N.K. Jindal and Others vs State of Himachal Pradesh and Another

Chet Ram Thakur, J.—The-Petitioners have challenged, the vires of the rules known as "The Recruitment and Promotion Rules" in respect of the posts of the Assistant Engineers (Civil) Himachal Pradesh Public Works Department (enclosure I to Annexure PE) (hereinafter called the Rules of 1973). According to Rule 10 of these rules the method of recruitment to the post of Assistant Engineer is by direct recruitment 50 per cent and by promotion 50 per cent. Under Rule 11 the recruitment by promotion is to be made from amongst Sectional Officers having seven years regular service and unqualified Sectional Officers with fifteen years service 45 per cent and Draftsmen cadre who have passed at least Matriculation or its equivalent Examination and possess two years Diploma in Draftsmen course from a recognized institution having ten years regular service as such 5 per cent. Under Rule 14 which is a saving clause it has been provided:

(i) All ad hoc appointees upto 27-11-1972 shall be appointed regularly subject to their being found suitable by the Himachal Pradesh Public Service Commission.

(ii) Graduate Engineers shall be recruited directly as Assistant Engineers in future and not as Junior Engineers unless a Degree-holder voluntarily applies for the post of Sectional Officer and is selected for the same. His future promotion will be made strictly on the basis of his seniority in the grade of Sectional Officer.

The Petitioners are all Engineering Graduates of recognized Universities and that pursuant to an advertisement issued by the Himachal Pradesh Public Service Commission on 29th June, 1972, they applied for the posts of Junior Engineers (Civil) Class III) in the Department of Public Works, Himachal Pradesh, in the pay scale of Rs. 200-10-280/15-430/20-450. It is further stated that ten advance increments were admissible subject to the approval of the competent authority. The Petitioners were selected and were appointed and were also given ten advance increments as advertised. The Petitioners were governed by the rules known as "Recruitment and Promotion Rules" pertaining to the Posts of Assistant Engineers (Civil) in the Public Works Department, Himachal Pradesh, notified on 22nd June, 1972. Under these rules, there were two categories provided for the purposes of recruitment to the posts of Assistant Engineers. There was a clear distinction drawn between a Junior Engineer and Sectional Officer. The scale for the Junior Engineers as also the Sectional Officers was the same except that the Junior Engineers who were graduates were allowed ten advance increments. The Junior Engineers were those who were the holders of the degree in engineering and the Sectional Officers were those who were the diploma holders. The next promotion for a Junior Engineer was that of an Assistant Engineer. According to the Rules of 1972, there were two methods of recruitment to the post of the Assistant Engineer (Civil):

(i) 25 per cent of posts were to be filled by direct recruitment, and

(ii) 75 per cent of posts were to be filled by promotion.

As regards the promotion, the field of choice was as follows:

(i) From amongst Junior Engineers having one year''s regular service 40 per cent.

(ii) From amongst Sectional Officers (diploma holders) having seven years'' regular service 20 per cent.

(iii) From amongst members of the Draftsmen cadre who have passed at least Matriculation or its equivalent examination and possess two years'' Diploma in Draftsmen course or its equivalent having ten years'' regular service 5 per cent.

(iv) From amongst the members of the services of the Sectional Officers and Draftsmen as mentioned at S. No. (ii) and (Hi) above who possess a Degree in Civil Engineering or have passed A.M.I.E. or its equivalent 10 per cent.

The routine or the cycle in which the posts were to be filled was prescribed as:

BCBAEBCABD BACBEABCBA

''B'' Stood for Junior Engineers with one year''s regular service.

''A'' stood for direct recruits.

''C stood for direct recruits with seven years'' regular service.

''D'' stood for members of the Draftsmen cadre as given in (iv) above.

''E'' stood for the members of the service of the Sectional Officers and Draftsmen as mentioned at (iv) above.

So, according to the Petitioners they were a separate class having better qualifications and better Conditions of service. They formed a separate cadre by themselves and were never merged in the cadre of Sectional Officers. According to the Petitioners this cadre still has not yet been disturbed but the Junior Engineers are also being treated as a separate class even under the new rules. The seniority list of the Sectional Officers was separate and that of the Junior Engineers was also separately maintained.

The Rules of 1973 repeal the previous Rules of 1972. In these rules the conditions of service of the Petitioners were drastically changed. The Petitioners have been denied the promotion for all times to come without there being any basis for the same. In case they apply directly, they would be denied the advantage of the service already rendered whereas the advantage of previous service is given to the Sectional Officers and all other categories.

