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ANJANI KUMAR MISRA AND ANOTHER versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Anjani Kumar Misra And Another v. State Of U.P. And Others - WRIT - A No. 2750 of 2004 [2006] RD-AH 18609 (3 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

1. Civil Misc. Writ Petition No. 2750 of 2004

Anjani Kumar Misra and another Vs. State of U.P. & others.

2. Civil Misc. Writ Petition No. 39299 of 2004

Ravindra Nath Yadav & others Vs. State of U.P. & others.

3. Civil Misc. Writ Petition No. 51288 of 2005

Ram Prakash Tiwari Vs. State of U.P. & others.

4. Civil Misc. Writ Petition No. 2152 of 2005

Chob Singh and others Vs. State of U.P. & others.

5. Civil Misc. Writ Petition No. 13579 of 2005

Udham Singh & others Vs. State of U.P. & others.

6. Civil Misc. Writ Petition No. 53133 of 2004

P.S. Upadhyay & others Vs. State of U.P. & others.

7. Civil Misc. Writ Petition No. 22558 of 2003

Daya Shanker & others Vs. State of U.P. & others.

8. Civil Misc. Writ Petition No.78513 of 2005

Dilip Kumar Garg & another Vs. State of U.P. & others.

9. Civil Misc. Writ Petition No. 23319 of 2003

V.D. Tripathi Vs. State of U.P. & others.

10. Civil Misc. Writ Petition No. 1549 of 2004

Chakledar Singh & another Vs. State of U.P. & others.

11. Civil Misc. Writ Petition No. 53202 of 2004

N.K. Yagik & others. Vs. State of U.P. & others.

12. Civil Misc. Writ Petition No. 15112 of 2003

Jai Chandra Singh & others Vs. State of U.P. and others.

13.  Civil Misc. Writ Petition No. 47560 of 2005

A.K. Srivastava Vs. State of U.P. and others.

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Hon'ble V.M. Sahai,J.

Hon'ble Sabhajeet Yadav,J.

These batch of writ petitions have been filed by degree holder (BE/AIME) Junior Engineers of Lok Nirman Vibhag of Govt. of U.P challenging the various steps of process of promotion on the posts of Assistant Engineers including the validity and correctness of prescription of quota for promotion, determination of vacancies and preparation of eligibility list and also validity and applicability of new rules of recruitment namely The Uttar Pradesh Public Works Department Group-B Civil Engineering Service Rules 2004, hereinafter referred to as new rules 2004, for the post of Assistant Engineers published under the notification dated. 3.1.2004. Although, individual petitions comprehend grievances of only individual petitioners but our effort is to comprehend all necessary facts and to decide the issues raised in these batch of writ petitions so that the controversy may be set at rest. The petitioners of Writ Petitions no. 2750/2004, 39299/2005, 51288/2005, 1549/2004, 58513/2005 and 47560/2005 have challenged the provisions of the aforesaid rules pertaining to the recruitment on the posts in question and alternatively have also challenged the process of selection that the aforesaid notification shall not cover the vacancies of Assistant Engineers prior to the date of commencement of the notification.  Since the facts and grounds of aforesaid writ petitions are almost similar, therefore, we would like to state the facts of Anjani Kumar Misra & another's case only to resolve the controversy involved in the aforesaid cases.

2. It is stated in the aforesaid case that there are rules regulating process of promotion from the post of Junior Engineer to the post of Assistant Engineer known as U.P. Service of Engineers (Building and Road Branch) (Class II) Rules, 1936 as amended from time to time (hereinafter referred to as the Old 1936 Rules). Rule 3 of which deals with the definition clause and Rule 4 provides strength of cadre of service. Rule 5 provides for source of recruitment, Rule 6 empowers the Government to decide the vacancies to be filled from the sources specified under the aforesaid Rule 5. Rule 9 provides for technical qualification for appointment. On 21.7.1959 a notification was issued by the State Government making amendment to the Old 1936 Rules whereby in clause (iv) of rule-5 the words ''upper-sub-ordinate' had been deleted and the existing clause (a) of rule-6 was substituted by new provisions containing 25% of vacancies in the service are reserved or earmarked for selected qualified members of Sub-ordinate Engineering Service and Computers. The vacancies so reserved has to be shared by members of Subordinate Engineering Service and Computers in approximate proportion of their relative cadre strengths at the time of selection in question. Rule 9 of Old 1936 Rules as initially existed provided technical qualifications required to be possessed for the post of Assistant Engineer. Sub-clause (ii) provided that no officer would be promoted under Rule 5(iv) unless he had passed any qualifying examination, which the Government may prescribe.

3. Vide Government Notification dated Ist October 1966, contained in Annexure-3 of the writ petition the United Provinces Service of Engineers (Building and Road Branch) Class II Amendment Rules 1966 came into force, whereby existing original rule 9 of Old Rules 1936 had been substituted by new rules. By means of the substitution so effected a provision was made that an officer could be promoted to the post of Assistant Engineer after having passed the qualifying examination as prescribed by the State Government or in case he possessed the technical qualification prescribed in Rule 9 (i) of the 1936 Rules. The effect of the said amendment was that a Junior Engineer possessing any of the qualifications prescribed under Rule 9(i) was no longer required to pass the qualifying examination, which was necessary to be passed only by such Junior Engineers who did not possess the technical qualification specified under Rule 9(i).

4. Thereafter certain amendments were made to Rules 3(c),5 and 6 of the old 1936 Rules by notification No. 492 dated 28.7.1969 and in 1971 by means of another notification amendment was effected to Rule 23 of the 1936 Rules. The validity of amendments made to Rule 3(c), 5 and 6 by the 1969 notification and amendments effected in Rule 23 by the 1971 notification were subject matter of challenge in P.D. Agarwal's case. The aforesaid challenge was accepted by Hon'ble Apex Court by means of its judgment and order dated 8.6.1987 reported in (1987) 3 SCC 622 (P.D. Agarwal Vs. State of U.P. and others)=A.I.R. 1987 S.C 1676.

5. On 4.8.1987 a notification was issued by the State Government making amendment to 1936 Rules including Rules 5, 6, 9, 12, 13 and 16 of the existing Rule and on 25.9.1997 another notification was issued by State Government whereby Rule 5 of 1936 Rules was again substituted by new rules. The aforesaid notifications are on record as Annexures 5 and 6 of the writ petition. The effect of the amendment so referred to above was to specify a separate promotion quota of 8.33% for degree holder Junior Engineers in promotion to the post of Assistant Engineer. The validity of notifications dated 4.8.1987 and 25.9.1997 was subject matter of challenge before this court by means of four writ petitions including Writ Petition No. 42762 of 2000 Aruvendra Kumar Garg Vs. State of U.P. and others. A Division Bench of this Court while deciding all aforesaid writ petitions jointly in Aruvendra Kumar Garg's case vide judgment and order dated 22.3.2002, contained in Annexure-7 of the writ petition (reported in 2002 (2) E.S.C. 148), has quashed the impugned notifications dated 4.8.1987 and 25.9.1997 being ultra virus of Articles 14 and 16 of the Constitution. Against the aforesaid judgment a Special Leave Petition has been filed before the Apex Court by Aruvendra Kumar Garg and others but vide order dated Ist August 2006 the Hon'ble Apex Court has permitted the appellant of said case to withdraw the Civil Appeal No. 40195 of 2002 Aruvendra Kumar Garg Vs. State of U.P. with Civil Appeal No. 4194 of 2002.  

6. It is further stated in the petition that under the 1936 Rules as available after the judgment of High Court dated 22.3.2002 there remained a promotion quota of 25% to be filled from Junior Engineers/Computers satisfying the eligibility requirement specified by Rule 9. As a further consequence Junior Engineer/Computers of Lok Nirman Vibhag who had either passed qualifying examination as envisaged under Rule 9 (ii) or had passed Associate Membership Examination of the Institute of Engineers (India) or possessed a Bachelor degree in Engineering were eligible for consideration for promotion to the post of Assistant Engineer. The qualifying examination envisaged by Rule 9 (ii) is a qualifying examination prescribed by State Government. The original prescribed qualifying examination was governed by rules as printed in the Manual of Orders of the year 1955. The relevant extracts of the 1955 Manual of Orders governing the qualifying examination is on record as Annexure-9 of the writ petition. The relevant extracts of rules governing qualifying examination as printed in Appendix (iv) of 1969 Edition of Manual of Order is on record as Annexure-10 of the writ petition. The scheme specified above was partly modified by notification issued in the year 1969, 1970 and 1972 and such modified rule governing qualifying examination as contained in Appendix 25 of the Manual of Order as published in the year 1997 is enclosed as Annexure-11 of the writ petition. It is stated that since the qualifying examination envisaged under rule 9(ii) was the qualifying examination for treating candidates not possessing Bachelor of Engineering degree/Associate Membership of Institute of Engineers, at par with the aforesaid qualification and the rules governing the qualifying examination would demonstrate that the qualifying examination was envisaged as a written examination based upon a specified course curriculum for testing the technical knowledge of the candidates in Engineering but on 11.2.2003 the State Government issued an office order making provision that the qualifying examination under Rule 9(ii) of the Rules would comprise only of an oral interview to be conducted by a three Member Committee. A copy of the office order dated 11.2.2003 is on record as Annexure-12 of the writ petition. It is stated that the office order dated 11.2.2003 had been issued arbitrarily, contrary to the scheme of the 1936 Rules and further for conferring unwarranted benefit upon Diploma holder Junior Engineers.

7. It is further stated that the validity of office order dated 11.2.2003 has been challenged before this Court by means of Civil Misc. Writ PetitionNo. 8910 of 2003 (Shashi Bhushan Singh and another Vs. State of U.P. and others) wherein as interim measure a Division Bench of this Court on 26.2.2003 has passed an order to the effect that until further orders the operation of the impugned order dated 11.2.2003 shall remain stayed. Subsequently on 22.5.2003 the aforesaid order has been modified by another Division Bench of this court in the term that the competent authority may constitute a new Selection Board, if so desired member may be nominated by designation and not by names. It is entirely open to the competent authority to constitute a fresh Selection Board. The Authority may proceed with the selection promotion process, however the final list may not be declared till further orders of this court. In pursuance of the orders so passed by this Court a modified government order was issued on 19.6.2003 constituting a new selection Board and notifying interview for the eligibility examination to be conducted between 12.7.2003 to 14.7.2003. In pursuance thereof interviews have been held between 12.7.2003 to 14.7.2003 of a total number of 411 Junior Engineers. However the result of the interview has not been declared as yet. It is further stated that the interviews have not been concluded as yet and about 251 Junior Engineers remain to be interviewed.

8. It is further stated that on 3.1.2004 the State Government had notified the U.P. Public Works Department Group-B Civil Engineering Service Rules, 2004 (for short the Rule 2004). A copy of the notification dated 3.1.2004 is on record as Annexure-17 of the writ petition. The notification had been issued in supersession of existing rules and orders in this regard and the clear intent of the notification is to supersede the 1936 Rules which continuously governed recruitment to the post of Assistant Engineers from 1936 till date. It is further stated that under the 2004 Rules, Rule 5 prescribes the source of recruitment as 50% by direct recruitment through the Commission and 50% by promotion from amongst substantively appointed Junior Engineers (Civil) and Junior Engineers (Technical) who have completed seven years service as such on the first day of the year of recruitment. The 50% quota for promotion is subject to the proviso that 90% of the post under the promotion quota would be filled up by promotion of Junior Engineers (Civil) and 10% posts under the promotion quota to be filled up from amongst Junior Engineer (Technical). The Rule 8 specifies the academic qualification for direct recruitment as a Bachelor's degree in Civil Engineering or an equivalent qualifications. The language of Rule 8 clearly stipulates that the educational qualification envisaged therein does not to apply to cases of promotion. In view of the aforesaid a Junior Engineer in the Department is entitled to be considered for promotion in case he has been substantively appointed and has completed seven years as such on the first date of the year of recruitment without any further restriction as to possession of any technical qualification. The notification has done away with the earlier requirement of possessing technical qualification for promotion to the post of Assistant Engineer. It is further stated that under the 1936 Rules as amended from time to time there existed the requirement of a Junior Engineer to possess a bachelor degree of Engineering or an Associate Membership of Institute of Engineers or to have passed the qualifying examination held for such purpose by the State Government. Under the notification the aforesaid requirement which existed earlier was done away with the Junior Engineers who neither possess a bachelor degree of Engineering nor an Associate Membership of Institute of Engineers became eligible for promotion without passing any qualifying examination for testing his technical knowledge. In the Lok Nirman Vibhag the requirement of possessing a bachelor degree or Associate Membership of Institute of Engineers always existed for being considered eligible for promotion to the post of Assistant Engineer. With regard to candidates not possessing either of the said qualification there existed requirement of passing a qualifying examination for testing their technical knowledge. The notification completely divest the requirement of possessing technical qualification or passing an examination for the testing of technical knowledge. The notification has abolished the distinction, which has always existed in the department between Junior Engineers possessing bachelor degree of Engineering or Associate Membership of Institute of Engineers and such Junior Engineers who do not possess the said qualification. The notification has the effect of treating unequal to be equal for the purpose of promotion to the post of Assistant Engineer. The abolition of the distinction always maintained in the department between two categories of Junior Engineers is without any rational justification. The notification has been issued only with intent for over coming the pending litigation in Writ Petition No. 8910 of 2003 before this Hon'ble Court and further for some how ensuring grant of promotion to Junior Engineers irrespective of their not having the requisite technical knowledge for the post of Assistant Engineer. In any view of the matter it was stated that the notification would have prospective operation and it would not be given retrospective operation. The notification would be applicable for filling up vacancies of Assistant Engineer arising subsequent to 3.1.2004 and the same has no applicability with regard to vacancies which have already come into existence in the department prior to 3.1.2004. The mere fact that there has been delay in finalizing the promotion either on account of the litigation pending before this Court or even otherwise is wholly irrelevant and promotion against the vacancies which have arisen prior to 3.1.2004 are required to be filled in accordance with the 1936 Rules and the same cannot be the subject matter of promotion under the notification dated 3.1.2004. In case the notification is made applicable to earlier vacancies the same would amount to grant retrospective operation to the notification. It is further stated that even otherwise giving retrospective effect to the notification would be arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution as the right for consideration against the earlier vacancies in accordance with the 1936 Rules had already come into existence in favour of the petitioners and other similarly circumstanced individuals and such rights cannot be done away with. The petitioners bring on record a government order dated 21.2.2003 detailing the existence 219 posts of Assistant Engineers existing under the promotion quota at the said point of time. A copy of the government order dated 21.2.2003 is on record as Annexure-18 of the writ petition.

9. The petitioners of Writ Petition No. 2152 of 2005 Chob Singh & others Vs. State of U.P. & others and the petitioners of Writ Petition No. 13579 of 2005 Udham Singh and others Vs. State of U.P. and others  have challenged the correctness of determination of vacancies and further steps of process of selection including preparation of eligibility list in the selection in question for promotion on the post of Assistant Engineer and sought further relief for quashing the certain orders issued on 21.10.2004, 19.10.2004, 4.10.2004, 17.6.2004 and 17.1.2003 passed by the respondents, contained in Annexures-30, 29, 28, 23 and 13 respectively of the writ petition and to issue direction to the respondents to re-determine the vacancies in accordance with the rules.

10. The petitioners of Writ Petition No. 53133 of 2004 Pramod Shanker Upadhyay and others Vs. State of U.P. & others have initially challenged the correctness of order dated 6.12.2004 in so far as it permits to promotion of respondents No. 6 to 10 passed by respondent contained in Annexure No. 22 A of the writ petition and order dated 21.10.2004 and 19.10.2005 passed by the respondent No.1 contained in Annexure No. 21 and 26 respectively to the writ petition with further relief of Mandamus commanding the respondent to determine the vacancies in conformity with the Rules and to consider the case of petitioner for promotion on the post of Assistant Engineer from the Feeding Cadre of Junior Engineers and in case the petitioners are found suitable then to grant them all consequential benefits attached thereto from the date the juniors have been granted promotion. Further relief sought in the writ petition is that after the decision of Hon'ble Apex Court in P.D. Agrawal's case and the Division Bench of this Court in Aruvendra Kumar Garg's case there exist no prescribe quota for promotion from the post of Junior Engineer to the post of Assistant Engineer under old 1936 Rules as the quota prescribed in the notifications dated 28.7.1969  has already been quashed by the Hon'ble Apex Court and notification dated 4.8.1987 and 25.9.1997 by this Court, therefore, computation and determination of vacancies by treating 25% quota earmarked for promotion to the post of Assistant Engineer to the incumbents working on the posts of Junior Engineers and computers in feeder cadre is patently erroneous and illegal.

11. In writ petition No. 22558 of 2003 Daya Shankar and others Vs. State of U.P. and others, initially the petitioners have sought Writ of Mandamus commanding the respondents to promote the petitioners on the post of Assistant Engineer in view of the decision dated 22nd March, 2002 of Division Bench of this Court rendered in Aruvendra Kumar Garg's case as per U.P. Service of Engineer (Building and Road Branch) Class-II Rules as existing prior to amendment in the year 1969, and also sought relief of certiorari quashing the order-dated 21.10.2004 and 6.12.2004 passed by the respondents contained in Annexure Nos. 25, 26 and 28 respectively to the writ petition and further relief in the nature of Mandamus was sought for directing the respondents to determine the vacancies in conformity with the rules and to consider the case of petitioner for promotion on the post of Assistant Engineer from the feeder cadre  and in case the petitioners are found suitable, then to grant them all consequential benefits attached thereto from the date the Juniors have granted promotion. The relief sought in the writ petition are rest on the ground that in view of the decision of the Hon'ble Apex Court in P.D. Agarwal's case and subsequently in case of Aruvendra Kumar Garg, there exist no statutory rules prescribing quota for promotion on the post of Assistant Engineer from the feeder cadre, therefore, the Government had issued an order on 20.2.2003 intending to fill up the vacancies of promotion by prescribing quota for direct recruitment and promotion. In absence of statutory rules prescribing any such quota for direct recruitment and promotion the aforesaid Government Order occupies the field, thus, the vacancies are liable to be determined in accordance with the provisions of aforesaid Government Order and further in view of definition of "recruitment year" in Rule 2004, the new rules will cover the vacancies only arise out after 1st July 2004 in spite of the said rules commenced on 3.1.2004. The vacancies existing prior to the aforesaid date till 30th June 2004 are liable to be filled up in accordance with the Old 1936 Rules.

12. In Writ Petition no. 23319 of 2003 Vishnu Dutt Tripathi Vs. State of U.P. and others, the petitioner being degree holder Junior Engineer had moved a representation before the competent authority but no action was taken for considerably long time then he filed a writ petition no. 21581 of 2002 being Vishnu Dutt Tripathi Vs. State of U.P. and others. On 23.10.2002 this Court was pleased to dispose of writ petition with the direction to the authority concerned to consider the petitioner for promotion on the aforesaid post from the date from which his juniors have been promoted, within a period of two months from the date of production of certified copy of the order. However on 15.3.2003 the respondent no.1 has rejected the claim of petitioner for being promoted on the post of Assistant Engineer. The petitioner has challenged the order dated 15.3.2003, contained in Annexure-4 of the writ petition, in so far as it pertains to the petitioner regarding non-consideration of the claim on the post of Assistant Engineer in the pay scale of Rs.8000/- to 1350/- on the ground that the impugned order is pertinently erroneous and illegal inasmuch as in the teeth of judgment and orders passed by this court on 23rd October 2002 in writ petition no. 21581 of 2002.

13. The petitioners of Writ Petition No. 53202 of 2004 Nawal Kishor Yagik and others Vs. State of U.P. and others have sought relief in the nature of certiorari quashing the impugned orders/letters dated 6.12.2004 and 21.10.2004 issued by the respondent no. 2 and impugned letters dated 19.10.2004 and 21.10.2004 issued by the respondent no. 3, contained in Annexures 1,2,3 and 4 respectively of the writ petition. Further writ in the nature of mandamus is sought for commanding the respondents to consider the case of the petitioners for promotion as per the eligibility list and the vacancies shown in the letter dated 4.10.2004, contained in Annexure-11 of the writ petition.

14. The petitioners of Writ Petition No. 15112 of 2003, Jai Chandra Singh & others Vs. State of U.P. and others have sought relief in the nature of certiorari for quashing the impugned order dated 15th March 2003 in so far as it pertains to the petitioners regarding non-consideration of the claim for promotion on the post of Assistant Engineer in the pay scale of Rs. 8000-13500/-. Further writ in the nature of mandamus is sought for commanding the respondents not to give effect to the impugned order dated 15.3.2003 and further to ignore the order dated 15.3.2003 and to consider the claim of the petitioners for promotion on the post of Assistant Engineers.

15. In the aforesaid writ petitions, State Government as well as private contesting respondents have filed their respective counter affidavits. The stand taken by them and the break up and determination of year wise vacancies w.e.f. 1.7.1997 to 2.1.2004 and w.e.f. 3.1.2004 to 30thJune 2004 have been given in Annexures-1and 2 of the supplementary counter affidavit sworn by Sri Tribhuwan Ram, Engineer-in-Chief, P.W.D., U.P. Lucknow dated 25.7.2006 filed in Writ Petition No. 53133 of 2004 Pramod Shanker Uppadhay and others Vs. State of U.P. and others. The relevant statement of fact regarding the occurrence of vacancies and promotions made have been narrated in para 8 to 10 and para 18 to 27 of the supplementary counter affidavit which are reproduced as under :

"8. That a detail particulars about occurrence of vacancies year wise commencing from 1997-98 till 2003-04 on the aforesaid grounds has been given in the accompanying chart. The photo stat copy of the said chart is being filed herewith and is marked as Annexure No.SCA1 to this supplementary counter affidavit, the contents of which form part of the present paragraph and same may be read in support thereof.

9.  That a detail particulars about occurrence of vacancies year wise commencing from 1997-98 till 2003-04 has been given in the accompanying chart. The Photostat copy of said chart is being filed herewith and is marked as Annexure No. SCA- 2 to this supplementary counter affidavit, the contents of which form part of the present paragraph and same may be read in support thereof.

10.  That a detail particulars about promotion from the post of Junior Engineers to the post of Assistant Engineers in question as well as the vacancies which remain unfilled has been given in the accompanying chart on the year wise basis commencing from 1997-98 till 2003-04 has been given in the accompanying chart. The photostat copy of said chart is being filed herewith and is marked as Annexure No.SCA-3 to this supplementary counter affidavit, the contents of which form part of the present paragraph and same may be read in support thereof.

18. That in Rules 1987 there was the following quota for selection:- 66.67% vacancies by way of direct recruitment and 33.33% vacancies by way of promotion which was sub divided as 25% from diploma holder J. Es. and 8.33% from degree holder J. Es.

19. That in Rules 1997 there was the following quota for selection :-  58.33% posts by way of direct recruitment and 41.66% posts by way of promotion which was sub divided as 33.33% from diploma holder J. Ds. and 8.33% from degree holder J. Es.

20. That by common judgment dated 22-3-2002 passed by the Hon'ble Court in C.M.W.P. No.42762/2000- Aruvendra Kumar Garg and others Vs State of U.P. and others alongwith C.M.W.P. No. 17949 of 1998- Atibal Singh Vs Chief Secretary, U.P. and others and C.M.W.P. No. 19844 of 2000 - Sansvir Singh and others Vs. State of U.P and others and C.M.W.P. No.8946 of 1998- Jang Bahadur Singh v/s State of U.P. and others, the aforesaid Rules 1987 and Rules 1997 were quashed.

It is relevant to mention here that after quashing of said Rules on 22-3-2002 by the Hon'ble Court the earlier quota of recruitment i.e. 75% for direct recruitment and 25% by way of promotion from the J.E. (Civil) was revived.

21. That the Rules, 2004 which was notified on 3-1-2004, provides under Rule 5 the source of recruitment which is being quoted below:-

"5. Recruitment to the posts in service shall be made from the following sources:

(i) Fifty percent by direct recruitment through the Commission.

(ii) Fifty percent by promotion through the Commission from the amongst substantively appointed Junior Engineers (Civil) and Junior Engineers (Technical) who have completed seven years service as such on the first day of the year of recruitment.

Provided that the promotion shall be made in such a manner that ninety percent posts shall be filled up by Junior Engineers (Civil) and ten posts shall be filled up by Junior Engineers (Technical)."

22. That vide Government order dated 30-6-98 promotions pertaining to recruitment year 1996-97 ( 02 vacancies ) and recruitment year 1007-98 ( 36 vacancies ) total 38 promotions from the post of J.E. ( Civil ) to the post of A.E. ( Civil ) have been made.

23. That vide government Order date 2-5-2002 promotions pertaining to recruitment years 1998-99, 1999-2000 and 2000-01 total 53 promotions from the post of J.E. (Civil) to the post of A.E. ( Civil ) have been made.

24. That in view of the Rule 5 of Rules, 2004 the determination of vacancies had been made on the basis of cadre strength for the recruitment years commencing from 1998-99 till 2003-04 and accordingly vide letter dated 19-10-2004 the State Government was intimated about the vacancies and in pursuance thereof vide letter dated 21-10-2004 that eligibility list was submitted before the State Government.

25. That due to filing of Contempt Petition No. 607/03 - V.P. Singh v/s Sri D.S. Bagga and others and observations made by the Hon'ble Court in said contempt proceedings, in the letter dated 19-10-2004 the vacancies were calculated on the basis of cadre strength and accordingly requisition was sent to the Public Service Commission U.P., Allahabad and in pursuance thereof 10+01=11 eligible Junior Engineers ( Civil ) have been promoted to the post of Assistant Engineer (Civil ) in pursuance of Government Order dated 6.12.2004 and 25.5.2005 respectively. It is further submitted that in the said contempt proceeding the Hon'ble Court has been informed about said 11 promotions.

26. That in compliance of interim order dated 20-5-2004 passed by the Lucknow Bench of the Hon'ble Court in W.P. No.2503/SS/2004- Prabhat Singh Chirar and others v/s State of U.P. and others - 02 vacancies have been kept reserved pertaining to promotion quota.

27. That from perusal of the record of the department pertaining to aforesaid occurrence of vacancies and its calculation which were made earlier, there was certain discrepancies which occurred due to inadvertent mistake as well as due to interpretation of Rules, which were notified in the year 1987, 1997 and 2004 respectively land the situations which arose after passing of the aforesaid judgment dated 22-3-2002 passed by Hon'ble Court."

16. We have heard Sri S.C. Budhwar, learned Senior Counsel assisted by Sri Pramod Kumar Rai and Sri Vikash Budhwar, Sri Umesh Narain Sharma, learned Senior Counsel assisted by Sri Chandan Sharma and Sri Sunit Kumar, Sri T.P. Singh, learned Senior Counsel assisted by Sri Siddharth Singh, Sri Ashok Khare, learned Senior Counsel assisted by Sri Aditya Kumar Singh, Sri B. Malik, Sri N.C. Tripathi, Sri H.R. Misra assisted by Sri Gopal Srivastava for the petitioners and Sri J.K. Tiwari, learned Standing Counsel appearing on behalf of State Government as well as Sri Shashi Nandan learned Senior Counsel and Sri Yogesh Agarwal appearing on behalf of private respondents.

17. The submissions of Sri Ashok Khare, learned Senior Counsels appearing on behalf of the petitioners in some writ petitions in nut shell are that Under U.P. Public Works Department Group-B Civil Engineering Service Rules, 2004, Rule 5 prescribes the source of recruitment to the posts in service as 50% by direct recruitment through the Commission and 50% by promotion from amongst substantively appointed Junior Engineers (Civil) and Junior Engineers (Technical) who have completed seven years service as such on the first day of the year of recruitment. The 50% quota for promotion is subject to the proviso that 90% of the post under the promotion quota would be filled up by promotion of Junior Engineers (Civil) and 10% posts under the promotion quota to be filled up from amongst Junior Engineer (Technical). The Rule 8 specifies the academic qualification for direct recruitment as a Bachelor's degree in Civil Engineering or an equivalent qualification. The language of Rule 8 clearly stipulates that the educational qualification envisaged therein does not to apply to cases of promotion. In view of the aforesaid a Junior Engineer in the Department is entitled to be considered for promotion in case he has been substantively appointed and has completed seven years as such on the first date of the year of recruitment without any further restriction as to possession of any technical qualification.

18. While elaborating his submission learned counsel Sri Khare has urged that the notification dated 3.1.2004 done away with the earlier existing requirement of possessing technical qualification  for  promotion  to  the  post  of Assistant Engineer under the old 1936 Rules as amended from time to time there existed the requirement of a Junior Engineer to possess a bachelor degree of Engineering or an Associate membership of Institute of Engineers or to have passed the qualifying examination held for such purpose by the State Government. Under new rules 2004 the aforesaid requirement earlier existing stands done away with and Junior Engineer/s who neither possess a bachelor degree of Engineering nor an Associate membership of Institute of Engineers is eligible for promotion without have to pass any qualifying examination for testing his technical knowledge. In the Lok Nirman Vibhag there has continuously existed the requirement of possessing a bachelor degree or Associate Membership of Institute of Engineers for being considered eligible for promotion to the post of Assistant Engineer. With regard to candidates not possessing either of the said qualification there existed requirement of passing a qualifying examination for testing their technical knowledge. The new rules completely divest the requirement of possessing technical qualification or passing an examination for the testing of technical knowledge, and done away with the distinction, which has always existed in the department between Junior Engineers possessing bachelor degree of Engineering or Associate Membership of Institute of Engineers and such Junior Engineers who do not possess the said qualification. The new rules have the effect of treating unequal to be equal for the purpose of promotion to the post of Assistant Engineer. The doing away with the distinction always maintained in the department between two categories of Junior Engineers is without any rational justification. The new rules have been made only with intent for over coming the pending litigation in Writ Petition No. 8910 of 2003 before this Hon'ble Court and further for some how ensuring grant of promotion to Junior Engineers irrespective of their not having the requisite technical knowledge for the post of Assistant Engineer. In any view of the matter the Rule-2004 is prospective in operation and has not been given any retrospective operation, thus it would be applicable for filling up vacancies of Assistant Engineer arising subsequent to 3.1.2004 and the same has no applicability with regard to vacancies, which have already come into existence in the department prior to 3.1.2004. In case the new rules are made applicable to earlier vacancies the same would amount to grant retrospective operation to the notification dated 3.1.2004. It is further submitted that even otherwise giving retrospectivity to the new rules would be arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution as the right for consideration against the earlier vacancies in accordance with the old 1936 Rules had already come into existence in favour of the petitioners and other similarly circumstanced individuals and such rights cannot be done away with.

19. Further submission of Sri Ashok Khare is that after the judgment of High Court dated 22.3.2002 there remained a promotion quota of 25% to be filled up from Junior Engineers and Computer satisfying the eligibility requirement specified by Rule 9. As a further consequence Junior Engineer/Computer of Lok Nirman Vibhag who had either passed qualifying examination as envisaged under Rule 9 (ii) or had passed Associate Membership Examination of the Institute of Engineers (India) or possessed a Bachelor degree in Engineering were eligible for consideration for promotion to the post of Assistant Engineer. The qualifying examination envisaged by Rule 9 (ii) is a qualifying examination prescribed by State Government. The original prescribed qualifying examination was governed by rules as printed in the Manual of Orders of the year 1955. It is submitted that since the qualifying examination envisaged under rule 9(ii) was the qualifying examination for treating candidates not possessing Bachelor of Engineering degree/Associate Membership of Institute of Engineers, at par with the aforesaid qualification and the rules governing the qualifying examination would demonstrate that the qualifying examination was envisaged as a written examination based upon a specified course curriculum for testing the technical knowledge of the candidates in Engineering but on 11.2.2003 the State Government issued an office order making provision that the qualifying examination under Rule 9(ii) of the Rules would comprise only of an oral interview to be conducted by a three Member Committee. It is further submitted that the office order dated 11.2.2003 had been issued arbitrarily, contrary to the scheme of the old 1936 Rules and further for conferring unwarranted benefit upon Diploma holder Junior Engineers.

20. Besides the aforesaid submissions and arguments of Mr. Khare and to certain extent in contrast to his submission in respect of prescription quota for promotion Sri S.C. Budhwar, learned Senior Counsel appearing on behalf of some of the petitioners has vehemently argued that after the decision rendered by Hon'ble Apex Court in P.D. Agrawal's case and a Division Bench of this Court in Aruvendra Kumar Garg's case, there remains no statutory rule prescribing any quota for promotion and direct recruitment on the post of Assistant Engineers from the post of Junior Engineers and Computers in the existing statutory rules rather the field is occupied by executive order dated 20.2.2003 issued by the Government prescribing such quota for promotion to the extent of 41.66% of vacancies, intending to fill up vacancies existing in the quota of promotion under old 1936 Rules, therefore, the computation/determination of vacancies on the post of Assistant Engineers in the impugned process of selection inasmuch as selections made earlier challenged in some of the writ petitions are based on erroneous assumptions of fact as such further process of selection pursuant thereto in respect of preparation of eligibility list is vitiated under law and entire impugned selection and selections made on earlier dates are wholly arbitrary, illegal and not sustainable in the eye of law.

21. Sri H.R. Misra appearing on behalf of some of the petitioners has also adopted the arguments advanced by Sri Ashok Khare and Sri S.C. Budhwar and further submitted that under the relevant provisions of U.P. Promotion by selection in consultation with Public Service Commission (Procedure) Rules, 1970 the respondents were required to hold selection in respect of available vacancies in the quota of promotion by determining and computing year wise vacancies and preparing year wise eligibility list even if they held selection by clubbing the vacancies of several years together but while holding the selection the respondents have committed gross illegality and clubbed all the vacancies of several years while preparing single eligibility list besides lists of reserved category candidates, thus it has prejudiced the case of petitioners in the process of selection as a result of which selection in question is vitiated under law. He further submitted that the petitioners on whose behalf he is appearing are degree holder Junior Engineers and prior to decision of Division Bench of this Court in Aruvendra Kumar Garg's case they have already obtained the Bachelor degree or A.M.I.E. certificates but they have been discriminated in promotion from his juniors without any justification under law. Sri B. Malik appearing on behalf of some of the petitioners has also challenged the validity of new rule being violative of Articles 14 and 16 of the Constitution of India inasmuch as other provisions of the Constitution.

