IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 9607 of 2010 Date of Decision: December 8, 2010 Mahender Singh Hooda …Petitioner Versus State of Haryana and another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present: Mr. Dinesh Arora, Advocate, for the petitioner. Mr. S.S. Pattar, Senior DAG, Haryana, for the respondents. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The short issue raised in the instant petition filed under Article 226 of the Constitution is whether for promotion from the post of Junior Engineer to that of Sub Divisional Engineer, the requirement of degree in particular discipline has to be fulfilled on the basis that the post of Sub Divisional Officer sought to be filled up belongs to that discipline. In other words, whether there is any requirement of Rule 7(1) read with Appendix ‘B’ of the Haryana Service of Engineers, Class-II Public Works Department (Irrigation Branch) Rules, 1970 (for brevity, ‘the Rules’) that even in respect of quota post meant for promotion belonging Sub Divisional Officer is required has to be filled up by keeping in view that particular discipline. CWP No. 9607 of 2010 2. Brief facts of the case may first be noticed. On 22.12.1976, the petitioner joined the Haryana Irrigation Department as Junior Engineer. In the year 1984, he improved his qualification and acquired the Degree of AMIE (Civil). The next promotion from the post of Junior Engineer is to that of Sub Divisional Officer. It is pertinent to mention here that the appointment of the petitioner as Junior Engineer was made under the Rules known as the Punjab Public Works Department (Irrigation Branch) Overseers Engineering State Service, Class-III Rules, 1955, whereas the conditions of service of Sub Divisional Officers are governed by the 1970 Rules. Rule 2(3) of the Rules provides definition of ‘Assistant Engineer’ to mean an officer incharge of a Sub Division and includes an officer holding a post of equivalent responsibility in the Public Works Department, Irrigation Branch. Rule 6 provides the method of recruitment by direct as well as by promotion and reads as under: “Rule 6. Recruitment to service: Recruitment to the service for cadre and ex-cadre posts shall be made in the following manner only from the sources listed below in the proportions and the order indicated against a lot of every 40 vacancies. Method of Recruitment Proportio n Allocation to each source in a lot of 40 vancancies 1 . Direct recruitment 26 5 6 5 5 5 2 . Promotion from the Members of the Haryana Public Works Deptt. Irrigation Branch Overseers (Engineering) Service, percentage of Civil and Mechanical members shall be 18 percent and 2 percent respectively. 8 2 1 2 1 2 3 . Promotion from members of the Draftsman and Tracers Service. 2 1 - - 1 - 2 CWP No. 9607 of 2010 4 . Promotion from Members of the Haryana Public Works Department (Irrigation Branch) Overseers (Engineering) Service and the Draftsmen members of the Draftsmen and Tracers Service. Possessing qualifications prescribed in Appendix ‘B’ 4 - 1 1 1 1 Total 40 8 8 8 8 8” 3. On 16.12.1992 (P-2), an amendment was made in Rule 6 of the Rules, which reads thus: “6(1) Recruitment to the service for cadre and ex-cadre posts shall be made in the following manner only from the sources listed below in the proportions and the order indicated against a lot of every 100 vacancies. “Sr. No. Method of Recruitment Proportio n Allocation to each source in a lot of 100 vancancies 1 2 3 4 1. Direct recruitment 57 1 to 6, 13 to 17, 21 to 26, 32, 37, 41 to 46, 52 to 56, 61 to 66, 72 to 77, 81 to 86, 93 to 97. 2. Promotion from the Members of the Haryana Public Works Department. 20 8, 9, 12, 19, 28, 29, 31, 39, 48, 49, 51, 58, 68, 69, 71, 79, 88, 89, 92, 99 & 20, 40, 59, 80 3. Promotion from the Draftsman, Members of the Draftsman and Tracers Service. 