The Respondents 1 and 2 admitted the appointment of the Petitioners as Junior Engineers in the scale of Rs. 200-450 with ten advance increments and also admitted the method of recruitment as provided under the Rules of 1972. But submitted that there were representations from the various Associations of Graduate Engineers, Diploma Holders, etc. and the Recruitment and Promotion Rules of 1972 were, therefore, superseded and fresh Recruitment and Promotion Rules were notified on 20th June, 1973. It was averred that the seniority list of the Sectional Officers and the Junior Engineers was combined and there was no separate cadre for the Junior Engineers. However, for purposes of eligibility for promotion, the lists of Junior Engineers were being drawn separately. The Junior Engineers can apply to the Commission for consideration of their appointments against direct recruitment quota. The Junior Engineers cannot get double benefit, one by way of promotion and the other by way of direct recruitment.

One Jagdish Rai Gupta intervener also filed his reply to the petition and raised the objection that the petition was belated and further that the same has become infructuous in view of the Himachal Pradesh Government Office Order, dated 25th May, 1974, (Annexure R. I-C).

Apart from the preliminary objection of Jagdish Rai Gupta intervener the main question that calls for determination is the question whether the Rules of 1973 which do not provide for promotion of the Petitioners who belong to the category of the Junior Engineers is violtaive of the provisions of Articles 14 and 16 of the Constitution.

One of the preliminary points is about delay and laches. The impugned rules (enclosure I to the notification Annexure PE) were notified on the 20th June, 1973. The Petitioner have explained in para 9(d) of the petition that when the rules were notified, they represented to the Government through their Association individually vide Annexure PF. Even earlier the Petitioners had been meeting the Hon''ble Minister for Public Works Department and had been trying to meet the Chief Minister. When the Petitioners and others waited on the Hon''ble Minister for Public Works Department, he was pleased to put a note on the representations of the Petitioners to the effect that there had been injustice done to the Junior Engineers. Earlier some assurances were given in the months of October and November, 1973, to the effect that some amendments would be effected so as to accommodate the interests of the Petitioners by the Public Works Minister and the Chief Engineer. However, when another advertisement appeared from the Public Service Commission, Himachal Pradesh, which is Annexure P. G. the Petitioners were informed that the rules could not be amended and as such the Petitioners are left with no other course except to file the writ petition. This Annexure P. G., it appears, was issued somewhere by the end of December or in the beginning of January, 1974, and this writ petition was also filed on the 8th January, 1974. Since the Petitioners had been making representations and they had been given assurances that the rules were being amended, therefore, in these circumstances, I am of the view that there is no delay in filing the writ petition and the objection, therefore, has no substance.

The second objection is that the Government had amended the rules by issuing the order, dated 25th May, 1974, (Annexure R.I.G) and as such the petition has become infructuous. I have seen the Office Order. This office order states that the Government had decided that the designation of the post of "Overseer/Sectional Officer" in the Himachal Pradesh Public Works Department shall be changed to "Junior Engineer" with immediate effect. This will, however, confer no right on the officials concerned to claim any change in their emoluments including scales of pay, and other conditions of service, which will remain unchanged.

The new designation shall be deemed to have been substituted in the relevant Recruitment and Promotion Rules pending formal amendment to this effect in these rules.

The Rules of 1972 and 1973 are framed by the Governor in exercise of his powers under Article 309 of the Constitution whereas the office order does not amount to the framing of the rules under Article 309 so as to have the effect of amending the previous rules. It is only an office order, which is an executive order and cannot be treated as a notification issued under Article 309. Until the rules are amended it cannot be said that the Sectional Officers also have become Junior Engineers by virtue of the amended rules. In I.N. Saksena v. The State of Madhya Pradesh (1967 S. L. R. 204) where the question was whether a memorandum containing executive order (pending necessary amendment in rules) itself amounts to rule under Article 309, it was held that a memorandum not published in the Gazette and which is in the form of a letter addressed to certain Heads of Departments is a mere executive order of the Government. This office order also cannot take the place of a notification issued under Article 309 so as to have the effect of amending the rules. Moreover, it is apparent from Para 2 of the office order that the designation shall be deemed to have been substituted in the relevant Recruitment and promotion Rules pending formal amendment to this effect in these rules which means that the rules had not been formally amended. Therefore, this executive order has got no effect of amending the rules so as to say that the Sectional Officers also have become the Junior Engineers and that the petition, therefore, has become infructuous. Therefore, this point has also got no force.

