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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8479-8482 OF 2014 [Arising out of S.L.P.(C)Nos.19220-19223 of 2007]

K.K. Dixit & Ors. etc. …..Appellants

Versus

Rajasthan Housing Board & Anr. etc. …..Respondents

J U D G M E N T

SHIVA KIRTI SINGH, J.

1. Leave granted.  

2. These appeals are further additions to the long list of service matters  

decided by High Courts and this Court resolving disputes between “Diploma  

Holder” and “Degree Holder” Engineers in the matter of eligibility for further  

promotion.  All  the  appellants  belonged  to  the  category  of  degree  holder  

engineers  appointed  as  Project  Engineers  (Junior)  in  the  service  

of Rajasthan Housing Board (for sake of brevity referred to as ‘the Board’).  

The  contesting  respondents  also  held  the  same  post  but  initially  only  as  

diploma holder who later acquired qualification of AMIE which is admittedly  

equivalent to degree in Engineering.

3. Since  all  the  appeals  arise  out  of  a  common  judgment  passed  by  a  

Division Bench of the Rajasthan High Court at Jaipur Bench and the facts as  

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well as issues of law are common, all the appeals have been heard together and  

are being disposed of by this common judgment.

4. At the outset, two important issues raised by way of questions of law in  

these appeals need to be noticed so that subsequent discussion of facts and law  

may be of help in answering both the issues/questions in controversy.  The  

issues are :  

(i) Whether  the Division Bench of  the High Court  

has  erred  in  holding  that  the  Diploma  Holder  Project  

Engineers  (Junior)  upon acquiring degree /  qualification of  

‘AMIE’ would be entitled to count their experience of service  

prior to acquisition of such qualification for the purpose of  

eligibility of 3 years total experience of service for promotion  

to the post of Project  Engineer (Sr.)  in the quota fixed for  

Degree Holders?  

(ii) Whether the Division Bench has erred in setting  

aside the direction of the learned Single Judge for preparing  

two separate seniority lists for Diploma Holders and Degree  

Holders  for  the  purpose  of  promotion  in  their  respective  

quotas?

5. In  exercise  of  the  powers  conferred  by  Section  53  of  the  Rajasthan  

Housing  Board  Act,  the  Board  made  Rajasthan  Housing  Board  Employees  

Conditions  of  Recruitment  and  Promotion  Regulations,  1976  (hereinafter  

referred  to  as  ‘the  Regulations’).   Chapter  II  of  the  Regulations  contains  

Clauses (6) to (10) providing for Conditions of Recruitment and Promotion.  

Clause (6) provides the manner of filling up the posts created from time to  

time.   In  the  context  of  absorption  of  employees  working in  the  Board  on  

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deputation, the word ‘category’ has been used in the context of posts created  

and vacant.  Clause (7) provides as follows :  

“(7) The ratio of direct recruitment and promotion of employees in the  service of the Board and qualification and experience required for  various posts will be in accordance with the ‘Schedule’ appended  to these Regulations.”

Clause (9)(A) of the Regulations pertains to promotion and provides as under :  

“(9)(A) Promotion

In respect of first promotion to higher post, promotion of  eligible person shall be made on the basis of seniority-cum- merit.   Second promotion  shall  be  made  on the  basis  of  merit and seniority-cum-merit in the promotion of 50:50.”

Clause (9)(B) provides that “seniority lists for each category of employees will  

be prepared and maintained.”   Clause (10)  pertains  to ‘seniority’  and reads  

thus:

“(10) Seniority :

Amongst the persons recruited in the same year, the promotees  will  rank  senior  to  those  who  will  be  appointed  by  direct  recruitment.  Amongst the promotees those who are appointed  on the basis of seniority cum merit with rank senior to those  who are  appointed on the  basis  of  merit  with due regard to  seniority.  The inter se seniority of those appointed on the basis  of merit will be in accordance with their relative seniority in the  lower cadre.”

6. Chapter III  of the Regulations contains Miscellaneous Provisions and  

includes Clause (12) which empowers the Board to issue general instructions  

not inconsistent with the Act and the Rules and Regulations made thereunder  

for the purpose of removing doubt,  lacuna, inconsistency or anomaly which  

may arise  in  interpreting  the  Regulations  or  in  giving  effect  to  them or  in  

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putting  them  to  application.  The  Regulations  contain  various  schedules  as  

appendices.  In the case at hand “Schedule Technical” alone is of significance  

and that shows the post of Project Engineer (Junior) at the entry level.  97% of  

this post is to be filled by direct recruitment and 3% by Board employees. The  

basic qualification required is a Degree or Diploma in Civil Engineering.  The  

next post in hierarchy, promotion to which is under issue, is Project Engineer  

(Senior).  The source of recruitment for this post is 50% by direct recruitment,  

20% by promotion of degree holder and 30% by promotion of diploma holder.  

For  direct  recruitment,  the  essential  qualification  is  a  Degree  in  Civil  

Engineering in First Division with at least one year’s experience in design and  

construction of building. The 50% posts to be filled up by promotion of Project  

Engineer (Junior) require further minimum experience and qualification as laid  

down  in  Column  6  of  the  Schedule  Technical.   Since  the  contesting  

respondents have laid a great amount of emphasis on several words prescribing  

the  minimum  experience  and  qualification  required  for  promotion,  the  

provisions of relevant Column No.6 are extracted hereinbelow :

”Post to be filled in by promotion from amongst the P.E.Jr.’s who  are degree holders with 3 years total experience of service.

Post to be filled in by promotion from P.E.Jr.’s who are diploma  holders with 7 years total experience of service. (137.20) Govt. approved Dt.25.2.2000 w.e.f. 9.12.87 Or Qualification  recognized  by  the  State  Govt.  to  be  equivalent  to  Degree in Civil Engineering.”