22. Contrary to it, learned Standing Counsel appearing on behalf of State Government has made attempt to justify the impugned process of selection and selections made earlier impugned in some of the writ petitions and submitted that in given facts and circumstances of the case, no interference is called for in respect of selection in question inasmuch as validity of new Rules. Sri Yogesh Agarwal appearing on behalf of some selected and promoted candidates has made serious attempt to justify their selections and promotions.

23. On the basis of pleadings and rival submissions of the learned counsels appearing for the parties following questions arise for our consideration:

(1) As to whether the provisions of recruitment and promotion contained in the new rules of 2004, are violative of Articles 14 and 16 of the Constitution or any other provisions of the Constitution on the aforestated grounds in the writ petition as such liable to be struck down?

(2) As to whether the vacancies occurred prior to 3.1.2004 and after 3.1.2004 to 30.6.2004 in the quota of promotion are liable to be filled up under old laws occupying the field or liable to be filled up under new rules of 2004?

(3) What would be actual quota of promotion under old 1936 Rules for filling the vacancies of Assistant Engineer in view of decision rendered by Hon'ble Apex Court in P.D. Agrawal's case and this Court in Aruvendra Kumar Garg's case?

(4) As to whether the eligibility list for promotions on the post in question is required to be prepared against year wise vacancies separately or by clubbing all the vacancies of several years together by common single eligibility list?

(5)  As to whether prescription of interview alone as qualifying examination for the purpose of eligibility of Diploma holder Junior Engineers and Computers for promotions under G.O. dated 11.2.2003 is justified under law or not?

(6) What would be effect of decision of this court, in Aruvendra Kumar Garg's case in respect of promotions made against the vacancies of years of recruitment 1997-98 to 2000-2001 in separate quota for promotion for degree holder junior engineers and computers and promotions made otherwise?

Question No. 1

24. Before answering the first question as to whether provisions of the rule namely Uttar Pradesh Public Works Department Group B Civil Engineering Services Rules 2004 containing the rules of recruitment including promotion are violative of Article 14 and 16 of the Constitution of India on the aforestated grounds mentioned in the writ petitions, it is necessary to point out that to answer this question it is necessary to have a survey of relevant provisions of the Old 1936 Rules as well as new Rules 2004. In 1936 U.P. Services of Engineers (Buildings and Roads Branch) Class II Rules pertaining to PWD were framed in exercise of powers conferred under the Government of India Act. Rule 3 provides definition clause. Rule 5 of which provides source of recruitment and Rule 6 empowered the Government to decide vacancies to be filled from the sources specified in the aforesaid Rule, Rule 9 of which provides for technical qualification. The aforesaid rules as originally existing in the 1936 Rules are being quoted as under:-

"3. In these rules, unless there is anything repugnant ink the sub-Definitions.................eject or context:

(a) "The Service" means the United provinces Service of Engineers (Buildings and Roads Branch), Class II.

(b) "Members of the Service" means a government servant appointed in a substantive capacity, under the provisions of these rules or of rules in force previous to the introduction of these rules, to a post in the cadre of the service.

(c) "Direct recruitment" or "Direct appointment" means recruitment or appointment in the manner prescribed in rule 5(i), (ii) and (iii) of these rules.

(d) "a natural born British subject" is as defined in section 1 of the British Nationality and Status of Aliens Act of 1914.

. . . . . . . . . .

5. Recruitment to the service shall be made by the Government-

Sources

of recru-

itment

(i) by direct appointment from amongst engineer students who have passed out of the Thomason Civil Engineering College, Roorkee, and who have completed a course of training in the Building and Roads Branch as engineer students after consulting a permanent Board of Selection;

(ii) by direct appointment after advertisement and after consulting a permanent Board of Selection;

(iii) by the appointment of officers in the temporary service of the United Provinces Public Works Department, Buildings and Roads Branch, after consulting a permanent Board of Selection;

(iv) by promotion of members of the United provinces Subordinate Engineering Service or of Upper Subordinates in the Public Works Department, Buildings and Roads Branch, who have shown exceptional merit.

6. The Government shall decide in each case the source from which a vacancy shall be

Number to be  filled:

recruited from

each source

(a) members of the united provinces Subordinate Engineering Service and upper Subordinates who are eligible for promotion under clause (iv) of rule 5 are debarred from applying for direct appointment under clause (ii) of that rule;

(b) in making appointments to the service care shall be taken to secure reasonable representation of the different communities land to prevent the preponderance of any one class or community;

(c) in the case of direct appointment, other things being equal, weight shall be given to a candidate's family status.

9. (i) No person shall be recruited to the service under the provisions of rule 5(i),

Technical   5(ii), or 5(iii) unless-

qualifications

(a) he holds the Engineering Certificate of the Thomason College, or

(b) he has passed the examination for, and is qualified by age for election to, the Associate Membership of the Institution of Engineers (India), or

(c) he has obtained an Engineering degree of one of the universities mentioned in the appendix under the conditions prescribed therein, or

(d) he has passed sections A and B of the Associate Membership Examination of the Institution of Civil Engineers; or

(e) he has passed the Associate ship Examination of the City and Guilds Institute (Imperial College of Science and Technology, South Kensington) in Civil Engineering; and

(f) he has, if recruited under the provisions of rule 5(ii), had at least two years' practical experience on important works connected with roads and buildings.

(ii) No officer shall be promoted to the service under rule 5(iv) unless he has passed any qualifying examination which the Government may prescribe."

25. Vide notification of State Government dated 21.7.1959 in exercise of powers conferred of proviso to Article 309 of the Constitution of India. The existing Rule 5 of 1936 was amended whereby in Clause (iv) of Rule 5 the words "upper-subordinate" had been deleted and the existing Clause (a) of rule 6 was substituted by new provisions containing 25 percent of vacancies were to be reserved for selected qualified members of the subordinate engineering service and computers. The reservation was required to be shared by members of sub-ordinate engineering services and computers in approximate relative cadre strength at the time the question of proportionate to U.P. Service of Engineers is taken up. In Clause (b) the words "upper-subordinate" had been deleted. For ready reference, the notification dated 21.07.1959 containing the aforesaid amendments is reproduced as under:-

"GOVERNMENT OF UTTAR PRADESH SARVAJANIC NIRMAN (KHA)VIBHAG

No. 820 EBR/XXIII-PED-141 EBR/57/DATED Lucknow 21-7-1959

In exercise of power conferred by the provision to Article 309 of the Constitution of India, the Govt. of U.P. is pleased to make the following amendment in the U.P. Service of Engineers (BR Branch) Class-II Rules.

Amendments

In rule-5 Class (IV) delete the words" of upper subordinates"

In rule 6----

(i) For the existing clause (a) substitute the following (a) 25 percent of the vacancies shall be received for selected qualified members of the subordinate Engineering Service and Computers. The reservation shall be shared by members of the S.E.S. and computers in approximate proportion of their relative cadre strength at the time the question of proportion to U.P. Service of Engineers in taken up. The above percentage will be observed only if suitable candidates up to the prescribed numbers are available.

(ii) In clause (b) delete the words "and upper subordinates"

By order

R.S. Das

Secretary.

26. Vide notification dated 1 October 1966 in exercise of powers under proviso to Article 309 of the Constitution of India, Governor of Uttar Pradesh has been pleased to make rules namely United Provinces Services of Engineer (Building and Road Branch) Class II Amendment Rules 1966, whereby the original Rule 9 of Old 1936 Rules in respect of technical qualification of U.P. Services of Engineers Class II has been amended by new Rules. For ready reference notification dated First October 1966 is being reproduced as under:-

"No. 6075-EBR/XXIII-PWB-127-EBR-47

October 1, 1966

In exercise of the powers under the proviso to Article 309 of the Constitution of India, the Governor of Uttar Pradesh is pleased to make the following rules:

The United Provinces Service of Engineers (Buildings and Roads Branch), Class II

(Amendment) Rules, 1966

1. (i) These Rules may be called the U.P. Service of Engineers (Buildings and Roads Branch), Class II (Amendment) Rules, 1966.

(ii) They shall come into force with effect from the date of their publication in the Gazette, the issue of this notification.

2. In the U.P. Service of Engineers (Buildings and Roads Branch), Class II Rules, for the rule mentioned in column 1 the rule as mentioned in column 2 shall be substituted:

Column 1 Column 2

     Original rule 9      Amended rule 9

Technical qualifications- Technical qualifications-

9. (i) No person shall be recruited to the 9. (i) No person shall be recruited to the

service under the provisions of rule 5(i), 5(ii) service under the provisions of rule 5(i), 5(ii)

or 5 (iii), unless -- or 5 (iii) unless -

(a) he holds the Engineering Certificate         (a) he holds the Engineering Certificate

of the Thomason College, or        of the Thomason College, or

(b) he is a fully qualified Associate        (b) he has passed section A and B of the

Member of the Institution of Engineers       Associate Membership Examination of

(India), or      the Institution of Engineers (India), or

(c) He has obtained an Engineering degree     (c) he has obtained an Engineering degree

of one of the universities mentioned in the    of one of the universities mentioned in the

Appendix under the conditions prescribed    Appendix under the conditions prescribed

therein, or    therein, or

(d) he has passed sections A and B of the   (d) he has passed section A and B of the

Associate Membership Examination of the      Associate Membership Examination of the

Institution of Civil Engineering, or  Institution of Civil Engineers, or

(e) he has passed the Associateship  (e) he has passed the Associateship Examin-

Examination of the City and Guilds  ation of the City and Guilds Institute

Institute (Imperial College of Science (Imperial College of Science and Technology,

and Technology, South Kensington)         South Kensington) in Civil Engineering, and

in Civil Engineering, and

(f) he has, if recruited under the provisions (f) he has, if recruited under the provisions

of rule 5(ii), had at least one year's of rule 5(ii), had at least one year's practical

practical experience on important works experience on important works connected

connected with roads and buildings. with roads and buildings.

(ii) No officer shall be promoted to the (ii) No officer shall be promoted to the Service

service under rule 5 (iv) and 5(v) unless under rule 5(iv) and 5(v) unless he has passed

he has passed such qualifying examination such qualifying examination as the Governor

as the Governor may prescribe, or may prescribe or possesses the technical

possesses the technical qualifications qualifications prescribed in clause (i) of this

prescribed in clause (i) of this rule. rule."

27. Thereafter on 28th July, 1969 an amendment to the Rules was made in exercise of powers under proviso to Article 309 of the Constitution of India, known as United provinces of Services of Engineers (Building and Road Branch) Class II Rules 1969. These rules were enforced since March 1962. Relevant provisions to these rules are quoted herein below:-

"3. In these rules unless there is anything repugnant in the subject or context-

(a) The ''Service' means the U.P. Service of Engineers (Buildings and Roads Branch), Class II.

(b) ''Member of the Service' means a government servant appointed in a substantive capacity, under the provisions of these rules or of rules in force previous to the introduction of these rules to a post in the cadre of the service.

(c) ''Direct recruitment' or ''Direct appointment' means recruitment or appointment in the manner prescribed in Rule 5(a) (i) and 5(b) (i).

(i) ''Period of recruitment' means the period up to the end of December in the calendar year succeeding year in which the recruitment or selection is made.

5. Source of recruitment.- Recruitment to the post of Assistant Engineer shall be made from the following sources:-

(a) in permanent vacancies-

(i) by direct recruitment on the result of a competitive examination conducted by the Commission;

(ii) by selection from amongst the officers appointed as Assistant Engineer by direct recruitment through the Commission land working in temporary or officiating vacancies in the department;

(iii) by promotion of members of the Public Works Department, Subordinate Engineering Service and the Public Works Department ''Computers' Service.

(b) in officiating or temporary vacancies-

(i) by direct recruitment on the result of a competitive examination conducted by the Commission;

(ii) by promotion of members of the Public Works Department, Subordinate Engineering Service, and Public Works Department Computers Service.

6. Number to be recruited from cach source- The Governor shall decide the number of appointments to be made at each selection in each kind of post from the sources specified in Rule 5:

Provided that recruitment in substantive vacancies occurring during a period of recruitment in the post of Assistant Engineer, shall, so far as may be possible, be made from the source mentioned in Rule 5(a) in the following proportion:

(a) Fifty per cent of the vacancies shall be filled by direct recruitment on the results of competitive examination under Rule 5(a)(i);

(b) Twenty-five per cent of the vacancies shall be filled from the source specified in Rule 5(a)(ii);

(c) Twenty-five per cent of the vacancies shall be filled from the source specified in Rule 5(a)(iii) which shall be shared by members of the Public Works Department Subordinate Engineering Service and the Public Works Department Computers' Service in approximate proportion of permanent strength of their respective cadres at the time of selection:

Provided further that with a view to giving facility to temporary Assistant Engineers recruited in the department in consultation with the Commission up to the date of commencement of the first competitive examination in accordance with these rules, the proportion of vacancies to be filled from the three sources mentioned in the first proviso shall be 25 per cent, 50 percent and 25 per cent respectively subject to review at the discretion of the Governor in consultation with the Commission.

Explanation- The vacancies from the source mentioned in Rule 5(a)(ii) will, until further orders, be filled from amongst those temporary Assistant Engineers only who were recruited in the Department in consultation with the Commission and were working in this capacity on the date of commencement of first competitive examination:

Provided also that recruitment to temporary or officiating vacancies in the posts of Assistant Engineers by promotion from the source mentioned in Rule 5(b)(ii) shall be made up to 25 per cent of the vacancies, occurring during any one period of recruitment in the same proportion as in clause (c) of the first proviso and the remaining vacancies shall be filled by direct recruitment under Rule 5(b)(i)

Note:- The distribution of vacancies in the permanent cadre in the above manner will be subject to the condition that the Governor, in consultation with the Commission may, for special  reasons, increase or decrease the percentage fixed for recruitment by selection and competitive examination in any particular period of recruitment.

28. On November 26, 1971 a further amendment to the U.P. Service of Engineers (Buildings and Roads Branch), Class II Rules has been brought in and these rules are called U.P. Service of Engineers Buildings and Roads Branch) Class II (Amendment) Rules, 1971. Rule 23 which deals with seniority has been substituted. The relevant portion of Rule 23 is quoted hereunder:

"Except as provided for hereunder seniority in the service will be determined by the date of order of appointment in a substantive vacancy. . . ."

29. The aforesaid amendment Rules of year 1969 and 71 have been under challenge before the Hon'ble Apex Court in P.D. Agarwal and others vs. State of U.P. and others which was decided by Hon'ble Apex Court on 8th June 1987, decision is reported in 1987 (3) SCC 622, whereby the provisions contained in Rules 3(c), 5 and 6 of 1969 Rules and Rule 23 of 1971 Rules have been held arbitrary, irrational and unreasonable in as much as violative of Article 14 and 16 of the Constitution of India, in so far as they have affected the question of determining the interse seniority of temporary Assistant Engineers appointed under Rule 5(2) of the Rules as against the officers recruited against the permanent vacancies.

30. On 4.8.1987, a notification was issued by the State Government making amendments to old 1936 Rules including Rule 5, 6, 9, 12, 13 and 16 of existing Rules quoted as under:-

" No. 3428 EBR/23-(3)-70 E.B.R. - 86

Dated Lucknow, August 4, 1987.

In exercise of the powers conferred by the proviso to Article 309 of the Constitution the Governor is pleased to make the following rules to amend the United provinces Service of Engineers (Building and Roads Branch) Class - II Rules 1936:-

THE UTTAR PRADESH SERVICE OF ENGINEERING (BUILDING AND ROADS BRANCH) CLASS - II RULES 1987.

1. (i) These Rules may be called the Uttar Pradesh        Short title and Service of Engineers (Buildings and Roads Branch)       commencement.

Class - II (Amendment), Rules, 1987,

(ii) They shall come into force at once.

2. For rule 5 of the U.P. Service of Engineers

(Buildings and Roads Branch) Class -II Rules,

1936 herein after to be referred to as the said

rules set out in column - I the rule as set out

in column - II.

 COLUMN I                                                   COLUMN II

Existing Rule     Rules as hereby substituted.            

Sources 5. Recruitment to the posts 5. Recruitment to the posts

of of Assistant Engineer shall of Assistant Engineer shall

recruitment be made from the following be made from the following

sources:- sources:-

(a) In permanent vacancies:- (i) 66 2/3 percent vacancies by direct

recruitment on the basis of the

competitive examination conducted

by the commission.

(i) by direct recruitment on Provided that the officers

the result of a competitive appointed as Assistant examination conducted by the Engineers by direct

commission. recruitment through the

commission and working in temporary

(ii)  by selection from amongst officers or officiating vacancies in the depart-

appointed as Assistant Engineers by ment, or the officers after regular-

direct recruitment through the commission isation under the Uttar Pradesh

and working in temporary or officiating Regulation of adhoc appointments (on

vacancies in the department. posts within the purview of the Public

Service Commission) Rules, 1979

shall be deemed to have been

appointed against the quota of direct

recruitment before any fresh

appointment are made by direct

recruitment.

(iii) by promotion of members of the (ii) 25 percent vacancies by promotion

Public Works Department Subordinate through the commission from

Engineering Service and the Public Works amongst such permanent incumbents

Department, Computer's Service. of the posts in the Public Works

Department, Subordinate Engineering

Service and Public Works Department

Computer's Service as have put in at

least seven years continuous service

on such posts in the proportion of

respective permanent cadre strength.

(b) In officiating or temporary (iii)  8 1/3 percent vacancies by

vacancies. promotion through the commission

(i) by direct recruitment on the result from amongst such permanent

of a competitive examination conducted incumbents of the posts in the

by the commission. Public Works Department Sub-

ordinate Engineering Service and

(ii) by promotion of members of the Public Works Department

Public Works Department Subordinate Computer's Service as possess

Engineering Service and Public Works bachelors degree in Engineering

Department Computer's Service. from a recognised institution or

Associate Members of the institute

of Engineers in the proportion of

respective permanent cadre strength.

Provided that, if persons

possessing the qualifications

mentioned in Clause (iii) are not

available, these vacancies shall also

be filled from the source mentioned

in clause (ii).

Omission 3. Rule -6 of the said rules shall be omitted.

of rule

Amendment 4. For rules 9 and 12 of the said rules, set out in Column-I

of rules 9 and   the rules as set out in Column-II shall be substituted:

12.

COLUMN -I COLOMN-II

9.  Technical qualifications:- 9. No person shall be directly recruited

(i) No person shall be recruited to the service unless he -

to the service under the provisions (a) possesses degree of Bachelor of

of rule 5 (a) or 5(b) (i) unless:- Engineering (Civil) from any institution

recognised by the Government from time to

(a) he holds the Engineering time, or Rules as hereby substituted.

Certificate of the Thompson Civil

Engineering College Roorkee or (b) has passed section A and B of the

has obtained a Civil Engineering Associate Membership Examination of the

degree of any institution recognised institution of Civil Engineers (London), or

by Government from time to time,

or, (c) has passed the Associate ship

examination of the city and Guilds Institute

Note:- A list of institution (Imporial College of Science and

recognised at present is given in Technology). South Kensington in Civil

Appendix II. Engineering; or

(b) he has passed Sections ''A' (d) is fully qualified Associate Member of

and ''B' of the Associate the Institution of Engineers (India);

Membership Examination of the

Institution of Civil Engineers Provided that from August 6,1966

(London); or passing of Section A and B of the Institute

of Engineers (India) would be required; or

(c) he has passed the associateship

Examination of the City and Guilds (e) has obtained a degree in Civil

Institution (Imporial College of Engineering from any University in India

Science and Technology South incorporated by an Act of the Central or

Kensington in Civil Engineering,or, State Legislature.

(d) he is a fully qualified Associate Member

of the Institution of Engineers (India):

Provided that from August 6, 1966

passing of Section ''A' and ''B' of the Institution

of Engineers (India) would be required; or

(e) he has obtained a Degree in Civil Engineering

from any University in India incorporated by an Act

of the Central or State Legislature.

(ii) No officer shall be promoted to the service under

rules 5(a) (iii) and 5(b) (ii) unless he has passed such

qualifying examination as the Governor may prescribe

or unless he possesses any of the technical qualification

in clause (i) of this rule.

12. (1) Recruitment to the posts of Assistant 12. Recruitment by promotion to

Engineers under rule 5(a) (iii) and 5(b)(ii) the post of Assistant Engineers

shall be made by selection on merit. shall be made on the basis of merit

in accordance with U.P. Promotion

(2) The Secretary shall consider the cases by selection in consultation with

of all eligible candidates and shall draw Public Service Commission

up, in order of merit a list of the (Procedure) Rules, 1970, as amended

candidates considered suitable for from time to time.

promotion. The number of names in this

list shall be double the number of vacancies

which are intended to be filled substantively

during the period of recruitment.

(3) The Secretary shall also draw up a supplementary list containing names of candidates, in order of merit, when he considers suitable or officiating or temporary appointments during the period of recruitment.

(4) The two lists, together with a gradation list, and a statement indicating the reasons for passing over the seniors, if any and the character rolls of all eligible candidates shall be sent to the Commission. The Commission will examine their Rolls land add any new names to either of the two lists, as they may like and return the papers to the Government.

(5) The Government shall fix in consultation with the commission a date and call for interview those candidates whose names are contained in the final lists drawn up by the Commission under sub-rule(4). These candidates will be interviewed by a Selection committee, consisting of (a) representative of the Commission who shall preside over the Selection committee, (b) The Secretary, and (c) The Chief Engineer. The Selection Committee shall on the result of the interview and after considering the character rolls of the candidates prepare the two selection lists.

Provided that where the Governor in consultation with the commission comes to the consultation that interview that interview are not necessary the Selection Committee shall consider the cases on the basis of the Character Rolls of the candidates concerned.

(6) The lists so prepared shall be placed before the commission who shall thereafter send their final recommendations to the Government.

(7) The names of the candidates selected in the first list to the extent of the number of permanent vacancies announced shall be drawn out and re-arranged according to the respective seniority of overseers and computers in such manner that overseers and computers are placed alternatively, the first name on the list being that of the overseer. The Second list shall also be similarly arranged but in order of merit. The candidates from the first list will be appointed in order in which the names appear on the list as and when substantive vacancies occur. The amending names of the first list will be    at the top of the second list and this amended list shall be regarded as forming the select list and the candidates shall be offered officiating and temporary vacancies in the order in which their names are arranged in this list, as and when the vacancies occur during the period of recruitment.

This select list will hold good only for one year until such time as a review is made at the following selection.

(8) In case permanent vacancies do not occur for two consecutive years, the selection committee will moot to review the existing, select list drawn for making appointments to officiating and temporary vacancies and the procedure prescribed above shall be followed except that it will be open to the committee to dispense with the interview of all or such of the candidates as have already been considered at the previous selection.

Omission 5. Rule 13 of the said rules shall be omitted.

of Rule

Insertion 6. After rule 16 of the said rules following new rule

of new rule 16-A.

16-A  

Appointment On the occurrence of permanent vacancies, the

16-A(1) Governor shall make appointments by taking the names of the candidates in the order in which they stand in the lists prepared under rules 11 and 12 as the case may be.

(2) The appointing authority may make appointments in temporary or officiating capacity also from the lists referred to in sub-rule (1), if no candidates from these list is available, the Governor may make appointments in such vacancies from amongst persons eligible for promotion under these rules subject to the provisions of regulation - 5(a) of the Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1951.

(3) Where in any year of recruitment appointments are made both by direct recruitment and by promotion, appointments shall be made from a combined select list to be prepared by arranging the names of candidates in such manner that prescribed proportion is maintained, the first name in the list being of the person to be appointed by promotion."

31. Thereafter another amendment took place in existing rule-12 of the old rule 1936, whereby criterion of "merit" for promotion was substituted by criterion of "seniority subject to rejection of unfit" as under :

"No.3707-E.B.R./XXIII(8)-02-16.E.B.R.-89

January 11, 1993

In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules with a view to amending the United Provinces Service of Engineers (Building and Roads Branch) Class II Rules 1936, as amended from time to time.

UTTAR PRADESH SERVICE OF ENGINEERS (BUILDINGS AND ROADS BRANCH) CLASS II (SECOND AMENDMENT) RULES, 1992

Short title and commencement.- (i) These rules may be called the Uttar Pradesh Service of Engineers (Buildings and Roads Branch) Class II (Second Amendment) Rules 1992.

(ii) They shall come into force atonce.

Amendment of rule 12.--In the United Provinces Service of Engineers (Buildings and Roads Branch) Class II Rules, 1936 for rule 12 set out in Column 1, the rule as set out in Column 2 below shall be substituted, namely:

COLUMN 1 COLUMN 2

   12. Existing rule 12. Rule hereby substituted.

Recruitment by promotion to the Recruitment by promotion to the post

post of Assistant Engineers shall be made of Assistant Engineer shall be made on

on the basis of seniority in accordance the basis of "seniority subject to the

with U.P. Promotion by selection in rejection of unfit" in accordance with

consultation with Public Service Commission U.P. Promotion by selection in consultation

(Procedure) Rules, 1970, as amended from with Public Service Commission (Procedure)

time to time. Rules, 1970, as amended from time to time."

32. By another notification dated 25.9.1997 the U.P. Services of Engineers Class II 1936 has been amended whereby the earlier existing Rule 5 has been substituted by new Rules as Under:-

      " GOVERNMENT OF UTTAR PRADESH

    PUBLIC WORKS DEPARTMENT SECTION -3

NOTIFICATION

MISCLLANEOUS

No.3131 EBR/23-3-97 -9EBR/94.

Lucknow date 25 September-1997.

In exercise of the powers conferred by the proviso to Article 309 of the constitution, the Governor is pleased to make the following rules with a vies to amending the United provinces service of Engineers Building and Road Branch Class II Rules 1936.

THE UTTAR PRADESH SERVICE OF ENGINEERS (BUILDINGS AND ROAD BRANCH) CLASS-II (FOURTH AMENDMENT RULES-1997-

1- (i) These rules may be called the Uttar Pradesh Service of Engineers (Buildings and Road Branch) Class-II (Fourth Amendment) Rules-1997.

(ii) They shall come into force at once.

2- In the United Provinces Service of Engineers (Buildings and Road Branch) Class-II Rules-1936 for the existing Rule-5 as set out in columb-2 shall be substituted.

Existing Rules                                                 Rule as hereby substituted                                      

5- Recruitment to the post of Asstt. Source of recruitment to the post of

Engineer shall be made from the Asstt. Engineers shall made from the

following courses sources: following courses:

(i) 66-2/3 percent vacancies by direct (i) 58. 34 percent of Posts by direct

recruitment on the basis of the recruitment on the basis of the

competitive examination conducted competitive examination conducted

by the Commission. by the Commission.

Pleased that the officers appointed as Provided that the Officers appointed

Asst. Engineers by direct recruitment as Asst. Engineers by direct recruitment

through the commission and working through the commission and working in

in temporary of officiating vacancies the temporary of officiating vacancies

in the department of the officers after in the department of the officers after

regularisation of adhoc appointment regularisation under the U.P.

(on post within the purviews of the Regularisation of adhoc appointments

P.S.C.) Rules-1979 shall be deemed (on posts within the purview of the

to have been appointed against the Public Service Commission) Rules-

quota of direct recruitment before any 1979 shall be deemed to have been

fresh appointment are made by direct appointed against the quota of direct

recruitment. recruitment before any fresh appoint-

ment are made by direct recruitment.  

(ii) 25 percent vacancies by (ii) 33.33 percent of the posts by

promotion through the commission promotion through the commission

from amongst such permanent from amongst such permanents in-

incumbents of the post of the public cumbents on the posts in the public

works department subordinate works department subordinate

Engineering service and public Engineering Service and Public

works department Computer's works department Computer's

service as have put in at least service as have put in at least seven

seven years continuous service years continuous service on such

on such posts, in the proportion posts in the proportion of respective

of respective permanent cadre permanent cadre strength.

strength.

(iii) 8/1/3 percent vacancies (iii) 8.33 percent of post by

by promotion through the promotion though the commission

commission from amongst such from amongst such permanent

permanent incumbents of the incumbents of the posts in the

posts in the public works public works department subordinate

department subordinates Engineers service and public

Engineering service and PWD works department computers service

computers service as possess and possess bachelors degree

bachelor degree in Engineering in Engineering from a recognised

from an recognised institution institution or are associates members

or are associate members of the of the institute of Engineers in the

of the institute of Engineers proportion of respective permanent

in the proportion or respective cadre strength.

permanent cadre strength.

Provided that if persons Provided that, if persons

possessing the qualification possessing the qualification

mentioned in clause (iii) are mentioned in clause (iii) are

not available these vacancies shall not available these posts shall be filed

also be filed from the source from the source mentioned in clause

mentioned in clause(ii) (ii) provided further that where number

of vacancies to be filed in by any of the  

said sources in accordance with the

quota is in fraction less than half shall

be ignored and the fraction of half of

more shall ordinarily be counter one.

By Order

V.P. Diwan

Pramukh Sachiv."

33. The validity of notification dated 4.8.1987 and 25.9.1997 was subject matter of challenge in a batch of petitions before this Court, the leading petition of which was Writ Petition No. 42762 of 2000 Aruvendra Kumar Garg and others Vs. State of U.P. and others. A Division Bench of this Court has quashed both the notifications holding the provisions of Rule-5 (iii) of old 1936 Rules are ultra virus of the provisions of Article 14 and 16 of the Constitution of India vide its judgment and order dated 22.3.2002 reported in 2002(2) E.S.C.(Alld) 148.

34. The old 1936 Rules have been superseded and new Rules have come into force vide notification of State Government dated 3.1.2004 known as Uttar Pradesh Public Works Department Group B Civil Engineering Service Rules, 2004. The rule has come into force at once on the date of notification. Rule 3 of new Rules contained definition clause, Rule 3(h) defines member of service, Rule 3(J) defines service, Rule 3(m) defines year of recruitment quoted as under:-

"3(h) member of the service' means a person substantively appointed under these rules or the rules or orders in-force prior to the commencement of these rules to a post ion the cadre of the service;

3(j) ''Service' means the Uttar Pradesh Public Works Department Group ''B' Civil Engineering Service;

3(m) ''year of recruitment' means a period of twelve months commencing from the first day of July of a calendar year;"

35. Rule 5 New 2004 Rules deals with source of recruitment quoted as under:-

"(5). Recruitment to the posts in service shall be made from the following sources:

(i) Fifty percent by direct recruitment through the Commission.

(ii) Fifty percent by promotion through the Commission from the amongst substantively appointed Junior Engineers (Civil) and Junior Engineers (Technical) who have completed seven years service as such on the first day of the year of recruitment.

Provided that the promotion shall be made in such a manner that ninety percent posts shall be filled up by Junior Engineers (Civil) and ten percent posts shall be filled up by Junior Engineers (Technical)."

36. Rule 8 of New 2004 Rules deals with academic/technical qualification for appointment and Rule 9 deals with preferential qualification quoted as under:-

"(8) A candidate for direct recruitment to a post in the service must possess Bachelor's Degree in Civil Engineering from a University established by Law in India or a qualification recognised by the Government as equivalent thereto.

(9) A candidate who has:-

(i   served in the Territorial Army for a minimum period of two years, or

(ii) obtained a ''B' Certificate of National Cadet Corps, or

(iii) successfully completed one years training as trainee, shall, other things being equal, be given preference in the matter of direct recruitment.

NOTE:- An year wise list of persons who have successfully completed the prescribed training shall be maintained by the Department. The persons trained earlier shall be treated senior to a person trained later, meaning thereby that amongst the trainees, also the preference shall be given to a person trained earlier."

37. Rule 14 of New 2004 Rules deals with determination of vacancies and Rule 15 provides procedure for direct recruitment and Rule 16 provides procedure for recruitment by promotion through the Commission. For ready reference Rule 14, 15 and 16 are being quoted as under:-

"(14) The appointing authority shall determine the number of vacancies to be filled during the course of the year of the recruitment as also the number of vacancies to be reserved for the candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under rule 6. The vacancies to be filled by direct recruitment and promotion through the commission shall be intimated to them.

(15) (1) Application for being considered for selection by direct recruitment shall be invited by the Commission in the prescribed Performa published in the advertisement issued by the Commission.

(2) The Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with rule 6, call for interview such number of candidates who possess the requisite qualifications as they consider proper.

(3) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the marks obtained by each candidate in the interview. If two or more candidates obtain equal marks, the candidate senior in age shall be placed higher in the list. The Commission shall forward the list to the appointing authority.

(16) Recruitment by promotion through the Commission shall be made on the basis of seniority subject to the rejection of unfit in accordance with the Uttar Pradesh promotion by Selection in Consultation with Public Service Commission (Procedure) Rules 1970 as amended from time to time."

38. Before we proceed to analyse the rules referred herein before having material bearing on the issue, it is pertinent to point out that old 1936 Rules as originally enacted were framed in exercise of the powers conferred by Rule 40 of the Civil Services (Classification Control and Appeal) Rules made by the Secretary of the State in council under sub-section (2) of section 96B of the Government of India Act, which were analogous to the proviso to Article 309 of the Constitution of India, under which new 2004 Rules have been made. Article 309 of the Constitution of India reads as under :

Article 309 of the Constitution: Recruitment and conditions of service of persons serving the Union or a State.--Subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as  he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor [***] of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act. "

39. A plain reading of the provisions of Article 309 of the Constitution of India makes it clear that primarily the Legislature i.e. Parliament or State Legislature are empowered to make law regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of Union or the State. The Legislative field referable to  this article is the same as is indicated in entry 70 of List I of the Seventh Schedule and entry 41 of List II of that schedule. The proviso, however, gives power to the President or Governor of State to make service rules in this regard but this power under the proviso can be exercised only so long as the Legislature does not make an Act, whereby the provisions pertaining to recruitment to public posts as also conditions of services relating to that post are laid down. In other words, the power to make rules under the proviso to Article 309 of the Constitution can only be exercised by President or Governor where the Legislature has not enacted the law on subject but the same cannot be exercised where the field is already occupied by enactment of appropriate Legislature and in that situation, the rule making power given under the enactment can be exercised by that authority only, though both may be same, but the jurisdictions are different. The rules made under enactment would be a delegated or subordinate legislation whereas the rules made under the proviso to Article 309 cannot be said to be subordinate Legislation.  The Rules made under the proviso of Article 309 are transitory in the sense that Rules are made only when the field is not occupied by the enactment of an appropriate Legislature and it will operate only in interregnum, means during the period till the law is enacted by appropriate Legislature. At moment the Legislature intervenes in the matter and enacts the law, the rules made under the proviso will apply subject to the provisions of aforesaid Act.