Now we have to see whether these rules violate the provisions of Articles 14 and 16 of the Constitution. It is a common case that the Petitioners were recruited as Junior Engineers in pursuance of an advertisement. Though the scale of pay is Rs. 200-450, which is the scale allowed to the Sectional Officers who are only diploma-holders yet the Junior Engineers, who admittedly were Graduates in Engineering were allowed ten advance increments, thus giving them an edge over the Sectional Officers at the initial stage of their appointment. It is also not denied that under the Rules of 1972, promotion to the post of Assistant Engineer was to be made in the manner that 25 per cent of the posts were to be filled in by direct recruitment and 75 per cent posts were to be filled in by promotion. As regards the promotion quota 40 per cent was from the Junior Engineers, with one year''s regular service, and 20 per cent from amongst the Sectional Officers, having 7 years'' service, and the remainder percentage was to be filled from amongst the Draftsmen. Therefore, it is evident that under the rules the Petitioners though were in the scale of Sectional Officers but they were designated as Junior Engineers because of their better and higher qualification and they were also given higher start by grant of ten advance increments in the scale. Further, the quota reserved for promotion under the rules for the Junior Engineers was 40 per cent, with one year''s service. In so far as the seniority list, according to the Respondents, of these two sets of officers, i. e. Junior Engineers and the Sectional Officers, was concerned, it was the same but for purposes of eligibility for promotion to the higher grade they were drawn separately. Now what happened in the year 1973 is that the Government repealed the Rules of 1972 by the Rules of 1973, whereby the promotion to the next higher post of Assistant Engineer was confined only to the Sectional Officers, with seven years'' service, unqualified Sectional Officers with 15 years'' service and Draftsmen cadre possessing Matriculation certificates and having put in ten years'' regular service. This promotion quota was fixed at 50 per cent and the other 50 per cent was by direct recruitment possessing a Degree in Civil Engineering or equivalent thereto. In so far as the Junior Engineers who under the Rules of 1972 were eligible for promotion after one year''s service were concerned they were altogether omitted from the rules thereby denying the right of Promotion to the Junior Engineers already promoted. No doubt, future recruitment could be made from the open market for the posts of Assistant Engineers to the extent of 50 per cent of persons possessing a Degree in Civil Engineering or its equivalent, but in so far-as the Petitioners, who had been appointed specifically as Junior Engineers and the Rules of 1972 made them eligible for promotion after one year''s service, were required to be protected from the operation of these rules. But these rules have now been repealed so as to take out altogether the category of the Junior Engineers for purposes of promotion. Therefore, these Junior Engineers who were required to apply, vide Annexure PA and have been selected, have totally been barred for the higher post unless they resign the post as Junior Engineer and apply afresh for the post of Assistant Engineers, with the result that they shall have to forego their past service rendered by them as Junior Engineer and they shall have to stand along with others of the same qualification as fresh recruits for purposes of selection for the post. This has been done by the Respondents 1 and 2, on the ground that there were representations from various Associations of Graduates/Diploma-holders, etc. The recruitment and promotion rules notified by the Government, vide notification No. 1-16/69-PWD, dated 22-6-1972 were, therefore, superseded and fresh recruitment and promotion rules were notified. It is stated by the Respondents further that seniority list of Sectional Officers and Junior Engineers was combined and there was no separate cadre for the Junior Engineers. If that was so, there did not appear to be any justification for the Respondents to have discriminated the Petitioners and they have, therefore, been denied an equal opportunity in the matter of public employment. The reason that there were representations from various Associations, hence these rules were superseded, is also not sound, inasmuch as under the pressure of these persons the Respondents 1 and 2 have discriminated the Petitioners by deleting this category from their eligibility for purposes of promotion to the next higher rank of Assistant Engineer.

In The Punjab State v. Lekh Raj Bowry 1967 P. L. R. 960 it has been held, that, nothing prohibits the State from initially giving different scales of pay to persons holding different qualifications at the time of their initial appointment or from constituting different grades in Government service. But meeting out of different treatment to members of the same cadre in the matter of their emoluments which is one of the most important condition of service, is not allowed under the Constitution. Equality of opportunity guaranteed by Clause (1) of Article 16 of he Constitution does not end with the stage of initial appointment, but would inevitably govern all matters relating to employment including, questions of emoluments, chances of promotion, etc. A similar view has been taken in Hans Raj Singh v. The State of Punjab 1968 S. L. R. 608 . It has also been held in Raghunath Gopal Manjire and Another Vs. The Competent Authority and Others, that Rule 3 of; the Rules framed by Gujarat Government under Article 309 of the Constitution for the appointment of Deputy Collectors and the second proviso to Rule 1 of the Bombay Civil Services Classification and Recruitment Rules which was similar to Rule 3 of Gujarat Rules were violative of Articles 14 and 16 of the Constitution of India. Directly recruited Mamlatdars and promotee-Mamladars both have same designation, same pay scale, and same functions and their posts are inter changeable. They, therefore, form one class and Government cannot discriminate between them in the matter of their further promotion to the posts of Deputy Collectors.

