Sharanjit Singh vs State of Punjab and Others

R.S. Mongia, J.—This judgment of ours shall dispose of Letters Patent Appeals No. 303 of 1984, 259 and 295 of 1986.

Letters Patent Appeal No. 303 of 1984 is against the judgment of the learned Single Judge in C.W.P. No. 4553 of 1978. decided on 14th December. 1983: whereas the other two Letters Patent Anneals are against the judgment of the learned Single Judge in C.W.P. No. 2485 of 1983. decided on 6th February, 1986, which have been filed separately by the two writ-Petitioners in this case. At the outset it may be mentioned that the learned Single Judge in C.W.P. No. 2485 of 1983. had followed the judgment of the learned Single Judge in C.W.P. No. 4553 of 1978 and that is why all the three Letters Patent Appeals are being disposed of by this Judgment.

For facility of reference the facts as given in C.W.P. No. 4553 of 1978, against which L.P.A. No. 303 of 1984 has arisen, are being mentioned. The Petitioners (now Appellants) were all members of the Punjab Service of Engineers Class II and were governed by the Service Rules known as Punjab Service of Engineers Class II (Irrigation Branch) Rules, 1941 (hereinafter called the Class II Rules), Rule 4 of the Class II Rules gives the constitution of the Service, which is reproduced below:

Constitution of the Service,-The Service shall consist of:

(a) Existing members of the service.

(b) Officers transferred or promoted from another provincial service, whether in the same of another province, or promoted from the Oversesrs Engineering Service, Irrigation Branch Punjab of Temporary Engineers taken into the service.

(c) Officers directly appointed by Government.

Rule 9 of the Class II Rules provides as to how the seniority of the members of the Service is to be determined. The same is Reproduced below:

Seniority of members of the Service.-Seniority of members of the Service shall be determined in accordance with the order of their appointment to the service.

Provided that-

(i) If two or more members are appointed on the same date, the order of seniority among them will be according to age, subject to provision that if before promotion they were members of the same service their seniority will be the same as in the service from which they were promoted.

By administrative instructions issued from time to time, the State Government prescribed quota of the various sources as indicated by Rule 4(b) ibid. The latest instructions on the point as mentioned in the writ petition, were of 4th May, 1972. which provided for filling of a Class II post as under:

(1) Temporary Engineers 65 per cent

(2) By promotion from members of Overseers Service (Civil & Mechanical) 22 per cent

(18 per cent Civil and 4 per cent Mechanical)

(3) By promotion from Circle Head Draftsman belonging to Draftsmen Tracers Service Class III, P.W.D. (I.E.).

(4) By promotion from members of Overseers Engineering Service and Draftsmen & Tracers Class III passing qualification of AMIE or its equivalent.

The Petitioners were promoted and appointed to P.S.E. Class II from sources mentioned at Serial Nos. 2, 3 and 4 above. All the Respondent belonged to the category of Temporary Engineers (i.e., service) before they were taken into Class II service.

The appointment and conditions of service of Punjab Service of Engineers Class 1 are governed by statutory Rules known as Punjab Service of Engineers Class I P.W.D. (LB.) Rules, 1964 (hereinafter referred to as the Class I Rules). Rule 5 of the Class I Rules prescribes different sources of recruitment to P.S.E. Class. I. which is reproduced below:

Recruitment to service-(1) Recruitment to the service shall be made by Government by any one or more of the following methods:

(a) by direct appointment.

(b) by transfer of an officer already in Class II service of the Government of India or of a State Government.

(c) by promotion from Class II Service.

Rule 2(5) of the Class 1 Rules defines Class II for the purpose of Class I service.

Rule 2(5) is to the following effect:

Definitions-In these rules, unless there is anything repugnant in the subject or context:

...

(5) ''Class II Service'' means the Punjab Service of Engineers Class II in the Irrigation Branch and includes for purposes of promotion to and fixation of seniority in the Class I Service, Temporary Engineers.

It may be noticed here that all the Petitioners before being promoted to Class II service, were officiating as Sub Divisional Officers for a very long period. The grievance of the Petitioners was that under definition of Class II Service in Rule 2(5) of Class I Rules though Temporary Engineers were included but the Officiating Sub Divisional Engineers were not so included, thereby the temporary Engineers stole a march over the Officiating Sub Divisional Engineers when both of them became members of the Class II service, inasmuch as temporary Engineers were considered to be Class II Officers under the above said definition right from the first day they were appointed as such; whereas Officiating Sub Divisional Engineers were not considered members of the Class II service till they were actually promoted as a Class II Officer. According to the writ-Petitioners this was a clear discrimination between two similarly situated classes which were performing the same duties and functions and even the posts were inter-changeable. According to the Petitioners their officiating period as Sub Divisional Engineers should also be included for the purpose of reckoning seniority and for all purposes they should be considered as members of the Class II service right from the date they were made to officiate as Sub Divisional Engineers. The Petitioners challenged the vires of the definition of ''Class II service'' as contained in Rule 2(5) of the Class I Rules.