7. There are four higher posts in the hierarchy above the post of Project  

Engineer (Senior).  All of them are required to be filled up only by promotion  

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and  require  a  Degree  in  Engineering  in  Civil,  except  the  post  of  Resident  

Engineer just above that of Project Engineer (Senior) which requires filling up  

“75% by degree holder and 25% by diploma holder by granting promotion to  

eligible  Project  Engineer  (Senior)”.   Column  6  of  the  Schedule  Technical  

provides minimum experience and qualification for promotion to the post of  

Resident  Engineer  as  (i)  Degree  Holder  with  5  years’  experience  and  (ii)  

Diploma  Holder  with  13  years  experience.   A  diploma  holder,  as  noticed  

earlier, is not qualified for any further promotion.

8. From the facts available on record it appears that initially only diploma  

holders were appointed under the Regulations to the post of Project Engineer  

(Junior) and on their acquiring the certificate of AMIE while in service they  

were to be given benefit of their past service as diploma holders in the ratio of  

3:7, i.e., 3 years of their service with AMIE was treated as 7 years of service as   

diploma holder for the purpose of eligibility for promotion.  This benefit of past  

service in the prescribed ratio was on account of a Resolution of the Board  

dated  17.4.1979  which  records  that  “the  present  practice  of  placing  the  

Diploma Holder Engineers who have cleared AMIE examination in the bottom  

of the list of Degree Holders, is appropriate.   But it has also been decided that  

their  experience  should  be  determinant  in  the  ratio  of  3:7  (3  years  degree  

holders equal to 7 years diploma holders)”.  Some diploma holders who were  

initially appointed as Project Engineers (Junior) purely on ad-hoc basis were  

not only regularized by the Board vide Order dated 18.5.1987 but they were  

also given benefit  of their  past service like the regularly appointed diploma  

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holders and together with the latter category they also gained ad-hoc promotion  

to the post of Project Engineer (Senior) in the year 1992.   In the meantime,  

pursuant to an advertisement of March 1988 issued by the Board, the appellants  

as  degree  holders  applied  and  on  selection,  were  appointed  to  the  post  of  

Project Engineer (Junior) on 18.3.1989.  It appears that a common Provisional  

Seniority  List  of  Project  Engineer  (Junior)  including  diploma,  AMIE  and  

degree  holders  had  been  issued  on  11.8.1989  and  although  appellants  had  

objected to the said seniority list, promotions were granted by the Board to few  

diploma holders on ad-hoc basis in January and February 1992, as noted above.  

9. Appellants  –  K.K.  Dixit  and  some  others  preferred  writ  petition  

challenging the Resolution of the Board dated 17.4.1979, the joint Provisional  

Seniority List dated 11.8.1989 and ad-hoc promotion of the Diploma Holders  

with  AMIE.   The  writ  petition  was  allowed by  a  learned  Single  Judge  on  

7.7.1993 after deciding only the issue relating to counting of experience and  

holding that only such service could count for eligibility for promotion which  

was rendered by the ad-hoc Project Engineer (Junior) after regularization.  It  

was  held that  their  experience as  ad-hoc appointees shall  not  be taken into  

consideration.

10. The writ petitioners preferred a review petition praying for passing of  

judgment on the other  two grievances raised in the writ  petition.   The first  

grievance was that seniority list of degree holders and diploma holders on the  

post  of Project  Engineer  (Junior) should be prepared separately.   The other  

grievance  was  that  in  view  of  the  Resolution  No.6  dated  17.4.1979  those  

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diploma holders who passed AMIE examination while in service, should be  

placed below the degree holders of that year.   Both the aforesaid claims or  

grievances  were  based  upon  the  plea  that  as  per  recruitment  rules  there  is  

separate quota for the degree holders and also a separate quota for diploma  

holders.   The  learned Single  Judge,  by Order  dated 21.9.1993,  allowed the  

review petition to the extent of directing that the Board shall prepare separate  

seniority lists for degree holders and diploma holders  Project Engineer (Junior)  

and such of the Project Engineers (Junior) who have passed AMIE examination  

while  in  service,  shall  be placed lowest  in  that  year  in the seniority  list  of  

degree holder Project Engineers (Junior).

11. Aggrieved  by  the  judgment  dated  07.07.1993  passed  by  the  learned  

Single Judge in the writ petition and also against order dated 21.9.1993 passed  

by the learned Single Judge in Review Petition, some of the affected diploma  

holders  preferred  D.B.  Spl.  Appeal  (C)  No.67  of  1993  and  64  of  1993  

respectively.  Five other matters including D.B. Civil Writ Petition Nos.20 of  

1993 and 7063 of 1993 were also tagged with the Special Appeals.  They were  

heard together  and partly  allowed by a  common judgment  dated 25.5.2007  

which is under challenge in these appeals preferred by those who had entered  

Board’s service as degree holders on the post of Project Engineers (Junior).  

Since these appeals arise from only four out of seven matters decided by the  

Division Bench of the High Court, it is not necessary to indicate details of the  

remaining three matters  which were also disposed of  by the common order  

under appeal.

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12. By  the  judgment  under  appeal,  the  High  Court  has  decided  three  

questions  under  controversy  between  the  parties.   The  High  Court  has  

summarized the three questions thus :  

“1.  Whether  the  Project  Engineer  (Junior)  who  were  initially  appointed on ad-hoc/officiating/urgent temporary basis, upon being  screened and made members of service with reference to clause 3 of  the  Note  below  ‘Schedule  Technical’  of  the  Rajasthan  Housing  Board  Employees  Condition  of  Recruitment  and  Promotion  Regulations, 1976 are entitled to count the period of service rendered  in  that  capacity  for  the  purpose  of  seniority  and  experience  for  eligibility of promotion to the post of Project Engineer (Senior) as  provided for in column No.6 of Sr. No.2 in the ‘Schedule Technical’  of Regulations of 1976?

