# Prabodh Kumar Pathak v. State of U.P

- **Citation:** (2023) 6 ILRA 196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Writ A No. 1511 of 2010
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabodh-kumar-pathak-v-state-of-u-p-50447
- **Pages:** 70

## Headnote

A. Service Law - United Provinces Services
of Engineers (Building & Road Branch)
6 All. Prabodh Kumar Pathak Vs. State of U.P.
197
Class-II Rules, 1936 - Rules 6 & 9 - Public
Works Department - Promotion to the
post of Asst. Engineers - Claim of Diploma
holder Junior Engineer Vs claim of Degree
holder Junior Engineer - Determination of
vacancies
arising
in
the
direct
and
promotion quota - Held, number of
vacancies under the promotion quota for
the period during 1997-1998 to 20032004 ought to be determined as per the
Service Rules of 1936, wherein rule 6(a)
provides for promotional quota of 25% for
promotion of Junior Engineers to the post
of
Asst.
Engineers
-
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 - High Court
directed the St. authority to re-determine
the number of vacancies by constituting a
High Level Committee. [Para 141, 144 and
191 (a)]

B. Service Law - United Provinces Services
of Engineers (Building & Road Branch)
Class-II Rules, 1936 - Rule 3(b), 4(i), 5,
69, 17 & 19 - Public Works Department -
Promotion to the post of Asst. Engineers -
Claim of diploma holder JEs Vs claim of
degree holder JEs - Amendment dated
11.01.1993 - Criteria for promotion as
mentioned in Rule 12 was changed from
'merit' to 'seniority subject to rejection of
unfit' - Qualifying examination - Not
providing opportunity the diploma holder
JEs to appear in examination - Effect -
Held, qualification examination was a
gate-way for promotion to the diploma
holder JEs as by passing such qualifying
examination, these diploma holder JEs
would come within the consideration zone
for promotion to the post of Asst.
Engineers - Held further, very issuance of
three promotion orders in 2008, 2009 and
2010 on the basis of a solitary qualifying
examination held in August, 2007, which
is evidently in violation of the procedure
prescribed for determining eligibility of
Diploma Holder J.Es appears to be not as
per Law - The diploma holder JEs were
wrongly ousted from the consideration
zone of promotion - High Court directed
the St. Authorities to hold the qualifying
examination as provided under rule
9(ii) of the old rule, 1936 and other
ancillary
rules
and
provide
equal
opportunity
to
the
diploma
holder
Junior Engineers forthwith, so as to
enable
them
to
come
within
the
consideration zone for promotion to
Asst. Engineers - High Court quashed
all the three impugned promotions
orders dated 02.08.2008, 03.07.2009
and 05.02.2010 in favour of degree
holder JE. [Para 27, 156, 161, 168, 191
(b) and 191 (c)]

C.
Service
jurisprudence
- Right to
promotion - Claim as the Fundamental
right - Permissibility - Held, right to
promotion is not considered to be a
fundamental right but consideration for
promotion has now been evolved as a
fundamental right - Ajay Kumar Shukla's
case relied upon. (Para 112)

Writ petitions disposed of. (E-1)

List of Cases cited:

## Text

_Characters 0–39,858 of 230,998. This is a partial read: ask again with offset=39858 for what follows._

196 INDIAN LAW REPORTS ALLAHABAD SERIES

8. After hearing the arguments of
learned counsel for the parties and after
perusal of record, this Court is of the view
that order of maintenance of Rs. 1200/- per
month to the opposite party No.2-Smt. Vimla
Devi vide order dated 31.08.2006, which was
challenged by filing the Revision and the said
revision was allowed vide order dated
02.11.2007 and the order dated 31.08.2006
was set aside and the matter was remanded
back to the court below to decide the
application filed under Section 125 Cr.P.C.
afresh. Thereafter, the opposite party No.2
preferred Criminal Revision before this Court
and a co-ordinate Bench of this Court by a
detailed
judgment
and
order
dated
13.12.2018 allowed the revision and affirmed
the
judgment
passed
by
the
learned
Magistrate in Criminal Case No. 252 of 2006
on 31.08.2006 passed in Criminal Revision
No.769 of 2006. Thus, the maintenance is
due from the date of order dated 31.08.2006
and the applicant was not paying the arrears
amount, in spite of the fact that the learned
Magistrate vide order dated 20.12.2022
relaxed the applicant in making the payment
in one stock directed to pay Rs. 10,000/- per
month, that too was not paid by the applicant
to opposite party No.2 and the present
application has been filed. Thus, in view of
the Court it is nothing but an abuse of process
of the law and the applicant is passing the
time by filing the present petition and is not
intending to pay the amount, as directed by
the court below or by the order passed by this
Court vide order dated 13.12.2018, thus the
intention of the applicant appears to be very
clear that he is avoiding to pay maintenance
to his wife.

