1 WP 3916.2010 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3916 OF 2010 1. Jawahar S/o Laxman Nilamwar Age : 35 Years, Occ. Service, R/o : Gokulnagar, Degloor, Tq. Degloor, Dist. Nanded. 2. Dhondiba S/o Irawantrao Honrao Age : 41 Years, Occ. Service, R/o : C/o Govind Baburao Bade Near Police Station, Mukhed, Tq. Mukhed, Dist. Nanded. 3. Shriram S/o Nagorao Patil Age : 42 Years, Occ. Serice, R/o : Mane House, Deep-Nagar, Nanded. 4. Madhukar Sheshrao Nagargoje Age : 40 Years, Occ. Service, R/o : Bhavaninagar, Kandhar, Tq. Kandhar, Dist. Nanded. .... PETITIONERS VERSUS 1. Zilla Parishad, Nanded Through Chief Executive Officer. 2. The Commissioner 2 WP 3916.2010 - ( J ) Aurangabad Division, Aurangabad. .... RESPONDENTS Mr. P.R.Katneshwarkar, Advocate for the petitioner. Mr. G.R.Ingole Patil, Advocate for Respondent No. 1. CORAM : NARESH H. PATIL & S.V. GANGAPURWALA, JJ. DATE OF JUDGMENT : 02/02/2011 JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The petitioners vide the present Writ Petition under Article 226 of the Constitution of India assail condition no. 3 of the order of promotion, so also claim seniority w.e.f. 22/11/2005 in the cadre of Junior Engineer. The petitioners also pray for difference of salary from 22/11/2005 to 19/6/2008. 3. The petitioners hold a degree of diploma in Civil Engineering. The said course is of three ( 3 ) years. The petitioners were appointed as Assistant to the Junior Engineer with the respondent no. 1 – Zilla Parishad. 3 WP 3916.2010 - ( J ) The respondent no. 1 promoted the petitioners to the post of Junior Engineer on or about 22/11/2005. The respondent no. 1 thereafter stayed the order of promotion vide order dated 6/6/2006. The petitioners challenged the Order dated 6/6/2006 before this Court in Writ Petition No. 4438 of 2006. This Court quashed and set aside the said order on the ground that the respondent no. 1 had passed the order dated 6/6/2006 without issuing any show cause notice to the petitioners. Thereafter, the respondent no. 1 issued show cause notice dated 4/10/2006, calling upon the petitioners to justify their promotion. The petitioners filed reply to the said show cause notice. Thereafter the respondent no. 1 again issued order of promotion to the petitioners to the post of Junior Engineer vide Order dated 19/6/2008, but vide condition No. 3 of said order, it laid down that from the date of appointment of the petitioners on the post of Junior Engineer, the petitioners shall pass professional examination within three ( 3 ) years. The petitioners have assailed the said order. 4. Mr. P.R. Katneshwarkar, learned counsel for the petitioners submit that the petitioners already possess the diploma in Civil Engineering. The said course is of three ( 3 ) years. In such circumstances, the petitioners are not required to pass the qualifying examination. According to the learned counsel, this Court in Writ Petition No. 4778 of 2007 has already held that the persons possessing recognized diploma in Civil 4 WP 3916.2010 - ( J ) Engineering are not required to pass professional examination. As such, condition No. 3 is erroneous and deserves to be set aside. The learned counsel further contended that the petitioners were qualified for promotion on 22/11/2005 i.e. the day when the petitioners were first promoted to the post of Junior Engineer. As such, the petitioners are entitled for deemed date of seniority in the cadre of Junior Engineer from the said date. The petitioners further contend that consequently the petitioners would be entitled for the difference of pay scale between the Assistant to the Junior Engineer and Junior Engineer from 22/11/2005 to 19/6/2008. 5. Per contra, Mr. Ingole Patil, learned counsel for the respondent no. 1 submits that as per rules, the petitioners have to pass the qualifing examination within the stipulated three ( 3 ) years after being promoted to the post of Junior Engineer. As the petitioners have not worked on the said post, they are not entitled for the salary, they would be entitled for promotion from 19/6/2008 and can not be given a deemed date of promotion. 6. The issue whether the petitioners, who have completed three (3) years diploma course in Civil Engineering are required to pass qualifying examination within three ( 3 ) years after being promoted is no longer res-integra in view of the dictum of this Court in Writ Petition No. 5 WP 3916.2010 - ( J ) 4778 of 2007 and other companion Writ Petition. This Court vide its Judgment dated 17/2/2004 in Writ Petition No. 4778 of 2007 observed thus : “ The petitioners who possess recognized diploma ( three ( 3 ) years course ) in Civil Engineering and though they do not possess the professional examination of overseers prescribed by the State Govt., they are still eligible for being considered for appointment in the post of Junior Engineer by promotion ”. 7. In light of the same, condition no. 3 in the promotion order dated 19/6/2008 imposed by the respondent no. 1 is erroneous and deserves to be set aside. 8. It is not disputed that the petitioners were considered eligible to be promoted to the post of Junior Engineer on 22/11/2005. As such, the petitioners will be entitled to the deemed date of seniority in the cadre of Junior Engineer from 22/11/2005, but the petitioners would not be entitled for the salary of Junior Engineer from the said date. The petitioners would be entitled for the same from 19/6/2008 i.e. the date of promotion actually effectuated by the respondent no. 1. 9. In that light of the matter, we pass the following order : 6 WP 3916.2010 - ( J ) (I) Rule is made absolute in terms of prayer clause ‘ A ’ and ‘ B ’. (II) The relief in respect of prayer clause ‘ C ’ stands rejected. (III) Rule is accordingly partly made absolute, however with no order as to costs. [S.V. GANGAPURWALA, J.] [NARESH H. PATIL,J.] knp/WP 3916.2010