, whether the challenge now raised by the petitioners is barred by the principle of 'res judicata/constructive res judicata', in view of the earlier rounds of litigations, which have become final. 3. The first respondent herein is a Degree holder in Civil Engineering and was appointed as W.P (C). 4440 of 2007 :2: Superintendent B/R Grade I on 09.11.1987. She was an aspirant to the next promotion post i.e. Assistant Engineer B/R. By virtue of the relevant Recruitment Rules 1978, it is obligatory on the part of the aspirants to have cleared the Departmental Test - “Military Engineering Service (MES) Procedure Examination”, so as to get appointment as Assistant Engineer as aforesaid. Considering the plight of the persons, who were getting stagnated in the post of Superintendent for want of test qualification, it was decided by the Government, as a matter of policy, that they will be granted the benefit of 'Grade promotion' on completion of 10 years, so that, they can enjoy the pay scale/grade of the promotion post of Assistant Engineer. 4. On completion of 10 years of service, the first respondent, who admittedly did not have the test qualification at that point of time, sought for the benefit of grade promotion, which however was denied by W.P (C). 4440 of 2007 :3: the Department, saying that, she did not have the test qualification and as such she could not have legally aspired to have any promotion. This in turn was subjected to challenge by filing O.A. No. 1234 of 2000 before the CAT Ernakulam. After considering the rival contentions raised, the stand taken by the Department/respondent therein was held as not correct or sustainable, holding that, the satisfaction of test qualification can never be insisted with regard to the grade promotion sought for. Accordingly, the O.A. was allowed, directing the respondents to provide the scale of pay of 6500 - 10500, without insisting for pass in the “MES Procedure Examination”. The respondent in the said O.A., of course, did challenge the said verdict, by filing O.P. No. 24594 of 2002 before this Court, wherein interference was declined as per Ext. P2 judgment dated 25.03.2003, however, making some observation with regard to the distinction between grade promotion and regular promotion, as given in W.P (C). 4440 of 2007 :4: paragraph 5 therein. In view of the finalization of the proceedings as above, the respondent in O.A. No. 1234 of 2000 gave 'Grade promotion' to the first respondent herein and the relevant scale of pay was allotted to her w.e.f. 09.11.1997. Subsequently, the first respondent appeared for the 'MES Procedure Examination' and cleared the same on 30.06.2003. Pursuant to the satisfaction of the test qualification, the first respondent was included in the panel for promotion to the post of Assistant Engineer (Civil) and in turn was promoted to the said post w.e.f 24.11.2003. 5. After granting the promotion as above, it came to the notice of the petitioners herein, that the promotion granted to the first respondent w.e.f. 24.11.2003 suffered a mistake, in so far as the crucial date for reckoning the eligibility was as on 01.01.2003, as per the relevant rules prescribed in this regard. It was stated that, though the first respondent acquired the test qualification, since the W.P (C). 4440 of 2007 :5: same was only on 30.06.2003, she could never be considered as a duly qualified person 'as on 01.01.2003' hence could not have been promoted to the post of Assistant Engineer w.e.f. 24.11.2003; but would have been eligible for such promotion only in respect of the vacancies in the subsequent year ie. 2004 - '05. It was in the said circumstances, that a notice was issued to the first respondent, asking to explain why the mistake could not be corrected. The first respondent sought to challenge the same by approaching the Tribunal by filing O.A. No. 102 of 2004, raising a contention that, the acquisition of test qualification could never be insisted in the case of a Degree holder like her and that the same was applicable only in the case of promotion to be given to a Diploma holder. 6. The petitioners herein filed a detailed reply statement referring to the actual rule position and also as to the crucial date for reckoning the W.P (C). 4440 of 2007 :6: qualification for giving promotion. There is no dispute with regard to the date of acquisition of the test qualification, date of occurrence of the vacancies and such other minute particulars, which hence, need not be analyzed. After observing that the issue had already been considered by the Tribunal in the first round of litigation, when the 'Grade promotion' was denied to the petitioner (as dealt with in O.A. No. 1234 of 2000), the Tribunal observed that the norms for granting the Grade promotion were to be followed in the instant case as well. It was also observed that, the matter had already become final, since the verdict passed by the Tribunal could not be successfully challenged by the respondents in the O.A. 1234 of 2000 and as such, there was a bar attracted by the principles of res judicata as well. It was accordingly, that the O.A. 102 of 2004 filed by the first respondent was allowed and the respondents therein were directed to give the benefit of W.P (C). 4440 of 2007 :7: promotion, as already given, w.e.f. 24.11.2003. The notice issued to the first respondent, which was impugned in the O.A. was intercepted and set aside. It is aggrieved of the said order, produced as Ext. P6, that the respondents in O.A. have approached this Court by filing the present writ petition. 7. Heard Mr. Alex Varghese, the learned Central Government Counsel appearing for the petitioners as well as Mr. O.V. Radhakrishnan, the learned senior counsel appearing for the first respondent at length. 