9. This Court has to see the question of
equity and equity goes in favour of
opposite party No.2-wife, who is deprived
for the payment since 2006, when the order
was passed on the application filed under
Section 125 Cr.P.C.

10. In the interest of justice, the court
concerned is directed to recover the entire
amount of arrears, due against the applicant,
within two months from today and proceed in
accordance with law.

11.
With
the
above
observations/directions,
this
petition
is
dismissed.

12. Let the copy of this order be sent to
the court below for its necessary compliance.
----------
(2023) 6 ILRA 196
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 1511 of 2010
connected with
Writ A No. 6943 of 2007
and other connected cases

Prabodh Kumar Pathak ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Sameer Kalia, Akash Deep Dubey, Anuj
Singh, Ashish Verma, Deepak Srivastava,
Deepanshu Dass, Garima Chauhan, Lalta
Prasad Misra, Neel Kamal Mishra, Sarvesh
Kumar Dubey, Siddharth Nandan, Upendra
Nath Misra

Counsel for the Respondent:
C.S.C., P.K. Srivastava, Utsav Misra

A. Service Law - United Provinces Services
of Engineers (Building & Road Branch)
6 All. Prabodh Kumar Pathak Vs. State of U.P.
197
Class-II Rules, 1936 - Rules 6 & 9 - Public
Works Department - Promotion to the
post of Asst. Engineers - Claim of Diploma
holder Junior Engineer Vs claim of Degree
holder Junior Engineer - Determination of
vacancies
arising
in
the
direct
and
promotion quota - Held, number of
vacancies under the promotion quota for
the period during 1997-1998 to 20032004 ought to be determined as per the
Service Rules of 1936, wherein rule 6(a)
provides for promotional quota of 25% for
promotion of Junior Engineers to the post
of
Asst.
Engineers
-
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 - High Court
directed the St. authority to re-determine
the number of vacancies by constituting a
High Level Committee. [Para 141, 144 and
191 (a)]

B. Service Law - United Provinces Services
of Engineers (Building & Road Branch)
Class-II Rules, 1936 - Rule 3(b), 4(i), 5,
69, 17 & 19 - Public Works Department -
Promotion to the post of Asst. Engineers -
Claim of diploma holder JEs Vs claim of
degree holder JEs - Amendment dated
11.01.1993 - Criteria for promotion as
mentioned in Rule 12 was changed from
'merit' to 'seniority subject to rejection of
unfit' - Qualifying examination - Not
providing opportunity the diploma holder
JEs to appear in examination - Effect -
Held, qualification examination was a
gate-way for promotion to the diploma
holder JEs as by passing such qualifying
examination, these diploma holder JEs
would come within the consideration zone
for promotion to the post of Asst.
Engineers - Held further, very issuance of
three promotion orders in 2008, 2009 and
2010 on the basis of a solitary qualifying
examination held in August, 2007, which
is evidently in violation of the procedure
prescribed for determining eligibility of
Diploma Holder J.Es appears to be not as
per Law - The diploma holder JEs were
wrongly ousted from the consideration
zone of promotion - High Court directed
the St. Authorities to hold the qualifying
examination as provided under rule
9(ii) of the old rule, 1936 and other
ancillary
rules
and
provide
equal
opportunity
to
the
diploma
holder
Junior Engineers forthwith, so as to
enable
them
to
come
within
the
consideration zone for promotion to
Asst. Engineers - High Court quashed
all the three impugned promotions
orders dated 02.08.2008, 03.07.2009
and 05.02.2010 in favour of degree
holder JE. [Para 27, 156, 161, 168, 191
(b) and 191 (c)]

C.
Service
jurisprudence
- Right to
promotion - Claim as the Fundamental
right - Permissibility - Held, right to
promotion is not considered to be a
fundamental right but consideration for
promotion has now been evolved as a
fundamental right - Ajay Kumar Shukla's
case relied upon. (Para 112)

Writ petitions disposed of. (E-1)

List of Cases cited:

1. Anupal Singh & ors. Vs St. of U.P. & ors.,
(2020) 2 SCC 1

2. Paper Products Limited Vs CIT Mumbai,
(2007) 7 SCC 352

3. Surendra Kaul Vs Jyoti Ranjan, (2001) SCC
Online Cal. 237

4. P.D. Agarwal & ors. Vs St. of U. P. & ors.,
(1987) 3 SCC 622

5. Aruvendra Kumar Garg Vs St. of U.P. & ors.;
2002 (2) E.S.C. 148

6. CMWP No. 9127/2003; Vijay Kumar & ors. Vs
St. of U. P. decided on 16.07.2004

7. Anjani Kumar Mishra & ors. Vs St. of U.P. &
ors.; 2007(1) UPLBEC 260

8. Diploma Engineers Sangh Vs St. of U. P.;
2007(13) SCC 300

9. St. of Tripura Vs Nikhil Ranjan Chakraborty,
(2017) 3 SCC 646
198 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Union of India Vs Krishna Kumar, (2019) 4
SCC 319