2. Whether the Project Engineers (Junior) recruited on the basis of  diploma,  upon  their  acquiring  the  qualification  of  ‘AMIE’,  are  entitled to count their experience of service prior to acquisition of  such qualification for the purpose of eligibility of ‘three years total  experience of service’ for promotion to the post of Project Engineer  (Senior) as provided for in column No.6 of Sr. No.2 of ‘Schedule  Technical’ of Regulations of 1976?

3.  Whether  according  to  the  Regulations  of  1976  the  diploma  holders Project Engineers (Junior) on acquiring the qualification of  ‘AMIE’  are  liable  to  be  placed  in  the  seniority  list  of  Project  Engineers (Junior) below degree holders available as on the date of  their acquiring such qualification and further whether according to  the  Regulations  of  1976,  a  separate  seniority  list  of  Project  Engineers  (Junior)  based  on  their  educational  qualification,  viz.- degree and diploma, is required to be maintained?”

13. On behalf  of  the  appellants,  learned  counsel  Ms.  Shobha  led  the  

arguments.  It was categorical stand of the appellants that since Question no.1  

was  decided  against  the  ad-hoc/officiating  category  of  Project  Engineer  

(Junior) and no one from that category has preferred any appeal, hence answer  

to that question has attained finality.  Learned counsel for the appellants has  

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seriously  assailed  the  findings  given  against  the  appellants  in  respect  of  

Question nos.2 and 3.

14. According  to  the  High  Court  the  Resolution  of  the  Board  dated  

17.04.1979  affirming  the  alleged  practice  of  placing  the  diploma  holder  

engineers who have cleared AMIE examination in the bottom of the list  of  

degree  holders  and  giving  them  benefit  of  their  experience  in  service  as  

diploma holders only in the ratio of 3:7 is neither justified by past practice nor  

by the Regulations.  It  was also held that the learned Single Judge erred in  

directing the Board to prepare two separate seniority lists.  Thus the Division  

Bench answered Questions nos.2 and 3 against the appellants by reversing the  

effect  of  order  passed  by  the  learned  Single  Judge  in  review  and  also  by  

granting the benefit of entire past service once a diploma holder cleared AMIE  

examination.

15. Before  deciding  the  two  main  issues  raised  on  behalf  of  the  

appellants  as  noticed  earlier,  it  may  be  useful  to  note  certain  subsequent  

developments which are not in dispute.  Pursuant to the impugned order of the  

High Court the Board issued a provisional common seniority list on 30.06.2007  

and  withdrew  the  Resolution  dated  17.04.1979  on  06.07.2007.   A  final  

common seniority list was issued on 27.08.2007 and according to appellants it  

was prepared without deciding their objections.  Provisional promotions have  

been granted to several persons to the post of Project Engineer (Senior) who  

cleared AMIE examination while in service and were allegedly much junior to  

the  appellants  with  respect  to  the  date  of  acquiring  eligibility  for  such  

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promotions.   The Special  Leave Petitions giving rise to the present appeals  

were preferred in this Court on 25.09.2007 or soon thereafter.  While issuing  

notice in one such matter, on 26.10.2007 this Court directed that no coercive  

steps shall  be taken in the meantime.   On 19.07.2010,  200 posts of Project  

Engineer (Junior) were upgraded to the post of Project Engineer (Senior) and  

31  such  posts  were  abolished.   As  a  consequence  of  upgradation,  on  

12.08.2010, 168 persons holding the post of Project Engineer (Junior) came to  

acquire the upgraded post of Project Engineer (Senior).

16. On account of the present dispute raised by appellants K.K. Dixit  

and some others through writ petitions filed in the year 1992, inter alia, against  

ad-hoc  promotions,  the  Board  has  granted  only  ad-hoc  promotions  even  

subsequently and hence resolution of the dispute appears to be necessary to  

enable  regularization  of  those  promotions  in  accordance  with  law  and  the  

Regulations and also for making regular promotions to the next higher post of  

Resident Engineer.  The issues under consideration relate only to eligibility for  

promotion against respective quotas and not to the Regulations providing for  

seniority and promotion.

17. The issues relating to Question no.3 decided by the High Court are  

not very contentious and hence those are taken up first.  The learned Single  

Judge directed for preparation of two seniority lists, one for the degree holders  

and  another  for  diploma  holders  only  with  a  view  to  give  effect  to  the  

Resolution of the Board dated 17.04.1979 without undertaking the necessary  

exercise  for  finding  out  whether  the  Resolution  was  in  consonance  or  in  

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conflict with the Regulations.  Such exercise was undertaken by the Division  

Bench of the High Court which did not approve of the Resolution and held that  

it  was  contrary  to  the  Regulations.   It  also  rightly  noticed  that  the  earlier  

seniority list was only a common seniority list and there was no past practice of  

having any seniority lists.

18. Learned counsel for the appellants did not dispute the relevant facts  

noticed by the High Court on this issue.  The High Court noticed that Schedule  

Technical and the Regulations provide for only one source of recruitment for  

the post of Project Engineer (Junior) that is by direct recruitment and the same  

selection process was applicable to both, the degree holders and the diploma  

holders  and,  therefore,  only  on  account  of  difference  in  their  academic  

qualification they could not be treated to be belonging to two different cadres  

in absence of any provision for this purpose in the Regulations.  They were to  

be treated as two channels for next promotion because of separate quota for  

each channel and different eligibility criteria.