It is, therefore, evident that here though the Petitioners who were given this designation of Junior Engineers by way of respectability and were granted ten advance increments because of their possessing higher qualification, perform the same functions and their posts were also inter-changeable with the Sectional Officers and, therefore, the Petitioners have wrongly been omitted for purposes of eligibility of promotion by deletion of the rule and thereby they have been discriminated, inasmuch as they have been denied any right of consideration, whereas the Sectional Officers are eligible. Therefore, this rule is in infraction of Article 16 of the Constitution.

Similarly the Andhra Pradesh High Court in T. Chalamaiah and Ors. v. The Government of Andhra Pradesh and Anr. 1973 (2) S. L. R. 816 struck down the Rule 4(4)(6) of Andhra Pradesh Panchayat Raj Engineering Service (Special Rules) as being violative of Article 14. The rules excluded those Supervisors who had passed the Government Technical Examination from aspiring for promotion as Assistant Engineers, and it was held that there is nothing in the rules to indicate on what basis or having what object in view such of those Supervisors who have passed the Government Technical Examination have been made ineligible for promotion as Assistant Engineers. The question is not whether the Government can make rules prescribing qualifications for the next higher post, but whether there is any rationale behind the present classification so as to exclude those who passed the Government Technical Examination. Just as the rule provides for L. C E. diploma holders with 10 years of service of Lower Subordinate with 20 years of service as being eligible for Assistant Engineer''s post, the rule could as well have provided fixing some years of service for such of those Supervisors who have passed the Government Technical Examination. Further, it is not in dispute whether a Supervisor is a diploma holder or has passed the Upper Subordinate Engineering Examination or the Government Technical Examination or Lower Subordinate, they are entrusted with the same kind of work and their job carries the same responsibilities. Therefore, on the basis of this authority also it is evident that the Petitioners have been denied the right for promotion when once they have been selected and appoiligible for consideration for promotion. But as the rules stand, at present, there are no avenues open for them for promotion. Therefore, this is clearly in contravention of the provisions of Article 16 of the Constitution and this rule, therefore, being discriminatory must be struck down.

Learned Counsel for the Respondents had relied on Roshan Lal Tandon Vs. Union of India (UOI), to show that there has been no discrimination and that they were also Sectional Officers. But this is not true as is evident from the Rules of 1972. Though they were Sectional Officers but because of their higher qualification they were designated as Junior Engineers and the eligibility for promotion in their case was one year''s service. This authority, therefore, does not help the Respondents. In fact, what it says is that at the time when the Petitioner and direct recruits were appointed to Grade D there was one class in Grade D formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade D were integrated into one class and no discrimination could thereafter be made in favour of recruits of one source as against the recruits from the other source in the matter of promotion to Grade C.

Next, reliance is placed on P. Anantha Padmanabha Sarma Vs. High Court of Andhra Pradesh and Another, This authority also does not assist the Respondents. It says that the fact that persons who were appointed temporarily under the rules then existing have to be reverted as a result of amendment of rules cannot make the rule itself unreasonable because the persons who are reverted will not suffer any detriment in their parent department. Their service on deputation in other departments will be treated as service in the present department. In fact, the Petitioner who was a Deputy Tehsildar and who had completed five years'' service as an Upper Division Clerk and who possessed all the other requisite qualifications was selected for appointment as Judicial Second Class Magistrate on a temporary basis without rights of probation. The order of appointment was in the following terms:

The Government approve the proposal of the High Court to select the following candidates for temporary appointment to the posts of Judicial Second Class Magistarate purely on an emergency measure without probationary or other rights." Further, it was stated therein that "the selection of the above candidates is purely as an emergency measure and in excess of the proportion between direct recruits and transferees from services which will be decided later on. They will be replaced by the approved candidates regularly selected in accordance with the rules as soon as the latter become available. The temporary appointments are liable to be terminated at any time without notice". Therefore, this case is distinguishable and will not be relevant for the present purposes.

Mythili v. State of Mysore AIR 1969 Mys 59 also has got no bearing because of its different facts.

This was the only point that was argued and I am of the view that the Petitioners who under the Rules of 1972 on the quota basis out of the promotces were eligible for consideration for promotion after one year''s service have been discriminated by the amendment of the Rules of 1973, inasmuch as this class has totally been omitted for consideration for promotion and only the Sectional Officers or the Draftsmen have been made eligible for consideration for promotion to the post of Assistant Engineer. If they want to be appointed to the rank of Assistant Engineers they shall have to resign their posts and apply afresh or stagnate in the cadre of Junior Engineers for whom there is no provision in the Rules and they have, therefore, been denied an equal opportunity for public employment and as such the rules are in violation of Article 16 of the Constitution and the same are hereby struck down and the Respondents 1 and 2 are directed to consider the Petitioners also for purposes of promotion according to the Rules of 1972.