The learned Single Judge held that Rule 2(5) of the Class I Rules, which defines Class II for the purpose of Class I service, was intra vires and dismissed the writ petition. The learned Single Judge relied on an unreported Division Bench judgment of this Court in (Shri K.L. Puri and Anr. v. The State of Punjab and Ors.) C.W.P. No. 652 of 1967, decided on 21st January, 1970. Dissatisfied with the judgment, they writ Petitioners have come up in these appeals.

The Temporary Engineers are appointed under Paragraphs 8.311 to 8.322 of the Manual of administration, Public words Department, irrigation Branch, copy 01 which has been attached as Annexure P-4 to the writ petition. As stated above, an the private Respondents were appointed as Temporary Engineers defectly. The minimum qualification prescribed for appointment as Temporary Engineer is Degree in Engineering or its equivalent. The Tempor-ary Engineers constitute a class by themselves. The case of the Appellants is that they are being adversely affected by the words "and includes for purposes of promotion to ana fixation of seniority in Class I service: Temporary Engineers'' in Rule 2(6) as well as explanation in Rule 6(b) of Class I Rules. According to them, the same is illegal, arbitrary, discriminatory, repugnant to the subject and context of the Rules and violative of Articles 14 and 16 of the Constitution of India. it may be menitoned that Rule 6 of Class I Rules lays down the qualification for appointment to Class I service. Rule 6(b) of Class 1 provides that in case of appointment by promotion from Class if service, an Officer should have completed a particular number of years in Class II service and explanation thereto provides that for purpose of computing the period of service in Class II the service rendered as a Temporary Engineer shall be taken into account. As stated above, the argument of the Appellants is that the officiating Sub Divisional Engineers perform the same duties and functions as Temporary Engineers and both the posts are inter-changeable and both categories of them while doing such a service are not members of Class II service, but the officiating Sub Divisional Engineers have been put at a disadvantage and had been discriminated against the Temporary Engineers, inasmuch as Temporary Engineers right from their inception have been considered to be members of Class II service; whereas officiating Sub Divisional Engineers are not so considered till they are actually appointed as members of the Class II service. The counsel for the Appellants further submitted that there is no reason not to count the officiating service as Sub Divisional Engineers for the purpose of seniority as well as for eligibility for the appointment in Class I service. Any officiating service prior to the regular appointment in the Class II service cannot be ignored for the purpose of seniority and other benefits like the eligibility for appointment to Class I. We are afraid, we cannot agree with the learned Counsel for the Appellants.

There is no denying the fact that the qualifications for the Temporary Engineers are the Degree in Engineering or its equivalent; whereas the officiating Sub Divisional Engineers, need not have that Degree and officers from sources (2), (3) and (4) mentioned in the earlier part of the judgment, who are promoted to a Class II service, need not be degree-holders. This would go to show that Temporary Engineers are a class in themselves and are different from the one who are officiating as Sub Divisional Engineers. For all intents and purposes the Temporary Engineers are members of the Class II service from the day they are recruited as such. It would be evident from Rule 4 of the Class II Rules that the Temporary Engineers when taken into the Punjab Senvice of Engineers Class II are not promoted from a subordinate post to a higher post but they were only brought into the service from an equally constituted or similarly constituted Cadre of service. This is also evident from the phraseology used in the statutory Service Rules, especially Rule 4(2) and Rule 5, in which wherever the expression ''Temporary Engineers'' is used it is followed by the words ''taken into service'' and on the contrary wherever ''Overseers Engineers Service or Draftsman etc'' have been used these are followed by the words ''promoted'' or ''promotion''. In other words, persons like the Petitioners become members of Class II service by way of promotion; whereas Temporary Engineers are just taken into service as if from some equivalent rank. Consequently, there is nothing wrong in the definition of Class II service in Rule 2(5) of Class I service, wherein the Temporary Engineers have been considered as a part and parcel of Class II service. The explanation to Rule 6(b) of Class I Rules, is also in consonance with the difinition of Class II service as given in Rule 2(5) of the Class I Rules.

In K.L. Puri"s case (supra), the same view was taken as we have indicated above and we have not been persuaded by the learned Counsel for the Appellants to take a different view than taken in the said case. The learned Counsel for the Appellants has cited T.R. Kapur and Others Vs. State of Haryana and Others, S.B. Patwardhan and Another Vs. State of Maharashtra and Others, , Baleshwar Dass and Ors. v. State of U.P. and Ors. 1980 (3) S.L.R. 422, Narender Chadha and Others Vs. Union of India and Others, and The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, to contend that the officiating service should be counted towards seniority and eligibility. We have considered these authorities but none of them is on the point with which we are concerned. Here we are concerned with a specific rule which says that Temporary Engineers would be considered as members of the Class II service for purpose of promotion to and fixation of seniority in Class I. Once we are holding that Temporary Engineers are different than the officiating Sub Divisional Engineers, the Petitioners cannot claim that their officiating period of service as Sub Divisional Engineers when they were not members of the Class II service, should be counted towards their seniority in Class I and II as well as for eligibility for promotion to Class I. None of the authorities cited by the learned Counsel for the Appellants helps him at all.

For the reasons recorded above, we find no merit in these appeals, which are hereby dismissed, without any order as to costs.