19. On behalf of appellants, a submission was advanced that in Clause  

(9)(B)  of  the  Regulations  there  is  a  mandate  that  seniority  lists  for  each  

“category of employees” will be prepared and maintained and hence the Board  

should  treat  degree  holders  and  diploma  holders  as  separate  category  of  

employees  for  preparation  of  separate  seniority  lists  for  each  of  these  

categories.  We do not find any merit in this submission.  The words “category  

of employees” used in Clause (9)(B) in the context of the Regulations can only  

mean category of posts held by the employees.  The word “category” has been  

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used in the context of posts only in Clause (6) of the Regulations, although in  

the matter of absorption of employees working in the Board on deputation.  

Clause  (9)(A)  which  provides  for  promotion  when  read  together  with  the  

Schedule Technical leaves no manner of doubt that in respect of first promotion  

to higher post, i.e., promotion from post of Project Engineer (Junior) to Project  

Engineer (Senior), promotion of eligible person is required to be made on the  

basis of seniority-cum-merit.  The High Court has rightly held that the cadre of  

Project  Engineer  (Junior)  cannot  be  bifurcated  for  the  purpose  of  seniority  

alone, only on the ground that for promotion to the cadre of Project Engineer  

(Senior) there is provision for 20% quota for degree holders and 30% quota for  

diploma holders.  The practical view of the High Court cannot be faulted that  

the Board can legitimately prepare separate eligibility lists of Project Engineer  

(Junior) holding degree and those holding diploma.  Such eligibility list could  

not be mistaken for seniority list which must remain common based upon merit  

assessed at the time of selection for recruitment.  Only if the selection process  

had  been  different,  there  could  have  been  any  scope  to  argue  for  separate  

seniority  lists.   In  absence  of  any  legal  stipulation  for  altering  the  initial  

seniority, pre-determined on the basis of merit at the time of initial selection  

and  date  of  regular  appointment,  the  seniority  list  cannot  be  altered  only  

because  some  diploma  holder  Project  Engineers  (Junior)  acquired  the  

qualification of AMIE equivalent to a degree.  The three years’ or seven years’  

experience of service will entitle the degree holders and the diploma holders  

respectively  only  for  inclusion  of  their  names  in  the  eligibility  lists  for  

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promotion so as to work out satisfactorily the provision for different quota for  

the degree holders and the diploma holders.  Hence, we find no good ground to  

interfere with the decision of the High Court in respect of Question no.3.

20. Further dispute between the parties is in respect of issues arising out  

of  Question  no.2.   The  primal  question  which  requires  to  be  answered  is  

whether the diploma holders who acquired the qualification of AMIE during  

service should be given the benefit of experience of service rendered by them  

as  diploma  holders  for  promotion  to  the  post  of  Project  Engineer  (Senior)  

against the 20% quota for the degree holders or they need to acquire further  

three years’ experience of service after acquiring the qualification of AMIE for  

availing such benefit.  

21. In the context of issue noticed above, the stand of the appellants is  

that there is qualitative difference in the service rendered by a degree holder  

and that rendered by a diploma holder and, therefore, the Regulations provide  

that the degree holder Project Engineers (Junior) with three years’ service and  

diploma holder Project Engineers (Junior) with seven years’ service shall be  

eligible for promotion to the higher post of Project Engineer (Senior).  Their  

further case is that by providing 20% and 30% of the posts as quota for the  

degree holders and diploma holders respectively, the Regulations have created  

a water-tight  compartment for  the  two classes  because they are entitled for  

promotion  in  their  respective  quota  only.   The  fact  that  separate  quota  for  

promotion  has  been fixed  for  two different  channels  of  degree holders  and  

diploma holders, according to appellants, is a clear indication that the service of  

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three  years  must  be  rendered  as  a  degree  holder  in  order  to  acquire  the  

eligibility for promotion as is the case with a diploma holder who acquires  

eligibility only upon rendering seven years’ service as a diploma holder. The  

eligibility criterion of service experience cannot be read differently when the  

claim for promotion is made against a fixed quota.  The aforesaid stand of the  

appellants is based squarely upon judgment of this Court rendered by a three  

Judges Bench in the case of Shailendra Dania & Ors. v. S.P. Dubey & Ors.  

(2007) 5 SCC 535.  For providing further support to the conclusions in the case  

of Shailendra Dania (supra), reliance has been placed also upon judgments in  

the case of N. Suresh Nathan & Anr. v. Union of India & Ors. 1992 Supp.

(1) SCC 584;  Indian Airlines Ltd. & Ors. v.  S. Gopalakrishnan (2001) 2  

SCC 362; Challa Jaya Bhaskar & Ors. v. Thungathurthi Surender & Ors.  

(2010) 13 SCC 348; Chandravathi P.K. & Ors. v. C.K. Saji & Ors. (2004) 3  

SCC 734 and  Vijay  Singh Deora & Ors. v.  State  of  Rajasthan & Anr.  

(1997) 3 SCC 118.

22. On  the  other  hand,  counsels  appearing  for  the  respondents  and  

representing the interest of the diploma holders who subsequently acquired the  

qualification  of  AMIE  while  in  service,  have  made  a  spirited  attempt  to  

distinguish the facts of Shailendra Dania’s case (supra).  According to learned  

counsel  appearing  for  the  diploma  holders  there  was  a  difference  in  the  

qualification required of degree holders and diploma holders at the time of very  

entry into the service in Shailendra Dania’s case; while degree holders were  

eligible to apply only with their educational qualification for the entry post, the  

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diploma holders were required to have additional two years’ experience and  

hence the two were treated to be qualitatively different in the matter of service  

experience.  In other words, the submission is that the qualitative difference in  

the services rendered by degree holders and diploma holders in  Shailendra  

Dania’s  case was primarily  on account of  their  having different  birthmarks  

which does not exist in the present case.  It is also the case of diploma holders  

that the words used in the Regulations laying down eligibility for promotion are  

different in the present case because of use of the word ‘total’ before the clause  

