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Judgment
P.K. Misra, J.—The facts leading to filing of the writ appeals are as follows:
For convenience, the parties are described as they are described in W.A. Nos. 1155 and 1156 of 2008.
The three writ appellants and Respondent No. 1 in the appeals, who were diploma holders in Electrical Engineering, were appointed vide
proceedings, dated 16.11.1985, issued by the Chief Engineer (General) as Junior Engineers governed under the Tamil Nadu Engineering
Subordinate Service Rules in the Electrical wing of the Public Works Department. In such proceedings, keeping in view the communal roaster and
relative merit, three appellants were slotted against S. Nos. 2, 6 and 7 respectively, whereas Respondent No. 1 (writ petitioner) was slotted at S.
No. 16. In course of time, three appellants obtained degree in Electrical Engineering and, as per the existing Government Orders, they were re-
designated as Assistant Engineers, whereas Respondent No. 1 continued to hold the post of Junior Engineer. It appears that in the Department
there was a convention of considering the Diploma Holder Junior Engineer, who is subsequently re-designated as Assistant Engineer on acquisition
of degree in Electrical Engineering, for the post of Assistant Executive Engineer (Electrical) within the 1/4th quota available to a Diploma Holder
Junior Engineer. Respondent No. 1 made a representation to discontinue such convention of considering the name of Junior Engineer (Electrical)
re-designated as Assistant Engineer (Electrical) as eligible within the 1/4th quota for promotion to the post of Assistant Executive Engineer
(Electrical). Such request was turned down by Office Memorandum No. C I (3)/10786/2005-1, dated 18.1.2006, issued by the Chief Engineer
(WRO). W.P. No. 25871 of 2006 was filed by Respondent No. 1 for quashing such Memorandum, dated 18.1.2006. In the meantime such
Respondent No. 1 had also filed a representation before the State Government, which apparently was rejected by the Government by Letter No.
15634/B2/2006-2, dated 14.9.2006. Such letter had been challenged by the very same Respondent No. 1 by filing W.P. No. 8925 of 2007.
Both the writ petitions were taken up together for disposal by the learned single Judge and ultimately were allowed by a common judgment, dated
29.8.2008.
Writ Appeal Nos. 1155 and 1156 of 2008 are directed against such common judgment of the learned single Judge by the three appellants, who
were not parties to the writ petition. Incidentally all the three appellants have been promoted as Assistant Executive Engineers during November,
2007, on the basis of the panel prepared for the year 2005-2006. The connected W.A. No. 1346 of 2008 has been filed by the Tamil Nadu
Engineering Association against the very same common judgment relating to W.P. No. 25871 of 2006.
The sum and substance of the conclusion of the learned single Judge is extracted hereunder:
As far as the post of Assistant Executive Engineer (Electrical) is concerned, apart from direct recruitment, the other feeder categories are
Assistant Engineer (Electrical), Junior Engineer (Electrical) as well as the category of Assistant Electrical Inspector in the Tamil Nadu Electrical
Inspector Service. When that be so, a Junior Engineer (Electrical) who is a diploma holder, on having acquired the qualification of a degree in
Bachelor of Engineering (Electrical), is entitled to get redesignated as Assistant Engineer (Electrical). It is common ground that it is always open to
a Junior Engineer (Electrical) even after securing degree qualification to relinquish the post of Assistant Engineer (Electrical) by way of
redesignation in which event, no question of realignment of seniority would arise in the post of Junior Engineer (Electrical) and Assistant Engineer
(Electrical). However, if after obtaining a degree qualification, a Junior Engineer (Electrical) gets redesignated as Assistant Engineer (Electrical) in a
whole hearted manner, he will have to stand or fall by the realignment of seniority as has been provided under Special Rule 5(3)(b), in which event,
there is no question of such a redesignated Assistant Engineer (Electrical) continue to retain his seniority in the post of Junior Engineer (Electrical).