8. The sum and substance of the contention of the first respondent is that there is absolutely no defect or illegality on the part of the Tribunal in having passed Ext. P6 order and that no re-examination of the issue is possible at the hands of this Court, for the reason that, the very same issue, as to whether test qualification could be prescribed in respect of Degree holders, had already been considered and decided in W.P (C). 4440 of 2007 :8: O.A. 1234 of 2000, which has become final, pursuant to dismissal of original petition, preferred by the petitioners herein as borne by Ext. P2. The learned Senior Counsel also stated that there is a similar prescription in the case of promotion to the post of Superintendent Gr I from the post of Superintendent Gr. II and the prescription of the test qualification is applicable in the case of Diploma holders, as evident from the Rules. Reference is also made to Clause (e) of Annexure A5 order dated 31.07.1998 issued by the concerned Ministry of the Government of India, whereby the benefit of 'Grade promotion' was provided, which stipulates that the persons who are awarded the 'Grade promotion' would be adjusted against the regular post of Assistant Engineer/Junior Surveyor of Works, as and when regular vacancies in these posts are available, subject to observance of the normal procedure. This being the position, there is no merit in the contention of the petitioners that the satisfaction of the test W.P (C). 4440 of 2007 :9: qualification is obligatory in all cases; submits the learned senior counsel. 9. Sri. Alex Varghese, the learned Central Government Counsel appearing for the petitioners submits on the other hand, that the clause (e) of Annexure A5 dated 31.07.1998 itself stipulates that the placement of the persons who are awarded 'Grade promotion' against regular post is by way of adjustment. The very terminology of the word used therein is that the concerned persons are to be adjusted against the regular post and that it does not amount to any promotion posting in the vacancy of Assistant Engineer. The learned counsel also submits that the idea and understanding of the first respondent, that the issue considered in O.A. 1234 of 2000 (which became final, on passing Ext. P2 judgment by this Court) and the one raised in O.A. 102 of 2004 is one and the same, is quite wrong and misconceived. It is pointed out that the issue considered before the W.P (C). 4440 of 2007 :10: Tribunal in O.A. 1234 of 2000 was with regard to the denial of 'Grade promotion' and the correctness and sustainability of the contention of the respondents in insisting for acquisition of such test qualification for awarding 'Grade promotion', whereas in the subsequent O.A. (O.A. 102/2004 forming the subject matter of the present petition) is, with regard to clearing of such test qualification in respect of 'Regular Promotion'. 10. There is an ocean of difference between the two circumstances, involving 'Grade promotion' and 'Regular promotion'. In the case of the former, a person is only made eligible to obtain the higher salary and benefits by virtue of granting 'Grade promotion' and such person is never made to work in the promoted post, unlike the case of Regular promotion. Attention is invited to the observation made by this Court in Ext. P2 judgment (pursuant to challenge raised against the verdict passed by the Tribunal in O.A. W.P (C). 4440 of 2007 :11: 1234 of 2000), wherein it has been observed that there is black and white difference between Grade promotion and Regular promotion. It was with reference to such particulars that the matter was finalized, though, interference was declined and the original petition was dismissed, holding that, there was no merit on the part of the petitioners/department in contending that the qualifications stipulated in respect of 'Regular promotion' should be made applicable in the case of granting 'Grade Promotion' as well. 10. It is worthwhile to extract the observations as contained in paragraph 5 of Ext. P2 judgment. “Learned counsel for the petitioners submitted that as per Clause (e) of the order dated 31.07.1988 of the Government of India (quoted in paragraph 2 above), Superintendents B/R on placement in the higher scale of pay will be adjusted against the regular posts of Assistant Engineers as and when vacancies are available and hence for placement in the higher scale, Superintendents should fulfill the qualifications for the post of Assistant Engineer which include a pass in the MES Procedural Examination. The contention is misconceived. On placement in the higher scale, the Superintendents are only adjusted against the vacancies of Assistant Engineers and they will continue W.P (C). 4440 of 2007 :12: to be Superintendents performing the same duties and functions as before. This is clear from clause (c) of the above mentioned Government Order. Hence, it is illegal, improper and unjust to insist that for getting a higher scale of pay the Superintendent should possess the qualifications for the post of Assistant Engineer. There is no rule, which contains such a stipulation. There is also no merit in the contention that the case of respondents 1 and 2 should be considered in the light of the Recruitment Rules applicable to the post of Assistant Engineer, because by placing them in the higher scale (which is described in clause (a) of the Government Order only as a 'Pay Promotion') they are not appointed as Assistant Engineers and they are not performing the duties and functions of Assistant Engineers. From the above, it is clear that, this Court while dismissing the original petition, preferred against the verdict in O.A. 1234 of 2000, observed in unequivocal terms, that on placement in the higher scale, the superintendents are only adjusted against the vacancies of Assistant Engineer and they are not appointed as Assistant Engineer and they will continue as superintendents, performing same duties and functions as before. The issue examined by the Tribunal in O.A. 1234 of 2000 as understood and explained by the W.P (C). 