Diploma Engineers Sangh vs State Of U.P. & Ors

The U.P.Service of Engineers (Buildings & Roads Branch) Class II Rules, 1936 were amended by 1987 Amendment Rules and 1997 Amendment Rules providing for separate quotas for promotion. The said Amendment Rules of 1987 and 1997 were challenged in CMWP No.17949/1998 (Atibal Singh vs. State of U.P. and connected cases). On the other hand the diploma holder Junior Engineers had filed CMWP No.42762/2000 (Arvendra Kumar Garg v. State of U.P.) seeking a mandamus directing the State Government to consider them for promotion to the post of Assistant Engineer in accordance with the 1936 Rules (as amended by the 1987 and 1997 Rules). A Division Bench of the Allahabad High Court, by common judgment dated 22.3.2002 allowed CMWP No.17949/1998 and connected cases challenging the 1987 Amendment Rules and 1997 Amendment Rules, but dismissed WP No.42762/2000 filed by the diploma holder Junior Engineers. It held that the Amendments made in 1987 and 1997 were invalid and deemed not to have come into force. It is in view of the said decision dated 22.3.2002, that the State Government issued the office order dated 11.3.2003 proposing to promote Junior Engineers (Diploma-holders) to the post of Assistant Engineers under the 1936 Rules by holding 'interview' as qualifying examination.

30. In the premises aforesaid we dismiss these appeals and affirm the judgment and order of the High Court of Allahabad quashing the said seniority list dated 29.7.1980 together with supplementary seniority lists dated 18.12. 1980 and 19.12. 1980 relating to Civil Engineering Wing. Rules 3(c), 5 and 6 of 1969 Rules as well as Rule 23 of 1971 Rules are also quashed. The condition in Office Memorandum dated 21.1.1980, Annexure 2 of Writ Petition No. 2447 of 1980 providing that for the selection for the post of Superintending Engineer the officer must be a confirmed Executive Engineer is quashed. A writ of mandamus be issued directing the Government to prepare a fresh seniority list of Engineers in the Civil Engineering and E.M. Wing respectively in the light of the observations made hereinbefore. This order, however, will not affect any confirmations or promotions (other than ad hoc promotions) made before 29.11.1979. In the facts and circumstances of the case, there will be no order as to costs.

Rule 5(iv) and 9(ii) of the 1936 Rules, referred to in the said order dated 11.2.2003 are extracted below :-

In this case, qualifying examination is prescribed as the method of ascertaining the minimum necessary merit. The question is whether 'interview' can be considered as 'qualifying examination'.

We see no reason to interfere with the order of the High Court quashing the office order dated 11.2.2003 and requiring the diploma-holder Junior Engineers to undergo a qualifying examination. We direct the first respondent-Government and third respondent (UP.PSC) to conduct the qualifying examination within a period of four months from today in accordance with the Rules. We, however, clarify that if any of the diploma-holder Junior Engineers have already been promoted as Assistant Engineers in pursuance of the interim order dated 27.9.2004 and are functioning in that capacity as on today, they may continue to hold the said posts on ad hoc basis till regular promotions are made in accordance with the rules. We further clarify that if any of them fails to pass such qualifying examination, they shall stand reverted as Junior Engineers. Subject to the aforesaid observations, this appeal is dismissed. No costs.