11. St. of Orissa Vs Dhirendra Sundar Das;
(2019) 6 SCC 270

12. Baleshwar Das Vs St. of U.P. & ors.; (1980)
4 SCC 226

13. Special Appeal No. 917/2006; Badri Prasad
& 31 Ors Vs Satya Dev Sharma decided on
22.05.2015

14. W.P. no. 6530(S/S) 2004; Shiv Kumar Singh
Vs Satya Dev Sharma decided on 01.11.2006

15. Madan Lal Vs St. of Pun. & ors. [AIR 1994
SC 647 para-6]

16. K.K. Khosla & anr. Vs St. of Har. & ors.;
(1990) 2 SCC 199

17. A.N. Sehgal & ors. Vs Raje Ram Sheoran &
ors.; 1992 Supp (1) SCC 304

18. Ajay Kumar Shukla Vs Arvind Rai; 2021 SCC
Online SC 1195

19. Union of India & ors. Vs Krishna Kumar
Others ( 2019) 4 SCC 319

20. Deepak Agarwal Vs St. of U.P.; 2011 (6)
SCC 725

21. Baleshwar Das & ors. etc. Vs St. of U.P. &
ors., AIR 1981 SC 41

(Delivered by Hon'ble Om Prakash Shukla, J.)

A. Introduction:

(1) The present issue, engaging the
attention of this Court has a chequered
history of litigation. Essentially, it revolves
around
the
struggle
relating
to
the
promotion of Diploma holder Junior
Engineer
and
Degree
holder
Junior
Engineer to the post of Assistant Engineers
in
the
Uttar
Pradesh
Public Works
Department, wherein in the bandwagon,
several other stake holders including the
direct recruited Assistant Engineers, have
also jumped to further complicate the
whole issue. Evidently, the primary issue is
relating to determination of vacancies
arising in the direct and promotion quota
for the period 1997-98 to 2003-04 and a
secondary issue is relating to the manner
this promotion quota can be filled in view
of the prevailing United Provinces Services
of Engineers (Building & Road Branch)
Class-II
Rules,
1936,
its
periodical
amendment, Government Orders and most
importantly the Judgments passed by this
Court and the Hon'ble Supreme Court in
that context.

(2) Although, several judgments and
orders have been passed by this Court as
well as the Hon'ble Supreme Court, which
impacts the promotions of these Junior
Engineers during the said litigations era of
1997-98 to 2003-04, however with the
remand order dated 21.08.2019 by the
Hon'ble Supreme Court in Civil Appeal
No. 3695/2007 "Aitbal Singh Vs. Pramod
Shankar Upadhyaya & Ors.", by virtue of
which these writ petitions have been
remanded for re-hearing before this Court,
all the issues relating to the promotions
including the quota stands revived. The
relevant extract from the remanding order
of the Hon'ble Apex Court can be
profitably quoted as herein below:

"...A
peculiar
situation
has
arisen in this case. The decision which has
been overruled by the High Court was
affirmed
by
this
court
in
Diploma
Engineers Sangh V. State of U.P [(2007) 13
SCC 300]. It was brought to the notice of
the High Court that a special leave petition
6 All. Prabodh Kumar Pathak Vs. State of U.P.
199
was pending consideration before this
court
and
judgment
was
reserved.
Notwithstanding the said fact, the High
Court has overruled the decision which
was affirmed by this High Court later on.
Judicial Proprietary required that the High
Court should have stayed its hands when
the matter was heard and reserved by this
court and the High Court should not have
proceeded with the hearing of the matter.

Apart from that, we find that
certain reliefs have been granted by the
High Court which were not even prayed for
in the writ petition. The High Court ought
to have confined consideration to the reliefs
prayed in the writ petition and also
considering the subject matter and parties
before it.

We, therefore, set aside the
impugned judgment and order and remit
the matter to the High Court. We request
the High Court to decide the matter afresh
within six months after hearing the parties
afresh".

