THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 14264 OF 2009 O R D E R: This Writ Petition has been instituted by Sri R.Chalapathi Rao working as an Additional Assistant Engineer with the Andhra Pradesh Generation Corporation (henceforth referred to as ‘AP GENCO’), with the following prayer: “ For the reasons stated in the affidavit in support of the Writ Petition the petitioner herein prays hat this Hon’ble Court may be pleased to issued the directions to the 1st and 2nd respondents for strict implementation of the Reg. 6(b) of APGENCO, erstwhile APSEB Service Regulations, Part III, Annexure III of 3(iv) the eligibility of the qualifying service for Diploma Engineers acquires 15 years service from the date of joining in the organization for the promotion of ADE irrespective of the ratio, he branch of engineering and vacant position of Graduate Engineers pending disposal of the above Writ Petition in the interest of the justice and to pass such other and further orders as this Hon’ble Court may deem fit and proper in the circumstances of the case or else the petitioner will suffer irrecoverable loss and injury.” The case of the writ petitioner is that he holds diploma in Mechanical Engineering and joined the service of the Andhra Pradesh State Electricity Board (APSEB), the predecessor to AP GENCO, as a Sub-Engineer – Mechanical, in the year 1990. He was promoted as an Additional Assistant Engineer in the year 1999. He has gained experience by working in various Engineering branches and sections. Presently, he is working at Gas Turbo Power Station Vijjeswaram near Rajahmundry. His grievance is that his case for promotion to the next higher post of Assistant Divisional Engineer (ADE) has not been taken up, notwithstanding his fulfilling the requisite length of service and possessing the necessary academic qualifications and also maintaining a meritorious record of service. The grievance of the writ petitioner is that a non-graduate diploma holder is required to put in longer length of service to become eligible for promotion to the next higher category than a graduate Engineer. That apart, a quota is also prescribed between graduate Engineers and non-graduate Engineers. Further, they are also required to undergo an eligibility test. These factors of discriminatory treatment meted out to the diploma holders, is violative of the fundamental rights guaranteed to them, in the matter of consideration of their cases for promotion to the next higher post. Hence, he has instituted this Writ Petition. Sri P.S. Bhargava, Law Officer of AP GENCO, filed a counter- affidavit in the matter on behalf of the respondents. It is submitted that as per Regulation 6 (a) of the service Regulations framed by the APSEB, in terms of Section 79(c) of the Indian Electricity Supply Act, which are adopted by AP GENCO, the posts of Assistant Divisional Engineers in various engineering branches of the service are liable to be recruited one by the method of direct recruitment and the other by way of promotion from amongst the full members of the approved probationers in the category of Assistant Engineers and Additional Assistant Engineers/Draughtsmen Grade-I. Out of five vacancies of Assistant Divisional Engineers, the first vacancy was to be filled in by the candidates selected through the limited recruitment process, the next three by way of promotion from the category of Assistant Engineers and the 5th vacancy is to be filled in by way of promotion from Additional Assistant Engineers/Draughtsmen Grade-I. As per Regulation 14, the qualifications that are prescribed for one to become eligible through the method of promotion are these: Sl. Name of the Post Class and category of % of vacancies to No. Service be filled up by direct recruitment 1. Asst. Divl. Promotion (i) Must possesses B.E. Degree Electrical Engineer or Civil or Mechanical or Telecommunication as the case may be of a university in India established or incorporated by or under a Central Act, Provincial Act or a State Act or any qualification recognized as equivalent thereto and have served as Asst. Engineer for a period of not less than five years; OR (ii) A pass in Sections “A” and “B” of the Institution of Engineers in Electl. or Civil or Mechanical Group examinations as the case may be and service as Addl. Asst. Engineer thereafter for not less than 5 years; OR (iii) Must hold LEE, LCE or LME diploma, as the case may be or any other qualification recognized as equivalent thereto, and must have put in a minimum service of 10 years as Addl. Asst. Engineers; OR (iv) Must possess the LEE, LCE or LME diploma as the case may be or any other qualification recognized as equivalent thereto and must have put in a total service of not less than 15 years if promoted as Addl. Asst. Engineer from the category of Overseers. (v) In the case of Draughtsman, Draughtsman first grade must possess LEE,LCE or LME diploma, as the case may be, or any equivalent qualification and must have put in a service not less than 12 years as Draughtsman I grade of which two years shall be field service as Addl. Asst. Engineers. Note: Post Graduate qualification of an Indian or of Foreign University shall be treated as an additional qualification. Preference being given to such candidates in the matter of direct recruitment or recruitment by transfer to the posts of Assistant Engineers. (vi) Must have also rendered a minimum service of 3 years in Generating Stations out of the service referred to in (i) and (ii). Provided that Asst. Engineers whose cases come up for consideration for promotion prior to 31.03.1987 and who have not been able to put in the qualifying service of 3 years in Generating Stations in part or in whole