Shailendra Dania & Others vs S.P. Dubey & Others

The appellants and the respondents herein are employees of the Slum Wing Department (hereinafter referred as "SWD"). SWD was part of the Municipal Corporation of Delhi (hereinafter referred as "MCD") before 1974. SWD was transferred from MCD to Delhi Development Authority (hereinafter referred as "DDA") in 1974 with the stipulation that its employees alone would be considered for confirmation and promotions against the posts in it. In 1978, SWD was retransferred to MCD, but once again in May 1980 it was transferred back to DDA with the stipulation that it would remain as a separate entity and its employees would not be merged with DDA. For recruitment of various staff members in DDA, vide its Resolution No.574 dated 13.11.1963, DDA adopted Recruitment Rules of CPWD qua the posts of Junior Engineer, Assistant Engineer and Executive Engineer. In the hierarchy of Engineering Cadre, the initial post is of Junior Engineer (Section Officer or S.O.). The post is meant for 100% direct recruitment and the qualification prescribed was "Diploma-holders in Civil Engineering with two years' experience". However, there was no bar for persons possessing higher qualification, viz., Degree in Engineering, for applying to the post of Junior Engineer and such persons were not required to have any prior experience for appointment to the cadre of Junior Engineer in DDA. The next higher post is that of Assistant Engineer. The rule provided filling up of 50% vacancies on the post of Assistant Engineer by those who acquired a Graduate Degree in Engineering by means of direct recruitment or by deputation. The remaining 50% vacancies were to be filled up on promotional basis from the pool of Junior Engineers. Out of 50% of the promotional feeder cadre of Junior Engineers, one-half of such posts would be filled up by promotion of diploma-holders with eight years' qualifying service and remaining 50% quota would be filled up from the Junior Engineers who were Graduate Engineering Degree-holders with three years' qualifying service. Thus, the diploma-holders having eight years of qualifying service and Graduate Engineering Degree-holders with three years' qualifying service would be considered for promotion to the post of Assistant Engineer within their quota of 25% each. Further promotion in the Engineering Branch is from the post of Assistant Engineer to the post of Executive Engineer. The minimum qualifying experience for promotion to the post of Executive Engineer for graduate Engineers is eight years' experience in the grade of Assistant Engineer, whereas for diploma-holders it is ten years' service in the grade of Assistant Engineer.

The appellants were graduates with Engineering Degree and joined the Department as Junior Engineers as direct recruits. On 7.6.1985 and 24.6.1985, some diploma-holder Junior Engineers were promoted on ad hoc basis as Assistant Engineers.

On 1.5.1991, a DPC was held in which the appellants were considered on the basis of their seniority. However, on 5.7.1991, by giving effect to the Memorandum dated 20.9.1990, a fresh DPC was convened which changed the seniority list in favour of the respondents as a diploma-holder who had subsequently acquired a Degree in Engineering would be treated as degree-holder for the purposes of promotion, irrespective of the date of acquiring graduate qualification.

Pursuant to the directions contained in the judgment dated 12.2.1992 of the Division Bench of the Delhi High Court, DDA by a circular dated 30.10.1992 issued tentative seniority list of the Engineers and indicated their placement as per their eligibility for promotion as Assistant Engineer upto 15.10.1992. On 19.3.1993, the final seniority list of graduate Junior Engineers (Civil) indicating their placement as per eligibility for promotion as Assistant Engineer (Civil) was circulated. On 22.3.1993, the appellants were promoted as Assistant Engineers (Civil) on the recommendations of DPC against the vacancies arising during calendar year spanning from 1.1.1988 to 1992 as per the seniority list prepared by the Department in accordance with the judgment dated 12.2.1992 of the High Court. The seniority list so drawn was based on two principles, namely,

Provided further that if there are more than one Diploma-holder Junior Engineer acquiring degree as in (2) above, then they will be assigned inter se seniority according to the order in which their names figure in 1987 list.

SWD was transferred to MCD on 1.9.1992 and hence the appellants moved an application before the High Court. The High Court passed an order on 21.9.1992 that in view of the transfer, the decision of the High Court dated 12.2.1992 would be implemented by MCD within three months from 21.9.1992.

As a necessary corollary, we are of the view that the diploma-holder Junior Engineers who have obtained a Degree in Engineering during the tenure of service, would be required to complete three years' service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diploma-holder Junior Engineers for promotion to the post of Assistant Engineers.

For the above reasons, the appeals are allowed and the impugned judgment of the High Court is set aside. The writ petitions shall now be decided by the Division Bench of the High Court in accordance with law laid down herein. The writ petitions which were transferred to, and registered as Transferred Cases in, this Court, shall also be sent back to the High Court for their decision in accordance with law.