‘experience of service’ and hence on a literal interpretation, as is warranted in  

the present case, the appellants cannot derive any advantage from the judgment  

in the case of Shailendra Dania (supra).  Much emphasis has also been laid on  

the word, ‘with’ used in the Schedule Technical to contend that it be read as  

‘and’ which will then not permit the cumulative eligibility criteria to be read as  

three years’ total experience of service with degree but only as degree and three  

years’ total experience of service.  It is further case of the diploma holders that  

the use of  the word ‘total’  clearly indicates the intent of  counting not only  

experience of service with degree but also experience of service already gained  

with  diploma.   Mr.  Manu  Mridul,  learned  Advocate  for  some  of  the  

respondents,  in  support  of  the  aforesaid  contentions  placed  reliance  upon  

judgments  of  this  Court  in  the  case  of  Anil  Kumar  Gupta  &  Ors. v.  

Municipal Corporation of Delhi & Ors. (2000) 1 SCC 128;  M.B. Joshi &  

Ors. etc. v.  Satish Kumar Pandey & Ors. etc. 1993 Supp.(2) SCC 419 and  

A.K. Raghumani Singh & Ors. v.  Gopal Chandra Nath & Ors. (2000) 4  

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SCC 30.   Appearing on behalf  of  another  set  of  respondents in one of  the  

appeals,  Mr.  Abhishek Gupta, Advocate placed reliance upon case of  Roop  

Chand Adlakha & Ors. v. Delhi Development Authority & Ors. 1989 Supp.

(1) SCC 116.

23. Mr. Vijay Hansaria, learned Senior Advocate appeared for the Board  

and supported the  case  of  diploma holders  by taking a  stand that  different  

service experience of three years and seven years for the purpose of eligibility  

have been prescribed for degree holders and diploma holders respectively not  

upon any qualitative difference in their experience but upon difference in the  

educational qualification alone.  Thus, the stand of the Board before this Court  

which is  diametrically opposite to its  stand before the High Court  is  that  a  

diploma holder  who has  service  experience of  three  years  and acquires  the  

qualification of AMIE is qualified under the Regulations to claim eligibility for  

promotion  in  the  20% quota  reserved  for  degree  holders  with  three  years’  

experience.  Learned advocate appearing for some of the proforma respondents  

made it  clear  that  the case  of  such proforma respondents who were  degree  

holders is same as that of the appellants.

24. Before adverting to the rival submissions on the main issue noted  

above, in view of submissions advanced on behalf of some of the respondents  

as if the issue arising in these appeals relates to seniority position of individuals  

in the seniority list, it is necessary to clarify that the High Court was neither  

called upon to decide nor it actually decided any issue directly relating to inter  

se seniority of Project Engineers (Junior) or Project Engineers (Senior) and this  

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Court  is  also  not  required  to  go  into  the  correctness  of  any  seniority  list  

published  by  the  Board.   As  noticed  earlier,  the  main  issue  falling  for  

determination in these appeals only relates to what value, if any, is to be given  

to the service experience of a diploma holder - turned degree holder - Project  

Engineer  (Junior)  rendered  by him as  a  diploma holder  for  the  purpose  of  

claiming eligibility for promotion as a degree holder Project Engineer (Junior)  

against 20% quota allotted for the degree holders.

25. Initially there was a serious dispute raised on behalf of appellants  

whether the word ‘total’ before the clause ‘experience of service’ in the context  

of  minimum experience and qualification required for  promotion  of  Project  

Engineer  (Junior)  mentioned  in  the  Schedule  Technical  is  an  illegitimate  

insertion in this Schedule or whether it was actually existing in the draft of the  

Schedule  which  was  approved  by  the  Board  and  the  State  Government.  

Learned senior counsel appearing for the Board placed before us the original  

records and made it clear that the word ‘total’ in the relevant clauses existed in  

the original draft of Schedule Technical which was duly approved.  Matter has  

come to rest at that.

26. Coming  to  the  rival  contentions,  it  will  be  useful  to  refer  to  the  

concerned  paragraphs  from  the  judgment  in  the  Shailendra  Dania’s  case  

(supra) along with the relevant facts in order to appreciate the contention of the  

appellants  that  even  in  absence  of  the  birthmark  on  account  of  two  years’  

experience for diploma holders to enter into the service, which was peculiar to  

the facts of that case, the relevant facts and rule position are materially similar  

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and hence the law laid down in that case is apt for deciding the present appeals  

on the same lines.  In Shailendra Dania’s case the rules provided for filling up  

50% of total vacancies in the post of Assistant Engineer by direct recruitment  

and the remaining were to be filled up by promotion by providing specific  

quota for a graduate Junior Engineer and a diploma holder Junior Engineer.  

The eligibility criteria for promotion of diploma holders Junior Engineers was  

eight  years’  qualifying service and for  graduate Engineering degree holders  

three years’ qualifying service.  Further promotion from the post of Assistant  

Engineer was to the post of Executive Engineer.  For this post, the minimum  

qualifying  experience  for  graduate  engineers  was  eight  years  as  Assistant  

Engineer and for diploma holders it  was ten years in the grade of Assistant  

Engineer.  However, for the initial post in the hierarchy, that is, post of Junior  

Engineer,  the  selection  was  only  through  direct  recruitment  and  the  

qualification prescribed was “diploma holders in civil  engineering with two  

years’  experience”.   But  there  was  no  bar  for  persons  having  degree  in  

engineering  in  applying for  the  post  of  Junior  Engineer  and they were  not  

required to have any prior experience.  