for no fault of theirs, may be promoted and posted in Generating Stations or EHT sub-stations so as to acquire the requisite qualification after promotion. Their promotion will commence from the date they join duty in the Generating Stations to which they are posted.” --------------------------------------------------------------------------------- In view of these specific requirements of the Regulations, the contention of the writ petitioner that there is discrimination in the matter of consideration of his case is ill-founded. Heard Sri R. Chalapati Rao, the writ petitioner, who preferred to appear in person and Sri C. Raghu, learned Standing Counsel for AP GENCO. Sri Chalapati Rao submits that as soon as one completes ten years of service as an Additional Assistant Engineer, his case can be taken up for consideration for promotion. In the event a candidate does not possess ten years of such service, the next alternative method of reckoning total service of 15 years should be adopted by the Board. When so counted, he having joined the service in the year 1990, had become available and eligible for promotion by the year 2005 itself. However, because of the discriminatory treatment towards diploma holders, the respondents have denied him the consideration for promotion itself. This apart, Sri Chalapati Rao would further contend that when once a graduate Engineer and a diploma holder are both recruited as Assistant Engineer and Additional Assistant Engineer respectively, the distinction lies only in their designations, but not in discharging their duties and responsibilities. Both the Assistant Engineers as well as the Additional Assistant Engineers perform the same nature of duties and responsibilities. They are transferred one against the other and they discharge identical nature of duties and responsibilities. Hence, there could not have been a further quota to regulate their further promotion. Sri Chalapati Rao further submits that there are any number of instances where the diploma holders have fared much better than the graduate Engineers and therefore, preferential treatment meted out to graduate Engineers clearly amounts to discriminating the diploma holders. He also places strong reliance upon the judgment rendered by the Supreme Court in Dilip Kumar Garg and another v. State of U.P. and others, Civil Appeal No 5122 of 2007, decided on 03.03.2009. Regulation 6 read with Annexure III of the Regulations make this very clear: the posts of Assistant Divisional Engineers are liable to be filled in both by the method of direct recruitment as well as promotion. We are only concerned with the promotional source of recruitment in the instant case. Promotions also can be resorted to from three separate classes of employees; 1) graduate Assistant Engineers; 2) non-graduate diploma holder Additional Assistant Engineers; and 3) Draughtsmen Grade-I. A graduate Engineer is required to put in a minimum of not less than five years of service as an Assistant Engineer, whereas a person possessing a diploma qualification in Electrical Engineering or Civil Engineering or Mechanical Engineering or any other qualification recognized as equivalent thereto, must put in a minimum service of ten years as Additional Assistant Engineer. Further, such of those diploma holders, who have been promoted as Additional Assistant Engineers from the category of Overseers are required to put in a total service of not less than 15 years, whereas Draughtsmen Grade-I , who possess a diploma qualification are required to put in a minimum of 12 years of service as such, to become eligible for consideration for promotion to the next higher post of Assistant Divisional Engineer. The rule-making authority therefore, has prescribed varying lengths of service as to render one eligible for consideration, depending upon the academic qualifications he possesses and the post which he holds. As was already noticed supra, such of those candidates, who possess graduate Engineering qualification or equivalent qualification, are required to put in minimum of five years of service as Assistant Engineers. A diploma holder Additional Assistant Engineer must put in a minimum of ten years of service to become eligible for consideration for promotion as Assistant Divisional Engineer. A diploma holder Overseer, who was promoted as an Additional Assistant Engineer, was required to put in not less than five years of total service. A diploma Draughtsman is required to put in 12 years of service as Draughtsman Grade-I. The writ petitioner was not promoted from the source of Overseer as an Additional Assistant Engineer. Therefore, he cannot claim the benefit of the total length of service of 15 years. As of now, the category of Overseer may not be in existence, but however, if the Regulations have not been amended appropriately, it is not for the Court to substitute the requirements by undertaking suitable modifications or alterations to the Regulations issued by the Board. Therefore, the writ petitioner was required to put in a minimum of 10 years of service in the rank and category of Additional Assistant Engineer only to acquire the eligibility to be considered for promotion to the rank of Assistant Divisional Engineer (ADE). The writ petitioner himself has claimed in paragraph 2 of the affidavit filed in support of this Writ Petition that he was promoted as an Additional Assistant Engineer in the year 1999 from the category of Sub-Engineer-Mechanical. Hence, the ten year length of service has got to be computed in his case from the date on which he was so promoted in the year 1999. Therefore, the contention of Sri Chalapati Rao that the combined or total length of 15 years of service should be