6 11, 30, 50, 60, 70 & 91 3 CWP No. 9607 of 2010 4. Promotion from the Members of the Haryana Public Works Department (Irrigation Branch) Junior Engineer (Engineering) Service and the Draftsman and Engineers Service possessing qualification prescribed in Appendix B.” 12 7, 10, 18, 27, 38, 47, 57, 67 4. On 3.5.1996, again an amendment was made in Rule 6. Against entry at Serial No. 4, the following serial numbers and entries were incorporated: “Sr. No. Method of Recruitment Proportion Allocation to each source in a lot of 100 vancancies 1 2 3 4 4. Promotion from the members of Haryana Public Works Department (Irrigation Branch) Junior Engineers (Engineering Branch) Junior Engineers (Engineering) Civil, possessing qualification in prescribed in Appendix B. 8 7, 10, 38, 47, 57, 87, 90, 98 5. Promotion from members of Haryana Public Works Department (Irrigation Branch) Junior Engineer (Engineering) Mechanical/ Electrical possessing qualification prescribed in Appendix B. 2 27, 78 4 CWP No. 9607 of 2010 6. Promotion from the members of the Draftsmen and Tracers service possessing qualifications prescribed in Appendix B. 2 18, 67 Note: If the member of the Draftsmen and Tracers Service possessing qualifications prescribed in Appendix B is not available on the specified roster point, then this post shall be given to the Junior Engineers (Civil) possessing this qualification and next available post will go to the member of the Draftsmen and Tracers service having qualifications prescribed in Appendix B but 2% quota for this cadre will not exceed in any case.” 5. Rule 7 of the Rules prescribes the qualifications for appointment to the Service. Sub-rules (2) and (3) deals with the qualifications for appointment by promotion from various sources as disclosed in Rule 6 of the Rules. Rule 7 (2) and (3) of the Rules is reproduced as under:- “7. Qualifications:- No person shall be appointed to the Service; unless he- (1) xxx xxx xxx (2) In the case of appointment by promotion from sources 2 and 3 under Rule (6)(1)- xxx xxx xxx xxx xxx (3) In case of appointment by promotion from source 4, 5 and 6 under Rule 6(1) (i) is a member of the Haryana Public Works Department (Irrigation Branch) Overseers (Eneineering) Service or a draftsmen member of Irrigation Branch Draftsmen and Tracers Service; 5 CWP No. 9607 of 2010 (ii) possesses any of the qualifications included in Appendix B and has put in five years service in case he possesses AMIE qualifications and two years service in case he is a degree holder. He will have to pass Departmental Examinations within three years on such promotion otherwise he will be reverted to his original post and his seniority will be determined from the date of his passing the examinations; (4) and (5) xxx xxx xxx” 6. It has been claimed that Overseers, Draftsmen and Tracers, who possessed the qualification prescribed in Appendix ‘B’, were put in one category and as per Rule 6(1) of the Rules proportion was assigned to different sources mentioned against Sr. Nos. 1 to 4 in the ratio of 26:8:2:4 in a lot of 40 vacancies. It has further been claimed that before amendment of 1996 in Rule 6 of the Rules, 12% posts were to be filled by promotion from Junior Engineers who qualified AMIE/B.E. degree without any further classification. Meaning thereby they were put together in a combined list irrespective of the stream of degree they have passed. However, after the 1996 amendment, the department started promotions in the ratio of 8:2:2 i.e. 8% posts from Junior Engineer (Civil), 2% from Junior Engineers (Mechanical) and 2% from Draftsman etc.. 7. The respondent department refused to consider the case of the petitioner for promotion to the post of Assistant Engineer (Sub Divisional Officer) on the ground that although he possessed a degree from the list of institute mentioned in Appendix ‘B’ of the Rules but the same is of different trade. He made a representation that his name be included in the list of AMIE degree holders category of Junior Engineer Mechanical for the year 2009 and be promoted to the rank of Sub Divisional Officer. Thereafter, the petitioner filed 6 CWP No. 9607 of 2010 CWP No. 3433 of 2009 in this Court, which was disposed of by a learned Single Judge vide order dated 4.3.2009, directing the respondents to decide the representation of the petitioner by passing a speaking order within a period of two months from the date of receipt of the order (P-4). On 17.4.2009, the Engineer-in-Chief, Irrigation Department, Haryana-respondent No. 2 passed an order rejecting the representation of the petitioner. The relevant extract of the reasoning given in the order dated 17.4.2009 reads thus:- “ …Rule 7(3)(ii) of HSE Class II Rules, 1970 provides that a J.E. for further promotion to the post of Sub Divisional Officer should possess any of the qualifications included in Appendix ‘B’ and has put in five year service in case he possess AMIE qualification and two years service in case he is a degree holder. Further in the note below Appendix B of the Rules it is very much clear that ‘the candidates to be appointed for Civil posts shall