27. In  Shailendra Dania’s case this Court placed strong reliance upon  

judgment in the case of N. Suresh Nathan (supra) and explained that the three  

Judges Bench decided that case essentially on the interpretation of the rule and  

merely found support to that interpretation from the past practice followed in  

the  Department.   In  N.  Suresh Nathan (supra),  the  question  involved was  

similar as in the case of Shailendra Dania (supra) and the present case.  The  

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relevant rule provided for recruitment by promotion from the grade of Junior  

Engineers which consisted of two categories, viz., one of degree holder Junior  

Engineers with three years’ service in the grade and the other of diploma holder  

Junior Engineers with six years’ service in the grade.  There, the quota was  

50% from each category.  The Court interpreted the rule in the light of entire  

scheme to conclude that the period of three years can commence only from the  

date of obtaining the degree and not earlier.   The service in the grade as a  

diploma holder prior to obtaining degree cannot be counted as service in the  

grade with a degree for the purpose of three years’ service as a degree holder.  

Besides explaining and following the judgment in  N. Suresh Nathan’s case  

(supra), the judgment in Shailendra Dania’s case (supra) also considered and  

distinguished some later judgments on the basis of difference in facts and rules  

such as in the case of  M.B. Joshi (supra);  D. Stephen Joseph v.  Union of  

India  & Ors. (1997)  4  SCC 753;  Anil  Kumar  Gupta  (supra)  and  A.K.  

Raghumani  (supra).

28. In the case of Shailendra Dania (supra), this Court also took note of  

judgment in the case of Indian Airlines Ltd. (supra) on which the appellants  

have  also  placed  reliance.   Para  5  of  the  judgment  in  the  case  of  Indian  

Airlines Ltd. (supra) begins by holding that “when in addition to qualification,  

experience  is  prescribed,  it  would  only  mean  acquiring  experience  after  

obtaining  the  necessary  qualification  and  not  before  obtaining  such  

qualification”.   No  doubt,  in  that  case  there  was  specific  general  

information/instruction  that  experience  will  be  computed  after  the  date  of  

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acquiring the necessary qualifications.  Instead of dilating the point further it  

will be useful to extract paragraphs 43 to 45 of the judgment in the case of  

Shailendra Dania (supra) which are as follows :

“43.  Taking  into  consideration  the  entire  scheme  of  the  relevant  Rules, it is obvious that the diploma-holders would not be eligible  for promotion to the post of Assistant Engineer in their quota unless  they  have  eight  years’  service,  whereas  the  graduate  Engineers  would be required to have three years’ service experience apart from  their degree. If the effect and intent of the Rules were such to treat   the diploma as equivalent to a degree for the purpose of promotion  to the higher post, then induction to the cadre of Junior Engineers  from  two  different  channels  would  be  required  to  be  considered  similar,  without  subjecting  the  diploma-holders  to  any  further  requirement of having a further qualification of two years’ service.  At the time of induction into service to the post of Junior Engineers,  degree  in  Engineering  is  a  sufficient  qualification  without  there  being any prior  experience,  whereas diploma-holders should have  two years’ experience apart from their diploma for their induction in  the  service.   As  per  the  service  rules,  on  the  post  of  Assistant  Engineer,  50%  of  total  vacancies  would  be  filled  up  by  direct  recruitment, whereas for the promotion specific quota is prescribed  for  a  graduate  Junior  Engineer  and  a  diploma-holder  Junior  Engineer.   When  the  quota  is  prescribed  under  the  Rules,  the  promotion  of  graduate  Junior  Engineers  to  the  higher  post  is  restricted to 25% quota fixed.   So far as the diploma-holders are  concerned, their promotion to the higher post is confined to 25%.  As  an  eligibility  criterion,  a  degree  is  further  qualified  by  three  years’ service for the Junior Engineers, whereas eight years’ service  is required for the diploma-holders.  Degree with three years’ service  experience and diploma with eight years’ service experience itself  indicates  qualitative  difference  in  the  service  rendered as  degree- holder Junior Engineer and diploma-holder Junior Engineer.  Three  years’ service experience as a graduate Junior Engineer and eight  years’  service  experience  as  a  diploma-holder  Junior  Engineer,  which is the eligibility criterion for promotion, is an indication of  different quality of service rendered.  In the given case, can it be said  that a diploma-holder who acquired a degree during the tenure of his  service, has gained experience as an Engineer just because he has  acquired a degree in Engineering.  That would amount to say that the  experience  gained  by  him  in  his  service  as  a  diploma-holder  is  qualitatively  the  same  as  that  of  the  experience  of  a  graduate  Engineer.  The Rule specifically made difference of service rendered  as a graduate Junior Engineer and a diploma-holder Junior Engineer.  

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Degree-holder  Engineer’s  experience  cannot  be  substituted  with  diploma-holder’s  experience.   The  distinction  between  the  experience  of  degree-holders  and  diploma  holders  is  maintained  under  the  Rules  in  further  promotion  to  the  post  of  Executive  Engineer also, wherein there is no separate quota assigned to degree- holders or to diploma-holders and the promotion is to be made from  the cadre of Assistant Engineers.  The Rules provide for different  service experience for degree-holders and diploma-holders.  Degree- holder Assistant Engineers having eight years of service experience  would be eligible for promotion to the post of Executive Engineer,  whereas diploma-holder Assistant Engineers would be required to  have ten years’ service experience on the post of Assistant Engineer  to become eligible for promotion to the higher post.  This indicates  that  the  Rule  itself  makes  differentia  in  the  qualifying  service  of  eight years for degree-holders and ten years’ service experience for  diploma-holders.  The Rule itself makes qualitative difference in the  service  rendered  on  the  same  post.   It  is  a  clear  indication  of  qualitative difference of the service on the same post by a graduate  Engineer  and  a  diploma-holder  Engineer.   It  appears  to  us  that  different period of service attached to qualification as an essential  criterion  for  promotion  is  based  on  administrative  interest  in  the  service.   Different  period  of  service  experience  for  degree-holder  Junior  Engineers  and  diploma-holder  Junior  Engineers  for  promotion to the higher post is conducive to the post manned by the  Engineers.  There can be no manner of doubt that higher technical  knowledge would give better thrust to administrative efficiency and  quality  output.   To  carry  out  technical  specialized  job  more  efficiently,  higher technical knowledge would be the requirement.  Higher educational qualifications develop broader perspective and  therefore  service  rendered  on  the  same  post  by  more  qualifying  person would be qualitatively different.

