Kulbir Bhushan Goel vs State of Punjab

K. Kannan, J.—The writ petitions as they were originally filed were only against the State functionaries particularly the Irrigation and Power Department represented through their Chief Engineers and the Punjab Public Service Commission. Subsequently after long number of year of more than 15 or 16 years during the pendency of the writ petitions, the candidates against whom the petitioners have a grievance that they should have not been granted the posts of Sub Divisional Officers, they have been impleaded. At the time of impleadment, I notice from the file that there had been an objection taken that it was grossly belated and that they should not be entertained. The Court, however, held the impleadment to be ordered and directed the consideration on merits of the contention namely of whether the petitioners have been guilty of laches at an appropriate time.

The writ petitions grapple with an issue which is long standing battle between graduate engineers and diploma holders. During the period when there existed a sure qualification criterion regarding passing of graduate engineering courses for consideration to the appointment to the post as SDO, the appointment was originally considered under Punjab Service of Engineers Class II (PWD Irrigation Branch) Rules of 1941. The trouble started when some instructions were given assigning certain quota for persons for promotion and in the manner of determination of quota for persons in the lower rank as Junior Engineers, there had been no educational qualification specification spelt out except the number of years of service. Consequently, persons who had only diploma qualifications were vying for competition to the promotion posts with the graduate engineers. Admittedly, all the petitioners are persons who have qualified AMIE examination, treated as equivalent to a bachelor''s degree in engineering. All the private respondents who had been subsequently impleaded were persons who did not have a graduate educational qualification but they had been promoted by virtue of the fact that they were treated as seniors in the lower rank.

The challenge to the promotion was mounted in a writ petition brought before the Court by one Gurmej Singh and others Vs. State of Punjab in C.W.P. No. 16691 of 1997 and another in a case titled Hari Krishan and others Vs. State of Punjab and others in C.W.P. No. 12725 of 1997. It could be noticed that these two writ petitions were subsequent to the institution of the first petition in C.W.P. No. 15731 of 1991. At the time when the writ petition was filed all that they were claiming was that they must be taken as promoted on 10.10.1991 and that the promotion given to the diploma holders was not valid. The institution of the subsequent writ petitions came to be disposed of earlier recording the fact that 1941 Rules did not allow for persons who did not have graduate qualification in engineering to be appointed as SDOs and consequently any notification that allowed for promotion was to be seen as contrary to the Rules. The decision of this Court was affirmed by the Supreme Court in Subhash Chander Sharma Vs. State of Punjab along with yet another case in State of Punjab Vs. Hari Krishan decided on 14.05.1999 and reported in 1999 (5) SCC 171. These decisions held that the notifications were bad in law and the diploma holders could not be said to be having necessary qualification for being appointed as SDOs.

At some point of time, there have been some changes made and the Rules themselves were modified in 2004, relaxing the qualification regarding diploma holders and making possible the diploma holders with appropriate years of experience as also eligible for consideration to the post of SDO.

The amending petitions themselves have been brought only to incorporate the judicial affirmation of what petitioners were contending for, namely, that they were entitled for promotion in the vacancy positions that existed and the appointments made to the diploma holders were not valid. In this case, the petitioners have modified the prayer in the writ petition that they must be filled up in the vacancies that would fall in the wrong posting given to the diploma holders.

I do not think that there is any new case which is put up by the petitioners by virtue of amendment to the pleadings. If the private respondents have been impleaded as parties, it is on account of the fact that there was a judicial affirmation of the petitioners'' claims to subsequent pronouncements and it was merely to secure the relief in their presence that they had been impleaded. Actually if only any decision is sought to annul an appointment already made, it could be taken as belated and such an amendment ought not to be permitted. In this case, I do not think any purpose would be served by vacating the private respondents from the offices which they respectively held. It is a matter of record that there have been amendments to the Rules in the year 2004 when the diploma holders were also given the benefit of being considered for the posts of SDOs. All that can be seen is that the law of what the Supreme Court stated in confirmation of the order passed by this Court was that the graduate engineers alone should have been considered at the time when vacancies arose. If in those vacancies, persons who were not graduate engineers had been appointed, it must be assumed at least that they were not filled up in accordance with law and therefore, the petitioners who had the necessary qualifications were to be taken as eligible for appointment and actually appointed on that day. I cannot find that there is any delay in filing the writ petition itself. As a matter of fact, the petition came to be filed immediately after a decision was taken rejecting the petitioners'' claim for consideration to the post of SDO.