4440 of 2007 :13: Division Bench of this Court vide Ext. P2 judgment, was only on limited question, as to the justification in insisting to have the test qualification for granting the 'Grade promotion' and nothing more. This being the position, the contention raised by the first respondent that the writ petition is not maintainable, on applying the principles of res judicate, does not hold any water at all and the point is answered against the first respondent. 12. Coming to the question whether the test qualification is mandatory for all, irrespective of whether they are Degree holders or Diploma holders, it is necessary to scan the relevant Recruitment Rule. The stipulation as contained in the rule (in column No.11 of the Schedule to the Rules) is extracted below : Asst. Engineer : Promotion : Superintendent (B/R) Grade I with 3 years' regular service in the grade in the case of degree holder in Civil Engineering and 7 years' regular service in the grade in the case of diploma holders in Civil Engineering and having W.P (C). 4440 of 2007 :14: passed the Military Engineer Service Procedure Examination. Obviously, the conjunction used is 'and'. As such, the requirement sought to be insisted has necessarily to be possessed by all the aspirants, who seek for promotion to the post of Assistant Engineer. In respect of Degree holders, the experience required as per the rule, is only 3 years' regular service, whereas in the case Diploma holders, it is 7 years regular service. But for this, satisfaction of the test qualification (MES Procedure Examination) is common for both the Degree holders as well as the Diploma holders. No other interpretation is possible in respect of such clause. This is all the more so, since, the subjects taught for the Degree or Diploma in the field of Engineering cannot be of any subject as related to “Military Engineering Service Procedure Examination”. 13. For a proper analysis, we sought for a clarification as to the subjects or syllabus in connection with the 'MES Procedure Examination'. The W.P (C). 4440 of 2007 :15: learned Central Government Counsel made available the particulars in this regard, which read as follows; 2. The MES Procedure Examination mainly consist of the following: (a) Administrative procedure including knowledge of Financial Regulation and other regulations concerning the department. (b) Contract Law which is made applicable to MES department. (c) Discipline and other procedural aspects concerning the personel working in the department. (d) Engineering activities which are made applicable to Military Engineer Services. Evidently, it is a specialized zone, to which there is no access in the normal Engineering course, whether it is a Degree Course or a Diploma Course. Even otherwise, it is relevant to note that, the specific contention as raised by the Department before the Tribunal in the reply statement and also in the pleadings raised before this Court is that, the post in question i.e. Assistant Engineer, is a 'Group B' gazetted post, whereas the post of superintendent B/R Grade I forming the feeder category, is only a 'Group C' post. W.P (C). 4440 of 2007 :16: 14. It is brought out that there is quite a lot of financial and administrative functions and powers, which are to be exercised by the persons holding the posts of Assistant Engineer. Eventhough, a Superintendent, on awarding the Grade promotion, is made eligible to enjoy the higher scale of an Assistant Engineer. Since, such a person is not made to hold the post of Assistant Engineer, there is no question of discharging any such financial or administrative powers by such a person. But, on granting the 'Regular promotion as Assistant Engineer, such a person is required to satisfy and meet all the obligations attached to the post of Assistant Engineer in administrative and financial matters, for which, acquisition of necessary qualification becomes mandatory. It is with this intent, that acquisition of test qualification is insisted, both for the Degree holders as well as the Diploma holders, satisfying the requisite experience as prescribed. The only case put W.P (C). 4440 of 2007 :17: up before the Tribunal by the 1st respondent was that, such a test qualification is not applicable in the case of the Degree holders and that it should be confined only in respect of Diploma holders. We find it difficult to accept the proposition mooted by the first respondent, considering the [purpose for which such qualification is prescribed and also when the relevant recruitment rule was not under challenge. 15. In the above circumstances, we find that the contentions raised by the first respondent so as to give a restrictive meaning to the relevant recruitment rules (Annexure A3) making the test qualification applicable only in the case of Diploma holder is wrong and misconceived. Ext. P6 verdict passed by the Tribunal to the contrary i.e. without giving correct interpretation to the Rules, does not appear to be correct in the eye of law. Hence the same is set aside. It is open for the petitioners to make necessary correction with regard to the actual date of W.P (C). 4440 of 2007 :18: promotion to be given to the first respondent in the post of Assistant Engineer, by virtue of her test qualification acquired on 30.06.2003, considering her in respect of the first vacancy, which arose in the subsequent year 2004 - '05. The proceedings as above shall be completed in accordance with law, as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. The Writ Petition is allowed. No cost. Sd/ MANJULA CHELLUR, Ag. CHIEF JUSTICE Sd/- P. R. RAMACHANDRA MENON, JUDGE kmd