(3) Thus, the following writ petitions
being remanded vide the aforesaid order
dated 21.08.2019 passed in Civil Appeal
Nos. 6569, 6570, 6571-6572, 6573, 6574 of
2019 (arising out of SLP (C) Nos.28395,
28917,28535-28536 & 33760 of 2011,
3435 of 2012 impugning the Judgment
dated 08.09.2011 passed by a Division
Bench of this Court) are being re-heard :-
Sr. No.
Writ Petition No.
Cause-title
1
1511(S/S) of 2010
Prabodh
Kumar
Pathak and others
Vs. State of U.P.
and others.
2
6943(S/S)
of
2007

Diploma
Engineers
Sangh
PWD and others
Vs. State of U.P.
and others
3
7232(S/S)
of
2007

Arvind
Kumar
Pandey and others
Vs. State of U.P.
and others
4
7649(S/S)
of
2007

Brajesh
Chandra
Mishra and others
Vs. State of U.P.
and others
5
3173
(S/S)
of
2008

Diploma
Engineers
Sangh
PWD and others
Vs. State of U.P.
and others
6
3422(S/S)
of
2008

Yatendra
Babu
and
others
Vs.
State of U.P. and
others
7
3448(S/S)
of
2008

Noorul Huda and
others Vs. State of
U.P. and others
8
3506
(S/S)
of
2008

Madan
Mohan
Mishra and others
Vs. State of U.P.
and others
9
3578
(S/S)
of
2008

Ram veer Singh
and
others
Vs.
State of U.P. and
others
10
3594(S/S)
of
2008

Madan Kumar and
others Vs. State of
U.P. and others
11
3660(S/S) of 2008
Bhavya Nidhi Vs.
State of U.P. and
others
12
3666(S/S) of 2008
Anil
Kishore
Pandey and others
Vs. State of U.P.
and others
13
4151 (S/S) of 2008
Ram Saran Mahto
and
others
Vs.
State of U.P. and
others
14
4536(S/S) of 2008
Rajendra
Kumar
Mishra Vs. State
200 INDIAN LAW REPORTS ALLAHABAD SERIES
of U.P. and others
15
5276(S/S) of 2008
Satyawan
Singh
Suman and others
Vs. State of U.P.
and others
16
5880 (S/S) of 2008
Serves Kumar Vs.
State of U.P. and
others
17
6017(S/'S) of 2008
Purushottam
Dubey and others
Vs. State of U.P.
and others
18
7361(S/'S) of 2008
Noorul Huda and
others Vs. State of
U.P. and others
19
1698 (S/S) of 2009
Anoop
Kumar
Dwivedi Vs. State
of U.P. and others
20
2366(S/S) of 2009
Arun Gupta and
others Vs. State of
U.P. and others
21
3314 (S/S) of 2009
Diploma
Engineers
Sangh
PWD and others
Vs. State of U.P.
and others
22
4459 (S/S) of 2009
Umesh
Prakash
Srivastava
Vs.
State of U.P. and
others
23
7702 (S/S) of 2009
Arvind
Kumar
Pandey and others
Vs. State of U.P.
and others
24
Writ-A No. 2000252 of
2009
Arvind
Kumar
Pandey and others
Vs. State of U.P.
and others
25
Writ-A No. 2000447 of
2009
Ashok
Kumar
Ram
Jagat
and
others Vs. State of
U.P. and others
26
Writ-A No. 2000622 of
2009
Swami Nath Puri
Vs. State of U.P.
and others
27
Writ-A No. 2000654 of
2009
Ashok Saxena Vs.
State of U.P. and
others
28
Writ-A No. 2000679 of
2009
Ashok Saxena Vs.
State of U.P. and
others
29
Writ-A No. 2000918 of
2009
Om Prakash and
others Vs. State of
U.P. and others
30
Writ-A No. 1212 (S/B) of
2009 withdrawn vide order
dated 28.02.2023
Surendra
Kumar
Srivastava
and
others Vs. State of
U.P. and others
31
Writ-A No. 2002018 of
2009
Ravindra
Singh
and
others
Vs.
State of U.P. and
others
32
Writ-A No. 200342 of 2010 Jang
Bahadur
Singh and others
Vs. State of U.P.
and others
33
Writ-A No. 200670
Jang
Bahadur
Singh and others
Vs. State of U.P.
and others
34
Writ-A No. 200676 of 2010 Jang
Bahadur
Singh and others
Vs. State of U.P.
and others

(4) The aforesaid writ petitions are
being heard along with the following
connected writ petitions, which are part of
the aforesaid remand order passed in Civil
Appeal No. 6576 of 2019 (arising out of
SLP (C) Nos. 479 of 2016 impugning the
judgment dated 05.01.2016 passed by a
Division Bench of this court) :-
Sr. No. Writ Petition No. Cause-title
35
Writ-A
No.
2001618 of 2015
Arun Kumar
Mishra
Vs.
State of U.P.
6 All. Prabodh Kumar Pathak Vs. State of U.P.
201
and others

And

The following connected writ petition,
which is part of the aforesaid remand order,
passed in Civil Appeal No. 6577 of 2019
(Arising out of SLP (C) Nos. 13962 of 2016
impugning the judgment dated 01.04.2016
passed by a Division Bench of this court).