44. After having an overall consideration of the relevant Rules, we  are of the view that the service experience required for promotion  from the post of Junior Engineer to the post of Assistant Engineer by  a  degree-holder  in  the  limited  quota  of  degree-holder  Junior  Engineers cannot be equated with the service rendered as a diploma- holder nor can be substituted for service rendered as a degree-holder.  When the claim is made from a fixed quota, the condition necessary  for becoming eligible for promotion has to be complied with.  The  25% specific quota is fixed for degree-holder Junior Engineers with  the  experience  of  three  years.   Thus,  on  a  plain  reading,  the  experience so required would be as a degree-holder Junior Engineer.  25% quota for promotion under the rule is assigned to degree-holder  Junior Engineers with three years’ experience, whereas for diploma- holder Junior Engineers eight years’ experience is the requirement in  

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their 25% quota.  Educational qualification along with number of  years  of  service  was  recognized  as  conferring  eligibility  for  promotion in the respective quota fixed for graduates and diploma- holders.   There  is  watertight  compartment  for  graduate  Junior  Engineers and diploma-holder Junior Engineers.  They are entitled  for promotion in their respective quotas.  Neither a diploma-holder  Junior  Engineer  could  claim  promotion  in  the  quota  of  degree- holders because he has completed three years of service nor can a  degree-holder Junior Engineer make any claim for promotion quota  fixed  for  diploma-holder  Junior  Engineers.   Fixation  of  different  quota for promotion from different channels of degree-holders and  diploma-holders itself indicates that service required for promotion  is  an  essential  eligibility  criterion  along  with  degree  or  diploma,  which is service rendered as a degree-holder in the present case.  The  particular  years  of  service being the  cumulative requirement  with  certain educational qualification providing for promotional avenue  within  the  specified  quota,  cannot  be  anything  but  the  service  rendered  as  a  degree-holder  and  not  as  a  diploma-holder.   The  service experience as an eligibility criterion cannot be read to be any  other thing because this quota is specifically made for the degree- holder Junior Engineers.

45. As a necessary corollary, we are of the view that the diploma- holder Junior Engineers who have obtained a degree in Engineering  during the tenure of service, would be required to complete three  years’ service on the post after having obtained a degree to become  eligible for promotion to the higher post if they claim the promotion  in the channel of degree-holder Junior Engineer, there being a quota  fixed  for  graduate  Junior  Engineers  and  diploma-holder  Junior  Engineers for promotion to the post of Assistant Engineers.”

29. On behalf of respondents the difference in qualification at the time of  

induction  into  the  service  to  the  post  of  Junior  Engineers  as  indicated  in  

paragraph 43 was highlighted to distinguish the present case on the ground that  

for induction into the service on the post of Project Engineer (Junior) there is  

no requirement that  the diploma holders should have two years’ experience  

apart  from  their  diploma.   Literally,  that  distinction  is  valid  but  in  our  

considered view the other considerations which were discussed in paragraph 43  

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are  of  much  greater  significance,  particularly  there  being  specific  quota  

prescribed for graduate Project Engineers (Junior) and diploma holder Project  

Engineers (Junior).  In the present case also, as an eligibility criterion, a degree  

is  further  qualified  by  three  years’  service  whereas  a  diploma  is  further  

qualified by seven years’ service.  These distinctions are of much more vital  

significance than the birthmark at the time of induction into service.  Absence  

of such birthmark in the present case is not material.  Such birthmark was only  

an additional ground available in the case of  Shailendra Dania (supra) but  

that, in our considered view, would not make any material difference in coming  

to the same conclusion that degree with three years’ service experience and  

diploma with  seven years’  service  experience  by  itself  indicates  qualitative  

difference in the service rendered as a degree holder and that rendered as a  

diploma holder.

30. As held in paragraph 36 of Shailendra Dania’s case (supra) we are  

required to decide the matter on the basis of the entire scheme of the rules, the  

facts and circumstances at the relevant time and the rules called in question, for  

independently giving meaning to the words, the principle involved and the past  

practice, if any.  In that view of the matter, the word ‘with’ occurring before the  

words, “three years’ service” or “seven years’ service” has to be given a natural  

meaning as understood in the common parlance and in the light of two water  

tight compartments created for the two classes for promotion with respective  

quotas of 20% and 30%, it must be held that three years’ total experience of  

service  must  be  service  as  a  degree  holder.   This  view is  fortified  by  the  

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provision in the Regulations that for similar promotion a diploma holder has to  

have seven years’ total experience of service.  The relevant regulation does not  

contemplate any reduced total experience for promotion for a diploma holder  

who may acquire  degree or  AMIE qualification while  in service.   Even on  

acquiring  such higher  qualification the  concerned diploma holder  is  neither  

given any advantage vis-à-vis other diploma holders nor is he ousted from the  

right of consideration against 30% quota provided for diploma holders.  In such  

a situation in order to enter into the water-tight compartment of 20% quota for  

the degree holders with three years’ experience of service, a diploma holder  

with  AMIE  qualification  must  show  that  he  fulfills  the  entire  eligibility  

criterion, i.e., he is a degree holder with three years’ experience of service as a  

degree holder.  Such water-tight compartment and separate quotas cannot be  

rendered meaningless so as to affect the prospect of promotion of the degree  

holders by inducting into that category a diploma holder who does not have  

three years’ experience of service as a degree holder.  In the absence of any  

such provision in the Regulations, no equivalence can be permitted in such a  

situation  because  even  a  diploma  holder  with  seven  years’  experience  of  

service is  confined to a prospect or chance of promotion only against  30%  

quota for the diploma holders.