be recruited with qualification in Civil Engineering whereas those recruited in the Electrical Engineering shall possess qualification in Electrical Engineering. Candidates recruited for Mechanical charges will be required to possess degree in Mechanical Engineering. In the light of above referred rules, a J.E. (M), if acquires AMIE degree in Mechanical discipline with 5 years experience in Mechanical Engineering, will only be entitled for promotion to the post of SDO (Mechanical). In other words J.E. (Mechanical) having AMIE in Civil Engineering will not be entitled for promotion to the post of SDO (Mechanical). Therefore, it is clear that in case a JE recruited in a particular discipline does not acquire 7 CWP No. 9607 of 2010 the AMIE degree in that particular discipline to which he was originally recruited will not be entitled for promotion to the post of SDO and he will not find place in the ranking list for promotion as SDO on the basis of AMIE/BE degree acquired by him in other discipline to which he was originally recruited. The submissions of petitioner that S/Sh. Pale Ram, N.C. Garg and Nand Kishore had been promoted as Sub Divisional Officer on regular basis in the year 1999 on the basis of AMIE degree in other discipline acquired by them to which they were originally recruited is not correct. Prior to amendment dated 3.5.1996 in Rule 6 of HSE Class II Rules, 1970, there was combined quota of J.E. (Civil), (Mech) and Drg. Estt. category for promotion to the post of SDO. In the year 1994, the promotion on adhoc basis were made and S/Sh. Pale Ram, N.C. Garg and Nand Kishore were not considered for the same due to disciplinary cases pending against them. However, in compliance of order of Hon’ble High Court dated 19.8.1998 passed in CWPs No. 5262/98, 5263/98 and 5264/98, they were promoted as SDO purely on adhoc basis w.e.f. 17.7.1994 i.e. from the date their junior were promoted. Vide notification dated 3.5.1996, rule 6 of HSE Class II Rules, 1970 has been amended and quota of each category i.e. for J.E. (Civil), (Mech) and Drawing Establishment for promotion to the post of SDO have been provided. The above named officials had acquired IME Degree whereas they were appointed as Junior Engineer (Civil), thus they were also not promoted as Sub Divisional Officer on regular basis.” (emphasis added) 8 CWP No. 9607 of 2010 8. Feeling aggrieved against the order dated 17.4.2009, the petitioner again filed CWP No. 7619 of 2010, however, the said writ petition was permitted to be withdrawn with liberty to file a fresh one after challenging vires of notification dated 3.5.1996, vide order dated 29.4.2010 (P-7). Hence, the present writ petition. 9. Mr. Dinesh Arora, learned counsel for the petitioner has vehemently argued that in respect of quota carved out for promotion from the post of Junior Engineer to that of Sub Divisional Officer, the only requirement is of a degree qualification irrespective of any discipline. According to the learned counsel it does not make any difference if a candidate has a degree in mechanical, civil or electrical for promotion to the post of Sub Divisional Officer of any other discipline. Learned counsel has emphasised that there is nothing in the rule which may support the aforesaid view of the respondents. According to the learned counsel, the matter is covered by a Division Bench judgment of this Court rendered in the case of Surinder Singh v. State of Punjab and others (C.W.P. No. 15240 of 1994, decided on 14.2.2000). He has claimed that a similar rule came up for interpretation and the Division Bench has held that the rule did not envisage any separate wing or post as mechanical or electrical and that once a person is recruited as Junior Engineer by way of direct recruitment or promotion they all become members of the Service without making any distinction in the discipline. It would not make any difference whether they were working in civil, electrical or mechanical. 10. Mr. S.S. Pattar, learned State counsel, however, has not been able to controvert the argument that the matter is covered in favour of the petitioner and against the respondents by the Division Bench judgment of this Court rendered in the case of Surinder Singh (supra). 