Sr.
No.
Writ Petition No.
Causetitle
36
Writ-A No. 2000967 of 2015
Shamsud
din
and
Ors Vs.
State of
U.P. and
others.

And

The following connected writ petition,
which part of the aforesaid remand order,
passed in Civil Appeal No. 6575, 6580,
6581, 6582, 6583, 6584 & 6585 OF 2019
(Arising out of SLP (C) no (s) 23856,
24083, 20259, 24084 & 21666 & 24071 of
2018 and 4574 of 2019 6577 of 2019
impugning the judgment dated 17.07.2018
passed by a Division Bench of this court).

Sr. No.
Writ Petition No.
Cause-title
37.
24634 (S/S) of 2016
withdrawn vide order
dated 04.02.2021
Manoj Kumar and
others Vs. State of
U.P. and others

And

The following connected writ petition,
which is part of the aforesaid remand order,
passed in Civil Appeal No. 6578-79 of
2019 (Arising out of SLP (C) Nos. 2061820619 of 2017 & 12631 of 2018 impugning
the judgment dated 04.07.2017 passed by a
Division Bench of this court).
Sr. No. Writ Petition No.
Cause-title
38.
Writ-A No. 9064 of
2017
Vimal Kumar Mishra
and Ors Vs. State of
U.P. and others.

Further, the following writ petition
also came to be tagged along with the
aforesaid matters, which have been filed
challenging the consequential effect of the
main issue to be determined by this court.
This writ petition being

Sr. No.
Writ Petition No.
Cause-title
39.
29014 (S/B) of 2017
withdrawn vide order
dated
29.04.2022

Vijay Bahadur Yadav
and Anr. Vs. State of
U.P. and others.
40.
Writ-A No. 12155 of
2018

Gulbir Singh & 2 others
Vs. State of U.P. and
others.
41.
Writ-A No. 26443 of
2019 withdrawn vide
order
dated
26.04.2022

Kaushal Kumar Jha &
others Vs. State of U.P.
and others.
42.
Writ-A No. 21573 of
2021 withdrawn vide
order
dated
01.03.2023

Patanjali Srivastav and
others Vs. State of U.P.
and others.
43.
Writ-A No. 3808 of
2022

Sunil Kumar Singh and
Anr. Vs. State of U.P.
and others.
202 INDIAN LAW REPORTS ALLAHABAD SERIES
44.
Writ-A No. 4141 of
2022

Vipin Kumar and 13
others Vs. State of U.P.
and others.
45.
Writ-A No. 5811 of
2022

Nagendra Nath Yadav
and 3 Others Vs. State
of U.P. and others.

B. Genesis of Dispute

(5) Before adverting to the rules
regulating appointment, promotions and
other conditions of service of these Junior
Engineers, it would be pertinent to mention
that primarily three orders regarding
promotion of Junior Engineers (Civil) to
Assistant Engineer (Civil) in the Uttar
Pradesh
Public
Works
Department
(UPPWD) are under challenge in these
present bunch of writ petitions. These three
orders being:

"(i)
Order
dated
02.08.2008
relating to 96 promotions;

(ii)
Order
dated
03.07.2009
relating to 27 promotions;

(iii)
Order
dated
05.02.2010
relating to creation of 97 more vacancies in
promotions
quota
for
2003-2004
by
applying "cadre principle" retrospectively,
against which 78 recommendations for
promotion were received from UPPSC in
May, 2010, however the same could not be
implemented due to the orders of this
court."

(6) Apparently, all these promotion
orders have been in favour of the degree
holder Junior Engineers, wherein 96
promotees of order dated 02.08.2008 have
joined and continued to work as Assistant
Engineer
since
2008,
however,
27
promotees of order dated 03.07.2009 and
78 recommended promotees of order dated
05.02.2010 did not work on promoted post,
but there seats are kept withheld as
"protected vacancies".

(7) Thus, both the issues relating to (i)
number of post available for Asst. Engineer
under the promotion quota and (ii) the
claim of the Degree holder J.E and
Diploma holder J.E to the said post are to
be adjudicated by this Court.

(8) The other writ petitions connected
with this bunch of matters have been filed
either for consequential reliefs leading to
the aforesaid promotion orders or relating
to other service conditions arising from
these three promotion orders.