40. In this connection a reference can be made to the observations of Hon'ble Apex Court in B.S.Vadera and another Vs. Union of India and others AIR 1969 SC 118 wherein in para 24 of the decision Hon'ble Apex Court observed as under :-

"24. It is also significant to note that the proviso to Article 309, clearly lays down that any rules so made shall have effect, subject to the provisions of any such Act. The clear and unambiguous expressions, used in the Constitution must be given their full and unrestricted meaning unless hedged-in, by any limitations. The rules, which have to be subject to the provisions of the Constitution, shall have effect  ''subject to the provisions of any such Act'. That is, if the appropriate Legislature has passed an Act, under Articled 309, the rules, framed under the Proviso, will have effect, subject to that Act; but, in the absence of any Act, of the appropriate Legislature, on the matter, in our opinion, the rules, made by the President, or by such person as he may direct, are to have full effect, both prospectively and retrospectively. Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, unless they can be impeached on grounds such as breach of Part III, or any other Constitutional provision, must be enforced, if made by the appropriate authority."

41. The rule making function under the proviso to Article 309 is legislative function. Since the provisions of Article 309 are subject to other provisions of the Constitution, it is obvious that, whether it is an Act made by Parliament or State Legislature which lays down rules of recruitment and the conditions of service or it is rule made by the President or the Governor under the proviso to that Article they have to be inconformity with other provisions of Constitution specially Article 14, 16, 310 and 311. Although the rules made under the proviso to this Article is transitory in nature but would be at par with the Legislative enactment, thus the validity of such rules can be questioned only on those grounds, which are available to assail the provisions of enactment made by the appropriate Legislature.

42. In this connection a reference can be made to the decision of Hon'ble Apex Court in (State of Andhra Pradesh and others etc. Vs. McDowell and Co. and others etc.) AIR 1996 S.C. 1627, wherein pertinent observations made in this regard in para 45 and 47A of the decision are as under:

"45. ......... In India, the position is similar to the United States of America. The power of the Parliament or for that matter the State Legislatures is restricted in two ways. A law made by the Parliament or the Legislature can be struck down by Courts on two ground and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision. There is no third ground.. . . . . . . It is enough for us to say that by whatever, name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by Clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary** or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom.. "

47-A. We make it clear that the above discussion is confined to an Act made by the Legislature. We express no opinion insofar as delegated legislation is concerned."

43. Thus in view of aforesaid settled legal position, there appears no scope for doubt to hold that since rules made under proviso to Article 309, are neither delegated or sub-ordinate legislation rather it is transitory legislation, therefore, can be attacked only on the ground of (i) Lack of legislative competence and (ii) violation of any fundamental rights contained in part III or other provisions of the Constitution. Since the petitioners have challenged the validity of rules of recruitment in respect of prescription of qualification for eligibility on the posts in question on the grounds of its being violative of Article 14 of the Constitution, therefore, our inquiry is to be confined to that extent only and rules has to be tested on the anvil of Article 14 of the Constitution of India. The rules in question would survive or sustain only when it would pass or withstand the test laid down in that Article.

44. At this juncture it is noteworthy to point out that Article 14 of the Constitution of India postulates general concept of equality "before the law" and ''equal protection of all the laws', whereas Article 16 of the Constitution of India specially deals with amplitude of the aforesaid concept in context of matters relating to the employment, therefore, it has to be examined in that context only. In this connection it would be useful to refer some decisions of Hon'ble Apex Court, which have some material bearing on the question in issue involved in the case.

45.  In General Manager, Southern Railway and another Vs. Rangachari A.I.R. 1962 S.C. 36, a Constitution Bench of the Hon'ble Apex Court while explaining the ambit and amplitude of phrase "matters relating to employment" as enshrined under Article 16(1) of the Constitution of India in para 14 of the decision has held as under :

"14. Article 16(1) reads thus:

"There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".

If the words used in the Article are wide in their import they must be liberally construed in all their amplitude. Thus construed it would be clear that matters relating to employment cannot be confined only to the initial matters prior to the act of employment. The narrow construction would confine the application of Art. 16(1) to the initial employment and nothing else; but that clearly is only one of the matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation. These are all matters relating to employment and they are, and must be, deemed to be included in the expression "matters relating to employment" in Art. 16(1). What Art. 16(1) guarantees is equality of opportunity to all citizens in respect of all the matters relating to employment illustrated by us as well as to an appointment to any office as explained by us.

46. In Govind Dattatray Kelkar and others Vs. Chief Controller of Imports and Exports and others, A.I.R. 1967 S.C. 839 in para 12 of the decision a Constitution Bench of Hon'ble Apex Court observed as under :

"12. The relevant law on the subject is well settled and does not require further elucidation. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion. The concept of equality in the matter of promotion can be predicated only when the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the differences between the said two sources, and the said differences have a reasonable relation to the nature of the office or officers to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification. There can be cases where the differences between the two groups of recruits may not be sufficient to give any preferential treatment to one against the other in the matter of promotions, and, in that event a court may hold that there is no reasonable nexus between the differences and the requirement. In short, whether there is a reasonable classification or not depends upon the facts of each case and the circumstances obtaining at the time the recruitment is made. Further, when a State makes a classification between two sources of recruitment, unless the classification is unjust on the face of it, the onus lies upon the party attacking the classification to show by placing the necessary material before the court that the said classification is unreasonable and violative of Article 16 of the Constitution: "

47. In State of Mysore and another Vs. P. Narasinga Rao, AIR 1968 S.C. 349, a Constitution Bench of Hon'ble Apex Court has held that classification of two grades of tracers based on educational qualification, one group of matriculate tracer with a higher pay scale and other for non-matriculate tracers with a lower pay scale is not violative of Article 14 or Article 16 of the Constitution. For ready reference the observation made in para 4 of the decision is as under :

"4. The relevant law on the subject is well settled. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion..... . . . . . . .It is true that the selective test adopted by the Government for making two different classes will be violative of Articles 14 and 16 if there is no relevant connection between the test prescribed and the interest of public service. In other words, there must be a reasonable relation of the prescribed test to the suitability of the candidate for the post or for employment to public service as such. The provisions of Article 14 or Article 16 do not exclude the laying down of selective tests, nor do they preclude the Government from laying down qualifications for the post in question. Such qualifications need not be only technical but they can also be general qualifications relating to the suitability of the candidate for public service as such.. . .. . . . . . . . . . . . . . . . . . .

48. In State of Jammu and Kashmir Vs. Triloki Nath Khosa and others, A.I.R. 1974 S.C. 1, a rule which provided that only Degree holders in the cadre of Assistant Engineers shall be entitled to be considered for promotion to the next higher cadre of Executive Engineers and Diploma holders Assistant Engineer shall not be eligible for such promotion was challenged as violative of equal opportunity clause. A Constitution Bench of Hon'ble Apex Court repelled the challenge holding that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for the purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. In para 38, 39 and 40 of the decision Hon'ble Apex Court has observed as under :

" 38. Judicial scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation of the basis of classification, for were such an inquiry permissible it would be open to the courts to substitute their own judgment for that of the legislature or the rule-making authority on the need to classify or the desirability of achieving a particular object.

39. Judged from this point of view, it seems to us impossible to accept the respondents' submission that the classification of Assistant Engineers into Degree-holders and Diploma-holders rests on any unreal or un-reasonable basis. The classification, according to the appellant was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly correlated to it for higher educational qualifications are at least presumptive evidence of a higher mental equipment. This is not to suggest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. What is relevant is that the object to be achieved here is not a mere pretence for an indiscriminate imposition of inequalities and the classification cannot be characterized as arbitrary or absurd. That is the farthest that judicial scrutiny can extend.

40. On the facts of the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstances and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. "

49. In Mohammad Shujat Ali & others Vs. Union of India & others, AIR 1974 S.C. 1631, A Constitution Bench of Hon'ble Apex Court while explaining the equality clause enshrined under Article 14 in matters relating to employment under Art. 16(1) of the Constitution in para 26 of the decision has held as under :

"26.. . . . . . . . . ... The fundamental guarantee is of equal protection of the laws and the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to that guarantee by accommodating it with the practical needs of the society and it should not be allowed to submerge and drown the precious guarantee of equality. The doctrine of classification should not be carried to a point where instead of being a useful servant, it becomes a dangerous master, for otherwise, as pointed out by Chandrachud, J., in State of Jammu & Kashmir Vs. Triloki Nath Khosa, (1974) 1 SCC 19= (Air 1974 S.C. 1= 1974 Lab IC 1) "the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well-marked classes characterized by different and distinct attainments." Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the guarantee of equality of its spacious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality; the fundamental right to equality before the law and equal protection of the laws may be replaced by the overworked methodology of classification. Our approach to the equal protection clause must, therefore, be guided by the words of caution uttered by Krishna Iyer, J., in (1974) 1 SCC 19 = (AIR 1974 S.C. 1 = 1974 Lab IC 1):

"Mini-classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality.""

50. While holding that the educational qualification can form a valid basis for classification in the matters relating to employment, in para 28 of the aforesaid decision, the Hon'ble Apex Court further observed that; but to permit discrimination based on educational attainments not obligated by nature of duties of higher post is to stifle the social thrust of equality clause as under :

"28. The test of reasonable classification has to be applied in each case on its peculiar facts and circumstances. It may be perfectly legitimate for the administration to say that having regard to the nature of the functions and duties attached to the post, for the purpose of achieving efficiency in public service, only degree holders in engineering shall be eligible for promotion and not diploma or certificate holders. That is what happened in (1974) 1 SCC 19 = (AIR 1974 S.C. 1 = 1974 Lab IC 1) and a somewhat similar position also obtained in (1973) 3 SCC 592 = (AIR 1973 S.C. 811 = 1973 Lab IC 423). But where graduates and non-graduates are both regarded as fit and, therefore, eligible for promotion, it is difficult to see how, consistently with the claim for equal opportunity, any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over non-graduates in the matter of fixation of such quota. The result of fixation of quota of promotion for each of the two categories of Supervisors would be that when a vacancy arises in the post of Assistant Engineer, which, according to the quota is reserved for graduate Supervisors, a non-graduate Supervisor cannot be promoted to that vacancy, even if he is senior to all other graduate Supervisors and more suitable than they. His opportunity for promotion would be limited only to vacancies available for non-graduate Supervisors. That would clearly amount to denial of equal opportunity to him. To permit discrimination based on educational attainments not obligated by the nature of the duties of the higher post is to stifle the social thrust of the equality clause. A rule of promotion which while conceding that non-graduate Supervisors are also fit to be promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion for graduate Supervisors as against non-graduate Supervisors would clearly be calculated to destroy the guarantee of equal opportunity.

51. The Hon'ble Apex Court further observed that :-

"But even so, we do not think we can be persuaded to strike down the Andhra Pradesh Rules in so far as they make differentiation between graduate and non-graduate Supervisors. This differentiation is not something brought about for the first time by the Andhra Pradesh Rules. It has always been there in the Engineering Services of Hyderabad and the Andhra States. The graduate Supervisors have always been treated as a distinct and separate class from non-graduate Supervisors both under the Hyderabad Rules as well as the Andhra Rules and they have never been integrated into one class. Under the Hyderabad Rules, the pay scale of graduate Supervisors was Rs. 176-300 while that of non-graduate Supervisors was Rs. 140-300 and similarly, under the Andhra Rules the pay scale of non-graduate Supervisors was Rs. 100-250, but graduate Supervisors were started in this pay scale at the stage of Rs. 150/- so that their pay-scale was Rs. 150-250. Graduate Supervisors and non-graduate Supervisors were also treated differently for the purpose of promotion under both sets of Rules. . . . . . . . . . . . . . . ."

52. In Roop Chand Adlakha and others Vs. Delhi Development Authority and others, A.I.R. 1989 S.C. 307, the rules prescribing different conditions of eligibility for diploma holders and graduates Junior Engineers for promotion to the post of Assistant Engineers and from the cadre of Assistant Engineers to that of Executive Engineers in P.W.D. of Delhi Development Authority was under challenge. 50% posts of Assistant Engineers were liable to be filled by direct recruitment and remaining 50% posts from promotion of Junior Engineers out of which 25% from degree holder Junior Engineers having 3 years service experience and 25% from diploma holder Junior Engineers having 8 years service experience. The next higher posts of Executive Engineers were purely promotional posts. The graduate Assistant Engineers with 8 years service experience and diploma Assistant Engineers with 10 years service experience were eligible for promotion. No inter-se quota between two classes of Assistant Engineers was prescribed. The challenge against the rules was repelled by the Hon'ble Apex Court holding the rule valid, based  on reasonable classification. While taking note of T.N. Khosa case  and Mohd. Shujat Ali case inasmuch as other decisions having material bearing on the issue and explaining the scope of reasonable classification in para 7 of the decision observed as under:

"7. . . . . . . . If the differences in the qualification has a reasonable relation to the nature of duties and responsibilities, that go with and are attendant upon the promotional-post, the more advantageous treatment of those who possess higher technical qualifications can be legitimized on the doctrine of classification. There may, conceivably, be cases where the differences in the educational qualifications may not be sufficient to give any preferential treatment to one class of candidates as against another. Whether the classification is reasonable or not must, therefore, necessarily depend upon facts of each case and the circumstances obtaining at the relevant time. When the state makes a classification between two sources, unless the vice of the classification is writ large on the face of it, the person assailing the classification must show that it is unreasonable and violative of Article 14. A wooden equality as between all classes of employees irrespective of all distinctions or qualifications, or job-requirements is neither constitutionally compelled nor practically meaningful. This Court in General Manager, South Central Railway Vs. A.V.R. Siddhanti, (1974) 3 SCR 207 at p. 214 : (AIR 1974 SC 1755 at p. 1760) observed :

".............A wooden equality as between all classes of employees regardless of qualifications, kind of jobs, nature of responsibility and performance of the employees is not intended, nor is it practicable if the administration is to run. Indeed, the maintenance of such a ''classless' and undiscerning ''equality' where, in reality, glaring inequalities and intelligible differentia exist, will deprive the guarantee of its practical content. Broad classification based on reason, executive pragmatism and experience having a direct relation with the achievement of efficiency in administration, is permissible......"

53. In P. Murugesan and others Vs. State of Tamil Nadu and others (1993) 2 S.C.C. 340, Hon'ble Apex court has up-held the validity of rules prescribing the ratio of 3:1 between graduates and diploma holders in promotion so also the longer qualifying period for service for diploma holders. While taking note of other decisions rendered by Apex Court after aforesaid two constitution Bench decisions in para 14 and 16 of the decision Hon'ble Apex Court observed as under:

" 14. This decision clearly supports the appellants' contention and goes to sustain the validity of the impugned amendment. If the diploma holders can be barred altogether from promotion, it is difficult to appreciate how and why is the rule-making authority precluded from restricting the promotion. The rule-making authority may be of the opinion, having regard to the efficiency of the administration and other relevant circumstances that while it is not necessary to bar the diploma holders from promotion altogether, their chances of promotion should be restricted. On principle, there is no basis for the contention that only two options are open to a rule-making authority-either bar the diploma holders altogether or allow them unrestricted promotion on par with the graduates. This aspect has been emphasized by Venkatachaliah, J. in Roop Chand Adlakha V. Delhi Development Authority A.I.R. 1989 S.C. 307 in the following words: para 29)

"If diploma holders - of course on the justification of the job requirements and in the interest of maintaining a certain quality of technical expertise in the cadre - could validly be excluded from the eligibility for promotion to the higher cadre, it does not necessarily follow as an inevitable corollary that the choice of the recruitment policy is limited to only two choices, namely, either to consider them ''eligible' or ''not eligible'. State, consistent with the requirements of the promotional posts and in the interest of the efficiency of the service, is not precluded from conferring eligibility on diploma holders conditioning it by other requirements which may, as here, include certain quantum of service experience. In the present case, eligibility determination was made by a cumulative criterion of a certain educational qualification plus a particular quantum of service experience. It cannot, in our opinion, be said, as postulated by the High Court, that the choice of the State was either to recognise diploma holders as ''eligible' for promotion or wholly exclude them as ''not-eligible'"

16. On the basis of the above observations it is argued that once the diploma holders are also held eligible for promotion, it is not permissible for the rule-making authority to make any distinction between graduates and diploma holders. We cannot agree. As a matter of fact, this Court in Shujat Ali case upheld the validity of the Andhra Pradesh rule which made a distinction between the graduate supervisors and non-graduate supervisors in the matter of promotion to the higher categories on the ground that in the erstwhile States of Andhra and Hyderabad, graduate supervisors were always treated as distinct and separate from the non-graduate supervisors, their pay scales were different; they were never really integrated into one class and graduate supervisors were called Junior Engineers. Accordingly, it was held that reducing the chances of promotion of non-graduate supervisors vis-�-vis graduate supervisors was not discriminatory. (As we shall presently point out, the factual situation in Madras Corporation Engineering service is similar.) The observations quoted above cannot be read in isolation nor can they be read as running counter to the ratio of T.N. Khosa. Both decisions were rendered by Constitution Benches. In any event, the facts and circumstances of the case before us are akin to those in Shujat Ali. Secondly, as explained hereinbefore there would be no justification in principle for holding that the rule-making authority has only two options namely either to bar the diploma holders altogether from promotion or to allow them equal opportunity with the graduate engineers in the matter of promotion. It must be remembered that the power of rule-making under the proviso to Article 309 has been held to be legislative in character (Vadera). If so, the test is whether such a restrictive view is permissible vis-�-vis a legislature. If not, it is equally impermissible in the case of the rule-making authority under the proviso to Article 309. The only test that such a rule has to pass is that of Articles 14 and 16 - and to that aspect we may turn now."

54. Again in T.R. Kothandaraman and others Vs. Tamil Nadu Water Supply and Drainage Board and others (1994) 6 S.C.C. 282, the prescription of higher quota in promotion based on higher educational qualification was upheld. The pertinent observations of the Hon'ble Apex Court in para 13 of the decisions are as under :

"13. The aforesaid bird's-eye view of important decisions of this Court on the question of prescribing quota in promotion to higher post based on the educational qualification makes it clear that such a qualification can be certain cases be a valid basis of classification; and the classification need not be relatable only to the eligibility criteria, but to restrictions in promotion as well. Further, even if in a case the classification would not be acceptable to the court on principle, it would, before pronouncing its judgment, bear in mind the historical background. It is apparent that while judging the validity of the classification, the court shall have to be conscious about the need for maintaining efficiency in service and also whether the required qualification is necessary for the discharge of duties in the higher post."

55. In P.A. Chandran and others Vs. Board of Revenue (Excise) and others, 1995 Supp. (1) S. C. C. 159, the prescription of quota 1:1 between SSLC and non-SSLC Excise Guards for promotion to the post of Excise Preventive Officer was under considerations and upheld by Hon'ble Apex Court. The pertinent observations made in para 6 of the decision are as under:  

" 6. We may deal with still another contention which has been advanced by Shri Sanghi appearing for some of the respondents- the same being that after 7 years of service experience, the non S.S.L.C. Excise Guards come on a par with those Excise Guards who have S.S.L.C. as their educational qualification and have rendered 3 years of service. According to the learned counsel, the denial of the posts of Excise Preventive Officers to those non-S.S.L.C. Excise Guards who after serving 7 years have become eligible for promotion to the posts of Excise Preventive Officers would not be permissible. We are not impressed with this submission because what the laying down of ratio does is postponement of the chances of promotion and not the denial of promotion as such. By providing the ratio of 1:1 the rule really gives the two categories equal opportunity, though the effect is that some non-S.S.L.C. Excise Guards, even if they are senior to S.S.L.C. Excise Guards, may get promoted to the higher post later, if the post to fall vacant be one meant for S.S.L.C. qualified Excise Guards. The seniormost non-S.S.L.C. Excise Guards would, in such an eventuality, be promoted to the next vacancy as that would be meant for such an incumbent. Thus the chance of promotion of non-S.S.L.C. Excise Guards gets only deferred and not denied. It is a settled law that promotion cannot be claimed with the aid of Article 16 inasmuch as no incumbent has a right to be promoted and it is because of this a chance of promotion has not been regarded as encompassed within the right visualised by Article 16.

56. In Kuldeep Kumar Gupta and others Vs. H.P. State Electricity Board and others, (2001) 1 S.C.C. 475, the dispute centers round the question as to whether it is permissible for the employer to frame regulation providing a separate quota of promotional avenue for the less qualified Junior Engineers in preference to the claim of qualified diploma holder Junior Engineers in the feeder category for promotion to the post of Asstt. Engineers?  While adverting to the question in para 5,6 and 7 of the decision Hon'ble Apex Court held as under :

"5. From the facts asserted and the contentions raised in these appeals, the following questions really arise for our consideration:

(1) The feeder cadre of Junior Engineers, having been filled up from two recruitment sources, one by qualified diploma-holders by way of direct recruitment and the other by unqualified matriculate ITI Certificate-holders by promotion, can there be a separate consideration for them in the matter of promotion to the post of Assistant Engineer and whether such separate consideration violates any constitutional mandate?

(2) Providing a quota in the promotional cadre, whether can be said to be a reservation within the meaning of Article 16(4) and as such can it be held to be violative of Article 16(4) of the Constitution?

(3) Administrative efficiency being the consideration, though it may be permissible to have a specified percentage of posts in the promotional quota on the basis of educational qualification, as held in Murugesan can it be held to be violative of Articles 14 and 16, when such a quota is meant for unqualified persons in the feeder category?

6. In the case in hand, the Regulations from time to time on being examined, unequivocally show that right from the inception, quota has been provided for promotion in favour of the unqualified promotee Junior Engineers, though the quota has been changed from time to time and while providing such quota, longer experience as Junior Engineer has been the basis for being eligible for promotion. Providing such a quota in the service history right from the inception is also a germane consideration for the Court while considering the question of alleged discrimination. That apart when the feeder category itself is filled up by direct recruit diploma-holders and promotee unqualified matriculates and if no quota is provided for such unqualified matriculates in the promotional cadre of Assistant Engineer then they may stagnate at that stage which will not be in the interest of administration. If the rule-making authority on consideration of such stagnation, provides a quota for such unqualified promotee Junior Engineers, the same cannot be held to be violative of any constitutional mandate and on the other hand would come within the ratio of Murugesan. In our considered opinion, therefore, there can be a separate consideration for the promotee unqualified matriculate Junior Engineers in the matter of promotion to the post of Assistant Engineer and the impugned Regulation providing a quota for them cannot be held to be violative of Article 14.

7. So far as the third question is concerned, if it is permissible to have a specified percentage of posts on the basis of educational qualification as has been held by this Court in Murugesan, we really fail to understand, as to why the employer or the rule-making authority would be debarred from allotting a specific percentage in favour of unqualified matriculate promotee Junior Engineers. The Regulation provides that out of 46% of promotional quota in the cadre of Assistant Engineer, 28% will be available for qualified diploma-holder Junior Engineers and 8% would be for unqualified matriculate Junior Engineers, 6% meant for A and B passed and 4% for Draftsman. According to Mr. Subramanium the quota available for A and B and Draftsman could come within the ambit of the decision of this Court in Triloki Nath or Murugesan but not the respondent unqualified matriculate Junior Engineers in whose favour 8% quota has been fixed. We are unable to accept this contention of the learned counsel. It may be noticed at this stage that so far as the unqualified Junior Engineers are concerned those of them who possess ITI qualification must have twelve years of service in the grade for being eligible for promotion to the post of Assistant Engineers and those who are merely matriculates and without ITI qualification, must have fifteen years of service in the grade for being eligible for promotion to the post of Assistant Engineer. These unqualified Junior Engineers have been brought to the cadre of Junior Engineers by promotion and in most cases they can at the maximum aspire to retire as Assistant Engineers. If the rule-making authority considers that the stagnation at the stage of Junior Engineer will not be conducive for administration and provides the promotional avenue for them, by providing a quota in the promotional cadre and the service history itself indicates that such provision has been made right from the inception, we see really no constitutional infraction therein, so as to be interfered with by this Court, We, therefore, do not find any substance in the submission of Mr. Subramanium on this score and in our considered opinion there is no bar for providing a quota in the promotional post, even in favour of unqualified matriculate Junior Engineers."

57. In Chandravathi P.K. and others Vs. C.K. Saji and others, AIR 2004 S.C. 2717, fixation of separate quota for degree holder, diploma holder and certificate holders in promotion to cadre of Asstt. Executive Engineer and option given to diploma holder who passed degree examination subsequently to either opt for promotion in the category of degree holder or diploma holder, but once he opts to join the stream of degree holder he would be placed at bottom of seniority list, the said rules were not found unconstitutional by Hon'ble Apex Court. The observations made in para 43 of the decision are as under:

"43. The State as an employer is entitled to fix separate quota of promotion for the degree-holders, diploma-holders and certificate-holders separately in exercise of its rule-making power under Article 309 of the Constitution of India. Such a rule is not unconstitutional. The State may, therefore, in our opinion, cannot be said to have acted arbitrarily by giving an option to such diploma-holders who acquired a higher qualification so as to enable them to either opt for promotion in the category of degree-holder or diploma-holder. Such option was to be exercised by the concerned officer only. He, in a given situation, may feel that he would be promoted in the diploma holders quota earlier than degree-holders quota and vice versa but once he opts to join the stream of the degree-holders, he would be placed at the bottom of the seniority list."        

58. In J. Ranga Swamy Vs. Government of Andhra Pradesh & others A.I.R. 1990 S.C. 535 while considering the scope of judicial review in connection of prescription of qualification for recruitment, the pertinent observations made in para 6 of the decision Hon'ble Apex Court are as under:

"6. . . . . . . .  It is not for the Court to consider the relevance of qualifications prescribed for various posts. The post in question is that of a Professor and the prescription of a doctorate as a necessary qualification therefor is nothing unusual. Petitioner also stated before us that to the best of his knowledge, there is no doctorate course anywhere in India in radiological physics. That is perhaps why a doctorate in nuclear physics has been prescribed. There is nothing prima facie preposterous about this requirements. It is not for us to assess the comparative merits of such a doctorate and the BARC diploma held by the petitioner and decide or direct what should be the qualifications to be prescribed for the post in question. It will be open to the petitioner, if so advised, to move the college, university, Government, Indian Medical Council or other appropriate authorities for a review of the prescribed qualifications and we hope that, if a doctorate in nuclear physics is so absolutely irrelevant for the post in question as is sought to be made out by the petitioner, the authorities concerned will take expeditious steps to revise the necessary qualifications needed for the post appropriately. But, on the qualifications as they stand today, the petitioner is not eligible to the post and cannot legitimately complain against his non-selection."  

59. In State of Rajasthan & others Vs. Lata Arun A.I.R. 2002 S.C. 2642 while considering the equivalence of prescribed qualification in para 12 of the decision Hon'ble Apex Court has held as under :

"12. From the ratio of the decision noted above it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for Courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority."

60. Thus from the aforesaid discussions the legal propositions emerge regarding the educational qualification as a valid basis for classification and other relevant factors for fixation of different quota for promotion for different categories of posts in the feeder cadre are as under:

(1) Where the persons appointed directly and by promotion were integrated into common class, they could for the purpose of promotion to the next higher post be classified on the basis of educational qualification. The rule providing the candidates of higher qualification shall be eligible for such promotion to the exclusion of candidates having lesser qualification does not violate Article 14 and 16 of the Constitution. There can be separate consideration for them in the matter of promotion to the next higher post and such separate consideration cannot be held to be violative of any constitutional mandate.

(2) Higher educational qualification is permissible basis of classification, acceptability of which will depend upon the facts and circumstances of each case. Higher educational qualification can be the basis not only for barring promotion but also for restricting the scope of promotion and the classification need not be relatable only to the eligibility criteria, but to restrictions in promotion as well. Restrictions placed cannot however go to the extent of seriously jeopardizing the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable or not.

(3) Even if in a case the classification would not be acceptable to the court, on principle, it would before pronouncing its judgment bear in mind the historical background.  While judging the validity of classification the court shall have to be conscious about the need for maintaining the efficiency in service and also whether the required qualification is necessary for discharging of duties in the higher post.

(4)  Fixation of quota or  different avenues  and ladders for promotion in favour of incumbents of various categories  of posts in feeder cadres based upon structure and pattern of the Department is a prerogative of the employer, mainly pertaining to the rule-making field. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder post, suitability more or less of the holders in feeder post, their nature of duties, experience and channels of promotion available to the holders of post in feeder cadres. Most important of them all is requirement of promoting authority for manning the post on promotion with suitable candidates.

(5) Normally, where the officers are to be drawn for promotion from different posts in the feeder cadre, quota for each post in the feeder cadre is maintained proportionately to the sanctioned strength in that post but  mere cadre strength in a particular post in a feeder cadre cannot be a sole criterion or basis to claim parity in the chances of promotion by various holders of the post in feeder cadres. There are other relevant consideration which may require departure from the practice of fixation of quota for each post in the feeder cadre solely proportionate to its strength which may vary from case to case depending upon the pattern, structure and hierarchies in departmental set up as well as exigencies and balancing needs of administration.    

(6) If the rule making authority considers that stagnation in particular service would not be conducive for administration and to avoid such stagnation, provides promotional avenue by a separate quota even to the lesser-qualified employees in the feeder cadre, there can be no constitutional infraction therein.

 

(7)  In all the aforestated situations the scope of judicial scrutiny is very limited. In other words the relevancy and suitability of prescribed qualification cannot be examined by the court in the process of judicial review rather it is in realm of competent or rule making authority and the court should not substitute its opinion for that of opinion of authority in question.

61. Although above noted principles are not exhaustive but illustrative in nature, thus on testing the facts of the case in hand on the touchstone of the aforesaid broader principles enunciated herein before vis-a-vis, submissions of learned counsel for the petitioners it is pointed out that under the old rules 1936, as it was originally enacted Rule-9 provided technical qualification for recruitment on the post of Assistant Engineers from amongst the sources of recruitment specified under rule 5(i), 5(ii) or 5(iii). Rule 5 (iv) provided channel of promotion for the members of United Provinces Sub-ordinate Engineering Service and Upper Sub-ordinates in Public Works Department, (Buildings and Roads Branch) who have shown exceptional merit. The technical qualification so prescribed under rule-9(i) was pertaining to the recruitments under Rule 5(i), 5(ii) and 5(iii), thus for direct recruitment only it was not applicable to the promotion under Rule-5(iv) of the said rules. However to become eligible for promotion under Rule 5(iv) of the rules 1936 the officers were required to pass qualifying examination which the Government may prescribe under Rule 9(ii) of the rules. In 1959, the aforesaid Rule-5 was amended vide notification dated 21.7.1959, whereby the members of upper sub-ordinate were excluded from the zone of eligibility for promotion on the post in question instead thereof members of computers were included along with sub-ordinate Engineering Services and under substituted clause (a) of existing rule-6 25% quota was earmarked for promotion, but rule-9 of the existing rules remained intact without any amendment and it is significant to notice that in originally enacted rules, no minimum length of service was required for promotion on the post in question for the incumbents of feeder cadre except that they were required to pass qualifying examination.

62. It appears in 1966 first time after lapse of about 30 years from the date of original enactment of said rules an amendment was brought in rule 9(ii), whereby the technical qualification prescribed under rule 9(i) for direct recruitment had been extended for promotion also under rule 9(ii) as alternative of passing such qualifying examination as the Governor may prescribe. This state of affairs remained continued under the old 1936 Rules uptill 3.8.1987. However vide notification dated 4.8.1987 an amendment in the said rules came into being with prospective effect whereby earlier existing rules 9(ii) had been done away with, resulting which the requirement of having technical qualification under rule 9(i) or passing any qualifying examination no longer remained applicable for promotion. By this notification substantial changes were brought under rule-5 and rule-6 was deleted. Under Rule 5(i) 66 2/3 percent vacancies were liable to be filled up in the quota of direct recruitment on the basis of competitive examination conducted by the commission and under Rule 5(ii) 25 percent vacancies were liable to be filled by promotion through commission from amongst such permanent incumbents of posts in Public Works Departments Sub-ordinate Engineering Service and Public Works Department Computer's Service as have put in atleast seven years continuous service on such posts in the proportion of respective permanent cadre strength. Under Rule 5 (iii), 8 1/3 percent vacancies in the quota of promotion were liable to be filled up through commission from amongst such permanent incumbents of the posts in Public Works Department Sub-ordinate Engineering Service and Public Works Department Computer's Service as possess bachelor's degree in Engineering from a recognised institution or Associate members of the Institute of Engineers in proportion of respective permanent cadre strength, provided that in case the persons possessing the qualification mentioned in Rule 5(iii) are not available, the vacancies were to be filled up from the source mentioned under Rule 5(ii) of the rules. Thereafter by subsequent amendment effected under Rule 5 of the old 1936 Rules vide notification dated 25.9.1997 i.e. by U.P. Service of Engineers (B & R.B.) Class II (Fourth Amendment) Rules-1997 only quota of Direct Recruitment had been reduced from 66 2/3 percent to 58.34 percent and quota for promotion under Rule 5 (ii) had been increased from 25 percent to 33.33 percent, however 8.33% quota for promotion for degree holders belonging to feeder cadre remained intact.