It would be highly incongruous if such a position is to exist when on being redesignated as Assistant Engineer (Electrical), the person becomes a
member of Tamil Nadu Engineering State Service, a Gazetted post and nevertheless aspire for retention of his seniority in a non-gazetted post and
that too in a subordinate service, namely in the post of Junior Engineer (Electrical) simply for the purpose of getting promoted to the higher post of
Assistant Executive Engineer (Electrical) by gaining a march over the other eligible candidates in the post of Junior Engineer (Electrical). In this
context, the contention of the learned Counsel for the petitioner that the quota of 3:1 ratio provided for as between the Engineering graduates and
the diploma holders would work extreme hardship, if even after redesignation as Assistant Engineer (Electrical) a person is allowed to continue to
retain his seniority in the post of Junior Engineer (Electrical) to get promoted to the higher post of Assistant Executive Engineer (Electrical) by virtue
of erstwhile seniority in the previous post ignoring the factum of redesignation as Assistant Engineer (Electrical) merits acceptance. The said
contention of the learned Counsel for the petitioner is well founded and such an incongruity as between the two services can never be allowed to
operate.
It is the contention of the appellants that the aforesaid conclusion of the learned single Judge is not sustainable keeping in view the scheme of the
different Rules as well as the existing convention which has continued in the Department for a long period.
Learned Counsel appearing for the State Government also has supported the submissions made by the counsel for the appellants.
Learned Counsel appearing for Respondent No. 1, who has filed the two writ petitions in question, however, has supported the conclusion of
the learned single Judge.
Before proceeding further to consider the rival submissions, it would be appropriate to notice the various Rules and Government Orders
operating in the field. Since we are concerned only with the Electrical Branch, we have riveted our attention on those Rules and Government
Orders having bearing on the question involved.
The Electrical Branch consists of three categories, Category-1 is Electrical Engineer, Category-2 is Assistant Executive Engineer (Electrical) and
Category-3 is Assistant Engineer (Electrical). As per the Rules, appointment to the categories 1 to 3 as specified in column (1) of the Table shall
be made by the methods specified in column (2) thereof. So far as the Assistant Executive Engineer (Electrical) is concerned, the method of
recruitment is (1) by promotion from Assistant Engineer (Electrical) and (ii) by recruitment by transfer from the category of Junior Engineer
(Electrical) in the Tamil Nadu Engineering Subordinate Service or (iii) from the category of Junior Electrical Inspectors in the Tamil Nadu Electrical
Inspectorate service.
8.1 So far as the Assistant Engineer (Electrical) is concerned, the method of recruitment is (i) by direct recruitment or (ii) by transfer from the
category of Junior Engineer (Electrical) in the Tamil Nadu Engineering Subordinate Service, who possess a Degree in Electrical Engineering or
from the category of Junior Electrical Inspectors in the Tamil Nadu Electrical Inspectorate service. As per clause 3(c), for every four vacancies
successively arising in the category of Assistant Executive Engineer (Electrical), the first three vacancies shall be filled in or reserved to be filled in
by promotion from among the category of Assistant Engineer possessing B.E. Degree (Electrical) and the fourth vacancy shall be filled in or
reserved to be filled by recruitment by transfer from the category of Junior Engineer (Electrical) possessing the diploma in Electrical Engineering.