(9) At the outset itself, learned Senior
Counsel
of
the
contesting
private
respondents have vehemently argued that
the promotion order dated 02.08.2008 of 96
promottees, was not quashed vide judgment
dated 08.09.2011 and therefore the Hon'ble
Apex Court, while setting aside the
judgment dated 08.09.2011, vide its remand
order dated 21.08.2019 has not remanded
the promotion order dated 02.08.2008 for
rehearing of the matter afresh. In rebuttal,
the learned Senior Counsel appearing for
the petitioners have argued that the Hon'ble
Supreme Court had remanded the entire
bunch of writ petitions decided on
08.09.2011 along-with other cases for rehearing, which included the two writ
petitions, bearing nos. 6943 of 2007 and
3173 of 2008, vide order dated 21.08.2019.
According to them, all the three promotion
6 All. Prabodh Kumar Pathak Vs. State of U.P.
203
orders dated 02.08.2008 (regarding 96
promotions), 03.07.2009 (regarding 27
promotions) and 05.02.2010 (regarding 78
recommendations) were assailed in about
40 writ petitions, which were decided by a
common
judgment
and
order
dated
08.09.2011 and although this Court, vide
judgment dated 08.09.2011 had only
quashed
the
impugned
orders
dated
03.07.2009
and
05.02.2010
(while
erroneously leaving order dt 02.08.2008 )
but it had also finally disposed off all the
pending writ petitions, including the
aforesaid two writ petitions no.6943 of
2007 and 3173 of 2008, in terms of the
observations made in the judgment dated
08.09.2011.

(10) It is the contention of the
petitioners that the Hon'ble Supreme Court
vide order dated 21.08.2019, while setting
aside the judgments dated 03.11.2006
passed in Anjani Kumar's case and order
dated 08.09.2011 passed in Diploma
Engineers Sangh's case, remanded all the
matters for fresh hearing and since the
aforesaid two petitions no.6943 of 2007
and 3173 of 2008 were also finally decided
by
the
judgment
dated
08.09.2011,
therefore, they are fully covered by the
remand order dated 21.08.2019 and they
have to be heard afresh, together with this
bunch.

(11) Having considered the rival
submission, this court is of the view that no
doubt
the
promotional
order
dated
02.08.2008 had not been specifically
mentioned in the concluding paragraph of
the earlier order dated 08.09.2011, however
the observation and the conclusion arrived
in the said judgment appears to be a holistic
appreciation of all the three impugned
promotion
orders.
This
Court
has
specifically recorded in the said earlier
order dated 08.09.2011, as follows;

"In the instant case, perusal of
eligibility list dated 9.4.2008 reveals that
names of certain persons were included,
who, undoubtedly, at the relevant time were
working on probation and have not become
members of service. We are unable to
accept
the
assertion
of
the
private
respondents that all the persons who have
been appointed against substantive vacancy
were fully eligible for promotion even
without being confirmed on the post."

(12) Apparently, the said eligibility list
dated 09.04.2008 (mentioned supra) along
with eligibility list dated 25.04.2008 forms
the basis of promotion order dated
02.08.2008, which this court had remarked
to be unacceptable.

(13) Moreover, after final disposal of the
entire bunch of cases by this court vide its
judgment dated 08.09.2011, the aforesaid two
writ petitions cannot be presumed to have
been left out or decided in air, without there
being any other order for the same. The
Hon'ble Apex Court, in a recent judgment
dated 30.09.2019, passed in Anupal Singh
and others Versus State of U.P. and others,
(2020) 2 SCC 1, has held that "where a
common judgment has been delivered in
which consolidation orders have specifically
been passed, we think it irresistible that the
filing of a single appeal leaves the entire
dispute becoming subjudice once again".

(14) Thus, when the matters are
remanded to this Court by the Hon'ble
204 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court, with a direction of hearing
afresh i.e. de-novo hearing, then fresh
hearing has to be conducted, as if, original
hearing has not taken place at all and in
such circumstances, such a remand is a
complete remand and cannot be termed as
limited/restricted remand. This aspect has
been clarified by the Hon'ble Apex Court in
the cases of Paper Products Limited
Versus CIT Mumbai, (2007) 7 SCC 352;
Surendra Kaul Versus Jyoti Ranjan,
(2001) SCC Online Cal. 237.

(15) Further, from a perusal of the
prayers of the SLP filed against the
judgment and order dated 08.09.2011, it is
revealed
that
entire
judgment
dated
08.09.2011 was challenged, which was
passed on all the bunch of petitions
including writ petition no. 6943 of 2007
and 3173 of 2008, in which the exercise of
promotion on 96 vacancies culminating in
the issuance of impugned promotion order
dated 02.08.2008 was challenged. Thus
when the judgment dated 03.11.2006 and
all the subsequent judgments including the
judgment dated 08.09.2011 have been set
aside, with the direction of rehearing of the
matters afresh, the contention & request of
Mr. Dixit cannot be acceded to as all the
writ petitions decided by judgment dated
08.09.2011,
including
the
writ
No.
6943/2007 & 3173/2008, would be revived
along with their pleadings, and would be
reheard afresh.