63. Thus from a close analysis of the aforesaid rules it is clear that according to the need of time, having regard to the various relevant factors germane to the prescription of technical qualification in respect of eligibility for promotion, the technical qualification was some time treated as substitute of passing of qualifying examination as Government or Governor may prescribe and some time treated as substitute of atleast seven years continuous service in substantive capacity in the feeder cadre and a joint reading of Rule-5(ii) and Rule-16 of the new Rules 2004 clearly demonstrate that essential technical or academic qualification required for direct recruitment under Rule-8 are treated to be substitute for seven years continuous substantive service in the feeder cadre for promotion. Therefore having regard to the historical back ground of service, there appears no irrationality in the rules of direct recruitment and promotion on the post in question so far as it pertains to the prescription of qualification for direct recruitment and promotion. And further submission of learned counsel for the petitioners appearing for degree holders that new rule-2004 must adhere to either technical qualification applicable for direct recruit or diploma holders must pass the qualifying examination to become eligible for promotion cannot be countenanced.

64. At this juncture it is necessary to point out that petitioners being Degree holder (BE/AIME) can have no genuine or legitimate grievance in connection of Diploma holders' eligibility for promotion on the post of Assistant Engineers. They are neither excluded altogether from promotion nor their any vested or accrued right to be considered for promotion has been taken away by new rules. What this new rules apparently seems to have done is that their separate quota for promotion on the post of Assistant Engineer, which was created for the first time by amending rules 1987 of old 1936 Rules has been abolished and by new 2004 rules they are debarred only from accelerated promotion not from consideration for promotion altogether, but still they are entitled to be considered for promotion along with diploma holder Junior Engineers and Computers. It is well settled that statutory rules reducing the chances of promotion with prospective effect does neither violate any fundamental rights or statutory or vested rights of any existing employee. This little change, while reducing the chances of promotion too has been done in comparison of amending rules of 1987, which has been struck down by a Division Bench of this court in Aruvendra Kumar Garg's case resulting which aforesaid separate quota for promotion in favour of B.E. and A.I.M.E. Junior Engineers/Computers was not available on the date of the commencement of the new rules 2004. Therefore, it cannot be said at all that the aforesaid existing separate quota for promotion in their favour has been done away with by new 2004 Rules in supersession of earlier existing rules, bearing such quota for promotion.  

65. Even if assuming for the sake of arguments that old 1936 Rules as amended from time to time has always maintained distinction between degree holder and diploma holder Junior Engineers in the matter of promotion on the post of Assistant Engineers but new 2004 Rules has completely given go buy to such distinction, therefore, learned counsel for the petitioners has strenuously urged that having regards to the historical back grounds of the service rules, this distinction ought to have been maintained under new 2004 Rules otherwise new rules has to be held unreasonable, irrational and arbitrary as such liable to be struck down as violative of Articles 14 and 16 of the Constitution. In this connection, it is necessary to point out that maintaining the distinction between degree holder Junior Engineers and diploma holder Junior Engineers in promotion on the post of Assistant Engineers merely on attainment of higher educational qualification by degree holders, would be of no use to the petitioners unless a separate quota for promotion for them is carved out in the new 2004 Rules, with variant, eligibility condition for promotion to the degree holder and diploma holder Junior Engineers which may be advantageous to the degree holder Junior Engineers otherwise prescription of different eligibility condition for diploma holder Junior Engineers, howsoever onerous, it might be, would not be of any advantage to the degree holder Junior Engineers therefore declaration of relevant rules namely rule 5(ii) read with rule 16 of the new rules 2004as irrational and unreasonable on historical background of service rules alone without any thing more would render the issue of writ in futility and would not serve any purpose of the petitioners.

66. It is no doubt true that historical back grounds of service rules has germane consideration for prescription of different eligibility condition for promotion and separate quota amongst the different categories of post in feeder cadre or where feeder cadre comprised of different categories of posts as held by Hon'ble Apex Court in Mohd. Shujat Ali's case (supra), in P. Murugesan's case and reiterated in T.R. Khothandaraman's case (supra) holding that even if the classification would not be acceptable to the court on principle, it would before pronouncing its judgment bear in mind the historical back ground. This principle was also examined by Hon'ble Apex Court in P.A. Chandran's Case(supra), but this proposition was laid down by Hon'ble Apex Court while holding the rules to be reasonable and upholding the validity of service rules under challenge in aforesaid cases. In our considered opinion the proposition was laid down in support of validity of the rules under challenge, as shield and not to impeach the validity of rules under challenge as sword. Thus, we are of the considered opinion that challenge against the aforesaid provisions of the New 2004 Rules necessarily involves carvation of separate quota with variant eligibility condition for degree holder and diploma holder Junior Engineers for promotion on the post of Assistant Engineers which ultimately requires amendment in the rules, for which no mandamus can be issued by this court to the rule making authority to make the such rules by amending it in particular manner, that is why no relief for mandamus has been sought for in any of these batch of writ petitions and in our opinion, rightly so.

67. In this connection, we would like to refer the decision of Hon'ble Apex Court rendered in H.C. Sharma and others Vs. Municipal Corporation of Delhi and others AIR 1983 SC 881, wherein two writ petitions were directly filed before Hon'ble Apex Court, one of which was by diploma holder Junior Engineers and another by degree holder Junior Engineers. The degree holder junior Engineers have sought relief of mandamus for carvation of their separate quota for promotion on account of attainment of their higher educational qualification. In aforesaid factual backdrop of the case, the Hon'ble Apex Court has declined to grant relief to them while observing in Para 56 of the decision as under:

"Now we are left only with prayers 4, 6 and 7 in Writ petition 1194 of 1979 about which rightly no argument was advanced by Mr. V.M. Tarkunde. Prayer No.4 is to declare the petitioners Graduate Engineers as a separate category amongst Junior Engineers and give them equal quota like the Diploma holders Junior Engineers out of the 50% quota for promotion as Assistant Engineers. This cannot be done except by carving out two classes in the same category of Junior Engineers on the basis merely of their qualification which is not permissible in law though the creation of selection grade in the same category on the basis of merit and or seniority is well-known and permissible. The Junior Engineers do the same kind of work and bear the same responsibilities whatever their qualification whether they are Degree holders or Diploma holders."

68. In this connection it pertinent to note that higher educational qualification or technical qualification can form valid basis for classification in the matter of fixation of pay scale and promotion of employee from lower post to higher post. In T.N. Khosa' case (Supra) it was held by Hon'ble Apex Court that persons appointed directly and by promotion, although were integrated into common class of Assistant Engineers but they could for the purpose of promotion to the cadre of Executive Engineers be classified on the basis of educational qualification and rule providing that the graduate shall be eligible for such promotion to the exclusion of diploma holders was upheld, but in Moh. Shujat Ali's case (supra) the Apex Court has held that to permit discrimination based on educational attainment not obligated by duties of higher post is to stifle the social thrust of equality concept. In Roop Chand Adlakha's case, the rules prescribing variant eligibility condition for diploma holder and graduate Junior Engineers for promotion to the post of Assistant Engineer and similarly a variant eligibility of diploma holder Assistant Engineer and graduate Assistant Engineer for promotion on the post of Executive Engineer was found reasonable and valid. While placing reliance upon and explaining the earlier decisions referred herein above in this paragraphs, the Hon'ble Apex Court held that it is difficult to hold that rule making authority has only two option either to consider the diploma holders' eligible or not eligible for promotion, the state  consistent with the requirement of promotional post and in the interest of efficiency of service is not precluded from conferring eligibility on diploma holders, conditioning it by other requirements, which may, as here include certain quantum of service experience. In P. Murugesan's case (supra) the Hon'ble Apex Court has upheld the validity of rules prescribing ratio of 3:1 between graduates and diploma holders in promotion so also the longer qualifying period of service for diploma holders. After analyzing the earlier decisions on the question in issue in T.R. Kothandaraman"s case (supra), Hon'ble Apex Court has laid down propositions including that higher educational qualification is permissible basis of classification, acceptability of which will depend upon facts and circumstances of each case.

69. In Kuldeep Kumar Gupta's case (supra) the question as to whether it is permissible for the employer to frame regulations providing a separate quota of promotional avenue for the less qualified Junior Engineers in preference to the claim of qualified diploma holder Junior Engineers in the feeder cadre for promotion to the post of Assistant Engineers? While adverting to the question Hon'ble Apex Court has held that if the rule making authority considers that the stagnation at the stage of junior Engineer will not be conducive for administration and provides promotional avenue for them by providing a quota in the promotional cadre and the service history itself indicates that such provisions had been made right from the inception we see really no constitutional infraction therein so as to be interfered with by this court.

70. In Dwarka Prasad's case (supra) in para 16 and 17 of the decision Hon'ble Apex Court has held that fixation of quota or different avenues and ladders for promotion in favour of various categories of posts in feeder cadre, based upon the structure and pattern of the department is prerogative of the employer, mainly pertaining to the policy making field. The relevant considerations in fixing particular quota for a particular post are various, such as cadre strength in feeder quota, suitability more or less in feeder post, their nature of duties, experience and channel of promotion available to the holder of post in feeder cadre. Most important of them all is the requirement of promoting authority for manning the post on promotion with suitable candidates. Mere cadre strength of particular post in the feeder cadre cannot be a sole criterion or basis to claim parity in channel of promotion by various holders of posts in feeder cadre. This however cannot be an inviolable rule of strict application in every case with an absolute equality of arithetical exactitude but may vary from case to case depending upon the pattern, structure and hierarchies in the departmental set-up as well as exigencies and varied needs of administration. There are other relevant considerations, which may require departure from the practice of fixation of quota for each post in the feeder cadre, solely proportionate to its strength.

71. Thus from the aforesaid discussion, it is clear that there is strong presumption that all these relevant considerations might have legitimately entered into judgment of rule making authority while making the New 2004 Rules whereby 50% posts of Assistant Engineers are liable to filled by direct recruitment, through commission from graduate Engineers, and remaining 50% posts from promotions out of which 90% posts are liable to be filled up by Junior Engineer (Civil) and 10% posts are liable to be filled up by Junior Engineer (technical) irrespective of their having degree or diploma, provided that they have been substantively appointed and as such completed seven years service. There is no bar to the graduate engineers to be appointed directly, provided they satisfied the norms of maximum upper age limit. In the earlier rule also if no suitable candidates were available in the quota earmarked for promotion for degree holders, the vacancies were liable to be filled up from diploma holder Junior Engineers but having regard to the duties and responsibilities of higher post, and stagnation at the stage Junior Engineer would not be conducive for administration if the degree holder juniors were denied their accelerated promotion and permitted to compete along with diploma holders Junior Engineers, there can be no infraction of equality clause.

72. Besides, there is nothing on record to show that promotion of diploma holder junior Engineers in the quota of promotion with minimum seven years  substantive service without having degree qualification would be in derogation of efficiency of administration. That apart if the rule making authority found aforesaid seven years continuous service in substantive capacity for diploma holders for promotion as substitute of technical qualification to be possessed by direct recruits, there can be no infraction of equality clause. In some what similar situation in A.S. Parmar Vs. State of Haryana A.I.R. 1984 S.C. 643, Hon'ble Apex Court has held that the degree in Engineering is not essential qualification for promotion of Assistant Engineer Class II to the post of Executive Engineer Class I service under Rule 6(b) Punjab Service of Engineers Class I P.W.D. (Irrigation Branch) Rules 1964. The aforesaid view has been reiterated by Hon'ble Apex Court in T.R. Kapoor and others Vs. State of Haryana & others A.I.R. 1987 SC 415 so also in Roop Chand Adlakha's case (supra) and in P.Murugesan's case (supra) certain length of service of Diploma holder junior engineers and Assistant Engineers were found sufficient substitute for degree in Engineering while prescribing variant eligibility condition for promotion for them. In such a situation we do not find any infraction of equality concept. It is prerogative of employer and falls in field of policy making. We are not inclined to substitute our opinion for the opinion of rule making authorities as repeatedly held by Hon'ble Apex Court. Learned counsel for petitioners have failed to substantiate the grounds of the writ petition on the score of validity of impugned provisions of New 2004 Rules. Therefore, we hold that the impugned provisions of aforesaid rules are valid and are not hit by Article 14 and 16 of the Constitution of India accordingly cannot be stuck down.

Question No.2:  

73. So far as the second question, as to whether the vacancies occurred prior to 2.1.2004 and thereafter w.e.f. 3.1.2004 to 30.6.2004 in the quota of promotion, are liable to be filled up under old law occupying the field, or liable to be filled up under New 2004 Rules, it is to be pointed out that New 2004 Rules have come into force on the date of notification i.e. on 3rd January 2004 at once, therefore, there appears no scope for doubt to hold that it is prospective in operation, but the question whether the vacancies falling in quota of promotion and direct recruitment occurred prior to and after 2nd January 2004 till 30th June 2004 would be governed by new 2004 Rules or old laws occupying the field is actual question in controversy in this case. There appears no dispute regarding the vacancies occurred prior to commencement of new 2004 Rules to be filled under the old rules occupying the filed, but real dispute pertains to the vacancies occurred on 3.1.2004 and thereafter till 30.6.2004. Although in some of the writ petitions the petitioners themselves have stated that the vacancies occurred prior to 3rd January 2004 in the quota promotion are liable to be filled up under old laws i.e. Statutory Rules or Executive Orders occupying the field and vacancies occurred thereafter are liable to be filled up under new 2004 Rules but in Writ Petition No.22558 of 2003 (Daya Shankar and others Vs. State of U.P. and others), while taking assistance of phrase "year of recruitment" in the definition clause of New 2004 Rules, it has been stated that the new 2004 Rules will operate only in respect of those vacancies which arose on and after 1st July 2004 in spite of commencement rules on 3.1.2004. The vacancies existing prior to the aforesaid date till 30th June 2004 are liable to be filled up in accordance with Old 1936 Rules. The aforesaid statement of facts and assertions were made by making necessary amendment in the writ petition and relief claimed therein, whereas contrary to it, the stand taken by the State Government in the counter affidavit is that since the new rules have come into force w.e.f. 3rd January 2004, therefore, the vacancies occurred on and after 3rd January 2004 till 30th June 2004 in the quota of promotion inasmuch as direct recruitment are liable to be filled  under New 2004 Rules, whereas the vacancies occurred earlier to it, are liable to be filled  under Old Rules 1936 as amended from time to time.

74. To answer this question accurately, it is necessary to examine the definition clause provided under Rules 3 of New 2004 Rules. Rule 3 (m) defines the year of the recruitment to mean that a period of 12 months commencing on the first day of July of a calendar year meaning thereby from first day of July of current year in which the recruitment is made to 30th June of next year. Rule 3 starts with the words, ''in these rules unless there is anything repugnant in the subject or context.' In this connection it is necessary to point out that where the definition of an expression in a definition clause of statute is preceded by the words "unless the context otherwise requires or unless there is any thing repugnant in the subject or context" normally the definition given in the definition clause should be applied and given effect to. But this normal rule may however, be departed from, if there be something in the context to show that definition should not be applied. Where in a definition clause of statute a word is defined to mean a certain things, wherever that word is used in that statute, it shall mean what is stated in the definition, unless the context requires otherwise, such definition is generally known as restrictive definition. Contrary to it, where in a definition clause word ''include' is used to define the expressions, it is so done in order to enlarge the meaning of words, occurring in the body of statute, when it is so used, these words or phrases must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. Such definition is commonly known as "inclusive" or "expansive" definition. In inclusive or expansive definition, the expressions defined, do not bears only their ordinary, popular or natural meaning, but they also bears their extended statutory meaning.  Thus, the definition clause of the rules 2004 indicates restrictive meaning to the words defined in it, unless there is anything repugnant in the subject or context, the meaning assigned to it is to be taken into account while making construction and interpretation of the rules.

75. Thus in view of aforesaid legal position on application of restrictive meaning to the year of recruitment in respect of vacancies occurred between 3.1.2004 to 30.6.2004 for direct recruitment and promotion under rule 14 of the rules 2004, the year of recruitment would be twelve months commencing on the first day of July of a calendar year e.g. from 1st July 2003 to 30th June 2004 and since the year of recruitment cannot be split into two parts i.e. one part w.e.f. 1.7.2003 to 2.1.2004 and another part w.e.f. 3.1.2004 to 30.6.2004 to cover the vacancies occurred during later part of the year of recruitment. Therefore, a harmonious construction of rule can only be made by excluding the vacancies occurred w.e.f. 3.1.2004 to 30.6.2004 also from operation of rules 2004 and by treating the first year of recruitment under new rules 2004 w.e.f. 1.7.2004.Thus the vacancies occurred w.e.f. 3.1.2004 to30.6.2004 in the quota of promotion has to be excluded from operation of New Rules 2004 and can legitimately be filled under old law occupying the field.

76. However, the vacancies falling in the quota of direct recruitment during the aforesaid period cannot be filled up under old rules as neither any process of selection was initiated thereunder nor any person has any vested rights in such vacancies rather can be filled up under New 2004 Rules as existing backlog vacancies. Since the vacancies were available while old rule was in existence and certain promotions were also made under old rules, the validity of some of which promotions are subject matter of dispute before us, therefore, it is necessary to examine as to whether the incumbents of feeder cadre have any vested right to be considered from promotion under old and superceded rules 1936 by virtue of conditions of their service. In this connection it is pertinent to point out that it is well settled by catena of decisions of Apex Court that incumbents of feeder cadre have right to be considered for promotion under old rules provided the vacancies occurred and incumbents were eligible to be considered for promotion. As the right to be considered for promotion of eligible incumbents in the feeder cadre is condition of their service under old rules in vogue, but mere chance of promotion are not.

77. In Mohd. Sujat Ali (supra), a Constitution Bench of Apex Court in para 15 of the decision held as under:-

"It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pronouncements of this Court on the point and particularly the decision in Mohammed Bhakar v. Krishna Reddy, 1970 Serv. LR 768 (SC) where this Court, speaking through Mitter, J., said: "Any rule which affects the promotion of a person relates to his condition of service." But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion- the latter would certainly not be a condition of service. This Court pointed out in State of Mysore V. G.B. Purohit, C.A. NO.2281 of 1965 D/- 25.1.1967 (SC) that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. What happened in C.A. No.2281 of 1965 D/- 25.1.1967 (SC) was that the districtwise seniority of Sanitary Inspectors was changed to Statewise seniority and as a result of this change, the respondents went down in seniority and became very junior. Thus, it was urged, affected their chances of promotion which were protected under the proviso to Section 115, sub-section (7). This contention was negatived and Wanchoo, J., as he then was, speaking on behalf of this Court observed: "It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service."

78.     In T. R. Kapur and others Vs. State of Haryana & others A.I.R. 1987 SC, 415. By a notification issued under Art 309 Rule 6(b) of Punjab Service of Engineers class I P.W.D. (Irrigation Branch) Rules 1964 was amended in 1984 with retrospective effect making degree in Engineering essential for promotion in class I service, whereby the Diploma holder members of class II Service rendered ineligible for promotion. The said notification was held ultra-vires of sec.82 (6) of Punjab Reorganisation Act 1966 inasmuch as violative of Art. 14 and 16 Constitution, Hon'ble Apex Court in para 16 the decision held as under:-

"It is well settled that the power to frame rules to regulate the conditions of service under the proviso to Art, 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect: B.S. Vadhera v. Union of India, (1968) 3 SCR 575: (AIR 1969 SC 118), Raj Kumar v. Union of India, (1975) 3 SCR 963: (AIR 1975 SC 1116), K. Nagaraj v. State of A.P. (1985) 1 SCC 523: (AIR1985 SC 551) and State of J & K v. Triloki Nath Khosla, (1974) 1 SCR 771: (AIR 1974 SC 1). It is equally well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognised principle that the benefits acquired under existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Art. 309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the test of Arts. 14 and 16(1) of the Constitution:

79.       In State of Maharashtra Vs. Chandra Kant Anant Kulkarni A.I.R. 1981 SC, 1990, there it was held by a Bench comprising three Judges' of Hon'ble Apex Court that mere chances of promotion are not condition of service and the fact that there was reduction in the chances of promotion did not tantamount a change in the condition of service. A right to be considered for promotion is a term of service, chances of promotion are not. The aforesaid view has also been reiterated by the Apex Court in Union of India & others Vs. S.L. Dutta and another A.I.R. 1991(SC),363, wherein the changes in policy in the matter of promotion of Air Vice marshal to the post of Air Marshal in the Air Force was under consideration. The Hon'ble Apex Court has held that what was affected by the change of policy were merely the chances of promotion of the Air Vice Marshal in the Navigation Steam. As far as the post of Air Marshal open to the Vice Air Marshal in the said steam were concerned their right or eligibility to be considered for promotion still remained and hence there was no change in their condition of service.

80.     In State of Andhra Pradesh V. T. Rama Krishna Rao A.I.R. 1972 (SC) 2715, the State Public Service Commission of Andhra Pradesh had invited applications in 1968 for the posts of District Munsifs. Rule 5 of the Recruitment Rules empowered the commission to prepare a list of persons considered for the appointment to the post of District Munsifs after holding such examination, as the Government would consider necessary. On a challenge made by some of the candidates the High Court held that Rule 5 was void as it empowered the Government to determine whether an examination was necessary or not, and also the pattern of such an examination, in contravention of Art. 234 of the Constitution. The High Court further held that the Government orders, pursuant to the said Rule for holding of examination by the Commission was also void, having been issued under invalid Rules, pursuant to the judgment of the High Court the Governor amended Rule 5 after consultation with the High Court and the Commission as enjoined by Art. 234 of the Constitution. The Commission thereafter issued advertisement inviting fresh applications to hold examination for the purpose of filling vacancies in the post of District Munsifs, thereupon some of the candidates who had made applications in pursuance to the advertisement issued in 1968 challenged the validity of the holding of the fresh examination on the ground that since they had applied in response to the advertisement of 1968 they could not be subjected to written examination under the amended Rule as it was prospective in nature. The High Court partly allowed the petition and directed the Commission to hold a separate examination for those who had applied in 1968 in accordance with the unamended Rules and further to hold a separate examination for the subsequent vacancies in accordance with the amended Rule 5. On appeal by the State Government, a Constitution Bench of the Apex Court set aside the order of the High Court and held that since Rule 5 as it stood in 1968 had been declared void the advertisement issued by the Commission inviting applications and all proceedings taken by the Commission including the examination held thereunder was rendered void. In this context Hon'ble Apex Court made observation that those candidates who had made applications in 1968 had not acquired any right as their applications had been made under a Rule, which had been declared invalid and further held that in the facts of that case the question whether amended Rule 5 was retrospective or prospective did not arise. The pertinent observations are as under:

"Secondly the respondents had not acquired any right by merely applying for the posts either under that rule or otherwise, to be selected for the posts. The Commission, therefore, was perfectly justified in treating the earlier applications for the respondents as invalid on the ground that they had been invited under an illegal rule and calling for fresh applications and holding a fresh examination in respect of all the 200 vacancies. There was thus no question of any breach of Art.16, nor of any violation of any right of the respondents as none was acquired by them. Equally, there was no question of the amended Rule 5, being prospective or retrospective as the Commission had to act afresh under the amended Rule, the unamended rule having been struck down and there being therefore no basis on which the applications of the respondents made in 1968 could be treated as valid applications."

81.      In I.J. Diwakar V. Government of Andhra Pradesh (AIR 1982 SC, 1555), the Andhra Pradesh Public Service Commission invited applications for filling posts of Junior Engineers. In response to the advertisement several candidates applied for the said post and appeared at the viva voce test. While the Commission was in process of finalising the select list, the Government of Andhra Pradesh issued a Government Order under the proviso to Article 320(3) of the Constitution excluding the posts of Junior Engineers from the purview of the Public Service Commission. The Government regularised the services of all those who were appointed by direct recruitment to the post of ad-hoc Junior Engineers and were continuing in service on August 9, 1979 without subjecting them to any test written or oral. The candidates who had applied in response to the advertisement issued by the Commission challenged validity of the Government Order excluding the post of Junior Engineers from the purview of the Commission and also the validity of the decision by the Government to regularise the services of temporary employees. Before the Apex Court the Government's power of framing regulations excluding any post from the purview of the Commission under the proviso to Art. 320(3)was conceded. It was, however, urged that since the advertisement had been issued by the Commission inviting applications for the posts of Junior Engineers and as the Commission was in process of selecting candidates the power under the proviso to C l. (3) of Art. 320 of the Constitution could not be exercised. The Hon'ble Apex  Court rejected the contention with the following observations (AIR 1982 SC 1555 at p.1556):

" The only contention urged was that at the time when the advertisement was issued the post of Junior Engineer was within purview of the Commission and even if at a later date the post was withdrawn from the purview of the Commission it could not have any retrospective effect. There is no merit in this contention and we are broadly in agreement with the view of the Tribunal that inviting the applications for a post does not by itself create any right to the post in the candidate who in response to the advertisement makes an application. He only offers himself to be considered for the post. His application only makes him eligible for being considered for the post. It does not create any right in the candidate to the post."

82.     In Y.V. Rangaiah V. J. Sreenivasa Rao, A.I.R. 1983 SC 852, the question was whether appointment could be made out of the list of approved candidates prepared by the appointing authority against the vacancies, which had occurred prior to the amendment of the rules. The Andhra Pradesh Registration and Subordinate Service Rules made provision for the preparation of a list of approved candidates for appointment and promotion in the month of September every year. In 1976 the list of approved candidates was not prepared meanwhile in 1977 the original rules were amended providing for promotion or transfer to the category of LDCs for appointment as Sub-Registrars Grade II from amongst UDCs employed in the Registration and Stamp Department. A list of approved candidates for promotion was made in accordance with the amended Rules and appointments were made as a result of which some of the juniors in the category of LDCs were promoted as Sub-Regisgrars Grade II. The Andhra Pradesh Tribunal set aside the appointments and directed the State Government to draw a fresh panel for the year 1976-77 in respect of vacancies arising during that year in accordance with the rules as they existed at the stage and to make appointments in the vacancies pertaining to that period on the basis of the panel so drawn. On appeal Hon'ble Apex Court held that the vacancies which occurred prior to the amended rules would be governed by the old Rules and not by the amended Rules.

83.     In A.A. Calton V. Director of Education (AIR 1983 SC, 1143), the Hon'ble Apex Court considered the validity of appointment of Principal by the Director of Education made under S. 16F of the U.P. Intermediate Education Act 1921. The High Court quashed the selection of Principal on the ground that the appointment had been made by the Selection Committee and not by the Director of Education as required by S. 16F(4) of the Act. The High Court directed the Director of Education to make selection and appointment. Pursuant to the direction of the High Court, the Director made appointment to the post of Principal by his order dated March 8, 1977, but before that date, S. 16F(4) of the Act was amended on August 18, 1975 taking away the power of the Director to make appointment under Section 16F(4) of the Act. In view of the amendment of S. 16F of the Act, validity of the order of the Director of Education dated March 8, 1977 making appointment to the post of Principal was again questioned. The High Court dismissed the writ petition: thereupon the unsuccessful party preferred appeal. The Apex Court held as under (para 5).

"It is no doubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18, 1975 taking away the power of the Director to make an appointment under S. 16F(4) of the Act in the case of minority institutions. The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings under S.16F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings. The process of selection under S. 16F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make selection under S. 16F(4), (as it stood then) is an integrated one. At every stage in that process certain rights are created in favour of one or the other of the candidates. Section 16F of the Act cannot, therefore, be construed as merely a procedural provision. It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings, which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case."

84.    In P. Mahendran and others V. State of Karnataka and others (AIR 1990 SC, 405) = 1990 (1) S.L.R., 307, wherein the dispute related to the selection and appointment of Motor Vehicle Inspectors. Recruitment to the said post was regulated by the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962 (hereinafter referred to as the Rules) framed under Article 309 of the Constitution. On September 28, 1983 the Public Service Commission issued and advertisement (published in the Karnataka Gazette on October 6, 1983) inviting applications for 56 posts of Motor Vehicle Inspectors which was later on increased to 102 posts. The advertisement specifically stated that the selection shall be made in accordance with the Recruitment Rules 1976 and it further stated that a candidate for selection must be holder of Diploma in Automobile Engineering or Mechanical Engineering. The appellants/petitioners (in writ petition) who were holding Diploma in Mechanical Engineering along with others applied for selection to the post of Motor Vehicle Inspectors. The Commission after scrutiny of the application forms issued letters for interview to the suitable candidates and the Commission commenced the holding of interviews in August, 1984. It appears that on account of some litigation in respect of said selection process the selection could not be completed and it could be completed 2nd June 1987 and the commission declared the result of the selection on 22.6.1987 which was published in the Karnataka Gazette dated 23rd July, 1987. The selected candidates were given intimation of their selection and the State Government took steps for imparting them three months' training before appointing them as Motor Vehicle Inspectors.

85.     Meanwhile the State Government of Karnataka amended the Recruitment Rules by a Notification dated May 14, 1987 omitting the qualification of Diploma in Mechanical Engineering for the post of Motor Vehicle Inspectors. Consequent to the amendment of Rules the holders of Diploma of Automobile Engineering became exclusively eligible for appointment to the post of Motor Vehicle Inspectors and the holders of Diploma in Mechanical Engineering ceased to be eligible for selection and appointment to the said post. Some of those candidates who were unsuccessful at the selection held by the Commission preferred applications before the Karnataka Administrative Tribunal at Bangalore for quashing the select list prepared by the Commission and also for quashing the Notification dated 28.9.1983 inviting applications from appointment to the post of Motor Vehicle Inspectors on the ground that after the amendment of Rules in 1987, no person holding the Diploma in Mechanical Engineering was qualified for appointment, therefore, fresh selection should be made in accordance with the amended Rules. The State Government of Karnataka as well as the appellants both contested the applications and asserted that the 1987 amendment to the Recruitment Rules were not retrospective instead the amendments were prospective and the amended Rules did not affect the selections which were in the process of finalisation by the Commission. The Tribunal held that after the Amendment of the Recruitment Rules in May 1987 the Commission could not make selection or determine the result on the basis of the Rules which existed prior to 14th May 1987 and as such the selection of candidates holding diploma in Mechanical Engineering was illegal as holders of Diploma in Mechanical Engineering ceased to be eligible for appointment to the post of Motor Vehicle Inspectors with effect from the date of publication of the amending Rules. On these findings the Tribunal allowed the applications and quashed the advertisement issued under the Notification dated 28.9.1983 as well as the select list published by the Public Service Commission and it further issued directions to the Public Service Commission to invite fresh application and to make selections in accordance with the amended Rules. Aggrieved, the appellants who had been selected by the Commission for appointment to the posts of Motor Vehicle Inspectors have preferred appeal before the Apex Court and by means of writ petition under Art. 32 of the Constitution sought relief for issue of mandamus directing the State Government to appoint the selected candidates. In view of the aforesaid back drop of the case the Hon'ble Apex Court has held that the appellants' selection and appointment could not be held as illegal as the process of selection had commenced in 1983 which had to be completed in accordance with law as it stood at the commencement of the selection. The amended rule could not be applied to invalidate the selection made by the Commission. In para 11 of the decision it was further observed as under:-

              "It is true that a candidate does not get a right to the post by merely making an application for the same, but a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules. If a candidate applies for a post in response to advertisement issued by Public Service Commission in accordance with recruitment Rules he acquires right to be considered for selection in accordance with the then existing Rules. This right cannot be affected by amendment of any Rule unless the amending Rule is retrospective in nature. In the instant case the Commission had acted in accordance with the then existing rules and there is no dispute that the appellants were eligible for appointment, their selection was not in violation of the Recruitment Rules. The Tribunal in our opinion was in error in setting aside the select list prepared by the Commission."

86.    In State of Madhya Pradesh & Others Vs. Raghuveer Singh Yadav & Others (1994) 6 SCC 151, the Weight and Measurement Department of M.P. Government invited application for the post of Inspectors from eligible candidates. The qualification prescribed for eligibility was degree in Arts or Commerce or Science or Engineering or diploma in Engineering. Written examinations were held, results were declared and interview cards were issued to successful candidates. Meanwhile the Government amended the rules by M.P. Standard of Weights and Measurement Enforcement Rules 1989 and altered the qualification for eligibility to the said posts to degree in Science with physics or degree in Engineering or technology or diploma in Engineering pursuant to the amendment rules, the Government withdrew the said notification and intended to proceed with the recruitment afresh under amended rules. The respondents successfully challenged the amended rules before the M.P. Administrative Tribunal on the ground that those rules would not be amended retrospectively. Allowing the appeal of State of M.P. while distinguishing the P. Mahendran's case in para 5 of the decision Hon'ble Apex Court has held as under:-

"5.  It is not in dispute that Statutory Rules have been made introducing Degree in Science or Engineering or Diploma in Technology as qualifications for recruitment to the posts of Inspector of Weights and Measures. It is settled law that the State has got power to prescribe qualifications for recruitment. Here is a case that pursuant to amended Rules, the Government has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules."

87.     In B.L. Gupta and another V. M.C.D. (1998) 9 SCC, 223, briefly stated facts of the aforesaid case was that there were statutory rules which were framed in 1978, inter alia, dealing with the question of promotion to the various posts in respondent organization. For the post of Assistant Accountant there were two feeder posts, one was that of senior clerks with three years' experience and other was of the junior clerks with eight years' experience. It appears that no examination was held for filling up the post of Assistant Accountants for a number of years. At long last the respondent advertised the post in January 1993 and after a period of nearly 12 months examination was held on 26.12.1993. According to the advertisement the posts which were to be filled up were those which were available on that date 171 in number. On the examination being held, results were declared in February 1994. Only 79 persons who had appeared in examination were appointed as Assistant Accountants. Two set of writ petitions were filed thereafter in the Delhi High Court, one was filed by senior clerks who were holding the current duties charges of Assistant Accountants and other was filed by junior clerks who had taken the examination and the prayer in the writ petition was that the respondent should fill the vacancies which were available and the number of vacancies which were filled should not have been restricted to 79. The High Court by the impugned decision had come to the conclusion that 79 persons had been validly appointed pursuant to the examination which was held. During the pendency of the writ petition the Corporation amended the Rules 1995 as per the amended rules 80% of posts of Assistant Accountants were to be filled up by promotion on the basis of seniority and 20% by examination. The High Court directed that the appointment of 79 persons pursuant to examination which had been held in December 1993 was in order but the rest of the vacancies had to be filled as per 1995 rules. In that backdrop of the case the Hon'ble Apex Court has held that when the statutory rules had been framed in 1978 the vacancies had to be filled only according to the said rules. The rules of 1995 had been held to be prospective by the High Court and in the opinion of Hon'ble Apex Court this was a correct conclusion.