8.2 Clause 5 of the Table relating to qualification prescribes that no person shall be eligible for appointment unless he possesses the qualifications
prescribed in the corresponding entry in column 3. As per such Table, Entry No. 2 relates to Assistant Executive Engineer (Electrical). So far as
the recruitment by promotion is concerned, it is indicated that the person must have rendered service as Assistant Engineer (Electrical) for a period
of not less than five years in category 3, i.e., as Assistant Engineer (Electrical). So far as recruitment from the category of Junior Engineer
(Electrical) in the Tamil Nadu Engineering Subordinate Service is concerned, qualification required is that such a person (i) must possess a Diploma
in electrical Engineering (ii) must have rendered service as Junior Engineer (Electrical) for a period of not less than ten years. So far as the Assistant
Engineer (Electrical) is concerned, the Rules contemplate that the posts can be filled up by direct recruitment from a candidate who possess a
degree in Electrical Engineering or Electronic and Communication Engineering or a pass in Sections A and B of the Institution Examination with
electrical Engineering as a subject, with three years, practical experience as Junior Engineer in the Public Works Department or Tamil Nadu
Electricity Board, either before or after passing Sections A & B of the Institution Examination. Clause (b) at the end of the Table relating to the
Assistant Engineer (Electrical) indicates that Junior Engineers acquiring the B.E. Degree (Electrical) qualification or its equivalent in a calendar year
and getting re-designated as Assistant Engineer (Electrical) shall be assigned rank below the last Assistant Engineer (Electrical) in the list of
candidates selected by the Tamilnadu Public Service Commission in that calendar year.
Apart from these provisions contained in the Rules, there were several Government Orders issued from time to time, which have some bearing
in the matter and, therefore, are noticed hereunder:
On the basis of the recommendation made by the Tamil Nadu Pay Commission and taking note of several other Government Orders, the
Government had issued G.O.Ms. No. 288 dated 1.3.1978. The relevant portion of the G.O. is to the following effect:
...They accordingly direct that Supervisors acquiring an engineering degree or an equivalent qualification after entering service, will be eligible for
appointment as Assistant Engineers by transfer on completion of either 10 years of total service or 3 years from the date of taking their degree
whichever is earlier, subject to the condition that none who has a total service of less than 5 years will be eligible for appointment as Assistant
Engineer.
9.1 Subsequently, the Government issued clarification in the shape of G.O.Ms. No. 2070, dated 30.12.1980.
9.2 Subsequently, the Government issued G.O.Ms. No. 662, dated 24.3.1983. These two G.Os., however, mainly relate to the question of
seniority of Junior Engineers re-designated as Assistant Engineers.
The main contention of the writ petitioner before the learned single Judge, which was apparently accepted, is to the effect that the Diploma
holders who after being appointed as Junior Engineers acquire the Engineering degree have an option of becoming full-fledged Assistant Engineers
and once they choose to become Assistant Engineers, they have to compete with other graduates, who are directly recruited as Assistant
Engineers, and can be considered only against three-fourth quota available to such Assistant Engineers for being appointed as Assistant Executive
Engineers and they cannot encroach upon one-fourth quota available to Diploma-holders, who continue as Junior Engineers in the Tamil Nadu
Engineering Subordinate Service. In this context, it was further contended that since their seniority is fixed in the cadre of Assistant Engineer, which
is borne in Tamil Nadu State Engineering Service, it would be inappropriate to consider their promotion from the Junior Engineer merely because
once upon a time they were appointed as Diploma Holder Junior Engineers.
Various Government Orders read in the light of the Rules only indicate that a Junior Engineer in the Tamil Nadu Engineering Service on
acquiring Degree in Engineering is redesignated as Assistant Engineer. Neither the Rules nor various Government Orders contain any provision that
such a person has got any choice or option in the matter nor there is anything to indicate categorically that such a person loses his lien in the parent
cadre of Junior Engineer. In our considered opinion, the main intention behind the Government Orders issued from time to time appears to be
aimed at encouraging a Diploma-holder Junior Engineer to acquire higher qualification, obviously through correspondence course or part-time
study, with a view to enhance the quality of service to be rendered by such junior Engineer.
It is not at all in dispute that the Assistant Engineers, who are directly recruited from among the graduates, the Diploma-holder Junior
Engineers, who on acquisition of Degree in Engineering are re-designated as Assistant Engineers and the Diploma-holder Junior Engineers as such
do the same type of work. If the conclusion reached by the learned single Judge and the submissions now made by the learned Counsel for
Respondent No. 1 are to be accepted, it would be discouraging the Diploma-holder Junior Engineers in pursuing higher study for the purpose of
acquiring a degree in Engineering. It has been highlighted in the counter filed by the State Government before the learned single Judge and during
the submissions made before us that the past convention was to consider the Diploma-holder Junior Engineers who subsequently acquire Degree in
Engineering to be eligible for being posted as Assistant Executive Engineer (Electrical) from among the category of Junior Engineer (Electrical).
