The State Of Uttarakhand vs S.K.Singh

1. The dispute pertains to the Irrigation Department cadre of the Uttarakhand State, for promotion from the post of Junior Engineer (for short ‘JE’) to the post of Assistant Engineer (for short ‘AE’), with two groups of these JEs arrayed on opposite sides – one having the 1 qualification of Diploma and the other having the qualification of Degree in Engineering. The promotion quota (the promotion quota is for AEs - they are also being directly recruited) has carved out a provision for accelerated promotion to the extent of 7.33% for the JEs holding a more advanced qualification, of a Degree in Civil Engineering, with which the JEs holding a qualification of Diploma are aggrieved. Facts:

2. On the State of Uttaranchal (now Uttarakhand) being carved out of the State of Uttar Pradesh, an emergent need was felt for appointing inter alia JEs in different departments of the State and thus, an advertisement was issued on 27.11.2001, inviting applications on behalf of the Public Works Department, Irrigation Department, Rural Engineering Service, Small Irrigation Department, Agriculture Department, District Village Development Agency and Panchayati Raj Department for the said purpose. The minimum qualification provided was for a Diploma in Civil/Electrical/Mechanical/Agriculture Engineering. We are, at present, concerned with the Irrigation Department, where 200 posts were advertised for. These posts were filled in by both, the Diploma-holders 2 and the Degree-holders.

3. In order to govern the service conditions of the Engineers in the Irrigation Department, the Uttaranchal Service of Engineers (Irrigation Department) (Group ‘B’) Rules, 2003 (hereinafter referred to as the ‘said Rules’) were notified on 18.2.2003 by the State Government, exercising power under Article 309 of the Constitution of India (hereinafter referred to as ‘the Constitution’). The said Rules provided for recruitment to the next higher post, inter alia to the post of AE (Civil), through the process of 50% by promotion from the JEs and the balance 50% through direct recruitment for which the qualification was, inter alia, a Degree in Engineering. In this 50% by promotion, there was a further break up provided, i.e., 40% was to be through the normal route, on the basis of seniority, subject to rejection of unfit and the remaining 10% of the promotion quota was given to accelerated promotion. Out of this 10% accelerated promotions, 2.67% was meant for certain categories, with which we are not concerned, while 7.33% was meant for JEs (Civil) holding a Degree in Civil Engineering with three (3) years’ service, whereas normal promotion required a minimum service of ten (10) 3 years. An amendment was brought into force on 4.12.2004, which sought to change the ratio of the appointment to the post of inter alia AE (Civil), thereby reducing the direct recruitment quota to 40% and increasing the promotion quota to 60%. The result was that the normal promotion quota was made 50% and the additional 10%, in a sense, was meant for accelerated promotion, as in any case the educational qualifications for direct recruitment was a Degree in Civil Engineering and the accelerated promotion was based on a Degree in Civil Engineering as well. 50% quota for normal promotion was, thus, incorporated instead of the earlier 40%.

6. The Diploma-holders in the post of JEs felt aggrieved as it would result in some of their juniors, who had Degrees, being promoted earlier and, thus, on their ultimate promotion to the post of AE, would rank senior to them. This was also stated in the context of the fact that for further promotions from AE upwards, the essential qualification was only a Diploma, without any quota or accelerated promotion being carved out for Degree holders. These would be all promotion posts without any direct recruitment.

7. The aforesaid gave rise to writ proceedings being filed by the Diploma-holders before the Uttarakhand High Court, and in terms of the impugned order dated 25.8.2011, this accelerated promotion quota was struck down as violative of Articles 14 & 16 of the Constitution, and certain other directions were issued to work out equities on account of the promotions which may have already been made. There are also some other connected matters, which we will come to later, because they are in a narrower compass and we have taken the broad contours of the dispute 5 from the main matter in which the judgment was delivered, i.e., Civil Appeal No.10194/2013.

8. The impugned order was, however, stayed, while issuing notice on 2.4.2012. Subsequent leave was granted and this interim order was maintained. The result has been that for these last eight (8) years, also, the Rules have operated as they are.

10. We are setting forth certain aspects of the former Rules in this behalf, in view of the great emphasis laid on the same by the private respondents (Diploma-holders). In its original avatar existed the United Provinces Service of Engineers (Buildings and Roads Branch) Class II Rules (hereinafter referred to as the ‘1936 Rules’), which were published on 6.6.1936. With the passage of time and different departments coming into existence, specialised Rules were enacted for different departments, one of them being the Uttar Pradesh Irrigation Department Civil Engineer 6 (Subordinate) Service Regulation, 1992 (hereinafter referred to as the ‘said Regulations’), notified on 3.12.1992 by the State Government, exercising its powers under the proviso to Article 309 of the Constitution. The similarity is that the qualification for recruitment as JEs was, once again, a Diploma in Civil Engineering. The Uttar Pradesh Service of Engineers (Irrigation Department) (Group ‘B’) Service Rules, 1993 (hereinafter referred to as the ‘1993 Rules’) were notified on 23.4.1993, and insofar as the posts of AEs were concerned, they were to be filled in the ratio of 2/3:1/3 by direct recruitment and by promotion, respectively. The 1/3 promotion quota was again bifurcated into 24% for promotees with qualification of ten (10) years’ service, while 7.33% was for the persons possessing Bachelors Degree in Civil Engineering, who got an accelerated promotion by being considered after three (3) years of service. The remaining percentage was meant for various other cadres. Once again, direct recruitment required qualification of inter alia a Degree. The scrutiny of this historical aspect significantly shows a similar situation present in Uttar Pradesh. The emphasis on some litigation qua 1936 Rules, is on account of a judgment of the Allahabad 7 High Court1, on a challenge by the degree holders on enhancement of quota for diploma holders for promotion to the post of AE, opining that the fixation of separate quota for degree and diploma holders was unconstitutional.

Conclusion:

33. We are, thus, unequivocally of the view that the impugned judgment cannot be sustained and the challenge to the Rule is misplaced. The consequence would be the dismissal of the writ petition by the Diploma-holders and the appeal of the Government being allowed. Parties are left to bear their own costs.

Civil Appeal No.1317/2015

34. The appeal is dismissed in view of the order passed in CA No.10194/2013 as the appellant sought a greater relief than even that which was granted in the impugned order.

Civil Appeal No.11307/2013

36. The result of the aforesaid is that this appeal is allowed and the 28 impugned order set aside, upholding the relevant Rule. IA No.88765/2018 in CA No.10194/2013 IA No.7/2016 in CA No.11307/2013

37. In view of the disposal of the appeals, no further orders are called for on these applications and the same stand disposed of.

October 14, 2019.

2. In view of the aforesaid, we set aside the impugned order and remit the matter back for consideration in the conspectus of our judgment in Civil Appeal No.10194 of 2013.

October 14, 2019.