88.    In view of the aforesaid settled legal position, it is clear that the vacancies falling in the quota of promotion since 1997-98 to 2003-04 are liable to be filled up in accordance with the provisions of old 1936 Rules from amongst eligible candidates available at the time the old Rules 1936 were in existence, whereas the vacancies falling in the quota of direct recruitment during the aforesaid period cannot be filled up under the old rules 1936 as the process of selection has not been initiated by the Public Service Commission while the aforesaid rule was in existence, rather admittedly the process of selection has been initiated after commencement of new 2004 Rules. Thus, no one can be said to have any vested right to be considered for selection against the aforesaid vacancies falling in the quota of direct recruitment under the old 1936 Rules existed prior to commencement of new 2004 Rules. However, the aforesaid existing backlog vacancies falling in the quota of direct recruitment cannot be further allocated in the quota of promotion under new 2004 Rules while holding selection through direct recruitment as the vacancies of aforesaid period in the quota of promotion has already been allocated in that quota and in respect of which some promotions have already been made and in respect of certain remaining vacancies, the process of selection for promotion is still going on. Therefore, the vacancies falling in the quota of direct recruitment can only be filled  under new 2004 Rules as existing back log vacancies in accordance with procedure prescribed thereunder by applying quota of reservation available under Rule-6 of new 2004 Rules.

Question No.3:

89.    Now next question arises to be considered that what would be actual quota of promotion under old 1936 Rules for filling the vacancies of Assistant Engineers, in view of the decision rendered by Hon'ble Apex Court in P.D. Agrawal's case (supra) and a Division Bench of this Court in Aruvendra Kumar Garg's case (supra)? To answer this question, before analyzing the said decisions, it is pertinent to note that in a some of the writ petitions in which Sri Ashok Khare is appearing as Senior counsel the leading case of which is Anjani Kumar Mishra's case, even the petitioners have come forward with the case that after the aforesaid judgment of Apex Court and this court on 22.3.2002 there remained a promotion quota of 25% for the Junior Engineers and Computer satisfying the eligibility requirement specified by rule 9 which provided that junior Engineers/computers of P.W.D. who had either passed qualifying examination as envisaged under Rule 9(II) or had passed associate membership examination of Institute of Engineers (India) or possessed a degree in engineering were eligible for consideration for promotion to the posts of Assistant Engineers. But in some of the cases in which Sri S.C. Budhwar is appearing like Promod Shanker Upadhayay's case and Daya Shanker's case it has been submitted that there remains no statutory rule prescribing any quota for promotion on the post of Assistant Engineer from the post of Junior Engineers and Computers in existing statutory rules i.e. old 1936 Rules after decision of Division Bench of this Court in Aruvendra Kumar Garg's case dated 22.3.2002 and field is occupied by executive order dated 20.2.2003 (Annexure-7 in W.P. No.53133 of 2004, Pramod Shanker Upadhyay & others Vs. State of U.P. & others) issued by the Government of Uttar Pradesh prescribing a quota for promotion on the posts in question to the extent of 41.66 percent intending to fill up vacancies of aforesaid quota, whereas the stand taken by the State Government in counter affidavit is that after the aforesaid decision of Apex Court and Division Bench of this Court, there remains only 25% quota of promotion on the post of Assistant Engineer from the feeder cadre as disclosed in para 20 of supplementary counter affidavit sworn on 25th July 2006 by Sri Tribhuvan Ram presently posted as Engineer-in-Chief, P.W.D. U.P., Lucknow on behalf of respondents filed in Writ Petition No.53133 of 2004 Promod Shaker Upadhayay and others V. State of U.P. and others. Therefore, to arrive at a correct conclusion it is necessary to examine the decision of Hon'ble Apex Court rendered in P.D. Agrawal's case (supra) decided on 8th June 1987 and Division Bench of this Court rendered in Aruvendra Kumar Garg's case (supra) decided on 22nd March 2002.

90.     In P.D. Agrawal's case (supra), what had happened that amended Rule 3(c),5 and 6 of the old 1936 rules as amended by 1969 rules and Rule 23 as amended by 1971 Rules were held arbitrary, irrational and unreasonable infringing Articles 14 and 16 of the Constitution in so far as they affect the question of determining the interse seniority of temporary Assistant Engineers appointed by the Government under Rule 5(2) of the Rules against that of directly recruited Assistant Engineers by Government against permanent vacancies and placed on probation. Accordingly Rule 3(c), 5 and 6 of 1936 rules amended by1969 Rules as well as Rule 23 of 1936 rules amended by 1971 Rules together with seniority list dated 29.7.1980 and Supplementary seniority list dated 18.12.1980 were quashed by Hon'ble Apex Court.

91.     In Aruvendra Kumar Garg's case (supra) what happened that after decision of Hon'ble Apex Court in P.D. Agrawal's case, vide notification dated 4.8.1987 issued under Article 309 of the Constitution the existing rules 5,6,9,12,13 and 16 of old 1936 Rules, purported to be amended by U.P. Services of Engineering (Buildings and Roads Branch) Class II Rules 1987 and vide notification dated 25.9.1997 issued under Article 309 Constitution of India, the then existing rule 5 of old Rules 1936 was sought to be amended by the U.P. Services of Engineers (Buildings and Road Branch) Class II (Fourth) Amendment Rules 1997. The validity of notification dated 4.8.1987 and 25.9.1997 containing the aforesaid amended rules were challenged. The Division Bench of this court has quashed both the notifications in entirety holding the Rule-5(iii) of old 1936 Rules brought about by the aforesaid notification as ultra vires of the provisions of Articles 14 and 16 of the Constitution vide judgment and order dated 22.3.2002. The special leave to appeal against the aforesaid judgement and order dated 22.3.2002 has also been dismissed as withdrawn by Hon'ble Apex Court on 1.8.2006. The effect of dismissal of aforesaid special leave to appeal would be that the judgement and order dated 22.3.2002 passed by this court has attained the finality between the parties.

92.     In this connection Sri H.R. Misra, learned counsel appearing in some of the writ petitions on behalf of petitioners has vehemently argued that the correctness of decision rendered by a Division Bench of this court in Aruvendra Kumar Garg's case despite dismissal of Special Leave Petition by Apex Court against the aforesaid decision can be examined by a Division Bench of this court on merits, thus the provisions of rules which were under consideration before Division Bench of this court and held ultra vires of the provisions of Articles 14 and 16 of the Constitution can be held to be intra-vires and revived and can be enforced. In support of his submission he placed  strong reliance upon a Full Bench decision of this court rendered in Natraj Chhabigrih, Sigra Vs. State of U.P. and another A.I.R. 1996 (All) 375 (FB). At the strength of aforesaid authority learned counsel has submitted that even where a provision is declared ultra vires of Part III of the Constitution, the provision is not effaced but remains on the statute book it is unenforceable in law, that is why in such cases only writ of mandamus is sought not to enforce it and not a writ of certiorari for quashing it. A provision declared ultra vires of Part III of the Constitution, it is said to be still born but revived when appeal, review is allowed or by retrospective constitutional amendment which removes the constitutional infirmity. Similarly it would also revive in reference when contrary to earlier declaration of law is laid. Sri Sidharth Singh, learned counsel for some of the petitioners has submitted written note of the same effect.

93.    To substantiate his argument Mr. H.R. Misra, learned counsel for the petitioner has persuaded us to read the pertinent observation made by aforesaid Full Bench of this court in para 64 and 66 to 68 of the decision in Natraj Chhabigrih's case along with him, which reads as under:

"64.  The significant observation in M.P.V. Sundaramier & Co. Vs. The State of Andhra Pradesh AIR 1958 SC 468, are quoted as under (at pp. 489 and 491-2 of AIR):-

"42. Now in considering the question as to the effect of unconstitutionality of a statute, it is necessary to remember that unconstitutionality might arise either because the law is in respect of a matter not within the competence of the Legislature, or because the matter itself being within its competence, its provisions offend some constitutional restrictions. But does it follow from this that both the laws are of the same quality and character, and stand on the same footing for all purposes? This question has been the subject of consideration in numerous decisions in the American Courts, and the preponderance of authority is in favour of the view that while a law on a matter not within the competence of the legislature is a nullity, a law on a topic within its competence but repugnant to the constitutional prohibitions is only unenforceable. This distinction has a material bearing on the present discussion. If a law is on a field not within the domain of the Legislature, it is absolutely null and void and a subsequent cession of that field to the Legislature will not have the effect of breathing life into what was a stillborn piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the Legislature but its provisions disregard constitutional prohibition, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment."

"47. The result of the authorities may thus be summed up: Where an enactment is unconstitutional in part but valid as to the rest assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for  the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the constitutional bar is removed, and there is no need for a fresh legislation to give effect thereto."  

66.  State of Gujarat Vs. Shri Ambika Mills Ltd., AIR 1974 SC 1300 This summerises the law on the subject. The question posed was even a law takes away or abridges the fundamental rights of the citizen under Article 19(1) (f) of the Constitution, whether it would be void and, therefore, non est in respect of non-citizens. (at p. 1309 of AIR)

"36.  If the meaning of word ''void' in Art. 13 (1) is the same as its meaning in Art. 13(2) it is difficult to understand why a pre-Constitution law which takes away or abridges the rights under Article 19 should remain operative even after the Constitution came into force as regards non-citizens and a post-Constitution law which takes away or abridges them should not be operative as respects non-citizens. The fact that pre-Constitution law was valid when enacted can afford no reason why it should remain operative as respects non-citizens after the Constitution came into force as it became void on account of its inconsistency with the provisions of Part III. Therefore, the real reason why it remains operative as against non-citizens is that it is void only to the extent of its inconsistency with the rights conferred under Article 19 and that its voidness is, therefore, confined to citizens, as ex hypothesi, the law became inconsistent with their fundamental rights alone. If that be so, we see no reason why a post-Constitution law which takes away or abridges the rights conferred by Article 19 should not be operative in regard to non-citizens as it is void only to the extent of the contravention of the rights conferred on citizens, namely, those, under Article 19"

This was the foundation of the argument for the State which has a great force that a law even if declared void remains on the statute. Referring to the case of Jagannath Vs. Authorised Officer Land Reforms, AIR 1972 SC 425 a post-Constitution Act, which was truck down for the violation of fundamental rights was, therefore, still born was held, has still an existence without re-enactment, for it being put in the Ninth Schedule. Relevant paragraph 43 of the said judgment is quoted below:

"Although the general rule is that a statute declared unconstitutional is void at all times and that its invalidity must be recognised and acknowledged for all purposes and is no law and a nullity, this is neither universally nor absolutely true, and there are many exceptions to it. A realistic approach has been eroding the doctrine of absolute nullity in all cases and for all purposes. (See Warring V. Colpoys. 122 F2d 642) and it has been held that such broad statements must be taken with some qualifications. See Chicot County Drainage District V. Baster State Bank Ark. (1939) 308 US 371, that even an unconstitutional statute is an operative fact. See Warring V. Colpoys, 122 F 2d 642, at least prior to a determination of constitutionality."  

67.  H.M. Seervai Constitution of India IVth Edition in para 8.30 summerises the law on the subject at pages 415 and 416 :

(1)  There is a distinction between a law unconstitutional for lack of legislative power and a law unconstitutional because violative of provisions of the Constitution other than those which relate to the distribution of legislative power.

(2) A law which is unconstitutional for lack of legislative competence is void ab initio; a law which is  unconstitutional for violation of constitutional limitations is unenforceable as long as it continues to violate constitutional limitations. Such a law, whether pre-Constitution or post-Constitution is not wholly void if it violates fundamental rights it is merely eclipsed by the fundamental right and remains, as it were, in a moribund condition as long as the shadow of fundamental rights falls upon it. When that shadow is removed the law begins to operate propriovigore from the date of such removal unless it is retrospective.

(3)  A law void for lack of legislative competence is not revived if legislative power is subsequently given to the legislature which enacted it, a law partly void because of violation of constitutional limitations are removed.

(4) When a Court declares a law to be unconstitutional, that declaration does not repeal to amend the law, for to repeal or amend a law is a legislative and not a judicial function.

(5)  The word ''void' in Art. 13(1) and (2) does not mean ''repealed' nor is a law declared void under Art. 13(1) or (2) obliterated from the statute book. Such a law is not wholly void but by the express terms of the article is void only to the extent of its repugnancy to, or contravention of, the provisions of Part III relating to fundamental rights."

In U.S. Constitution 2nd Ed. Vol. 1 pp. 10 and 11 the following principle is laid down :

"In Norton V. Shelby Co. (1885 (118) US 425), Mr. Justice Field  says;" an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed."

The doctrine that the judicial declaration of the unconstitutionality of a statute has not the effect of a veto or nullification or abrogation of the statute so as, in effect, to strike it from the statute books, is excellently stated by the Court of West Virginia in Shephard V. Wheeling (30W. va 479). The Court says :

The court does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognise it, and determines the rights of the parties just as if such statute had no application. The court may give its reasons for ignoring or disregarding the statute but the decision affects the parties only, and there is no judgment against the statute. The opinion or reason of the court may operate as a precedent for the determination of other similar cases, but it does not strike the statute from the statute book; it does not repeal.... the statute. The parties to that suit are concluded by the judgment but no one else is bound. A new litigant may bring a new suit, based on the very same statute, and the former decision cannot be pleaded as an estoppel, but can be relied on only as a precedent. This constitutes the reason and the basis of the fundamental rule that a court will never pass upon the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the case before it.

The validity of a statute is to be tested by the constitutional power of a legislature at the time of its enactment by that legislature, and, if thus tested, it is beyond the legislative power it is not rendered valid, without re-enactment if later, by constitutional amendment, the necessary legislative power is granted. An after-acquired power cannot, ex proprio vigore, validate a statute void when enacted."

68.  Thus what emerges is a law could be declared ultra vires either being beyond the legislative competence, or being in conflict with or offending any provision of the Constitution. In the former, the law could be said yet to be legislated to be considered as law while in the later legislated coined as law by the competent legislature but is void to the extent of its inconsistency with any provision of the Constitution. Though for both it is loosely said to be ultra vires, void and stillborn, yet there is difference in two. Similarly in both class of cases such law is said to be nullity but concept of nullity takes different colour in them. In the former it is truly' stillborn', in the later it is treated in law to be ''stillborn' This is why in the later class of cases a law declared void or nullity remains on the statute book though erased from it being unenforceable. Thus, Court in such cases is said not to have repealed or annulled the statute. It simply refuses to recognise it. It is treated ineffective as unenforceable. Such laws are validated when cause of such offend is removed. It remains eclipsed by offending the Constitution. Eclipse denotes it being screened by such constitutional provision.  Not to be seen. It is blind, though actually in existence. The moment screen is removed by removing cause of offend it takes effect, becomes enforceable and alive. So never removed from the statute book. Even nullity for the law of ultra vires has to be understood within this sphere. While in former when not legislated by the competent legislature has truly not taken birth. Really it is stillborn. It is nullity in the true sense as if never existed at any point of time. Thus, this nullity is in that absolute sense while in other it is in the limited sense. From all this it is clear without doubt in the later class of cases in which present case falls, even where a provision of a statute is declared ultra vires, which is void and is to be understood to be stillborn but by the procedure prescribed by law in appeal/review or reference what is stillborn is infused back into life as life member.  This re-enforces well considered and settled proposition viz. it remains on statute book and is not erased from it. So if in appeal and review a stillborn provision could be brought back to life, why could it not be applicable in cases of reference. Thus contention, on the date reference it is not on the statute book could not be a ground to refuse to consider the reference, hence this preliminary ground also fails.

94.     In view of aforesaid settled legal position there is no scope for doubt about the maintainability of reference against a decision of this Court wherein a statute has been declared ultra-vires being violative of fundamental rights contained in part III of the Constitution, where no appeal was preferred. However the power of appellate court to do so does not require any authority on the point, similarly power of review is also inherent in every court to plenary jurisdiction as held by Hon'ble Apex Court in Shivdeo Singh Vs. State of Punjab, AIR 1963 S.C. 1909, wherein the cancellation of an order of allotment passed in favour of ''B' was under consideration before the Hon'ble Apex Court. The High Court cancelled the order in favour of ''B' though he was not a party to the writ proceedings. Subsequently ''B' filed the petition under Article 226 for impleading him as a party to A's writ petition and re-hearing the whole matter. The High Court allowed the writ petition. It was held that there was nothing under Article 226 of the Constitution, which precluded the High Court to review its any order, which inheres in every court of plenary jurisdiction.  In paragraph 8 of the decision, Hon'ble Apex Court held as under:

"8. Learned counsel contends that Article 226 of the Constitution does not confer any power on the High Court to review its own order and therefore, the second order of Khosla, J. was without jurisdiction. It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court to plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla,J., affected the interests of persons, who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla, J., entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was entertained by Khosla,J."  

95.    In Kunhayammed and others Vs. State of Kerala and another, AIR 2000 S.C. 2587, the SLP was dismissed by Hon'ble Apex Court by a non-speaking order. The State thereupon filed an application for review of the High Court's order. It was held that the review petition was maintainable, as it could not be said that the order of High Court merged with the order of Supreme Court dismissing the SLP and was therefore not available to be reviewed. The pertinent observations made by Hon'ble Apex Court in para 43 of the decisions reads as under:

"43.  We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.

To sum up our conclusions are:-

(i) Where an appeal or revision is provided against an order passed by a Court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.

(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C.."

96.    Thus in view of aforesaid settled legal position, there is no scope for doubt to hold that even if S.L.P. against the decision of this Court in Aruvendra Kumar Garg's case has been dismissed as withdrawn and power of review is inherent in this court, thus the earlier decision of this court in Aruvendra Kumar Garg's case can be reviewed, but further question arises at whose instance? In Shivdeo Singh's case (supra) the High Court had entertained writ petition under Article 226 of the Constitution filed by ''B' to hear whole matter in writ petition filed by ''A', in which the order of allotment in favour of ''B' was cancelled, without hearing him, therefore, at the instance of ''B' the earlier order passed by High Court was recalled and case was heard on merit by the High Court. The Hon'ble Apex Court had approved the said decision of High Court. In Kunhaymmed's case also, the review application was filed by State Government in the High Court after dismissal of S.L.P. in limine against the same judgement of High Court, which was aggrieved by the decision of High Court. Although the learned counsel for the petitioners could not bring any authority whereby suo motu exercise of power of review to the extent sought by learned counsel for the petitioners can be visualised, yet the submission that petitioners are feeling aggrieved by the aforesaid earlier decision of Division Bench and their petition can also be treated to be a review application as they are real sufferer and aggrieved by the aforesaid decision appears to have some substance.

97.     Now coming to the decision of Aruvendra Kumar Garg's case, it appears that in the aforesaid case although this Court was called upon to examine the validity of Government notifications dated 4th August 1987 and 25th September, 1997 in view of law laid down by Apex Court in P.D. Agarwal's case. From the close and strict scrutiny of the said decision it appears that Hon'ble Apex Court had never intended to quash entire rules existing under the old 1936 rules, but from perusal of the decision of this Court in Aruvendra Kumar Garg's case it appears that this court has enlarged the scope of inquiry while deciding the case in question.  It is true that amended rules contained in the aforesaid notifications were also attacked as being irrational, discriminatory and violative of Articles 14 and 16 of the Constitution of India, as void ab initio within the meaning of Article 13(2) of the Constitution. While deciding the case in para 9 of the decision this court has formulated three questions for determination; viz. whether the related provisions of Rules held to be void in view of Article 13(2) of the Constitution in P.D. Agarwal's case were non-est for all purposes including the purposes of substitution by amendment? secondly, if the related rules brought about by 1969 Rules are held to be ''still-born' even for the purpose of their substitution by new rules, whether the old rules would stand revived or whether did they continue on the statute book?; and thirdly, whether classification of the members of feeder cadre based on qualification (degree and diploma) is violative of Articles 14 and 16 of the Constitution?

98.    On analysis of several decisions of Hon'ble Apex Court including State of Bombay Vs. F.N. Balsara, AIR 1951 SC 318, Behram Khurshid Vs. State of Bombay, AIR 1955 SC 123, Bhikaji Narain Dhakras and others Vs. State of Madhya Pradesh and another, AIR 1955 SC 781, Deep Chand Vs. State of U.P. and others, AIR 1959 SC 648, M.P. Sundararamier & Co. Vs. State of Andhra Pradesh, AIR 1958 SC 468 and State of Gujarat Vs. Shri Ambica Mills Ltd., AIR 1974 SC 1300, A.P. Krishnaswamy Naidu Vs. State of Madras, AIR 1964 SC 1515 and L. Jagannath etc. Vs. The Authorised Officer Land Reforms and another, AIR 1972 SC 425. While answering the question no. 1 in para 18 of the decision this Court held as under :

"18........................In the instant case the 1969 amendment Rules being violative of Article 14 and 16 of the Constitution were void under Article 13(2) of the Constitution and hence ''still-born'. Preponderance of judicial decisions leans to the view that if a post-Constitution statutory provision violates the fundamental rights enshrined in Part III of the Constitution, the same would be void under Article 13(2) of the Constitution from the very inception and being a ''still-born' piece of legislation could not remain on the Statute Book and, therefore, substitution of the offending provisions by means of the U.P. Service of Engineers (Building and Road Branch) Class II (Amendment) Rules, 1987 without ''re-enactment' was impermissible. The offending rules being of pivotal significance, the effect of declaration of their unconstitutionality was to render the entire rules as ineffective. The defect could not be removed except by re-enactment of the Rules consistent with Articles 14 and 16 of the Constitution for we are of the considered view that if a pivotal provision of a statutory service Rule but for which the other provisions thereof become ineffective and inoperative, is void under Article 13(2) of the Constitution then the entire enactment would be non-est and the constitutional infirmity cannot be removed except by way of re-enactment consistent with Article 14 and 16 of the Constitution or by placing it in the IXth Schedule with retrospective effect. In the instant case Rules 5 and 6 of the Rules are pivotal in the sense that but for these provisions others would be ineffective and since these two rules as substituted by1969 amendment rules were declared void being violative of Articles 14 and 16, the Rule making authority ought to have re-enacted the Rules consistent with Articles 14 and 16 of the Constitution."

99.   While adverting to the second question whether as a consequence of declaration of unconstitutionality of rule 3(c),5 and 6 of 1936 rules as amended by 1969 Rules, the old Rules stood revived or did they continue unabridged and unbroken, this Court has placed reliance upon the decision of Apex Court in Firm A.T.B. Mehtab Majid and Company Vs. State of Madras and another, AIR 1963 SC 928, Deodasan Vs. Union of India, AIR 1964 SC 179, B.N. Tewari Vs. Union of India, AIR 1965 SC 1430, Indian Express Newspaper (Bombay) Pvt. Ltd. & others etc. Vs. Union of India & others, 1985 (1) SCC 641 and West U.P. Sugar Mills Association & others Vs. State of U.P. and others, JT 2002 (1) SC 619, thereafter by referring the decision of Apex Court in Bhagat Ram Sharma Vs. Union of India and others, AIR 1988 SC 740, this court in para 20 of the decision has held as under:

"20. . . . . . . . . . . . . . . . . . We are pursuaded to the view that even if it is held that the old rules did not stand obliterated by 1969 rules which were declared void obviously under Article 13(2) of the Constitution and that a provisions which is a ''still-born', is incapable of repealing or substituting an existing provision, the 1987 and 1997 Amendment Rules would not be deemed to have come into operation inasmuch as the existing Rules namely the Rules as they stood prior to 1969 Amendment Rules were not substituted by the impugned Rules and instead Rules which were non-existent were sought to be substituted by the impugned Amendment Rules of 1987 and 1997."    

100.    With all respect to the learned Judges of this court they did not express their concluded opinion in clearest term regarding the answer on question no. 2, formulated in para 9 of the decision as to whether if the related rules brought by 1969 amendment rules are held to be still-born even for the purpose of their substitution by new rules whether the old rules would stand revived or whether did they continue on statute book? While answering the first question as to whether related rules declared ultra vires of the provisions of Articles 14 and 16 of the Constitution being void abinitio are still born in P.D. Agrawal's case for the purpose of substitution by amendment also the learned Judges did not answer as to whether old rules would revive or not? The Division Bench also did not notice the Full Bench decision of this court in Natraj Chhabigrih's case (supra) which was binding upon Division Bench of this court and appears to have taken conflicting view with regard to the effect of declaration of statute to be ultra vires being inconsistent to the fundamental rights contained in Part III of the Constitution, wherein Full Bench has taken the view that even where a provision of a statute declared ultra-vires of the provisions of Part III of the Constitution, which is void and to be understood to be still-born but by the procedure prescribed by law in appeal/review or reference what is still born is infused back into life as life member. This reinforces, the well considered and settled proposition viz. it remains on statute book and is not erased from it, so if in appeal and review, a still-born provision could be brought back to life why could it not be applicable in cases of reference whereas from a analysis of the decision of Division Bench of this Court, rendered in Aruvendra Kumar Garg's case, it appears that in para 18 of the decision Division Bench has held that preponderance of the judicial decision leans to the view that if a post constitution statutory provision violates the fundamental rights enshrined in Part III of the Constitution the same would be void under Article 13(2) of the Constitution from the very inception and being a still-born piece of legislation could not remain on the statute book and therefore, substitution of the offending provisions by means of amended Rules 1987 and 1997 without re-enactment was impermissible and further in para-20 of the decision, it is held that we are persuaded to the view that even if it is held that the old rules did not stand obliterated by 1969 rules, which were obviously declared void under Article 13(2) and that a provision which is still born incapable of repealing or substituting an existing provision, the 1987 rules as well as 1997 amendment rules would not be deemed to have come into operation.  From the perusal of both the decisions rendered by Full Bench of this court and Division Bench in Aruvendra Kumar Garg's case it appears that the opinion expressed by Division Bench seems to be in conflict of the opinion expressed by the Full Bench in Natraj Chhabigrih's case (supra)

101.     Now let us examine the first and second questions decided by Division Bench of this Court in Aruvendra Kumar Garg's case.  In this connection, it is pertinent to mention that in Deep Chand Vs. State of U.P. (supra) a Constitution Bench of Hon'ble Apex Court after taking note of earlier decisions has held that there is clear distinction between two clauses of Article 13, under Clause (1) a pre-constitution law subsists except to the extent of its inconsistency with the provisions of Part III of the Constitution whereas no post constitution law can be made contravening the provisions of Part III of the Constitution and therefore, law to that extent, though made is nullity from its inception. Hon'ble  Apex Court further held that when clause (2) of Article 13 says in clear and unambiguous terms that no state shall make any law which takes away or abridges the right conferred by Part III of the Constitution. The limitation imposed by Part III of the Constitution on legislative power were on the same level as the competence of the legislature to make the laws in regard to the entries in the list of seventh schedule. Thus prohibition goes to the root of the matter and limits the state' s power to make law. The law made in spite of prohibition is still-born law. The doctrine of eclipse has no application to post constitution law infringing the fundamental rights as they would be ab-initio void, in toto to the extent of their contravention of fundamental rights,  but in the aforesaid decision Hon'ble Apex Court did not notice its earlier decision rendered in Sundararamier's case (AIR 1958 SC 468). After taking note of Deepchand's case (supra), Sundararamier's case (supra) and L. Jagannath Etc. Vs. the Authorised Officer Land Reforms Madurai another, AIR 1972 Sc 425 (seven Judges Constitution Bench of Hon'ble Apex Court) in para 43 of the decision a Constitution Bench of Hon'ble Apex Court in State of Gujrat and another Vs. Shri Ambica Jills Ltd. etc. AIR 1974 SC 1300 has held that a post constitution Act which has been struck down for violating the fundamental rights and was therefore, still born, has still an existence without re-enactment for being put in Ninth Schedule. That only illustrates that any statement that a law which takes away or abridges fundamental rights conferred under Part III of the Constitution is still born or null and void requires, qualifications in certain situations. Although the general rule is that a statute declared unconstitutional is void at all times and that its invalidity must be recognised and acknowledged for all purposes and is no law and a nullity, this is neither universally nor absolutely true and there are many exception to it. A realistic approach has been eroding the doctrine of absolute nullity in all cases and for all purposes. No other authority has been shown to us where the decision of Hon'ble Apex Court rendered in L. Jagannath' s case and Sri Ambica Mills's case has been overruled by the Hon'ble Apex Court.

102.     Thus from the aforesaid discussion it follows that a post constitution statute which has been struck down for violating the fundamental rights enshrined under Part III of the Constitution is void ab-initio, therefore, still-born, for the purpose of rights and obligations arise, there-from and remain unenforceable, but the same may be still in existence and remained in the statute book for other purpose like for putting it in Ninth Schedule. No doubt such ultra-vires statute can be placed in ninth schedule only by a constitutional amendment, which is virtually a legislative process to be carried on by the Parliament but once its existence, though for limited purpose is conceded, we see no reason why its existence is not accepted for other similar purposes like substitution by amendment which is also a legislative process. Therefore with all respect to the learned Judges, we are not able to subscribe the view taken by them in respect of question No. 1and 2 and contrary thereto, we are persuaded to hold that in spite of related rules brought about by 1969 amendment rules, which have been declared ultra-vires of Part III of the Constitution, held to be still-born for the purpose of rights and obligations arise therefrom, but they were in existence without re-enactment for the purpose of substitution by new amendment rules 1987 and 1997. The view taken by us is also in consonance of Full Bench decision of this Court in Natraj Chhabigrih case (supra).

103.     Now coming to the next question No. 3, whether classification of members of feeder cadre based on qualification (degree and diploma) is violative of Articles 14 and 16 of the Constitution? The Division Bench in Aruvendra Kumar Garg's case, after analysing the decisions of Hon'ble Apex Court rendered in Gobind Dattatray Kelkar's case (supra), Moh. Shujat Ali's case (supra), Roop Chand Adalkha's case (supra), H.C. Sharma's case (supra), Punjab State Electricity Board, Patiala Vs. Ravindra Kumar Sharma, AIR 1987 S.C. 367 in para 25 and para 26 of the decision held as under :

"25.     The diploma holder junior engineers and the degree holder junior engineers are both eligible for promotion to the post of assistant engineer in the instant case and the promotion according to Rule 12 as it stands amended by 2nd Amendment Rules, 1992 provides for selection in consultation with the Public Service Commission in accordance with the provisions of Public Service Commission (Procedure Rules), 1970 on the basis of "seniority subject to rejection of unfit". The Result of fixation of separate quota in favour of diploma holder junior engineers degree holder may lead to dental of promotion on the basis of seniority and this would lead to denial of equality clause of the Constitution in the matter of promotion. Fixation of separate quota for degree holder junior engineers and diploma holder junior engineers to our mind is discriminatory and violative of Articles 14 and 16 of the Constitution.

26.   In the result while Civil Misc. Writ Petition No. 17949 of 1998 (Atibal Singh Vs. Chief Secretary, U.P. and others); Civil Misc. Writ Petition No. 19844 of 2000 (Sansvir Singh and others Vs. State of U.P. and others) and Civil Misc. Writ Petition No. 8946 of 1998 (Jang Bahadur Singh Vs. State of U.P. and others) succeed and are allowed and impugned notifications are quashed with the liberty reserved to the Rule making authority to re-enact the Rules in consonance with the provisions of Articles 14 and 16 of the Constitution. Civil Misc. Writ Petition No. 42762 of 2000 (Aruvendra Kumar Garg and others Vs. State of U.P. and others) filed by the diploma holder fails and is dismissed. Parties are directed to bear their own costs."

104.    Although from the perusal of the decision it appears that degree holder junior engineers were aggrieved by fixation of separate quota between them and diploma holders, but this court has ultimately held in para 25 of the decision that fixation of separate quota for (degree and diploma holders both) is violative of Articles 14 and 16 of the Constitution, thus in given facts and circumstances of the case, we are in agreement with the view taken by Division Bench as ultimately concluded in para 25 of the decision with further reasons that undisputedly  there exist no separate seniority lists of diploma holder and degree holder junior engineer/computers in the department and there appears no material that they were also treated differently in discharge of their duties and responsibilities. Although higher educational qualification of incumbents of feeder cadre can form valid basis of classification as held earlier but to permit discrimination based on mere educational attainments not obligated by the nature of duties and responsibilities of higher post does not furnish sufficient grounds for such discrimination amongst the similarly situated persons. Besides, since under Rule 12 of old 1936 rules, as it was brought about by U.P. Service of Engineers (B.R.B.) Class II (Second Amendment) Rules 1992, the criterion for promotion from feeder cadre to the post of Assistant Engineer was "seniority subject to rejection of unfit", and under rule 5(ii) of old 1936 Rules diploma holder junior engineers become eligible for promotion on completion of seven years continuous substantive service whereas no minimum length of continuous substantive service was prescribed for degree holders to become eligible for promotion under rule 5(iii) of 1936 Rules, as brought about by 1987 and 1997 Amendment Rules, therefore, separate quota for degree holder junior engineers would also be unworkable and violative of the provisions of rule 12 of the old 1936 rules as it stood at relevant point of time for the reason that no separate seniority list of degree holder and non-degree holder (graduate and non-graduate) incumbents of feeder cadre was maintained in the department. That apart, the result of fixation of separate quota of promotion in each of two categories of junior engineers and computers would be that when a vacancy arise on the post of Assistant Engineer, which according to the quota is reserved for graduate junior engineers and computers respectively as the case may be, a non-graduate (diploma holder) junior engineer/computer cannot be promoted to that vacancy even if he is senior to all other graduate junior engineers/computers and more suitable than them. His opportunity for promotion would be limited to the vacancies available for diploma holder junior engineers and computers that would clearly amount to denial of equal opportunity to him and there would be same result in vice-versa, thus it would be violative of rule 12 of the said rules. Thus, the view taken by Division Bench in this regard appears to be fully justified in given facts and circumstances of the case and we are also in full agreement of the same.