9 CWP No. 9607 of 2010 11. Having heard learned counsel for the parties and perusing the paper book with their able assistance it would be necessary first to analyse the Rules. A bare reading of Rule 7 of the Rules would show that for promotion to the post of S.D.E. from sources 4, 5 and 6 under Rule 6(1), an incumbent has to be member of Haryana Public Works Department (Irrigation Branch) Overseer (Engineering) Service or a Draftsmen member of Irrigation Branch Draftsmen and Tracers Service. Such a person must also posses any of qualification included in Appendix ‘B’ and should have put in 5 years service in case he possesses AMIE qualification and two years service in case he is a degree holder. Then he is required to pass Departmental Examination within three years of promotion. According to Appendix ‘B’ the degree prescribed is either in Civil or Mechanical. There is no requirement that the degree must be in a particular discipline. There are no separate lists of Junior Engineers made on the basis of specialisation and there are no separate seniority lists of S.D.E. The petitioner has, in fact, worked as J.E. in Civil Division and mechanical Division. Likewise, the S.D.E. also work inter changeably without any restriction of discipline of qualification acquired by them. The cadre of J.E. and S.D.E. is one integrated cadre. There are no separate cadres on the basis of either their discipline of Civil or Mechanical. Any other construction would adversely affect their seniority as well. 12. The respondents, however, have misconstrue the ‘NOTE’ below Appendix ‘B’ of ‘the Rules’ to mean that candidates to be appointed for Civil post shall be recruited with qualification in Civil Engineering whereas those recruited in the Electrical Engineering are required to possess qualification in that discipline. Likewise, for Mechanical Engineering, the ‘NOTE’ in Appendix ‘B’ is associated with Rule 7 of the Rules, which deals with 10 CWP No. 9607 of 2010 qualification for direct recruitment and promotion as well. The expression ‘recruitment’ has been used in Rule 7(1) as well as in the ‘NOTE’. Therefore, it cannot be associated with promotion and if at all it has to be confined to direct recruitment. Moreover, in the ‘Note’ under Rule 6(1), which deals with the quota for promotion, there is nothing which may lead us to any such conclusion. It is not disputed that S/Shri Pale Ram, N.C. Garg and Nand Kishore were promoted first on ad hoc basis, thereafter, they were promoted in 1999 although in compliance of directions issued by the Court. 13. Even otherwise, the matter is no longer res integra. A similar controversy came up for consideration before a Division Bench of this Court in the case of Surinder Singh (supra). Rule 2(2), 6 and 7 of the Punjab Service of Engineers, Class II, P.W.D. (Public Health) Rules, 1966 (for brevity, ‘the 1966 Rules’) were subject matter of consideration of the Division Bench. It is apposite to mention here that Rules 6 and 7 of the Rules are pari materia of the corresponding Rules 6 and 7 of the 1966 Rules. The Division Bench considered the legal proposition as to whether a common seniority of all the Assistant Engineers for the purpose of promotion to Class I service under the 1966 Rules is to be maintained irrespective of the fact whether Assistant Engineer is designated as Assistant Engineer (Civil), Assistant Engineer (Mechanical) or Assistant Engineer (Electrical). After extracting the relevant provisions of the 1966 Rules in extenso the Division Bench has observed as under:- “ ……Appendix B gives the list of certain degrees of various Universities which are recognized for purpose of appointment to class II or class I service as the case may be. Rule 7(1)(a) of the class II rules and rule 6(a) lay down that person appointed to the class I service has to have the qualification mentioned in appendix 11 CWP No. 9607 of 2010 B. The note on which reliance has been placed by the learned counsel for the respondent is to appendix B. According to us the note to appendix B, if at all relevant would be relevant only for purpose of direct appointment to class II or class I. A point arose before the apex Court in A.S. Parmar’s case (supra) [A.S. Parmar and others v. State of Haryana and others, AIR 1984 Supreme Court 643] that for purpose of promotion to class I from class II service, a promotee officer had to have the qualifications mentioned in appendix B. Though in Parmar’s case the apex Court was considering Punjab Service of Engineers Class I P.W.D. (Building and Road Branch) Rules, 1960, but it may be observed here that rule 6 of the Public Health and rule 6 of the Building and Road is pari materia and rather in the same words. It was held