We do not find any inconsistency between such convention which was being followed and the specific rules holding the field. As has been
observed in N. Suresh Nathan and another Vs. Union of India and others, and subsequently in Shailendra Dania and Others Vs. S.P. Dubey and
Others, , the convention relating to service condition available in a Department can also be given effect to, provided there is nothing contrary to
such convention in the statutory rules.
It was strenuously contended on behalf of Respondent No. 1 that if the Diploma-holder Junior Engineers, who subsequently acquire Degree in
Engineering and thereby getting re-designated as Assistant Engineers, would be still considered eligible within the quota of Diploma-holders, the
prospect of a long serving Diploma-holder would be adversely affected. Moreover, since such persons would also be eligible to be considered
from among the quota of Assistant Engineers as such, such persons will have the best of both worlds. In other words, they would be considered
eligible from 75% quota available for Assistant Engineers as well as 25% quota available for Junior Engineers. In this connection, learned Counsel
for Respondent No. 1 has further submitted that such an interpretation would be contrary to the decision of the Supreme Court in Shailendra
Dania''s case.
Though such contention may prima facie appears to be attractive, on deeper scrutiny, we do not find any merit in such submission. A Diploma-
holder Junior Engineer, who on acquisition of Degree in Electrical Engineering is re-designated as Assistant Engineer, is placed below the directly
recruited graduate Engineer during the year concerned. Therefore, obviously he does not steal march over such directly recruited Assistant
Engineers having degree in Engineering. Similarly it cannot be said that he is stealing march over the Diploma-holder Junior Engineers who continue
as such inasmuch as such a person only gets a better opportunity because of his perseverance in pursuing further study and acquisition of a higher
qualification subsequently adds to the quality of the work done by such person. A diploma-holder Junior Engineer, who subsequently acquires a
degree in Engineering, does not become senior above any Diploma-holder Junior Engineer. While he retains his seniority, he only gets an additional
avenue as he is also re-designated as Assistant Engineer. Ultimately, the benefit goes to a person who pursues higher studies. It cannot be said that
there is anything inherently arbitrary in such a scenario inasmuch as a person ultimately gets some reward for his pursuit of higher study and
because of his perseverance in obtaining a higher degree.
If a Diploma-holder Junior Engineer on acquisition of higher qualification is to be compulsorily moved out of the category of Junior Engineer,
anomalous position may crop up. Since such a person would be placed below all the existing graduate Assistant Engineers, his chance of being
promoted within the quota of 3/4th meant for graduate Assistant Engineers would be practically nil. It is of course true that on being re-designated
as Assistant Engineer such a person receives a higher salary, but when he is compulsorily ""kicked upstairs"" (if we may permitted to observe so) the
Diploma-holder Junior Engineers, who were below him, would be in a better position for being promoted, even though less qualified than him. The
convention which was being hitherto followed in the Department does not prejudice a graduate Engineer in the Assistant Engineer cadre nor it has
the effect of blocking the promotional prospects of any Diploma-holder Junior Engineer, who was senior to such other Diploma-holder Junior
Engineer who subsequently acquires the higher qualification.
In our considered opinion there is nothing in the ratio of Shailendra Dania''s case which can be said to be contrary to the present order passed
by us as the said decision has expressly confined itself to the question of eligibility as apparent from paras 25 and 37 of such judgment which are
extracted hereunder:
Large number of authorities are cited by learned Counsel appearing for both sides raising various issues viz. whether a diploma-holder after
obtaining a degree would be compulsorily shifted to the group of graduate Engineers giving a go-by to their claim for promotion to diploma-
holders'' quota or they have a choice to select and continue with either of them. What should be the seniority position of the diploma-holders after
they have qualified as graduates, etc. We have refrained ourselves from expressing any opinion on these points and have confined ourselves to the
specific issue raised before us and answered by the High Court in the impugned judgment.