105.      Now viewing the matter from another angle also it is true that not maintaining separate seniority list itself would not render the amended rule 5(iii) of old 1936 Rules as brought about by notifications dated 4.8.1987 and 25.9.1997 ipso-facto invalid or void, but in given facts and circumstances of the case, the result of fixation of separate quota for diploma and degree holders would be that when a vacancy arise on the post of Assistant Engineer which according to the quota is fixed for graduate junior engineers and computers respectively as the case may be a non-graduate (diploma holder) junior engineer/computer would not be promoted on that post in spite of being senior to the graduate junior engineers/computers, in that eventuality the provisions of Rule-12 of old 1936 Rules as stood at relevant time would be violated. Contrary to it, if Rule 12 of the said rule would be implemented, it would violate rule 5(iii) of said rules. Since the scheme of promotion would not survive in absence of rule 12 of the said rule, but the same would survive in absence of separate quota for degree holder junior engineer as contained in rule 5 (iii) of the said rules, therefore, in order to save Rule 12 of the said Rules and to avoid both the rules from becoming unworkable the provisions of Rule 5(iii) of said Rules has rightly been struck down by this Court in Aruvendra Kumar Garg's case.

106.    Now coming to the operative part of the judgment of Aruvendra Kumar Garg's case, it appears that Division Bench of this court has quashed both the notifications of 1987 and 1997 in entirety, without segregating their valid and constitutional provisions from unconstitutional one, merely by saying that rule 5 of the offending notifications brought about by the aforesaid amendment rules are pivotal to the entire old 1936 rules. Thus, both notifications containing all other provisions of the old 1936 Rules without any individual discussions thereon, were held liable to be struck down, accordingly quashed. With all respect to the learned Judges, we are not able to subscribe the view taken by them in this regard. Besides Rule-5 contained in the impugned notification dated 4.8.1987 in the aforesaid case, the same had brought about amendment in Rule-9, 12 and 16 of the existing rules-1936 at relevant point of time. Rule 9 was dealing with the technical qualification for the post in question. Rule 12 prescribed the mode and manner and provided procedure for promotion on the post in question. Rule 16-A provided for manner of appointment from the candidates  included in the lists prepared under Rule 11 and 12 of the old 1936 Rules. However notification dated 25.9.1997 had brought about amendment only under the existing provision of Rule-5 of the old 1936 Rules, therefore, Rule 5 (iii) of the Rule 1936 brought about by the aforesaid notifications carrying amendment in the existing rules could only be held to be ultra-vires of the provisions of Article 14 and Article 16 of the Constitution and could be struck down by this Court.

107.     Thus in view of aforesaid discussion, we are of the considered opinion that the remaining provisions of Rule 5(i) and Rule 5(ii) of the said rules were not found ultra-vires of Articles 14 and 16 of the Constitution by this Court, thus those provisions could have been left as unworkable provisions for the reason that on declaration of Rule 5(iii) of old 1936 Rules as amended by amending rules 1987 and 1997 as ultra-vires of the provisions of Articles 14 and 16 of the Constitution, providing 8.33% separate quota for promotion on the post of Assistant Engineer for degree holder incumbents of the feeder cadre, the remaining provisions of sub-rule 5(i) and 5(ii) could not be made workable in absence of prescription of quota for direct recruitments and promotion and such alteration could be done either by suitable amendments in the rules or by issuing executive instructions in this regard, but so far as other amended rule-9, `12 and 16-A are concerned, they were not found unconstitutional, thus they were quite severable as valid and independent piece of legislation, though, they all were integral part of the same scheme underlying the old 1936 rules, but they could fairly survive independently from aforesaid rule-5(iii) of the said rules, therefore, in our opinion, these rules could be segregated as valid piece of legislation and be saved as such.

108.    Now further question arises for consideration that as to whether on declaration of Rule 3(c), 5 and 6 of 1936 Rules as brought about by 1969 and Rule 5(iii) of old 1936 Rules brought about by 1987 and 1997 amendment rules, as ultra-vires of the provisions of Articles 14 and 16 of the Constitution, the provisions of rule-5 and 6 of 1936 Rules as existing or stood while the aforesaid amendments came into force, would be automatically revived, or there would be no statutory rule for prescription of quota for direct recruitment and for promotion in existence for the purpose of determination of rights and obligations of the parties and/or in absence of such statutory rules prescribing quota of direct recruitment and promotees, the field can be occupied by executive instructions to supplement the remaining provisions of the existing old 1936 Rules? In this connection, it is pertinent to mention that Rule-5 of 1936 Rules, as stood originally enacted did not provide that how many posts of Assistant Engineers were liable to be filled up by direct recruitments and how many vacancies from promotion of incumbents of feeder cadre. However under rule-6, the Government was empowered to decide how many vacancies could be filled up from which sources specified in Rule-5. It is first time by Government Notification dated 21.7.1959, the existing rule 5 and rule 6 was amended, whereby in existing clause (iv) of rule 5 the word "upper subordinate" had been deleted and the existing clause (a) of rule-6 was substituted by new provisions containing 25 percent of vacancies were to be reserved for selected qualified members of the sub-ordinate Engineering Service and Computers of P.W.D. in proportion of their respective approximate cadre strength at the time of promotion. Thereafter vide Government Notification dated 28th July, 1969 amending rules 1969 came to be effected whereby the provisions of existing rules 3, 5, 6 and other rules of 1936 Rules were amended, but 25 percent quota for promotion for members of feeder cadre, remained intact and provided under rule 6(c) of the said rules. On  November 26, 1971 by a notification of Government further amendments in rule 23 were brought about. The aforesaid amendments made in rule 3(c), 5 and 6 of 1936 Rules, brought about by Government Notification dated 28.7.1969 and in rule-23 of 1936 brought about by Government Notification dated November 26, 1971, were held ultra-vires of the provisions of Articles 14 and 16 of the Constitution by Hon'ble Apex Court in P.D. Agrawal's case (supra) decided on 8 June, 1987 to the extent that they were adversely affecting the vested rights of petitioners of the aforesaid case.

109.     It appears that after the aforesaid decision of Hon'ble Apex Court the existing 1936 Rules were again amended by Government Notification dated 4.8.1987 whereby existing rule-6 of 1936 Rules had been omitted and in place of existing rules-5 new rules were substituted providing 66 2/3% quota for direct recruitment and 25% quota for promotion of permanent members of sub-ordinate Engineering service of P.W.D. and computers who have put in atleast seven years continuous service on such post in proportion of their respective permanent cadre strength and further 8 1/3% vacancies were allocated in separate quota of promotion for graduate permanent incumbents of sub-ordinate engineering service and computers of P.W.D. besides amendments effected in other provisions of aforesaid 1936 Rules. By subsequent amendment in the said rules effected vide Government Notification dated 25.9.1997 the quota of direct recruits were decreased from 66 2/3% to 58.34% whereas quota of non-graduate incumbents for promotion was increased from 25% to 33.33% leaving intact 8.33% quota of promotion for graduate junior engineers and computers of P.W.D. of Government.

110.     Thus from the aforesaid changes brought about by the amendments in the old rules 1936 it appears that in rule 5 and 6 of the said Rules the amendments were brought about by way of substitution in the existing rules. Thus, it is to be seen that once the substituted rules referred above have been declared ultra-vires of the provisions of Articles 14 and 16 of the Constitution of India in P.D. Agrawals' case (supra) and Aruvendra Kumar Garg's case (supra) and held invalid, non-est and inoperative as to whether rule 5 and 6 of old 1936 Rules as stood while the aforesaid amendments 1969, 1987 and 1997 were brought about in the existing old 1936 rules would automatically revive without re-enactment? In this connection we would like to refer the decision of Hon'ble Apex Court in A.T.B. Mehtab Majid and Company's case (supra) wherein it was held by Hon'ble Apex Court that where an old rule has been substituted by new rule, it ceases to exist and does not get revive when the new rule held invalid. In B.N. Tiwari's case (supra) the question whether old rule revives after the substituted rule was struck down came up for consideration before Hon'ble Apex Court. In this case the Central Services Rules of 1952 provided for carry forward  rule whereby the unfilled reserved vacancies of a particular year would be carried forward for one year. In the year 1955 the said 1952 rules was substituted by another rule providing that unfilled reserved vacancies of a particular year would be carried forward for two years, subsequently the 1955 rule was declared ultra-vires. In that context the question arose whether the 1952 rule had been revived after the 1955 rule was struck down. A constitution Bench of Hon'ble Apex Court held that old 1952 rule having been repealed  and substituted by 1955 rule, the old rule would not revive after the 1955 rule was struck down by this court. The same view has been taken by the Hon'ble Apex Court in Indian Express Newspaper (Bombay) Pvt. Ltd. & others etc. Vs. Union of India (supra), wherein the Government of India issued a notification dated 15th July 1977 which was enforced prior to March 1, 1981 under which total exemption had been granted. Subsequently said notification was substituted by another notification dated 1st March 1981. The question arose whether old notification dated 15th July 1977 would revive on quashing of notification dated 1st March 1981? Hon'ble Apex Court in that factual background has held that on striking down of subsequent notification the repealed notification does not revive. The same view has also been reiterated by Hon'ble Apex Court in West U.P. Sugar Mills Association & others' case (suupra).

111.     The reason for such conclusion arrived at by  Hon'ble Apex Court in A.T.B. Mehtab Majid and Company's case (supra) has been explained by three Judges Bench of Hon'ble Apex Court in Koteswar Vittal Kamath Vs. K. Rangappa Baliga and Company, AIR 1969 SC 504, wherein the Hon'ble Apex Court was considering the distinction between super-session of a rule and substitution of a rule. The pertinent observation made by Hon'ble Apex Court in this regard in para 6 of the decision is reproduced as under:

"6. . . . . . . . . . . . .In the case of (1963) Supp 2 SCR 435 = (AIR 1963 SC 928) (supra), the new Rule 16 was substituted for the old Rule 16. The process of substitution consists of two steps. First the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. Even if the new rule be invalid, the first step of the old rule ceasing to exist comes into effect and it was for this reason that the Court held that, on declaration of the new rule as invalid, the old rule could not be held to be revived. In the case before us, there was no substitution of the Prohibition Order of 1950 for the Prohibition Order of 1119. The Prohibition Order of 1950 was promulgated independently of the Prohibition Order of 1119, and because of the provisions of law it would have had the effect of making the Prohibition Order of 1119 inoperative if it had been a valid Order. If the Prohibition Order of 1950 is found to be void ab-initio, it could never make the Prohibition Order of 1119 inoperative. Consequently on the 30th March, 1950, either the Prohibition Order of 1119 or the Prohibition Order of 1950 must be held to have been in force in Travancore-Cochin, so that the provisions of Section 73 (2) of Act 5 of 1950 would apply to that Order and would continue it in force. . . . . . "

112.    In Bhagat Ram Sharma's case (supra) the Hon'ble Apex Court while considering the effect of repeal by substitution has discussed the earlier decisions rendered in State of Maharashtra Vs. Central Provinces Manganese Ore Co. Ltd. AIR 1977 SC 897 including A.T.B. Mehtab Majid & Company's case (supra) and Koteswar Vittal Kamath's case (supra) and in para 19 of the decision held as under:

"19.  . . . . . The problem usually arises in case of repeal by substitution. In the case of executive instructions, the bare issue of a fresh instrument on the same subject would replace a previous instrument. But in the case of a legislative enactment, there would be no repeal of an existing law unless the substituting act or provision has been validly enacted with all the required formalities. In State of Maharashtra Vs. Central Provinces Manganese Ore Co. Ltd., (1977) 1 SCR 1003; (AIR 1977 SC 897) a three Judges Bench repelled the argument that since the word ''substituted' was used in the Amending Act of 1949, it necessarily followed that the process embraces two distinct steps, one of repeal and another of a fresh enactment. In that case, the whole legislative process termed ''substitution' proved to be abortive inasmuch as the Amending Act did not receive the assent of the Governor General under Section 107 of the Government of India Act, 1935 and was thus void and inoperative. Distinguishing the two earlier decisions in Firm A.T.B. Mehtab Majid & Co. Vs. State of Madras, 1963 Suppl (2) SCR 435 : (AIR 1963 SC 928) and Koteshwar Vittal Kamath Vs. K. Rangappa Balica & Co., (1969) SCR 40 :(AIR 1969 SC 504) the Court observed that the mere use of the word ''substituted' does not ipso facto or automatically repeal a provision until the provision which is to take its place is constitutionally permissble and legally effective. It relied upon the following principle of construction stated in Halsbury's Laws of England, 3rd Edn., Vol. 36, p. 474:

"Where an Act passed after 1850 repeals wholly or partially any former enactment and substitutes provision for the enactment repealed, the repealed enactment remains in force until the substituted provisions come into operation."

And observed :

            "We do not think that the word substitution necessarily or always connotes two severable steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps. Indeed, the natural meaning of the word "substitution" is to indicate that the process cannot be split up into two pieces like this. If the process described as substitution fails, it is totally ineffective so as to leave intact what was sought to be displaced. That seems to us to be the ordinary and natural meaning of the words ''shall be substituted',"

113.     Thus from the aforesaid discussions, we are of the considered opinion that since existing rule 5 and 6 of old 1936 Rules were amended by way of substitution brought about by 1969, 1987 and 1997 Amendment Rules, therefore, they ceased to exist and could not be revived automatically when the aforesaid amended rules were declared ultra-vires of the provisions of Articles 14 and 16 of the Constitution and held invalid unless re-enacted afresh, as held by Hon'ble Apex Court in A.T.B. Mehtab Majid & Co.'s case (suupra), B.N. Tewari's case (supra), Indian Express Newspaper (Bombay) Pvt. Ltd. & others case (supra) and West U.P. Sugar Mills Association & others' case (supra).

114.     However the decision of Hon'ble Apex Court in Koteswar Vittal Kamath's case (supra) was distinguishable for simple reason that there was no substitution of prohibition order of 1950 for prohibition order of 1119 under consideration in the aforesaid case. The prohibition order of 1950 was promulgated independently of prohibition order of 1119 and because of the provisions of law it would have had the effect of making the prohibition order of 1119 in operative, if it had been a valid order. If the prohibition order of 1950 was found to be void ab-initio, it could never make the prohibition order of 1119 in operative. Consequently Hon'ble Apex Court has held that on 30th March, 1950 either the prohibition order of 1119 or prohibition order of 1950 must be held to have been in force in Travancare-Cochin so that the provisions of Section 73 (2) of Act No. 5 of 1950 would apply to that Order and would continue in force.

115.     In State of Maharashtra Vs. Central Provinces Manganese Ore Co. Ltd. case (supra), the Hon'ble Apex Court was considering the substitution by legislative process, wherein the whole legislative process termed "substitution" was proved to be abortive inasmuch as the amending Act did not receive the assent of the Governor General under Section 107 of the Government of India Act, 1935 and was thus void and in operative. In that factual background of the case Hon'ble Apex Court has held that mere use of word substituted does not ipso facto or automatically repeal a provision until the provision which is to take its place is constitutionally permissible and legally effective. Thus this decision is also quite distinguishable for the simple reason that amending Act could not receive the assent of the Governor general under Section 107 of the Government of India Act and for that reason could not become operative, therefore, it was held that substitution was not effected at all. Whereas in instant case even if assuming for the sake of argument that the aforesaid proposition is applicable in the present facts of the case even then since the substituted provisions have come into operation on the date of commencement of the aforesaid Amendments as the substituting Rule and provisions have been validly enacted with all required formalities and were legally made effective but for the decision of the court referred above, they were declared ultra-vires. Therefore, in view of the aforesaid principle also the rules 5 and 6 of old 1936 Rules as stood while amendments 1969, 1987 and 1997 were effected could not revive automatically on declaration of aforesaid amended/substituted Rules ultra-vires of Part III of Constitution without their reenactment afresh.

116.    Besides this law declared by Constitution Bench of Hon'ble Apex Court in B.N. Tiwari's case (supra) followed subsequently in Indian Express News Paper (Bombay) Pvt. Ltd. (supra) and recently in West U.P. Sugar Mills Association case (supra) by three Judge Bench of Hon'ble Supreme Court is binding upon this Court, and law declared subsequently by smaller Benches of Hon'ble Apex Court referred hereinbefore cannot be construed at variance there to as held by the Hon'ble Apex Court in N. Meera Rani Vs. Government of Tamil Nadu and another (1989) 4 S.C.C. 418 wherein it was held that the decision of later benches following Constitution Bench decision cannot be construed at variance with the larger Bench decision. However, the decisions were also rendered in different factual backdrop of the case and in different context altogether.

117.     In view of the aforesaid settled legal position we further hold that there exists no statutory rule 5 and 6 in old 1936 rules with regard to the allocation of quota of direct recruitment and promotees and  in our considered opinion the field is occupied and supplemented by executive order issued by the Government in this regard on 20.2.2003, as contained in Annexure 7 of Writ Petition No. 53133 of 2004 Pramod Shanker, which provides 58.34% quota for direct recruitment and 41.66% quota for promotees without demarcation of any separate quota for graduate and non-graduate incumbents of feeder cadre within the quota of promotion. It appears that the aforesaid Government order has been issued incompliance of direction of this Court contained in the decision of Aruvendra Kumar Garg's case, thus the vacancies falling in the quota of promotion were intended to be filled by the incumbents of feeder cadre without allocating  any separate quota for promotion for graduate and non-graduate incumbents. The aforesaid Government order dated 20.2.2003 was still in force prior to commencement of new 2004 Rules as there is no material on record to show that the said Government order has ever been modified or superseded till 3.1.2004 by the Government itself. Therefore it is necessary to examine the determination of vacancies in the quota of promotion under old existing law occupying the field.

118.    From the perusal of supplementary counter affidavit sworn by Sri Tribhuwan Ram, Engineer-in-Chief, Government of U.P. on 25.7.2006 on behalf of State-respondents filed in the writ petition No.53133 of 2004. Pramod Shanker Upadhyay and others Vs. State of U.P. and others, it indicates that break up of yearwise vacancies on the post of Assistant Engineer in question has been given in chart enclosed as Annexure S.C.A-I and S.C.A.II which demonstrates that w.e.f. 1.7.1997 to 30.6.2004, total 446 vacancies have occurred on the post in question. Out of which total 316 vacancies are allocated in the quota of direct recruitment and only 130 vacancies are allocated in the quota of promotion for feeder cadre. Against 316 vacancies falling in the quota of direct recruitment 62 vacancies have been filled up by regularisation and remaining 254 vacancies are left for selection through Commission, whereas against total 130 vacancies falling in the quota of promotion only 102 vacancies are shown as filled up while 28 vacancies are still remaining to be filled up. From perusal of Annexure S.C.A.III enclosed with the aforesaid supplementary counter affidavit, it transpires that in respect of total vacancies occurred for the year 1997-98, 66.67% vacancies allocated in the quota of direct recruitment, 33.33% vacancies in quota for promotion, whereas in respect of vacancies occurred during the year 1998-2003, 75% vacancies allocated in the quota of direct recruitment and remaining 25% vacancies in the quota of promotion. Thereafter for year 2003-2004, total vacancies are divided and split into two parts, first part for the period w.e.f.1.7.2003 to 2.1.2004 and out of total vacancies occurred during this period, 75% vacancies are allocated in the quota of direct recruitment, whereas 25% vacancies are allocated in the quota of promotion. However the vacancies occurred w.e.f. 3.1.2004 to 30.6.2004, 50% are allocated in the quota of direct recruitment and 50% vacancies in the quota of promotion.

119.    Thus there appears no legal basis for such determination and computation of vacancies. We have already held that on declaration of rule 5 and 6 of old 1936 rules as ultra-vires of the provisions of Articles 14 and 16 of Constitution of India by Hon'ble Apex Court in P.D. Agrawal's case as brought about by 1969 amendment rules there exist no statutory rules under aforesaid 1936 rules for allocation of different quota for different sources of recruitment.  Rule 5 and 6 of old 1936 Rules as stood while 1969 amendment rules came into force could not be revived automatically without their fresh enactment for the purpose of determination of rights and obligations arise therefrom, as the substituted rules were declared ultra-vires after their substitution for the aforesaid rules, therefore, aforesaid earlier rules could not be treated to be revived as existing before their substitution without fresh enactment. Similarly, Rule 5 (iii) brought about by1987 and 1997 was also declared ultra-vires of the Part III of the Constitution in Aruvendra Kumar Garg's case, thus no rights and obligations arise therefrom. Therefore, prescription of quota for direct recruitments and promotees existing in the rules 5 and 6 of old 1936 Rules prior to the aforesaid amendments for substituting the said rules cannot be revived for the same reasons. Thus, the approach of Government while computing and determining the vacancies in question and in doing so taking assistance from rule 5 and 6 of old 1936 rules as stood at the time of amendment of rules by amending rule 1969 palpably incorrect and demonstrably wrong, therefore, cannot be sustained. Thus, in view of the aforesaid discussion, we are of the considered opinion that except the Government order dated 20.2.2003 there existed no statutory rule or Government order during 1997 to 2004 for determination and allocation of the aforesaid vacancies in the quota of promotion and direct recruitment. By the aforesaid Government Order, the Government has intended to fill up vacuum in existing statutory rules and the existing vacancies in the said quota, we are of the further opinion that all the vacancies in the quota for promotion from year 1997 to 30.6.2004 are liable to be filled up according to the quota prescribed under Government order dated 20.2.2003. As we have already held that vacancies falling in the quota of promotion earlier and also w.e.f. 3.1.2004 to 30.6.2004 are also liable to be filled up under old law occupying the field, thus, according to the Government order dated 20.2.2003.

120.   Applying the aforesaid Government order in respect of prescription of different quota for direct recruitment and promotion out of total 446 vacancies of Assistant Engineers occurred during the aforesaid period, 58.34% quota for direct recruitment and 41.66% quota for promotion, the total number of vacancies would come to 260 in the quota of direct recruitment and 186 in the quota of promotion. Since 62 vacancies in the quota of direct recruitment have already been filled by regularisation as shown in the chart contained in Annexure S.C.A. -II of the Supplementary Counter Affidavit. Thus only (260-62) = 198 vacancies are still remaining to be filled in the quota of direct recruitment and total 186 vacancies in the quota of promotion are liable to be filled up according to the G. O. dated 20.2.2003 and rule 12, of rules 1936 prescribing criterion seniority subject to rejection of unfit as amended by U.P. Service of Engineers (B. and R.B.) class II (Amendment Rules) 1992. Therefore, determination of vacancies in the quota of direct recruitment and promotion is wholly erroneous and illegal, thus cannot be sustained, consequently requisition dated 2.2.2006 sent by the Government to the Commission for holding selection on the posts of Assistant Engineers through direct recruitment and pursuant advertisement published in daily newspaper Amar Ujala dated 5.9.2006 so far as it pertains to the aforesaid posts are hereby quashed. The State Government is directed to undertake re-exercise of determination of vacancies under quota of direct recruitment and promotion both according to the observations made herein before and take further steps to hold selection for direct recruitment and promotion as indicated herein before.

Question No.4:

121.    Now next question arises for consideration as to whether it is permissible to club vacancies of a number of years while preparing the eligibility list for promotion on the post in question or it is required to be prepared separately for year-wise vacancies? In this connection the submission of learned counsel for the petitioners is that while making selection for promotion the respondents have prepared eligibility list by clubbing the vacancies of several years i.e. of year 1997 uptill the year 2003 and 2004 for promotion as a result of which the  petitioners have been prejudiced to their disadvantage. Learned counsel has further submitted that rule 12 of old Rules 1936 as amended by Second Amendment Rules 1992 provides for selection in consultation with the Public Service Commission in accordance with the provisions of U.P. Promotion by selection in consultation with Public Service Commission (Procedure) Rules 1970 (in short Public Service Commission Procedure Rules, 1970) on the basis of seniority subject to rejection of unfit. Thus the aforesaid Rules have been adopted under rule 12 of 1936 Rules by way of reference, therefore, the selection for promotion could be made in accordance with Public Service Commission Procedure Rules, 1970.  

122.    To appreciate the submissions it is necessary to point out that Rule -5 contained in Part II of the said Rules prescribes different criterions for promotion. Part III of said Rules comprising rule-7 to rule 19 deals with the procedure of promotion where the criterion is merit. Part IV of the said Rules consisting of Rules 20, 21 and 22 deals with procedure of promotion where the criterion is seniority subject to rejection of unfit. For ready reference Rule 20 and Rule 21 is reproduced as under:

                    Part - IV

"20. Application of this Part. -Where by virtue of the provisions of Rule 5, promotion is to be made on the criterion of seniority subject to the rejection of the unit, the procedure laid down in this Part shall be followed.

21. (1) Except as otherwise provided in Rule 22, the Appointing Authority shall prepare three lists to be called the eligibility lists of the senior most eligible candidates from each of the sections namely General, Scheduled Caste and Scheduled Tribes, separately, in the light of vacancies available for each of the said sections containing names so far as may be in the following proportion.

For one to five vacancies.--Two times the number of vacancies subject to a minimum of five.

For over five vacancies.--One and half time the number of vacancies subject to a minimum of 10. The proviso and explanations to Rule 8 shall mutatis mutandis apply to this rule.

(2)  The rest of the procedure prescribed in Part III shall mutatis mutandis apply to promotion made under this Part except that each of the two. List A and B referred to in Part III shall be prepared by the Selection Committee in order of seniority subject to the rejection of the unfit and that from among those considered fit the senior most candidates shall be placed in List A."

123.    Thus from plain reading of rule 21 clause (1) of the aforesaid rules it is clear that the proviso and explanations appended to rule 8 shall mutatis mutandis apply to rule 21 also. For ready reference the entire Rule-8 alongwith proviso and explanation is reproduced as under:

"8.  Preparation of eligibility list.--The Appointing Authority shall prepare a list (hereinafter in this Part referred to as the eligibility list) of the senior most eligible candidates containing names so far as may be, in the following proportion. {3 time the number of vacancies subject to the minimum of 8}.

Provided that if recruitment is to be made for vacancies occurring during more than one year of recruitment, separate eligibility lists will be prepared in respect of each such years in such a case while preparing the eligibility list for second and subsequent years of recruitment, the number of candidates to be included in the eligibility list shall be--

(a) for the second year  . . .           the number of according the

                                                     said proportion plus the

                                                     number of vacancies in the

                                                     first year;

(b) for the third year   . . . .         the number according to the

                                                  said proportion plus the

                                                 number of vacancies in the first

                                                 and second years; and so on:

Provided further that candidates who are not considered suitable, prima facie, for promotion shall not be taken into account in calculating the said proportion and a note to the effect that they are not so considered shall be added against their names :

Provided also that in the case of higher research posts in departments in which research work is done, the names of all eligible candidates shall be included in the list irrespective of the number of vacancies.

{Provided also that if eligibility list is being prepared for substantive vacancies, the names of candidates who have previously been appointed in temporary or officiating vacancies from List B shall be included in the eligibility list if otherwise found eligible}.

                                     

                                    Explanation

In this rule--

(a)    "the number of vacancies" means the total number of substantive, temporary or officiating vacancies occurring during the year of recruitment. {XXX}.

(b)        "higher research posts" means posts requiring technical knowledge and ability or a high order for undertaking and guiding research work.

                               

                                    Explanation

A single eligibility list shall be prepared to cover all types of vacancies."

124.    Before analyzing the aforesaid rules it would be useful to refer some decisions of Hon'ble Apex Court, wherein the Hon'ble Apex Court was confronted with some what similar question as to whether it is permissible to club vacancies of a number of years while preparing the select list for promotion to the Indian Administrative Service from the State Civil Service, in Union of India & others Vs. Vipin Chandra Hiralal Shah (1996) 6 S.C.C. 721, while discussing the earlier decisions on similar controversy in Union of India Vs. Mohan Lal Kapoor (1973) 2 S.C.C. 836 and Syed Khalid Rizvi Vs. Union of India 1993 Supp.(3) S.C.C. 575, in para 11 of decision the Hon'ble Apex Court held as under:

"11.  It must, therefore, be held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst the State Civil Service Officers who fulfil the conditions regarding eligibility on the first day of January of the year in which the Committee meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service officers who were eligible and fell within the zone of consideration for selection in that year."

125.   In Chandra Prakash Tiwari & others Vs. Shakuntala Shukla & others AIR 2002 S.C. 2322, while placing reliance upon earlier decisions referred in preceding paragraph, in para 40 and 41 of the decision Hon'ble Apex Court has held that as regards the issue of selection and clubbing, while in normal circumstances, the same ought to be adhered to but in event of there being no such selection, it would not render the subsequent selection void, but any irregularity, which is of curable nature, can be cured.

126.    Thus from the aforesaid settled legal position and from the joint reading of Rule 21 with proviso to Rule 8 of Public Service Commission Procedure Rules,1970, it is clear that proviso to rule-8 of the said Rules specifically provides that if the recruitment is to be made for vacancies occurring during more than one year of recruitment, separate eligibility list will be prepared in respect of each such year, which follows that if the selection for promotion could not be held in respect of vacancies of particular year or several years, it would not dispense with the requirement of preparing eligibility list and pursuant select list of that particular year or such years, thus, it cannot be held at all that the vacancies accumulated for several years cannot be filled up in the same and single process of selection rather it can be filled up in the same process of selection but while preparing the eligibility list, separate eligibility list is required to be prepared in respect of vacancies of each such years.  

127. Now coming to the facts of the case in hand, it appears that while making selection, in respect of the vacancies of several years, although separate eligibility and select lists against yearwise vacancies have been prepared by the respondent-State authority but since the order which we propose to pass does not require to express any further opinion in respect of the manner of preparation of eligibility list so prepared by the respondents, therefore, we need not to express any opinion at this stage.

Question No.5:

128.    Now coming to the next question whether the Government order dated 11.2.2003 prescribing requirement of only interview for qualifying examination for diploma holder junior engineers/computers to become eligible for consideration for promotion on the post of Assistant Engineer under old Rules 1936 as stood at relevant point of time is justified under law? In this connection it is pertinent to mention that in leading case of Anjani Kumar Misra, in these batch of writ petitions, it is stated that after the decision of Hon'ble Apex Court in P.D. Agrawal's case dated 8.6.1987, and Aruvendra Kumar Garg's case dated 22.3.2002, rule-9 of the said Rules as it stood, provided criterion for eligibility for appointment on the post of Assistant Engineer, Rule 9(i) provided technical qualification for direct recruitment, whereas 9(ii) provided that no officer shall be promoted to the post under Rule 5(iv) and 5 (v) unless he has passed such qualifying examination as the Government may prescribe or possessed technical qualification prescribed in Clause (i) of this rule. The original prescribed qualifying examination was governed by rules as printed in manual of orders of the year 1955. The relevant extracts of the 1955 of Manual of orders is on record as Annexure 9 of the writ petition. The relevant extracts as printed in Appendix-iv of 1969 Edition Manual of order is on record as Annexure 10 of the writ petition. The scheme specified above was partly modified by notification issued in the year 1969, 1970 and 1972 and as such modified rule governing qualifying examination as contained in Appendix-25 of Manual of order as published in the year 1997 is on record as Annexure 11 of the writ petition. At the strength of the aforesaid materials on record, Shri Ashok Khare has submitted that since qualifying examination envisaged under Rule 9 (ii) was the qualifying examination for treating candidates not possessing Bachelor of Engineering degree/Associate Membership of Institute of Engineers at par with aforesaid qualification and rules governing qualifying examination was envisaged as a written examination based upon a specified course curriculum for testing the technical knowledge of the candidates in Engineering but vide Government order dated 11.2.2003, the written examination so envisaged for qualifying examination has been substituted only by interview to be conducted by Three members Committee. The said Government order dated 11.2.2003 is on record as Annexure 12 of the writ petition. It is submitted that this office order had been issued arbitrarily contrary to the scheme of 1936 rules and further for conferring unwarranted benefit upon diploma holder junior Engineers. In support of his submissions learned counsel for the petitioner has placed strong reliance upon a decision of Division Bench of this Court rendered in Writ Petition No. 9172 of 2003 in Vijai Kumar Vs. State of U.P. and others decided on 16.7.2004 whereby the aforesaid Government order dated 11.2.2003 has been quashed by this Court.

129. Before adverting to the submissions of the learned counsel for the petitioners and examining the legal implication of the aforesaid decision of Division Bench of this Court, at this juncture, it is necessary to point out that the aforesaid decision of this Court has been challenged before the Hon'ble Apex Court in Special Leave Petition No.8440 of 2004. While granting permission to file S.L.P. on 27.9.2004, the Hon'ble Apex Court has been pleased to pass interim order as under:-

"Permission to file S.L.P. is granted.

Issue notice. There will be an interim order saying the operation of the order of the High Court, in so far as the High Court required the petitioners to take qualifying examinations as provided under Rule 9(ii) of the U.P. Service of Engineers (Building and Roads Branch) class II Rules 1936. However any promotions made will be subject to the outcome of the Special leave petition."

130.    Now before coming to the decision of this Court rendered in Vijai Kumar's case (supra), it is necessary to point out that after decision of this Court in Aruvendra Kumar Garg's case (supra) whereby the whole Government notification dated 4.8.1987 and notification dated 25.9.1997 have been quashed, it seems that State Government has assumed that rule 9 of old 1936 rules as stood before the commencement of said notifications was existing as such in purported exercise of powers conferred upon the Governor of State of U.P. under Rule 9 (ii) of old rules 1936, the aforesaid Government order dated 11.2.2003 appears to have been issued on behalf of the Governor of State. By this Government order as indicated hereinbefore; the diploma holder junior Engineers/ computers are required to pass qualifying examination to become eligible to be considered for promotion on the post of Assistant Engineer, merely by facing interview before a Three Members Committee constituted under said Government order. It appears that later on the composition of committee has been changed and instead of name of member officers, they were included by designation.