(16) Therefore, the submissions of the
private respondents that the two writ petitions
challenging their promotion order dated
02.08.2008 and the entire procedure of
promotions, are not covered by the remand
order dated 21.08.2019 of the Apex Court and
therefore these two Writ Petitions do not require
rehearing, deserves to be turned down. Thus,
this court proceeds with deciding all the three
impugned promotion orders.

C. The Old Service Rules of 1936

(17) That the rules regulating process of
promotion from the post of Junior Engineer to
the post of Assistant Engineer in the state of
Uttar Pradesh is as per the United Provinces
Service of Engineers (Building and Road
Branch) (Class II) Rules, 1936, which has been
amended from time to time (hereinafter referred
to as the Old 1936 Rules). Apparently, after the
commencement of the Constitution of India, the
United
Provinces
Service
of
Engineers
(Buildings and Roads Branch) Class-II Rules
1936 (for brevity 1936 Rules) continued to be
in force by virtue of Article 313 of the
constitution of India.

(18) The salient feature of the 1936 rules,
which originally existed and are relevant to the
context in these bunch of matters, inter-alia
stated:

(a) Rule 3(b) related to as to who
can be a member of the service and it
invariably states; "Those appointed in
substantive capacity to a post in the cadre
under the provisions of these Rules".

(b) Rule 4(i) says that there is no
compulsion for the state Government to
necessarily fill-up all the vacancies every
year, so no right of promotion every year.

(c) Rule 5 relates to Source of
Recruitment; which inter-alia says:

(i) by direct appointment from
amongst engineer students who have
6 All. Prabodh Kumar Pathak Vs. State of U.P.
205
passed
out
of
the
Thomson
Civil
Engineering College, Roorkee, and who
have completed a course of training in the
Buildings 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.

(d) Rule-6 relating to the number
to be recruited from each source say, the
Government shall decide in each case the
source from which a vacancy shall be
filled:

Provided that-

(a) Members of the United
Provinces Subordinate Engineering Service
or of 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 of
the service, care shall be taken to secure
reasonable representation of the different
communities
and
to
prevent
the
preponderance
of
any
one
class
of
community.

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

(e)
Rule-9
related
to
Qualifications of which rule 9(i) said that
no person shall be recruited to the service
under the provisions of rule 5(i), 5(ii), or
5(iii) unless-

(a) he holds the Engineering
certificate of the Thomson college, or

(b) he is a fully qualified
Associate Member 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 Section A and B
of the Associate Membership Examination
of the Institution of Civil Engineers, or

(e)
he
has
passed
the
Associateship 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
year's practical experience on important
works connected with roads and buildings.

Further, Rule 9(ii) says that no
officer shall be promoted to the service
under rule 5(iv) unless he has passed such
qualifying
examination
which
the
Government may prescribe.

(f) Rule 17 said that probation
shall be for a period of four years of
satisfactory service and Rule 18 says that
departmental examination was necessary
for confirmation.

(g) Further rule 19 said that
confirmation would be after completion of
206 INDIAN LAW REPORTS ALLAHABAD SERIES
probation period and passing of all the tests
and satisfactory service. Rule 20 and 21
relates to extension of probation period and
termination of service. Rule 23 says that
seniority would be determined by their
initial rates of pay and confirmation shall
be subject to Rule 22 i.e passing of
departmental examination where required.

(19) The earliest amendment to the
aforesaid
1936
rules
had
been
on
28.10.1936 itself, wherein Rule 6 (a) was
inserted to mean that "Not less than 20
percent of vacancies shall be reserved for
selected
qualified
members
of
the
Subordinate Engineering Service and the
Upper Subordinate Engineering Service in
promotion".

(20) Further, Rule 23 was also
substituted by an amendment of 18.06.1941
to mean that seniority would be given from
the date of order of appointment and Rule
9(ii) was amended on 19.04.1943 by
substitution to mean; "No officer shall be
promoted to the service under rule 5(iv)
unless he has passed such qualifying
examination
as
the
Governor
may
prescribe, or possesses the technical
qualifications prescribed in clause (i) of
this rule."

(21) Apparently, 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. However,
vide the aforesaid
amendment dated
19.04.1943, 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 for promotion as he
had also an alternate route to be promoted
by achieving the qualification as mentioned
in the rules. Thus, qualifying examination
was necessary to be passed only by such
Junior Engineers who did not possess the
technical qualification specified under Rule
9(i).