The only question involved in these appeals and transferred cases can be stated thus: whether a diploma-holder Junior Engineer, who obtains a
degree while in service, becomes eligible for promotion to the post of Assistant Engineer on completion of three years of service after he obtained
the Engineering degree or on completion of three years of service prior to obtaining the degree in Engineering.
Learned Counsel appearing for the respondents have further placed reliance upon the decisions of the Supreme Court reported in (2001) 1
SCC 475 (Kuldeep Kumar Gupta and Ors. v. H.P. State Electricity Board and Ors.) in support of his contention that it is open to the Government
to prescribe rules for quota in the promotional post in respect of the persons having different educational qualifications even if all of them belong to
a particular cadre.
The question in the present case is not regarding the validity of any quota prescribe for promotional avenue and, therefore, in our considered
opinion, the ratio of the decision of the Supreme Court is not at all applicable.
Similarly the Division Bench decision of this Court in N. Sureshnathan and 3 Ors. v. Government of Pondicherry in W.P. No. 36947 of 2006
disposed of on 27.1.2009, relied on by the learned Counsel appearing for the respondents, is of no significance inasmuch as the core question in
the said case was as to whether the Diploma-holder, who subsequently acquires a graduate degree, after he becomes eligible for promotion can
count his previous seniority. The Division Bench has simply followed the earlier decision of the High Court and it cannot be said that there is
anything contrary in the said decision to our present conclusion.
Leaned Counsel appearing for the respondents further submitted that an incumbent in service cannot hold a lien in two different cadres and
since Diploma-holders are members of the Tamil Nadu Engineering Subordinate Service, whereas the Assistant Engineers are the members of
Tamil Nadu Engineering State Service, a Diploma-holder Junior Engineer, who is designated as Assistant Engineer on acquisition of higher degree,
loses his lien in the post of Junior Engineer. In support of the above contention, the learned Counsel for the Respondents has placed reliance upon
the decisions of the Supreme Court reported in Ramlal Khurana (Dead) By Lrs. Vs. State of Punjab and Others, and Jagdish Lal and others Vs.
State of Haryana and others, .
In our considered opinion, the Junior Engineers, on acquisition of higher qualification are re-designated as Assistant Engineers, but it cannot be
said that they have become full-fledged members of any other service. It is to be noticed that though technically two services may be different, the
nature of the work-done is the same and, since two services are essentially same, the traditional concept of losing lien in the original service while
absorbed or deputed in any other service does not strictly arise for consideration.
As we have already noticed, there is no categorical rule nor G.O. which says that if a person acquires a higher qualification in the shape of a
Degree in Engineering, he would cease to be a Junior Engineer for all purposes nor any option is contemplated to be given to such person. Learned
single Judge appears to have proceeded on the assumption that a person, who acquires the higher degree in Engineering, has an option of
continuing as Junior Engineer or being re-designated as Assistant Engineer. Re-designation of Assistant Engineer comes automatically and the
Rules and G.Os no where contemplate that such a person is to severe all his rights in the rank of Junior Engineer. The convention, which was
hitherto being followed by the Department and now approved by us, has the effect of conferring additional benefit on a person who pursues the
study for acquiring higher qualification.
In the absence of any conflict with the Rules, we do not think there was any thing arbitrary in the decision taken by the Chief Engineer as per
the Memorandum dated 18.1.2006 or the subsequent rejection of the representation by the State Government dated 14.9.2006.
In our considered opinion, therefore, the learned single Judge has erred in quashing those orders. Accordingly, we allow the writ appeals and
dismiss both the writ petitions filed by Respondent No. 1. There would be no order as to costs.