131.    Now coming to the decision of this Court rendered in Vijai Kumar's case, it seems that while adverting to the challenge against said Government order dated 11.2.2003 this court has held that since the vacancies have occurred earlier to the commencement of the said Government order, which is prospective in nature and could not be made applicable with retrospective effect, therefore, could not be filled according to the aforesaid Government order. Under old rules such qualifying examination provided written test and not merely interview and further rules prescribing qualifying examination by written test is statutory in nature whereas the aforesaid G.O. is merely executive instruction can not run contrary to the statutory rule and cannot supplant it. To arrive at the aforesaid conclusion this Court has formulated several questions and after referring decisions of  Hon'ble Apex Court rendered in Y.N. Rangaiah & Ors. Vs. J. Sreenivasa Rao & Ors., AIR 1983 SC 852; A.A. Calton Vs. the Director of Education & Anr., AIR 1983 SC 1143; P Ganeshwar Rao & Ors. Vs. State of Andhra Pradesh & Ors., AIR 1988 SC 2068; P. Mahedran & Ors. Vs. State of Karnataka & Ors., AIR 1990 SC 405; N.T. Bevin Katti etc. Vs. Karnataka Public Service Commission & Ors., AIR 1990 SC 1233; and Ram Sewak Prasad Vs. State of U.P. & Ors., AIR 1991 SC 1818, this court observed that the Hon'ble Apex Court has held that in a case of promotion vacancy is to be filled up as per law prevailing on the date the vacancies occurred. In the instant case the vacancy is required to be filled up as per the law existing on the date the vacancy occurred for the reason that statutory rule or government order is always prospective in nature unless it is expressly or by necessary implication made to have retrospective effect.

132.    Thereafter it appears that this Court has formulated the question as to whether executive instruction can override the statutory rules and after referring several decisions of Hon'ble Apex Court including a Constitution Bench decision of the Hon'ble Supreme Court, in B.N. Nagarajan & Ors. Vs. State of Mysore & Ors., AIR 1966 SC 1942 and another Constitution Bench decision of the Hon'ble Supreme Court in Sant Ram Sharma vs. State of Rajasthan & Ors., AIR 1967 SC 1910, this Court observed as under:

Thus, in view of the above, it cannot be held that the statutory Rules can be superceded/modified by issuing executive instructions/office memorandum.

In case, the statutory Rules provide for written examination to determine the eligibility, the question does arise as to whether it can be substituted by interview and that's too, by issuing an executive instruction, particularly in view of the fact that it has already been held that the statutory Rule cannot be amended by executive instructions.  So long the provision of Rule 9(ii) remains unamended, it cannot be held that the written test has been dispensed with.  It is not a case of the respondents that the rule 9(ii) ceased to exist nor anybody has challenged its validity.

133.    Thereafter it appears that this Court has formulated another question as to whether the suitability of candidate can be determined merely by holding interview and after referring a decision of Constitution Bench of Hon'ble Apex Court in R. Chitra Lekha V/s State of Mysore and others AIR 1964 SC, 1823, wherein it has

been observed by the Apex Court that if there can be manipulation or dishonesty in allotting marks at interview, there can equally be manipulation in the matter of providing marks in written examination. In ultimate analysis whatever method is adopted, its success depends on moral standard of the members constituting the Selection Committee and their sense of objectivity and devotion to duty. The scheme of selection, however perfect it may be on paper, may be abused in practice, if in any particular case the selection committee abuse its power in violation of Article 14 that may be a case for setting aside a particular interview but its capability of abuse is not a ground for quashing. And Parveen Singh Vs. State of Punjab and others AIR 2001 SC, 152, wherein the Hon'ble Apex Court has held that, "While it is true that the administrative or quasi judicial authority clothed with the power of selection and appointment ought to be left unfettered in adaptation of procedural  aspect but that does not however mean and imply that the same would be made available to an employer at the cost of fair play, good conscience and equity, this Court observed as under:

"Thus, in view of the above, it can be held that as the State action is required to be fair and transparent, it is desirable that where the statutory rule provides for holding the written test to determine the eligibility, that does not require to be dispensed with.

It is not a case where the promotion is to be made purely on the basis of interview. By holding written examination of the diploma holder Junior Engineers they would stand eligible to enter into the zone of consideration for promotion along with the decree holders.

Rule 12 of Rules   1936 stood amended with effect from 11.01.1993 providing that promotion shall be made on the post of Assistant Engineer on the basis of seniority subject to the rejection of unfit in accordance with the provisions of the U.P. Promotion by Selection in Consultation with the public Service Commission (Procedure) Rules, 1970, as amended from time to time.

In spite of amendment in Rule 12, it remains undisputed that the provisions of rules 5(iv) and 9(ii) remained un-amended and so long the said provisions are not amended, they are to be given effect to in strict literal sense. The written test for which the syllabus etc. has been prescribed under rule 11 regarding qualifying examination and had been followed earlier, has to be given strict adherence. Merely because for a long time because of some political reasons or the pressure exerted by the diploma holder Junior Engineer, the written examination could not be held, that does not render the statutory provisions nugatory.  It may be necessary to hold the qualifying test for the diploma holder Junior Engineers for the reason that there may be a basis difference in the knowledge of the two groups because of their educational background, as there may be many subjects, which might have not been taught to the diploma holder Junior Engineers but may be necessary for the purpose of performing the duty as an Assistant Engineer.

134. Thereafter this Court has concluded the case as under:

In view of the above, we are of the considered opinion that as the Statute provide for holding the written test as qualifying test for diploma holder Junior Engineers and the provisions of Rules 5(iv) and 9(ii) have not been amended, the amendment in Rule 12 cannot be interpreted to dispense with the written examination as a qualifying test. If the written examination could not be held for some time, that does not mean that the statutory provisions require to be ignored, as it may be a result of unwarranted pressure exerted by the Union of diploma holder Junior Engineers. Executive instructions cannot supplant the statutory provisions. It can only be a supplement thereto.

In view of the above, the Office Memorandum dated 11.2.2003 (Annex.1) remains unenforceable and un-executable and is liable to be quashed.

Petition succeeds and is allowed. The office Memorandum dated 11th February 2003 (Annex.1) is quashed.

However, as the promotions could not be made for a long time and also because of the pendency of this writ petition, we direct the respondents to make the promotions strictly in accordance with the Rules, at the earliest.

135. With due respect to the learned Judges comprising Division Bench of this Court in Vijay Kumar's case, we are not able to subscribe the views taken by them in the aforesaid case. It is well settled practice of this Court that if one coordinate Bench disagrees with the views taken by earlier Bench, normally it refers the matter to the larger Bench and/or full Bench but since the correctness of decision in question rendered by Division Bench has already been challenged before Hon'ble Apex Court and Hon'ble Apex Court has also granted permission to file special leave petition referred earlier and also stayed the operation of some part of direction given in the decision, thus, the correctness of aforesaid decision has been put in jeopardy. Therefore no useful purpose can be served by making reference to a larger Bench of this Court to examine the correctness of the aforesaid decision. Besides this, since in these batch of writ petitions several other questions are also involved between the parties, therefore, instead of waiting for the decision of Hon'ble Apex Court in the S.L.P. filed against the decision rendered in Vijai Kumar's case with the consent of parties, we have proceeded to hear the arguments on merit to decide the case finally.

136. Now coming to the proposition derived by this Court in Vijai Kumar's case that the vacancies are required to be filled as per law existing on the date of occurrence of vacancies for the reason that statutory rule or Government Order is always prospective in nature unless it is expressly or by necessary implication made to have retrospective effect, it is to be pointed out that although there is no quarrel with the proposition that vacancies occurred in the quota of promotion are liable to be filled under old law existing on the date of occurrence of vacancies but not for the reasons given by this court. From a careful analysis of observations made by Hon'ble Apex Court in the decision cited by Division Bench of this Court in support of aforesaid proposition, some of which are also cited by us along with some other decisions in earlier part of our judgement, it appears that employees were found to have some vested right accrued in their favour, e.g. to be considered for promotion under existing service rules on the date of occurrence of vacancies, which had also formed part of their service condition and on subsequent amendment and alteration of service rules, their vested rights were sought to be taken away thereby their service condition was adversely affected, in that context Hon'ble Apex Court seems to have laid down the aforesaid proposition of law.

137.    The said proposition has its root in the decision of Hon'ble Apex Court rendered in Mohammed Bakar Vs. Krishna Reddy, 1970 S.L.R. 768(S.C.) wherein it was held that any rule which affects the promotion of a person related to his condition of service. The Hon'ble Apex Court went on further saying that a right to be considered for promotion must not be confused with mere chance of promotion. In State of Mysore Vs. G.B. Purohit C.A. No. 2281 of 1965 dated 25.1.1967 (S.C.) Hon'ble Apex Court has held that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A Rule, which merely affects the chances of promotion can not be regarded as varying a condition of service. What happened in G.B. Purohit's case was that the districtwise seniority of Sanitary Inspectors was changed to Statewise seniority and as a result of this change, the respondents went down in seniority and became very junior. Thus, it was urged that it affected their chances of promotion which were protected under the proviso to Section 115, sub-section (7). This contention was negatived and Hon'ble Wanchoo, J., as he then was, speaking on behalf of Hon'ble Apex Court observed: "It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service."

138. The aforesaid observations have been reiterated by Hon'ble Apex Court in para 15 of the decision rendered in Mohd.  Shujat Ali's case  (supra) and also in T. R. Kapoor's  case (supra). In T.R. Kapoor's case Hon'ble Apex Court has held that any rule, which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognised principle that the benefits acquired  under existing rules cannot be taken away by an amendment  with  retrospective effect, that is to say, there is no power to make such a rule under the proviso to Art. 309, which affects or impairs vested rights. The aforesaid view has been reiterated by Hon'ble Apex Court in State of Maharastra Vs. Chandra Kant Anant Kulkarni (supra) and S.L. Dutta's case (supra) also and there appears no variance on the said proposition. Therefore, the reasons given by this court for the aforesaid proposition requires some qualification and we are unable to agree with the reasons given by this court for the said proposition.

139.   The reasons given by Hon'ble Apex Court for the said proposition also throw sufficient light to arrive at correct conclusion to answer the question as to whether changes brought about by the aforesaid Government order, any vested right of the petitioners' forming part of their service condition who are degree holder junior engineers, sought to be taken away, whereby they are affected adversely? But before adverting to this question it is necessary to examine another aspect of the decision wherein Division Bench of this Court in Vijai Kumar's case has assumed that the provisions of Rule-5 (iv) and Rule-9 (ii) of old 1936 Rules remained as unamended and proceeded on aforesaid assumption without examining the relevant provisions of old 1936 Rules as amended from time to time and legal impact and implication of the decision rendered by Hon'ble Apex Court in P.D. Agrwal's case (supra) and this court in Aruvendra Kumar Garg's case (supra).

140. In this connection it is to be pointed out as earlier in preceding part of our judgment that under the old 1936 Rules, as it was originally enacted Rule-9(i) provided technical qualification for recruitment on the post of Assistant Engineers from amongst the sources of recruitment specified under rule 5(i), 5(ii) or 5(iii). Rule 5 (iv) provided channel of promotion for the members of United Provinces Sub-ordinate Engineering Service and Upper Sub-ordinates in Public Works Department, Buildings and Roads Branch who have shown exceptional merit. Thus the technical qualification so prescribed under rule-9(i) was pertaining to the recruitments under Rule 5(i), 5(ii) and 5(iii), that is for direct recruitment only. It was not applicable to the promotion under Rule-5(iv) of the said rules. However to become eligible for promotion under Rule 5(iv) of the old 1936 Rules the officers were required to pass qualifying examination to be prescribed by Government under Rule 9(ii) of the said rules. The aforesaid Rule-5 was amended vide notification dated 21.7.1959, whereby the members of upper sub-ordinate were excluded from the zone of eligibility for promotion on the post in question instead thereof members of computers were included along with the members of sub-ordinate Engineering Services by substitution and amendment were made in existing clause (a) of rule-6 whereby 25% vacancies were earmarked for promotion, but rule-9 of the existing old 1936 rules remained intact without any amendment and it is significant to notice that in originally enacted rules, no minimum length of service was required for promotion on the post in question by the incumbents of feeder cadre except that they were required to pass qualifying examination to be prescribed by Government/Governor under Rule-9(ii) of old 1936 Rules. It appears  that in 1966 first time after lapse of about 30 years from the date of original enactment of said rules an amendment was made in rule 9(ii) of old 1936 Rules, whereby the technical qualification prescribed under rule 9(i) for direct recruitment had been extended for promotion also under rule 9(ii) as alternative of passing such qualifying examination as the Governor may prescribe.

141.     Thereafter it appears that the then existing Rule 3(c),5 and 6 of old 1936 Rules were amended by notification dated 28.7.1969 and Rule-23 of old 1936 Rules was amended by notification dated 26.11.1971. The aforesaid amended Rules were found violative of Articles 14 and 16 of the Constitution of India by Hon'ble Apex Court in P.D. Agrawal's case. Vide notification dated 4.8.1987 an amendment in the said rules came into being with prospective effect whereby earlier existing rules 9(ii) had been done away with, resulting which the requirement of having technical qualification under rule 9(i) or passing any qualifying examination no longer remained applicable for promotion. However, by these amending rules substantial changes were brought about under rule-5 and rule-6 of said Rules was deleted. Under Rule 5(i) 66 2/3 percent vacancies were liable to be filled up in the quota of direct recruitment on the basis of competitive examination conducted by the commission and under Rule 5(ii) 25 percent vacancies were liable to be filled by promotion through commission from amongst such permanent incumbents of posts in Public Works Departments Sub-ordinate Engineering Service and Public Works Department Computer's Service as have put in atleast seven years continuous service on such posts in the proportion of respective permanent cadre strength. Under Rule 5 (iii), 8 1/3 percent vacancies in the quota of promotion were liable to be filled up through commission from amongst such permanent incumbents of the posts in Public Works Department Sub-ordinate Engineering Service and Public Works Department Computer's Service as possess bachelor's degree in Engineering from a recognised institution or Associate members of the Institute of Engineers in proportion of respective permanent cadre strength. Thereafter by subsequent amendment effected in old 1936 Rules vide notification dated 25.9.1997 by U.P. Service of Engineers (B & R.B.) Class II (Fourth Amendment) Rules-1997 only quota of Direct Recruitment had been reduced from 66 2/3 percent to 58.34 percent and quota for promotion under Rule 5 (ii) had been increased from 25 percent to 33.33 percent, however 8.33% quota for promotion for degree holders belonging to feeder cadre remained intact. The notifications of the years 1987 and 1997 containing amended Rule-5 (iii) of old 1936 Rules were found violative of Articles 14 and 16 of the Constitution of India by this court in Aruvendra Kumar Garg's case, but this court has quashed both the notifications in toto.

142. While dealing with the case of Aruvendra Kumar Garg, we have taken the view in earlier part of our judgement that since remaining provisions of Rule-5 (i) and 5(ii) of old 1936 Rules were not found ultra-vires of the provisions of Articles 14 and 16 of the Constitution and they were quite severable from the unconstitutional provisions of Rule 5(iii) of said rules, therefore, those provisions could have been segregated therefrom and left as unworkable for the reason that on declaration of Rule-5 (iii) of old 1936 Rules as amended by amending Rules-1987 and 1997 as unconstitutional providing 8.33% separate quota for promotion to the degree holder junior engineers/computers, the remaining provisions of sub-Rule 5 (i) and 5(ii) could not be made workable in absence of prescription of quota for direct recruitment and promotion without any amendment or alteration in respective quota, but so far as other amended Rules 9, 12 and 16-A of old 1936 Rules contained in notification dated 4.8.1987 are concerned, since they were not found unconstitutional and they were quite severable as valid and independent piece of legislation, therefore, could be segregated as valid piece of legislation and be saved as such.

143. In earlier part of our judgement, we have further held that since existing Rules-5 and 6 of old 1936 Rules were amended by way of substitution brought about by 1969, 1987 and 1997 amendment Rules, therefore, they ceased to exist and could not be revived when aforesaid amended Rules were declared ultra-vires of the provisions of Articles 14 and 16 of the Constitution of India and held invalid, unless reenacted afresh because of the simple reason as indicated in earlier part of our judgment that process of substitution consists of two steps; first the old rule is made cease to exist or repeal and next the new rule is brought into existence in its place. Even if the new rule be invalid, the first step of old rule ceasing to exist comes into effect and it was for this reason that on declaration of new rule as invalid, the old rule could not be held to be revived automatically without any fresh enactment. Similarly, since notification dated 4.8.1987 containing amended Rule-9 of old 1936 Rules has been quashed by this Court in Aruvendra Kumar Garg's case, therefore, Rule-9 of old 1936 Rules as existing prior to amended Rule 1987 came into being, has been ceased to exist, the same could not be revived automatically unless re-enacted afresh. But Division Bench of this Court in Vijai Kumar's case did not advert to this question, which was necessarily involved in the case, and without doing so, has proceeded on assumption that after the decision of this Court in Aruvendra Kumar Garg's case, the existing Rule-9 of old 1936 Rules would stand revived as it was existing prior to 1987 amendment rule came into force and also went on saying that inspite of amendment in Rule-12, it remains undisputed that the provisions of Rule 5(iv) and 9 (ii) of said rules remained unamended and so long the said provisions are not amended, they are to be given effect to in strict literal sense. In our opinion the aforesaid observations have been made in ignorance of aforesaid amendment taken place in provisions of Rule-5(iv) and 9 (ii) of old 1936 Rules as such cannot be binding upon us as binding precedent rather it is to be held to be given in per incuriam.

144.    Further as held by Hon'ble Apex Court in para 19 of the decision rendered in Arnit Das Vs. State of Bihar J.T. 2000 (6) S.C. 320, that a decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141.That which has escaped in the judgement is not ratio decidendi. This is the rule of sub-silentio in the technical sense, when a particular point of law was not consciously determined (see State of U.P. Vs. Synthetics & Chemicals Ltd. J.T. 1991 (3) S.C. 268=1991(4) S.C.C. 138 para 41). Therefore, we are constrained to hold that the Division Bench of this court in Vijai Kumar's case did neither consider the impact and implication of amendments taken place under the relevant provisions of old 1936 rules from time to time as indicated herein before nor the impact and implication of decision rendered by Hon'ble Apex Court in P.D. Agrawal's case and this court in Aruvendra Kumar Garg's case, thus the decision on the question in issue is silent and covered by the technical rule of sub-silentio.

145. As we have already noticed that amended Rule 9 of old 1936 Rules as brought about by notification dated 4.8.1987could be is segregated as valid piece of legislation from the unconstitutional part of the aforesaid notification, thus there would have been no existing provision of rule 9(ii) in said old 1936 Rules as the same has been omitted from the said rules because of the simple reason that Rule 5(ii) of said rules provided seven years continuous substantive service on the post of feeder cadre to become eligible for promotion on the post of Assistant Engineer was considered sufficient substitute of technical qualification envisaged under Rule 9(i) and for qualifying examination by written test prescribed by Governor from time to time in exercise of enabling power under rule 9(ii) for non-graduate incumbents of feeder posts as stood at relevant time as such there was no necessity to continue the provisions of Rule 9(ii) of said Rules consequently to issue Government Order dated 11.2.2003 under legally non-existent Rule 9(ii) of said Rules. Not only this but the intention of rule making authority is also clear from the provisions contained under Rule 5(ii) of New 2004 Rules, where rule making authority has prescribed only seven years continuous service in substantive capacity on feeder post without any further as an essential condition for eligibility for promotion without any discrimination between degree or diploma holder incumbents on the feeder post. While taking note of decision of Hon'ble Apex Court in somewhat similar situation in A.S. Parmar's case (supra) and T.R. Kapoor's case (supra) wherein Hon'ble Apex Court has held that the degree in engineering is not essential for promotion of Assistant Engineer which is class II post to the post of Executive Engineer which is class I post under Punjab Service of Engineers Class I P.W.D. (Irrigation Branch) Rules 1964 under Rule 6(b) of said rules, we have held the aforesaid Rule 5(ii) of new 2004 Rules intra-vires of provisions of the Constitution and upheld the validity of said rules.

146. But it appears that since notification dated 4.8.1987 containing amended Rule 9 of old 1936 Rules has been quashed by this Court in Aruvendra Kumar Garg's case, therefore, while accepting the verdict of this court, the Government has wrongly assumed the existence of Rule-9 as stood prior to the date of aforesaid notification, therefore, assuming for the sake of arguments, that the said Rule 9(ii) as stood prior to its amendment was still existing in that eventuality it is necessary to examine the legal status of the scheme providing qualifying examination by written test contained in the Manual of Orders 1955 as amended subsequently in the year 1969, 1970 and 1972 and G.O. dated 11.2.2003 providing qualifying examination by interview to Diploma holder junior engineers/computers to become eligible for consideration for promotion on the post of Assistant Engineer.

147. In this connection, it is necessary to point out that original scheme prescribed qualifying examination by written test as contained in 1955 manual of orders, according to the petitioners their own case, had been issued by the Government under Rule 9(ii) of the then existing old 1936 Rules. The aforesaid scheme had been modified subsequently in the year 1969, 1970 and 1972 as contained in Annexures 9, 10 and 11 of writ petition of Anjani Kumar Misra. It is not the case of the petitioners that the said scheme had been framed under proviso to Article 309 of the Constitution in purported exercise of rule making power of Governor, and the said scheme had been made as integral part of the old 1936 rules, thus at the most it had status of sub-ordinate legislation as had been issued under enabling provision of rule 9(ii) of the said rules. A similar G.O. dated 7th December 1961 issued under Rule-6 of 1936 Rules was held to have statutory force in Baleshwar Das and others Vs. State of U.P. and others, A.I.R. 1981 S.C. 41 and same view has also been taken by Hon'ble Apex Court in para 16 of the decision rendered in P. D. Agrawal's case (supra). Therefore, in our considered opinion this manual of orders is nothing but a compilation of Government Orders issued under Rule 9(ii) of the old 1936 Rules. It is no doubt true that the said scheme underlying the manual of orders had statutory backing and statutory force and was also of binding nature, but this manual of orders, containing scheme of qualifying examination by written test can not be treated at par with the statutory rules made under the proviso to Article 309 of the Constitution. Thus, the office order dated 11.2.2003 issued under same Rule 9(ii) of old 1936 Rules, cannot be held to be mere executive instruction, without any statutory force particularly when the source of power is same and authority exercising the power while issuing Government Order dated 11.2.2003 is also same. Thus, Government Order has similar statutory force and cannot be held to be inferior in status than scheme contained in the Manual of orders of 1955 as amended from time to time but from the perusal of the judgement of this court rendered in Vijai Kumar's case, it appears that this court has proceeded on assumption that scheme providing qualifying examination by written test earlier was part and parcel of old 1936 Rules as if framed under the proviso to Article 309 of the Constitution and Government Order dated 11.2.2003 providing qualifying examination by interview to become eligible under Rule 9(ii) is merely executive instruction is some how sub-ordinate or inferior to the earlier scheme, without examining source of power of authority which has issued said Government Order dated 11.2.2003 and earlier scheme.

148. Besides, this from a plain reading of Rule 9(ii) of Old 1936 Rules as stood prior to the amendment brought about by notification dated 4.8.1987, it is clear that rule-9(ii) itself did not provide the manner or mode of qualifying examination either by written test or by interview rather it had empowered the Government/Governor to prescribe qualifying examination, which has to be passed by officers to become eligible for promotion who did not possess technical qualification prescribed under Rule 9(i) of old 1936 Rules. It was Governor who had initially prescribed aforesaid qualifying examination by written test by formulating scheme contained in Manual of Orders referred herein before and subsequently by Government Order dated 11.2.2003 through interview, in purported exercise of delegated power under Rule 9(ii) of old 1936 Rules. Thus, it is incorrect to think that statutory rule provided for written examination to determine eligibility has been substituted by interview and that's too by issuing executive instruction. Therefore, we are unable to subscribe the view taken by Division Bench of this court in Vijai Kumar's case in this regard and there can be no scope for doubt to hold that scheme provided qualifying examination by written test earlier as contained in Manual of 1955 orders as amended from time to time and scheme underlying Government Order dated 11.2.2003 providing said qualifying examination by interview are of the same legal status and later cannot be held to be sub-ordinate or inferior to former.

149. While dealing with the aforesaid issue it appears that the Division Bench in Vijai Kumar's case has inadvertently noticed that the written test to be passed by non-degree holder officers of feeder cadre to become eligible for promotion on the post in question was to be held according to the syllabus prescribed under Rule 11 of old 1936 Rules. In this connection, it is necessary to be pointed out that Rule 11 of old 1936 Rules as stood in originally enacted Rules contained in Part V of the said Rules had dealt with the procedure for direct recruitment by direct appointment, which reads as under:

"Part V - Procedure for Recruitment by Direct Appointment.

11. Applications from candidates for recruitment under rule 5(ii) must be made to the Secretary to Government, Public Works Department, Buildings and Roads Branch, within such time as may be specified in the advertisement of a vacancy and on forms which may be obtained from that officer. They must be accompanied by certificates of age, character, nationality, domicile and conduct and any other documents that may be required in the advertisement of the vacancy, together with a treasury receipt for Rs.5."

150. Later on it appears that the aforesaid Rule 11 of the said Rule had been amended vide Notification No. 492 EBR/ dated 28.7.1969 made effective from 1.3.1962 i.e. with retrospective effect, whereby Rule 11(A) had been inserted providing syllabus and the Rules relating to the competitive examination as prescribed from time to time by the Commission with the approval of Governor. For ready reference the amended provisions inserted as Rule 11(A) by Notification dated 28th July, 1969 is reproduced as under:

"11.A.  Syllabus - The syllabus and the rules resulting to the competitive examination will be prescribed from time to time by the Commission with the approval of the Governor.

Note:- The syllabus and the subjects at present in force will

  be found in Appendix III.

(Effective from 1.3.62 vide notification No. 492 EBR/dt. 28.7.69)."

151. Thus from a plain reading of the aforesaid Rules it is clear that the rule 11 and 11 (A) of old 1936 Rules had dealt with procedure for submitting application form for direct recruitment and syllabus of competitive examination through Commission and had nothing to do with any procedure for selection for promotion from feeder cadre. Under Rule 11-A of said Rules too, the syllabus and Rules relating to competitive examination was to be prescribed by the commission with the approval of Governor from time to time and such Rules providing syllabus also can not be said to be integral part of the rule framed in purported exercise of power under the proviso to the Article 309 of the Constitution and cannot be held to be at par with the Rules framed thereunder. However said Rules relating the syllabus at the most be in the nature of sub-ordinate legislation, thus, have statutory force and binding effect, but contrary to it as held earlier that syllabus and course curriculum earlier prescribed for written test for non-degree holder members of feeder cadre to become eligible for promotion as contained extract of 1955 Manual of Orders as amended from time to time referred earlier was framed under purported exercise of power by Governor as stood under Rule 9(ii) of old 1936 Rules at relevant point of time and are quite distinct from syllabus contemplated by Rule 11-A of said Rules, thus both cannot be mixed together,  but it appears that while dealing with the issue the Division Bench of this Court has misread and misconstrued Rule 11 and 11 (A) of old 1936 Rules and syllabus contemplated thereunder has treated as part of qualifying examination by written test, which is not acceptable to us.  

152. To arrive at the said conclusion on the question whether suitability of candidates can be determined merely by holding interview, it appears that this Court in Vijai Kumar's case has placed reliance upon a decision of Constitution Bench of Hon'ble Apex Court rendered in R. Chitralekha's case (supra), wherein the selection in question related to admission in Medical and Engineering College and procedure pertaining to manner of selection based on interview alone was not found faulty by the Hon'ble Apex Court. However, in case of Praveen Singh (supra) two Judges Bench of Hon'ble Apex Court, though did not notice the aforesaid Constitution Bench decision but after referring and discussing the earlier decisions rendered in Ashok Vs. State of Karnataka A.I.R. 1992 S.C. 80, Ashok Kumar Yadav and others Vs. State of Haryana A.I.R. 1987 S.C. 454, Liladhar Vs. State of Rajasthan A.I.R. 1981 S.C. 1777 and J.P. Kulshreshtha Vs. Chancellor, Allahabad University A.I.R. 1980 S.C. 2141, Hon'ble Apex Court has held that having regard to the scheme of competitive examination for selection based upon both written examination and interview under which written examination carrying total 400 marks in different subjects with minimum 33% qualifying marks in each subject and 45% marks in aggregate as a condition precedent for appearing in interview carrying only 50 marks, it cannot be held that these 50 marks of interview alone would be relevant and remaining 400 marks of written examination would render totally superfluous and of no effect at all.

153.     Thus from a close analysis of the aforesaid decisions of Hon'ble Apex Court, it can not be held as broad proposition that rule regarding selection based on interview alone would ipso-facto render unreasonable, arbitrary or irrational, rather as held by Constitution Bench of Hon'ble Apex Court in R. Chitralekha's case (supra) that the scheme of selection however, perfect it may be on paper, may be abused in practice but its capability of abuse is not a ground for quashing. However, if in any particular case, the selection committee abuse its power in violation of Article 14, that may be a case for setting aside a particular interview. In such a situation, we are unable to understand how a provision pertaining to selection based on interview alone to determine eligibility of candidate for promotion can be held to be arbitrary, unreasonable and irrational. At the most validity of such selection can be examined on merit, if it is found that selection committee while holding interview has abused its power and held the selection in arbitrary manner. With due respect to the Hon'ble Judges comprising Division Bench in Vijai Kumar's case they did not examine this aspect of the matter and have taken the view contrary to ratio of decision of Hon'ble Apex Court referred in the decision in question, therefore, we are not persuaded to take view taken by them, particularly when it is not a case where selection for promotion is solely based on interview alone. Rather the selection for promotion has to be made on criterion of seniority subject to rejection of unfit in accordance with the provisions of Public Service Commission Procedure Rules 1970 which has to be done in consultation with the Public Service Commission on the basis of service records of the eligible candidates falling under the zone of consideration. We have already held that seven years continuous service in substantive capacity on the post of feeder cadre is sufficient substitute of technical qualification for diploma holder incumbents of feeder cadre to become eligible for promotion on the post of Assistant Engineer. Thus in view of foregoing discussion, we are of the considered opinion that Government Order dated 11.2.2003 cannot be found faulty on this score and has to be held valid. However, the merit of particular selection can be examined if the action of selection committee while holding interview for qualifying examination is found illegal and arbitrary but no body has pointed out any such illegality in the process of interview already taken place.

154. Now coming to the first question as to whether changes brought about by Government Order dated 11.2.2003, any vested right of the petitioners who are degree holder junior engineers/computers, forming part of their service condition sought to be taken away whereby they are adversely affected. In this connection, it is pointed out as earlier that promotion has to be made on the basis of seniority subject to rejection of unfit in accordance with the provisions of Public Service Commission Procedure Rules 1970. At this juncture it is significant to point out that since 1972, as pointed out by learned Standing Counsel appearing for State Government, which is not disputed by counsels appearing for the petitioners and private respondents, no qualifying examination could be held by respondents. Initially it might be at the instance of diploma holder junior engineers/computers subsequently on account of changes brought about by notification dated 4.8.1987 whereby amendments were made in existing Rule-9 of old 1936 Rules and Rule 9(ii) existing earlier has been omitted from the old 1936 Rules itself consequently it seems that there was no legal basis to implement the same till the decision of this court in Aruvendra Kumar Garg's case. Thereafter, it appears that the Government has visualized legal position and issued Government Order dated 11.2.2003 though it was hardly necessary on the wake of amendments made under Rule-5 of old 1936 Rules by notification dated 4.8.1987 whereby under Rule-5(ii) of amended old 1936 Rules, a period of seven years continuous service in substantive capacity was made essential condition on feeder post to become eligible for consideration for promotion on the post in question. In such situation as we have already held that aforesaid minimum seven years service on feeder post seems to be found sufficient, substitute of technical qualification to be possessed by direct recruits and qualifying examination by written test earlier prescribed by the Government for diploma holders, thus there was hardly any need to issue Government Order dated 11.2.2003.

155. However, even if the qualifying examination by written test would have been held regularly in past, it cannot be said that requisite number of candidates from amongst diploma holders would not have passed said qualifying examination to become eligible to be considered for promotion and on account of their being unsuccessful in such qualifying examination the chances of promotion of the petitioners, who are degree holders would have been better in comparison to present criterion of holding qualifying examination by interview alone. Even in such extreme hypothesis, it can not be said that petitioners' any vested right accrued in earlier existing procedure for determination of eligibility of diploma holder junior engineers/computers forming part of their service conditions are sought to be taken away, whereby they are adversely affected. It is not their case that by Government Order dated 11.2.2003, they have been excluded altogether from zone of consideration and have been made ineligible for consideration for promotion despite their being senior to diploma holder junior engineers/computers, thus, we are of the considered opinion that by the Government Order dated 11.2.2003 no vested right of petitioners forming part of their service conditions are sought to be taken away whereby they are adversely affected in view of the law laid down by Hon'ble Apex Court in Mohd. Bakar's case (supra), G.B. Purohit's case (supra), Mohd. Shujat Ali's case (supra), T.R. Kapoor's case (supra), Chandra Kant Anant Kulkarni's case (supra) and S.L. Dutta's case (supra). Even assuming for the sake of hypothesis, on account of Government Order dated 11.2.2003, the petitioners' accelerated chances of promotion would be reduced in comparison of earlier existing situation and now they have to compete with the diploma holders on same and equal footing even then in view of aforesaid settled legal position they can hardly have any legitimate and genuine grievance against said Government Order, and as such they have hardly any good ground to challenge the same.