by the apex Court that rule 6(b) only envisages promotion from class II service and the requirement that the person must have eight years service in class II and pass the professional examination of the department. Apendix B only relates to the appointment in class I service by direct recruitment. It was held by the apex Court that rule 6 of class I rules treats the possession of a degree as envisaged by appendix B a pre-requisite for direct appointment to class I service as Assistant Executive Engineer/Executive Engineer but such is not the requirement for a promotee. Consequently, the question to be seen in the present case is whether once a person is a member of class II service as defined, has he a right for consideration of promotion as per his seniority and as per rule 5(c) read with rule 6(b) of the class I rules. Rule 5(c) of class I rules 12 CWP No. 9607 of 2010 provides for promotion from class II service whereas rule 6(b) of class I Rules gives the qualification which a class II officer must possess for being eligible for promotion to class I. The answer has to be in the affirmative. The petitioners who are members of class II service as per their seniority in class II service which is a common seniority under Rule 12 have a right of consideration for promotion to class I. Necessarily a common seniority of all Class II officers for purpose of promotion to class I has to be maintained irrespective of the fact whether one is working in the civil wing, electrical wing or mechanical wing which might have been created for administrative convenience”. (emphasis by us) 14. The aforesaid observations made by the Division Bench are fully applicable to the facts of the present case. The Division Bench has made it clear that the note to Appendix ‘B’ was relevant only for the purpose of direct recruitment to Class-II or Class-I service. The stand of the respondents in the instant case in para 2 of the preliminary submissions is also not different with it says that the note given under Appendix-B of the Rules provides that the candidates to be appointed for Civil posts shall be recruited with qualifications in Civil Engineering whereas those recruited in the Electrical Engineering shall possess qualification in Electrical Engineering. It is evident from the aforesaid stand that the note given under Appendix-‘B’ is confined to recruitment made to the post of Sub Divisional Officer by direct method. However, the amendment dated 3.5.1996 (P-3) amending Rule 6 by substituting Serial No. 4, would not result into different consequence and has to read down to mean what the Division Bench has held in Surinder Singh’s case (supra). The aforesaid principle has to be followed for the reason that when appointment to the post of 13 CWP No. 9607 of 2010 Junior Engineer is made, no separate stream of discipline are provided and no separate lists according to the stream to which a Junior Engineer belong have ever been prepared. Further classification of the Junior Engineers according to the stream of their degree qualification would be wholly unreasonable because as a Junior Engineer such persons have been discharging duties in civil, mechanical or electrical streams without any distinction. Therefore, the note added by amendment dated 3.5.1996 (P-3) has to read down consistent with the opinion expressed by the Division Bench. The aforesaid position has also not been seriously disputed by the learned State counsel. All that he has to say is that the amendment made in Rule 6 on 3.5.1996 is valid. The learned State counsel has not been able to point out any distinguishing feature between the facts of the present case and that of the Division Bench judgment rendered in Surinder Singh’s case (supra). There is hardly any resistance to the argument raised by the petitioner. Mr. S.S. Pattar has, in fact, virtually conceded the legal and factual position. Accordingly, we allow the present petition. The impugned order dated 14.5.2009 (P-5) is hereby quashed. The respondents are directed to consider the case of the petitioner for promotion to the post of Sub Divisional Officer with effect the date persons junior to him have been promoted. In case no such junior has been promoted then the petitioner shall be considered eligible for promotion as and when vacancy on the post of Sub Divisional Officer is to be filled. 15. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE (RITU BAHRI) 14 CWP No. 9607 of 2010 December 8, 2010 JUDGE Pkapoor 15