I will, therefore, hold that there is nothing new to be decided in view of the decisions already made by the Division Bench and as affirmed by the Supreme Court that the 1941 Rules did not allow for consideration of diploma holders to the post of SDO and if they had been appointed for such posts, it was not valid in law and the petitioners were entitled to be considered for promotion to the vacancies that existed.

After the private respondents have been impleaded, it has been contended by them in their reply that even while the Supreme Court was deciding the case while addressing the grievance of some of the diploma holders who had been appointed in the year 2000, the Supreme Court pointed out few exceptional situations of how the Rules of 1941 themselves provided for consideration of persons who did not have the necessary qualification if they had exceptional merit. The contention has been, therefore, that the respondents were persons of exceptional merit and therefore, they were lawfully appointed. I find such a contention to be not worthy of acceptance only because when orders of appointment were issued promoting the private respondents, there was no reference to the fact that they were being appointed in consideration of any exceptional merit. On the other hand, the appointments had been made by giving effect to a notification that allowed the period of service to a lower post alone as relevant without minding the rule requirement that to the post of SDO, there was also a need for a person to be a graduate engineer. It was in that context the Supreme Court held that the notifications were contrary to the Rules and hence unenforceable. The persons who had been seeking for justification of the appointments on the ground that notification had given effect to their claims legitimately cannot turn around to say after the notifications held to be bad that their appointments were in consideration of exceptional merit. So long as the orders of appointment themselves do not show any such special consideration on merit, it must only be taken that the petitioners lost out their consideration to the appointment to higher post only by the wrong appointment orders issued to the diploma holders.

After the filing of the petition, one petitioner has expired and many of the petitioners are reported to have also retired. To such of those petitioners who are not before this Court, the consideration of their entitlement shall be on the basis that they were appointed on the respective dates when vacancies arose. The monetary benefits of what the promotion post would have secured to them would require to be calculated and released to the petitioners or their legal representatives.

While considering the writ petition in C.W.P. No. 18332 of 2009, it must be noticed that the reply has brought out the fact that graduate engineers were actually occupying the post far in excess of the quota which was prescribed and therefore, it is not possible to accommodate them in the higher post. It must be remembered that quota as if existed in the year 1991 is what is relevant. It will be wrong to invoke the quota as was brought through the 2004 amended Rules. We are recreating the situation of the respective petitioner''s rights as they existed in the year 1990 and 1991. The 2004 Rules dispensation is not that 40% of the total number of posts were served for promotion quota and out of 40%, 20% were for diploma holders with 10 years experience and 5% for diploma holders with 10 years experience in such a way that 20% was for diploma holders in civil and 5% for diploma holders in mechanical. 13% was reserved for graduate engineers with 3 years experience and 2% for persons in drawing and draftsman cadre. We cannot invoke the percentage of reservation that were admissible in the year 2004 to consider whether the persons that held the promotion post were within the quota. The quota as if existed in the year 1990 will have to be redrawn. The list of graduate engineers who were occupying the post as junior engineers and who had the necessary qualification will have to be redrawn and the respective petitioners in the order of seniority will have to be fixed to the vacant posts till they are exhausted. If only all the existing numbers among the petitioners are fully absorbed in the vacant posts, the question of consideration of diploma holders in terms of 2004 Rules after the rules came into effect could be considered.

By this order, I do not mean to vacate the posts which were held by the private respondents. It is a fait accompli that allowed for application of wrong rule and provided for an officiation in the promoted post. They have held the posts and they have also drawn the salary. There is no question of calling for any refund. If after re-assigning the petitioners to the posts which they were entitled if there are still vacancies, respondents could be considered legitimately. If there no posts which are available even as per 2004 Rules, then only the respondents could be reverted to the lower posts.

With these observations the writ petitions are allowed. The monetary benefits which the petitioners are entitled to shall be calculated and released to them within a period of 12 weeks.