taken into account and consideration to treat him to have become eligible for promotion as Assistant Divisional Engineer is not liable to be accepted. It is true, as contended by Sri Chalapati Rao, that on 12.10.2010, the respondents, through their G.O.O. No. 378, have promoted several candidates as Assistant Divisional Engineers. It is also true that 164 Assistant Engineers of Electrical branch and 19 Assistant Engineers of Mechanical Engineering branch, thus totaling to 183, have been promoted as Assistant Divisional Engineers, through G.O.O. No. 378, on 12.10.2010. But, however, the respondent Board has only promoted 9 Additional Assistant Engineers, who were all diploma holders from the Mechanical Engineering branch. These, 9 names are arranged reflecting their inter se seniority position, commencing with Sri P. Satti Raju, ending up with Sri P.T. Ramadhyani. There is no specific averment that has been brought on record by the writ petitioner by raising suitable additional grounds in this respect, except making a mention of the same in the reply affidavit filed by him to the counter- affidavit. However, Sri C. Raghu, learned Standing Counsel, who received instructions in the matter, has confirmed the fact that only 9 Additional Assistant Engineers from the Mechanical Engineering branch have been promoted as Assistant Divisional Engineers and the last man to be so promoted was Sri P. T. Ramadhyani. The learned Standing Counsel has also confirmed, upon instructions, that as per the provisional seniority list of Additional Assistant Engineers (Mechanical) prepared as of 01.07.2009, the name of the writ petitioner, Sri R. Chalapati Rao figures at Sl.No. 22, whereas, the names of those 9 Additional Assistant Engineers (Mehanial), who have been promoted on 12.10.2010, are figuring from Sl.No. 9 onwards. Sri P.T. Ramadhyani was included at Sl. No. 21 in the said list. As was already noticed supra, the name of the writ petitioner stands at Sl.No. 22 immediately next to that of Sri P.T. Ramadhyani. It is therefore, submitted by the learned Standing Counsel that it is the writ petitioner who is the next in line to be considered for promotion as Assistant Divisional Engineer, from the source of Additional Assistant Engineers (Mechanical). He also submits that in the absence of any fixed proportion in which the vacancies are required to be filled in amongst the Electrical Engineers and Mechanical Engineers, the Board is prompted by considerations of operational necessities in considering their cases for promotions. As and when the Mechanical Engineers are needed to be promoted and as and when their cases are taken up for consideration for promotion, the writ petitioner is the next man from the source of diploma holder Additional Assistant Engineers to be promoted. The learned Standing Counsel, Sri C. Raghu, also assures this Court that an appropriate decision to undertake such promotions would also be taken within a reasonable period of 3 to 6 months. Therefore, the learned Standing Counsel submits that as of now, no junior to the writ petitioner from the rank of Additional Assistant Engineers (Mechanical) having been promoted as Assistant Divisional Engineer, no right of the writ petitioner is violated. It will be important to notice that the Supreme Court in Dilip Kumar Garg’s case (cited supra), was called upon to resolve the issue relating to validity of prescription of varying lengths of services to graduate Engineers and diploma Engineer. After having considered the earlier judgments rendered by it in 1) State of Jammu & Kashmir v. Triloki Nath Khosa[1], 2) Mohammad Shujat Ali v. Union of India[2], 3) Roop Chand Adlakha v. Delhi Development Authority[3], 4) P. Murugesam v. State of Tamil Nadu[4], 5) J. Ranga Swamy v. Government of Andhra Pradesh[5], 6) State of Rajasthan v. Lata Arun[6], the Supreme Court had concluded the issue in the following manner: “ In our opinion, Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a Court of Appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. (See Union of India v. Pushpa Rani and others 2008 (9) SCC 242 and Official Liquidator v. Dayanand and others 2008 (10) SCC 1). The decision to treat all Junior Engineers, whether degree holders or diploma holders, as equals for the purpose of promotion is a policy decision, and it is well- settled that this Court should not ordinarily interfere in policy decisions unless there is clear violation of some constitutional provision or the statute. We find no such violation in this case. In Tata Cellular v. Union of India, AIR 1996 SC 11, it has been held that there should be judicial restraint in administrative decision. This principle will apply all the more to a Rule under Article 309 of the Constitution.” Respectfully following the ratio laid own by the Supreme Court in Dilip Kumar Garg v. State of U.P. (cited supra), I am afraid that this Writ Petition cannot be allowed in terms of the prayer sought for by the writ petitioner. However, I trust and hope that the respondent Board would take up the issue for consideration of the cases of eligible persons for promotion as Assistant Divisional Engineers against the existing vacancies, as aspiring for promotion is a wholly legitimate aspiration on the part of the employees, who render considerable length of service in the organization. With this, the Writ Petition is dismissed, but however, without costs. A copy of this order be made available to the writ petitioner as well as the respondents within one week from today. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 3rd March 2011 ksld [1] AIR 1974 SC 1 [2] AIR 1974 SC 1631 [3] AIR 1989 SC 307 [4] (1993) 2 SCC 340 [5] AIR 1990 SC 535 [6] AIR 2002 SC 2642