31. So far as the word ‘total’ occurring before the words ‘experience of  

service’ is concerned, from the circumstances and past history relating to the  

service,  it  must be understood in the context of  service rendered in regular  

capacity  along with service  rendered on ad-hoc  or  officiating or  temporary  

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basis.  The word ‘total’ cannot be construed to mean service rendered either as  

diploma holder or degree holder.  If this had been the intention, the word ‘total’  

would have been included only in the context of three years’ total experience of  

service of degree holders and not in the context of seven years’ experience of  

service as diploma holders.  A diploma holder in any case is required to have  

seven years’ experience of service for being eligible for promotion and hence  

the word ‘total’  would be otiose or redundant in the aforesaid context.   No  

doubt, the High Court has now clarified and held that service rendered on ad-

hoc or officiating basis prior to regularization cannot be counted for acquiring  

eligibility for promotion and that aspect is no longer under controversy.  Hence  

the use of the word ‘with’ or ‘total’ in the relevant regulation does not make  

any  difference  and  the  judgment  in  the  case  of  Shailendra  Dania (supra)  

applies to the present case, as contended by learned counsel for the appellants.

32. The  other  judgments  of  this  Court  in  the  case  of  Challa  Jaya  

Bhaskar (supra); Chandravathi P.K. (supra) and Vijay Singh Deora (supra)  

also support the view which we have taken on the basis of Shailendra Dania’s  

case (supra).  Para 29 of the judgment in the case of  Challa Jaya Bhaskar  

(supra)  clearly  shows  that  in  the  said  case  this  Court  followed  the  views  

expressed in  N. Suresh Nathan’s case (supra) and  Shailendra Dania’s case  

(supra).   In  the  case  of  Chandravathi  P.K. (supra)  rules  for  shifting  by  

exercise  of  option  from the  category  of  diploma  holders  to  that  of  degree  

holders  on  acquiring  AMIE qualification  was  in  place.   In  that  context,  in  

paragraph 30 this Court held that diploma holder officer on acquiring higher  

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qualification during service could opt for promotion from the degree holders’  

quota or from diploma holders’ quota but once he opts for promotion in the  

degree  holders’  quota,  rule  of  seniority  would  apply  as  he  acquired  the  

qualification therefor subsequently.  He would be placed at the bottom of the  

seniority list and his case could be considered only after the cases of promotion  

of those who had been holding such degree qualification had been considered.  

In the case of Vijay Singh Deora (supra) the rule position was different but in  

paragraph 9 this Court permitted only a limited recognition of service rendered  

as diploma holder Junior Engineers for purposes of eligibility and justified the  

permitted procedure  on the  ground that  it  would do justice  to  all  the  three  

groups (as existed in that case) and no one would jump over the other and  

would not illegitimately steal a march over the legitimate right of the other,  

“otherwise, in effect the qualified graduates would be pushed downwards and  

unqualified late entrants on acquisition of qualification would steal  a march  

over the qualified.”

33. The judgments relied upon by learned advocate for the respondents  

have been noticed above.  All those cases were noticed and distinguished or  

explained in the case of  Shailendra Dania (supra) and we find that none of  

those cases are of any help to the respondents.  In those cases, either there was  

no  water-tight  compartment  and  fixed  quota  for  different  categories  or  the  

advertisement and rules related only to initial recruitment or the contest was  

only between two groups of diploma holders.  The judgment in the case of  

Roop Chand Adlakha (supra) in fact helps the case of the appellants because  

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in that case this Court held that different service experience could be prescribed  

for  conferring  eligibility  for  promotion  to  the  degree  holders  and  diploma  

holders  and  such  classification  on  the  basis  of  educational  qualification  is  

permissible under Articles 14 and 16 of the Constitution of India.

34. In the light of aforesaid discussions, we find merit in these appeals  

and they are accordingly allowed to the extent of reversing the views of the  

High Court in respect of Question no.2 as noted by the Division Bench in the  

common judgment under appeal.  We hold that the Project Engineers (Junior)  

recruited  on  the  basis  of  diploma,  upon their  acquiring  the  qualification  of  

‘AMIE’, are not entitled to count their experience of service prior to acquisition  

of such qualification for the purpose of eligibility for promotion to the post of  

Project Engineer (Senior) against the 20% quota fixed for promotion of degree  

holder Project Engineers (Junior).  In order to claim promotion against such  

20%  quota  the  three  years’  experience  of  service  must  be  acquired  after  

obtaining the qualification or degree of AMIE.

35. We direct the Board and its authorities to treat the writ petitions filed  

in the High Court  as disposed of in the light of our aforesaid views and to  

determine the controversies raised in the writ petitions in that light by granting  

relief  to  the  eligible  persons  expeditiously and preferably within  4 months,  

without upsetting the transactions which had taken place earlier and were not  

under challenge in the writ petitions.  In other words, the regular promotions  

made in the past prior to 1992, which were not subject matter of writ petitions  

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C.A.@SLP(C)Nos.19220-19223/07

filed  in  1992 will  not  be  re-opened on account  of  views  expressed  in  this  

judgment.  

36. In the facts and circumstances of the case, there shall be no order as  

to costs.

      ………………….…………………………………...J.        [FAKKIR MOHAMED IBRAHIM KALIFULLA]

      ………………….…………………………………...J.        [SHIVA KIRTI SINGH]

New Delhi. September 05, 2014.

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