156. In view of foregoing discussions, we are of the considered opinion that seven years continuous service in substantive capacity on feeder posts under Rule 5(ii) of Old 1936 Rules as brought about by notification dated 4.8.1987 and 25.9.1997 which we have segregated as constitutional and severable piece of offending rules contained in the said notification are sufficient substitute of technical qualification to be possessed by direct recruits, and qualifying examination by written test prescribed by Governor for non-graduate incumbents of feeder posts to become eligible for promotion under Rule 9(ii) of old 1936 Rules. In such situation issuance of G.O. dated 11.2.2003, under legally non-existant Rule 9(ii) of said rules would be unnecessary. However, since the aforesaid Government Order provides qualifying examination for non-degree holders by interview alone, therefore, the same may be treated to be supplemental to the provisions of said Rule 5(ii) of old 1936 Rules and held to be valid, only to fill up the vacancies existing in quota of promotion under old 1936 Rules. The aforesaid Government Order dated 11.2.2003 shall not apply in promotions to be made under New 2004 Rules. Thus, we further hold that eligibility of candidates of feeder posts to be considered for promotion determined on the basis of Government Order dated 11.2.2003 can not be found faulty on that score. Since vide interim order dated 27.9.2004 of Hon'ble Apex Court passed in S.L.P. No. 8440 of 2004 filed against the decision of this court rendered in Vijai Kumar's case the Hon'ble Apex Court has already permitted the State Government to proceed with the process of selection for promotion, therefore, there appears no need to issue any further direction in this regard.

Question No. 6:

157. Now coming to the last question, what would be the effect of decision of this court rendered in aruvendra Kumar Garg's case on promotions made on the post of Assistant Engineer in 8.33% separate quota fixed for degree holder junior engineers and computers and promotion sought to be made by the petitioners under the aforesaid quota and promotions made otherwise? In this connection it is pointed out that vide judgement and order dated 22.3.2002 a Division Bench of this Court has quashed the notification dated 4.8.1987 and 25.9.1997 containing Rule 5(iii) of old 1936 Rules amended by the aforesaid notification, which provided separate quota for promotion for graduate junior engineers and computers on the post of Assistant Engineers being violative of Articles 14 and 16 of the Constitution of India. Thus on such declaration the rule providing 8.33% separate quota for promotion for graduate junior engineers and computers, become void, ab-initio from its inception as still born law since made in contravention of Part III of the Constitution, therefore, treated to be non-est and nullity as if it was never in existence, as held earlier in preceding parts of the judgement, thus, no right and obligation would flow therefrom, consequently the petitioners of these batch of writ petitions who have sought relief for promotion on the post in question on the basis of their attainment of Bachelor's degree or equivalent qualification prescribed therefor, in the aforesaid separate quota for promotion are not entitled for any such relief for simple reason that they have no subsisting legal right to claim such promotion in the aforesaid quota. Our above conclusion is based on well settled legal position that in order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by party against whom the mandamus is sought and such right must be subsisting on the date of the petition (Kalyan Singh Vs. State of U.P. A.I.R. 1962 S.C. 1183, Director of Settlement A.P. & others Vs. M.R. Apparao and another A.I.R. 2002 S.C. 1598 Pr. 17). Thus, in view of aforesaid settled legal position there can be no scope for doubt to hold that the petitioners have no subsisting legal right to claim the promotion in separate quota for promotion as degree holder junior engineer/computer on the date of filing of these petitions before this court, irrespective of fact that they have alleged that they have been discriminated in said promotion from other degree holder junior engineers. It is also well settled in catena of decisions of Hon'ble Apex Court that for claiming such discrimination there must be subsisting legal right in favour of person claiming relief on the ground of such discrimination as held by Hon'ble Apex Court in Chandigarh Administration and another Vs. Jagjit Singh and another A.I.R. 1995 S.C. 705, Gurcharan Singh and others Vs. N.D.M.C. and others J.T. 1996 (1) S.C. 847=(1996) 2 S.C.C. 459, Secretary Jaipur Devlopment Authority Vs. Daulat Mal Jain and others J.T. 1996 (8) S.C. 387=1997 (1) S.C.C. 35, State of Haryana and others Vs. Ram Kumar Mann. 1997 (3) S.C.C. 321, State of Bihar and others Vs. Kameshwar Prasad Singh and another J.T. 2000(5) S.C. 389. Therefore, in our opinion, the petitioners cannot claim such promotion on the alleged discrimination.

158. In given facts and circumstances of the case, the promotions which have been made in the aforesaid separate quota for degree holders are also not sustainable in the eye of law for simple reason that such promotions have been made in still born law, declared as void ab-initio under Article 13(2) of the Constitution. Had it been the case of supersession of earlier rules prescribing such separate quota for promotion on the post in question, the position would have been different and promotions made in existing rules prior to its supersession/repeal could be saved by virtue of Section 6 of U.P. General Clauses Act as vested or accrued right of person in superseded law prior to the date of its supersession could be saved. But as distinguished from the aforesaid situation, since law made in violation of Part III of the Constitution is void ab-initio as still born under Article 13(2) of the Constitution, therefore, does not confer any right and obligation upon any party from its inception and as such no person can claim any right at the strength of such law on the ground that even till the date of such declaration by the court such law was in existence thus neither the petitioners can claim any right under separate quota for promotion for degree holder junior engineers nor the persons already promoted can claim any vested right or accrued right under the aforesaid separate quota for promotion for degree holder junior engineers.

159. Now coming to the facts of the case, it is pertinent to notice that in pursuance of our direction in respect of certain queries made during the course of hearing of writ petitions learned Standing Counsel has filed another supplementary counter affidavit sworn by Sri Tribhuwan Ram, Engineer-in-Chief, P.W.D., Government of U.P. dated 15th October 2006 in writ petition No. 53133 of 2004, Pramod Shanker Upadhyay and others Vs. State of U.P. & others and also brought written note dated 7.9.2006 prepared in three pages along with chart comprising two pages by senior staff officer (E-2) Karmik, Pramukha Abhiyanta, Lok Nirman Vighag, which is being made part of the record. From the perusal of point No. 4, contained at page-3 of the said note, it is clear that a statement of fact has been made to the effect that lastly the qualifying examination for determination of eligibility to be considered for promotion on the post in question was held in the year 1970. In the year 1972 also, the qualifying examination was organised but could not be completed, thus it seems that since then no qualifying examination has ever been held by the time it has been started in pursuance of Government Order dated 11.2.2003, which in fact was held w.e.f. 12.7.2003 to 14.7.2003 and a total number of 411 junior engineers have been interviewed as asserted in Anjani Kumar Misra's case.. The aforesaid statement of facts has not been disputed by the counsels appearing for the parties but in a supplementary counter affidavit sworn on 15.10.2006 by T. Ram, Engineer-in-Chief, it appears that in this connection by twisting the facts, some misleading statement of facts have been made. Therefore, to appreciate the issue, we would like to reproduce the statements of facts made in justification of promotion made by the respondents for the vacancies pertaining to the year 1997-1998 to 2000-2001 and determination of vacancies for year 2001-2004 in para 4,5,6,7,8,9 and 10 of supplementary counter affidavit as under :

"4. That vide order dated 30.6.1998 total 38 vacancies were filled up by way of promotion from Junior Engineer to Assistant Engineer pertaining to civil and technical branch. The photo stat copy of said order dated 30.6.1998 issued by the State Government is being filed herewith and is marked as Anneuxre No. S.C.A.-2 to this affidavit.

5. That by judgment dated 22.3.2002 passed by the Hon'ble Court in C.M.W.P. No. 42762 of 2000 Aruvendra Kumar Garg and others Vs. State of U.P. and others and other connected petitions, the Rules 1987 and Rules 1997 whereby quota amongst Junior Engineer (Diploma holder) and Junior Engineer -degree holder was quashed. It is relevant to mention here that during pendency of said petitions the effect and operation of said Rules 1987 and 1997 was stayed by the Hon'ble Court. It is further submitted that in C.M.W.P. No. 53872 of 1999 Satyendra Pratap Singh Vs. The Chief Secretary and others, the Hon'ble Court was pleased to pass an interim order dated 29.3.2000 whereby the Hon'ble Court directed the authority concerned to consider preferably within two months the case of petitioner for promotion to the post of Assistant Engineer on the basis of the Rules which were prevailing prior to 1987 Rules (since 1987 Rules have been stayed by this court). The photo stat copy of said interim order dated 29.3.2000 of the Hon'ble Court is being filed herewith and is marked as Annexure No. S.C.A.-3 to this supplementary counter affidavit. Similarly the Hon'ble Court in C.M.W.P. No. 18537 of 2000 Mukesh Kumar Thakur Vs. State of U.P. and in C.M.W.P. No. 1758 of 2000 Atibal Singh and others Vs. State of U.P. and others also was pleased to pass interim orders dated 17.5.2000 and 4.7.2000 respectively to the same effect.

6. That keeping in view of the aforesaid directions of the Hon'ble Court pertaining to recruitment years 1998-99 to 2000-01proceedings pertaining to promotion in question were conducted through Public Service Commission U.P. Allahabad on the basis of Rules, 1959 wherein 25% quota was fixed for promotion from Junior Engineer to Assistant Engineer. It is relevant to mention here that by interim order dated 23.11.2000 passed by the Hon'ble Court in C.M.W.P. No. 42762 of 2000 Aruvendra Kumar Garg and others Vs. State of U.P. and others, the Hon'ble Court was pleased to permit the continuance of proceedings of departmental proceeding committee (DPC).

7. That on the basis of recommendations made by the Public Service Commission U.P. Allahabad vide its letter dated 15.12.2000, promotions orders pertaining to 53 degree holder Junior Engineers dated 2.5.2002 was issued by the State Government pertaining to recruitment years 1998-99 to 2000-01 on the basis of 25% quota of promotion of Junior Engineers. The photo stat copy of said order dated 2.5.2002 is being filed herewith and is marked as Annexure No. S.C.A.-4 to this affidavit.

It is relevant to mention here that since no Junior Engineer (Diploma), had qualified the qualifying examination hence they were not considered for promotions pertaining to said recruitment years 1998-99 to 2000-01.

8. That after passing of the aforesaid judgment dated 22.3.2002 of the Hon'ble Court the earlier Rules, 1936 and amendments made therein of 1959 and 1966 were accepted to be applicable. According to Rule 9(2) of Rules, 1966 (Amendment) eligibility condition was prescribed for promotion whereby the Junior Engineers having degree in Civil Engineering or Junior Engineer (Diploma) who had qualified the prescribed qualifying examination was made eligible for promotion. Since no diploma holder Junior Engineer had qualified the said qualifying examination hence their case for promotion was not considered.

9. That on the basis of observation made by the Hon'ble Court in Civil Misc. Contempt Petition No. 607/03 Virendra Pratap Singh Vs. D.S. Bagga and others, 11 degree holder Junior Engineers were promoted vide order dated 6.12.2004 and 25.5.2005 issued by the State Government against the remaining vacancies of recruitment years 1998-99 and 1999-2000.

10. That for promotion of diploma holder junior engineer, vide Government Order dated 11.2.2003 issued by the State Government a provision was made pertaining to taking of interview alone for qualifying examinations for such promotion. The validity of said Government Order dated 11.2.2003 was challenged before the Hon'ble Court by means of C.M.W.P. No. 9127/2003 Vijay Kumar Vs. State of U.P. and others, and by judgment dated 16.7.2004 the Hon'ble Court was pleased to quash the said Government Order dated 11.2.2003 and against which the Special Leave petition was filed before the Hon'ble Supreme Court which was numbered as Special Leave Petition No. 8440 of 2004 and by interim order dated 27.9.2004 the effect and operation of the judgment dated 16.7.2004 of the Hon'ble Court was stayed by the Hon'ble Supreme Court and now the judgment has been reserved by the Hon'ble Supreme Court in the said case.

It is further submitted that the Lucknow Bench of the Hon'ble Court by interim order dated 16.7.2003 passed in W.P.No. 4057(S.S.) of 2003-Tej Prakash Verma Vs. State of U.P. and others, whereby the Hon'ble Court restrained for declaring the result of interview held on the basis of said Government Order dated 11.2.2003. The photo stat copy of the said interim orders dated 27.9.2004 and 16.7.2003 passed by the Hon'ble Supreme Court as well by the Lucknow Bench of the Hon'ble Court is being filed herewith and is marked as Annexure No. S.C.A.-5 and S.C.A.-6 to this supplementary counter affidavit.

It is relevant to mention here that keeping in view of the aforesaid facts and circumstances the further proceedings pertaining to promotions between 11.2.2003 to 2.1.2004 have been kept in abeyance."

160. From the perusal of Government Order dated 30.6.1998 contained in Annexure S.C.A.II of the aforesaid supplementary counter affidavit, it appears that total 40 promotions have been made after consultation of Commission on the post of Assistant Engineer in respect of vacancies of years 1996-97 and 1997-98. Out of which two promotions have ben made in respect of vacancies of year 1996-97 from amongst Diploma holder incumbents and 38 promotions have been made for the vacancies of year 1997-98. Out of 38 promotions against the vacancies of year 1997-1998 from Sl. No. 3 to 31 (both inclusive) have been made from Diploma holder incumbents of feeder cadre and from Sl. No. 32-40 (both inclusive) from degree holder incumbents of feeder cadre after consultation of commission. Thus, there appears no legal basis for such promotion of aforesaid degree holder incumbents of feeder cadre in separate quota of promotion and in view of our findings in preceding part of the judgement, such promotions are not sustainable in the eye of law. Therefore, the promotions made from Sl. No. 32-40 referred above are made under still born rules, thus are void ab-initio from its very inception as such liable to be quashed, accordingly same are quashed.

161. Similarly from the perusal of G.O. dated 2.5.2002 contained as Annexure S.C.A.-4 of the supplementary counter affidavit and averments made in para 7 of the aforesaid supplementary counter affidavit, it appears that total 53 incumbents of feeder posts have been promoted against the vacancies of promotion pertaining to year 1998-99 to 2000-2001 by preparing yearwise select lists in respect of vacancies of respective years but all 53 promotions have been made on the post of Assistant Engineer only from amongst the graduate (degree holder) incumbents of feeder posts. No promotion has been made from amongst the non-graduate (diploma holder) incumbents of feeder cadre. The reason for non-consideration of diploma holder candidates has been given in para 7 and para 8 of the supplementary counter affidavit, wherein it has been stated that no diploma holder junior engineer/computer has qualified the qualifying examination hence they were not considered for promotions pertaining to the said recruitment years but no where in any of the counter affidavits including this supplementary counter affidavit, it has been mentioned that any qualifying examination was held by respondents under which any diploma holder could not succeed. In absence of such averments in the counter affidavits and contrary to the positive statement of facts brought about by written note dated 7.9.2006, referred herein before, the statement of facts made in para 7 and 8 of the supplementary counter affidavit dated 15th October 2006 sworn by Sri Tribhuwan Ram, Engineer-in-Chief, P.W.D. filed in W.P. No. 53133 of 2004, appears to be misleading to the court. We have asked the learned Standing Counsel to explain the aforesaid situation but he could not point out any thing from the record to show that any such qualifying examination of dimploma holder junior engineers/computers in respect of vacancies for promotion on the post in question for years 1998-1999 to 2000-2001 has ever been held by the respondents. In such situation, we have no hesitation to hold that unless any qualifying examination of diploma holder junior engineers/computers in respect of determination of eligibility for consideration of promotion is held by respondents State authorities, it cannot be said that no diploma holder was found eligible to be considered for such promotion, therefore, the aforesaid statements made in aforesaid para 7 and 8 of S.C.A. in this regard has to be rejected.

162. In this connection, we have heard Sri Shashi Nandan, learned Senior Counsel and Sri Yogesh Agrawal, Advocate appearing on behalf of promoted private respondents and learned Standing Counsel for State Government in justification of aforesaid promotions made by the respondents except to justify rule 5(iii) of old 1936 Rules, as brought about by Government notification dated 4.8.1987 and 25.9.1997, Sri Shashi Nandan could not point out anything to justify the aforesaid selection for promotion. Assuming for the sake of arguments, even if the aforesaid rules are held to be intra-vires of Part III of the Constitution, even then only 8.33% quota was earmarked for promotion in favour of degree holder incumbents but all the vacancies falling in the whole quota of promotion could not be filled up from degree holder junior engineers alone in total disregard of criterion of seniority subject to rejection of unfit. Such action would be not only violative of the provisions of alleged quota rules but would also be violative of rule-12 of old 1936 Rules containing such seniority rules as existing at relevant point of time. Thus the promotion of 53 degree holder junior engineers on the post of Assistant Engineers, in our opinion, have been made by State-respondents in respect of total vacancies of promotion for the year 1998-1999 to 2000-2001 without considering the claim of diploma holder junior engineers in utter disregard of seniority rule contained in rule 12 of old 1936 Rules cannot be sustained and same are liable to be struck down, accordingly G.O. dated 2.5.2002 is hereby quashed.

163. Similarly vide Government Order dated 6.12.2004 contained in Annexure-22A impugned in the writ petition No. 53133 of 2004, Pramod Shanker Upadyay and others. Vs. State of U.P. and others and also in some of the writ petitions of these batch of writ petitions, 10 degree holder junior engineers have been promoted on the post of Assistant Engineers in consultation of Commission in pursuance of directions appears to have been given by this court in Contempt Petition No. 607/2003, Virendra Pratap Singh Vs. D.S. Bagga and others.. These promotions have been made against the yearwise vacancies of years 1998-1999 and 1999-2000 separately. Although there is nothing to indicate from the impugned order that these promotions have been made from amongst only degree holder junior engineers, but it is admitted in averments made in para 9 of the aforesaid supplementary counter affidavit itself that the promotees are degree holder junior engineers. Similarly vide G.O. No. 8021/23.4.05-24 N.G./02 dated 25.5.2005 as indicated in Annexure S.C.A.-8 of the supplementary counter affidavit dated 15th October 2006, one more vacancy in the quota of promotion existing in the aforesaid years has been filled up. The actual G.O. of promotion is not on record, but from the averments made in para 9 of S.C.A. it is clear that this promotee is also degree holder incumbent of the feeder post and has been promoted in the same manner as earlier. It is not in dispute that while holding selections for aforesaid promotion the claim of diploma holder incumbents of feeder posts have not been considered for similar reasons as given in para 7 and 8 of the supplementary counter affidavit that no diploma holder has passed qualifying examination, which we have already rejected herein before in preceding paragraphs of this judgment, on the ground that unless such qualifying examination was held for the purpose it cannot be said that no one senior to the promoted persons could pass the qualifying examination, therefore, they were found ineligible and claim of juniors could be considered according to rule-12 of old 1936 Rules. Therefore, promotions of these 11 degree holder junior engineers on the post of Assistant Engineers without considering the claim of promotion of diploma holder junior engineers, according to their seniority position against the remaining vacancies of promotion for year 1998-99 to 1999-2000, in our considered opinion are contrary to the rule 12 of old 1936 Rules, thus for the same reasons, cannot be sustained and liable to be struck down. Accordingly the Government Orders dated 6.12.2004 and 25.5.2005 are hereby quashed.

 164.     However, it is made clear that the persons promoted in the separate quota for promotion as degree holders pertaining to the vacancies of year 1997-1998 and thereafter otherwise contrary to the statutory rules as indicated herein before in preceding paragraphs from the feeder cadre, they shall not be reverted to their original post until the cases of diploma holders alongwith them are considered on the basis of seniority subject to rejection of unfit in accordance with the rule 12 of old 1936 Rules provided they come within zone of consideration according to the aforesaid rules. While considering their case on the aforesaid criterion the services rendered by them on higher post and their A.C.R. and other service record shall also be taken into account on notional basis on feeder post.

165. From a careful reading of para 4,5,6,7 and 8 of the aforesaid supplementary counter affidavit dated 15.10.2006, it appears that aforesaid promotions have been sought to be justified on the ground that they were made in pursuance of various interim orders passed by this court in different writ petitions decided jointly along with Aruvendra Kumar Garg's case, where the respondents-State authorities were directed to proceed with process of selection for promotion on the basis of existing rules prior to the Government notifications dated 4.8.1987 and 25.9.1997 came into being. Thus keeping the view in mind and taking assistance of amended rule brought about by Government notification dated 21.7.1959 whereby the existing old 1936 Rules was amended 25% posts were allocated in the quota of promotion on the post in question for the members of sub-ordinate Engineering service and computers working in P.W.D. of Government of U.P., the respondent-State authorities have made aforesaid promotions but while passing final order in Aruvendra Kumar Garg's case vide judgement and order dated 22.3.2002, Division Bench of this Court did not say anything about the action taken by respondents in pursuance of interim orders passed by this court during pendency of writ proceedings, therefore, as natural consequence of passing of final order in the aforesaid cases, the interim orders passed therein would be merged and their separate independent existence would be lost. As we have held earlier in preceding parts of our judgement that Rule 5 and 6 were amended vide subsequent Government notification dated 28.7.1969, which were subject matter of challenge and Hon'ble Apex Court in P.D. Agrawal's case has declared the provisions of Rule 3(c), 5 and 6 of the amended rules brought about by the aforesaid notifications ultra-vires of the provisions of Part III of the Constitution. Thereafter the aforesaid rules were again amended by Government notifications dated 4.8.1987 and 25.9.1997 and ultimately both the aforesaid notifications were quashed by this court in Aruvendra Kumar Garg's case and the S.L.P. filed against the said decision has been dismissed as withdrawn, thus the decision of this court has attained finality, which we have discussed in some detail in the preceding part of our judgment. So far as Rule 9 of old 1936 Rules was concerned, it is no doubt true that prior to amendment brought about by Government notification dated 4.8.1987 it was existing as brought about by Government notification dated 1st October 1966 containing two clauses therein. Rule 9(i) of old 1936 Rules prescribed technical qualification for direct recruitment and Rule 9(ii) prescribed that no officer shall be promoted to the service under Rule 5(iv) and 5(v) unless he has passed such qualifying examination as the Governor may prescribe or possesses the technical qualification prescribed in clause (i) of this rule. The aforesaid rule 9 of old 1936 Rules has been amended by Government notification dated 4.8.1987 whereby clause (ii) of said rule 9 has been omitted from the rule itself. The effect and implication of the aforesaid decision vis-a-vis rights and obligation arise therefrom, we have discussed in preceding part of our judgement in some detail and held that neither rule 5 and 6 of old 1936 Rules nor rule 9(ii) of old 1936 Rules would revive as indicated in our judgement, therefore, we are of the considered opinion that there was no legal basis to sustain 25% quota for promotion on the post in question prior to notifications dated 4.8.1987 and 1997 and further the promotion made only from amongst degree holder incumbents in total exclusion of diploma holder incumbents in absence of separate quota for promotion for them and in utter disregard of rule 12 of old 1936 Rules contrary to the criterion of seniority subject to rejection of unfit and without holding any qualifying examination, which according to the respondents case was essential for eligibility of diploma holder incumbents of feeder post, cannot be sustained.

166. Another justification which has been given in the supplementary counter affidavit and during the course of arguments by learned Standing Counsel and counsel appearing for some of the promotees aforesaid, is that on account of various directions given by this court in Contempt Petition No. 607 of 2003, Virendra Pratap Singh Vs. D.S. Bagga & others including order dated 10.11.2004 contained in Annexure-22 of W.P. No. 53133 of 2004, the State respondents have promoted aforesaid 11 degree holder junior engineers on the post of Assistant Engineers after due consultation of the Commission. From the careful reading of the aforesaid direction dated 10.11.2004 given by this court, it appears that the applicant has filed a writ petition no. 17538 of 2000 earlier, which was disposed of by Division Bench of this court vide order dated 13.11.2002 with the identical direction as given in Vishnu Dutt Tripathi's case to consider the case of applicant for promotion preferably within two months. (Annexure-14 of W.P.No. 53133 of 2004). The order passed by Division Bench on 23.10.2002 in W.P. No.21581 of 2002, Vishnu Dutta Tripathi Vs. State of U.P. is also on record as Annexure-13 of the W.P.No. 53133 of 2004, a bare reading of which it indicates that while taking note of the decision dated 22.3.2002, rendered in W.P.No. 17949 of 1998 decided jointly in Aruvendra Kumar Garg's case, this court has directed to consider the claim of promotion of petitioner of the aforesaid case in accordance with the decision of this Court rendered in Aruvendra Kumar Garg's case from the date of his juniors have been promoted. Thus, there appears no justification to make promotion contrary to the rule 12 of old 1936 Rules when this court has struck down separate quota prescribed for promotion for diploma holders and degree holders incumbents of feeder posts. It is needless to say that this court dealing with the contempt matter can neither transgress the ambit of scope of the order passed in the writ proceedings sought to be enforced in contempt proceeding as indicated herein before nor can direct the authorities to act contrary to the aforesaid rule 12 of old 1936 Rules, therefore, in our considered opinion, the aforesaid promotions have been made contrary to the rule 12 of old 1936 Rules for the reasons aforestated, thus cannot be saved in the garb of aforesaid direction given by this court in contempt petition filed by Sri Virendra Pratap Singh.

167. Other justification for aforesaid promotions appears to have been given in para 10 of the aforesaid supplementary counter affidavit, wherein it is stated that for determination of eligibility for diploma holder incumbents of feeder post for consideration for promotion according to rule 12 of the old 1936 Rules, under Rule 9(ii) of said rules Government Order dated 11.2.2003 has been issued for holding interview. The declaration of result of selection for determination of eligibility on the basis of said interview has been stayed by Lucknow Bench of this Court vide interim order dated 16.7.2003 passed in W.P.No. 4057 (SS) of 2003, Tej Prakash Verma Vs. State of U.P. and others and the decision of this court dated 16.7.2004 rendered in W.P.No. 9127 of 2003, Vijai Kumar Vs. State of U.P., whereby the Government Order dated 11.2.2003 has been quashed. The aforesaid decision has been challenged before Hon'ble Apex Court in S.L.P. No. 8440/2004 wherein Hon'ble Apex Court while staying the operation of judgement and order dated 16.7.2004 passed by this court has ordered that any promotion made will be subject to the outcome of the special leave petition, yet the respondents have kept in abeyance of the result of aforesaid interview. We have also dissented from the view taken by this Court in Vijai Kumar's case in our judgement with some detailed reasons indicated herein before. We would like to point out that in view of interim order dated 27.9.2004 passed by Hon'ble Apex Court, the interim order contrary to it passed by Lucknow Bench is of no legal consequence and has lost its efficacy. Since we have also taken dissenting view in the matter in our final decision, therefore, the interim order passed by Lucknow Bench will no longer survive and liable to be ignored. In any view of the matter, in our opinion, these factors indicated in this supplementary counter affidavit cannot be any valid justification for the promotions made by the respondents, accordingly we have quashed the same.

168. Before parting with the issue, we would like to make it clear that although the promotions made in the quota of degree holder junior engineers on the post of Assistant Engineers vide G.O. No. 4023/23-4-48-130/N.G./97 T.E. Lucknow dated 30.6.1998 against the vacancies of year 1997-98 have neither been challenged before this court by any persons nor they were made party in any of the writ petition but since we have held that such separate quota of promotion has been declared ultra-vires of the provisions of Articles 14 and 16 of the Constitution of India, therefore is void ab-initio under Article 13(2) of the Constitution as such it is to be treated nullity from its inception and under still born law, which has to be treated never in existence for the purpose of rights and obligations of parties arise therefrom, thus cannot be sustained. Accordingly the promotions made vide aforesaid G.O. dated 30.6.1998 placed at Sl. No. 32 to 40 have been quashed.

169. Vide G. O. dated 2.5.2002, 53 promotions on the post in question have been made against the vacancies of promotion quota pertaining to years 1998-1999 to 2000-2001 from amongst degree holder incumbents of feeder posts only without considering the claim of diploma holder incumbents of feeder post in utter violation of rule 12 of old 1936 Rules, contrary to the criterion for promotion seniority subject to rejection of unfit. This G.O. dated 2.5.2002 has also neither been challenged nor any promoted persons have been made party in the proceeding. In this connection we have heard Sri Shashi Nandan, learned Senior Counsel  and Sri Yogesh Agrawal, Advocate and learned Standing Counsel for promotees, who were promoted vide G.O. dated 6.12.04 and some of  Pthem were made party in W.P. No. 53133 of 2004 and have been heard in representative capacity for other promotees also. Besides this even if persons promoted vide G.O. dated 30.6.1998 and G.O. dated 2.5.2002 would have been impleaded as necessary party and would have been heard in their individual capacity, in given facts and circumstances of the case, they could not dispute the facts aforementioned and improve their case, therefore, providing them opportunity of hearing individually would be of empty formality and no useful purpose would be served, therefore, in view of law laid down by Hon'ble Apex Court in M.C. Mehta Vs. Union of India and others A.I.R. 1999 S.C. 2583, Canara Bank and others Vs. Sri Debasis Das and others J.T. 2003 (3) S.C. 183 and Canara Bank Vs. V.K. Awasthy J.T. 2005 (4) S.C. 40, useless formality theory can be pressed into service.

170. In any view of the matter since while making aforesaid promotion gross illegalities have been committed by the respondents-State authorities of such a high degree which have virtually shocked our conscience and impelled us to exercise inherent power vested in us under Article 226 of the Constitution suo motu to undo the illegalities crept in the records of the respondents. The exercise of inherent power by superior courts of plenary jurisdiction has been recognised by Hon'ble Apex Court in Sheo Deo Singh' case (supra) and exercise of suo motu power under Article 227 has also been recognised by this court in S. Barrow Vs. State of U.P. A.I.R. 1958 All. 154, wherein it was held that High Court may in proper cases interfere under Article 227 suo motu, i.e. without any application from any party aggrieved. The same view has also been taken in Faquir Chand Anant Ram Vs. Gopi Chand A.I.R. 1962 Punjab 117. Thus in view of aforesaid legal positions, we are of the considered opinion that in given facts and circumstances of the case, there appears no legal impediment in exercise of inherent power under Article 226 suo motu by us to remove the aforesaid illegalities crept in the records as there appears no viable alternative to do so at the moment.        

171. In view of foregoing discussions and observations our conclusions are summarized as under:

(1) The provisions of Rule 5(ii) and Rule 16 of new 2004 Rules are held to be valid.

(2) Although, the provisions of new 2004 Rules are prospective in operation and shall apply w.e.f. 3.1.2004 but the vacancies occurred on or after 1.7.2004 only shall be filled up under new 2004 Rules and vacancies occurred prior to 30.6.2004 in the quota of promotion shall be filled up under old 1936 Rules. However, the existing vacancies prior to 30.6.2004 in the quota of direct recruitment shall be filled up as backlog vacancies under new 2004 Rules as the process of selection for direct recruitment were not initiated prior to commencement of new 2004 Rules, but without any further allocation of vacancies in the quota for promotion for period in question.

(3) There exists no statutory rule for prescription of quota for direct recruitment and promotion after decision of Hon'ble Apex Court in P.D. Agrawal's case and this court in Aruvendra Kumar Garg's case under old 1936 Rules. However, in order to fill up vacuum and supplement the remaining existing provisions of old 1936 Rules, the G.O. dated 20.2.2003 has been issued to fill up the remaining existing vacancies available at relevant time by prescribing 41.66% quota for promotion which shall be applicable to fill up the existing vacancies alone not covered by new 2004 Rules as indicated in judgement.

(4) The respondent-State authorities are directed to redetermine the vacancies for years 1997-1998 to 2003-2004 according to G.O. dated 20.2.2003 and take further steps within a month from the date of production of certified copy of the order passed by this court before Secretary, P.W.D., Government of U.P.

(5) While undertaking re-exercise for determination of remaining vacancies for year 1997-98, the promotions made at Sl. No. 32 to 40 by G.O. No. 4023/23-4-98 N.G./97 T.C. Lucknow dated 30th June 1998 shall be ignored. Similarly 53 promotions made vide G.O. No. 2220/23-4-2002-24 N.G./2002 Lucknow dated 2.5.2002 in respect of vacancies of years 1998-99 to 2000-2001, 10 promotions made vide G.O. No.8651/23-4-2002-24 N.G./02 dated 6.12.2004 pertaining to vacancies of year 1998-99 and 1999-2000 and one promotion made vide G.O. No. 8021/23-4-05-24 N.G./02 dated 25.5.2005 shall also be ignored.

(6) As a result of stricking down the promotions made on the post in question from Sl. No. 32-40 contained in G.O. dated 30.6.1998, G.O. dated 2.5.2005, G.O. dated 6.12.2004 and G.O. dated 25.5.2005 the degree holder junior engineers who were promoted by the aforesaid Government orders shall not be reverted at once to their original posts until the vacancies against which they were promoted shall be filled up according to rule-12 of old 1936 Rules by incumbents of feeder posts irrespective of their having diploma or degree in engineering.

(7) Against total remaining vacancies falling in the quota of promotion for year 1997 and for year 1998-2004 as indicated herein above, separate yearwise eligibility and select list shall be prepared in respect of vacancies of each recruitment year.

(8) While preparing year wise eligibility list, the persons whose promotion have been quashed, shall also be considered and placed in the eligibility lists if fall within zone of consideration according to their seniority position in the seniority list irrespective of their having degree in engineering or equivalent qualification and while considering their case the period of services rendered by them on higher post shall be taken into account while computing their seniority on feeder cadre and their Annual Confidential Reports and other service records shall also be taken into account on notional basis on feeder cadre.

(9) However it is made further clear that rejection of relief to the petitioners in separate quota for promotion for degree holders on alleged ground of discrimination would not disentitle them to be considered for promotion provided they are otherwise found eligible for consideration for promotion according to their seniority position under rule 12 of old 1936 Rules, in that event of the matter they will also be considered alongwith other eligible candidates irrespective of their degree in engineering or equivalent qualification.

(10) The respondents-State authorities are directed to undertake aforementioned exercise and complete it within a period of three months from the date of production of certified copy of order passed by this court before Secretary of concern department of the Government.

(11) After aforesaid exercise is over, if the claim of promotions of degree holder junior engineers whose promotions have been quashed, are found not acceptable either because of their lower seniority position or found otherwise not suitable according to the rules of promotion, they shall be reverted to their original posts forthwith on completion of aforesaid exercise.

172. In view of observations and directions made herein before all the writ petitions are disposed of finally.

173. There shall be no order as to costs.      

Dated:3.11.2006

LJ/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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