(22) This Court finds that the aforesaid
choice given to a Junior Engineer to either
pass the qualifying examination or obtain a
technical qualification for consideration in
the promotion quota to the post of Asst.
Engineer under the promotion quota has
become a bone of contention between the
Diploma holder JEs and Degree holder JEs,
which has led to several rounds of litigation
between these two groups. The present
bunch of litigation appears to be largely
between this two contesting groups.

(23) That this court would not go into
great details of the other amendments,
however suffice to say that again 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 to be reserved or earmarked for
6 All. Prabodh Kumar Pathak Vs. State of U.P.
207
selected qualified members of Sub-ordinate
Engineering Service and Computers. As per
the said amendment, the vacancies so
reserved had 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.

(24) Certain amendments were also
made to Rules 3(c), 5 and 6 of the old 1936
Rules on 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 the case of P.D. Agarwal &
Ors. V/s State of Uttar Pradesh & Ors,
(1987) 3 SCC 622, wherein the Hon'ble
Apex Court by means of its judgment and
order dated 8.6.1987 while quashing Rules
3(c), 5, 6 and 23 of the Old Rules as
arbitrary, directed the authorities concerned
to prepare a fresh seniority list of all the
members of the service in the cadre of
Assistant Engineer in the PWD Department
on the basis of their length of service from
the date they have become members of the
service fulfilling all the requirements laid
down in the service rules. The Hon'ble
Court observing the confusion being
created by the rules vis-à-vis the judgment
passed by the court, had observed, to quote
:

".........We cannot but observe in
this connection that though the temporary
Assistant
Engineers
have
been
duly
selected by the Public Service Commission
after they are appointed as temporary
Assistant Engineers yet in spite of several
directions
given
by
this
Court,
the
authorities concerned did not think it fit
and proper to prepare the seniority list in
accordance with the directions given by this
Court and as a result no seniority list in the
cadre of Assistant Engineer has yet been
prepared following the directions made
even by this Court as embodied in the
decision in Baleshwar Dass & Ors. v. State
of U.P. & Ors, AIR 1981 SC 41. On the
other hand amendments have been made to
the existing 1936 service rules which per se
seem to be arbitrary and this led to a spate
of litigations. We do hope and expect that
considering all these, the Government will
take effective steps for preparation of
seniority list as early as possible in order to
create incentive for the members of the
service by holding out prospects of future
promotions in the interests of the service."

(25) It would be pertinent to mention
herein that the Hon'ble Supreme Court
while quashing Rules 3(c), 5, 6 and 23 of
the Old Rules had directed the authorities
to prepare a fresh seniority list of all the
members of the service in terms of the Old
service rules only, thereby recognising and
acknowledging the existence of the old
service Rules of 1936.

(26) The State Government made
further amendment to the existing Old rules
of 1936, wherein rule 5(i) to 5(iii) were
inserted for providing quota for different
sources
vide
an
amendment
dated
04.08.1987. As per the said amendment,
rule 5(i) provided that 66.67% vacancies in
Assistant Engineers were to be filled by
direct recruitment, rule 5(ii) provided for
25% by promotion of diploma J.E and rule
5(iii) provided for 8.33% by promotion of
Degree J.E. Rule 9(ii) relating to qualifying
208 INDIAN LAW REPORTS ALLAHABAD SERIES
examination for promotion was done away
with or deleted and the new substituted rule
12 provided that promotion was to be made
on "merit" as per promotion by selection(
Procedure) Rules, 1970.

(27) Subsequently, vide an amendment
dated 11.01.1993, the criteria for promotion
as mentioned in Rule 12 was changed from
"merit" to "seniority subject to rejection of
unfit". Later, the separate promotion quota
devised by the 1987 amendment in terms of
rule
5
was
changed
vide
another
amendment dated 25.09.1997 to mean that
58.34% posts were to be filled by direct
recruitment, 33.33% posts by promotion of
diploma J.E and 8.33% post by promotion
of Degree J.E.

(28)
The
validity
of
both
the
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 v. State of U.P. and
Ors. 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, reported
in 2002 (2) E.S.C. 148, has quashed the
impugned notifications dated 4.8.1987 and
25.9.1997 being ultra vires of Articles 14 and
16 of the Constitution as creation of separate
quota of promotion for Degree holder JEs
and Diploma holder JEs was held to be
discriminatory and illegal. Against the
aforesaid judgment a Special Leave Petition
was filed before the Apex Court by
Aruvendra Kumar Garg and others but vide
order dated 1st August 2006 the Hon'ble
Apex Court, permitted the appellant of said
case to withdraw the Civil Appeal No. 40195
of 2002 with Civil Appeal No. 4194 of 2002
and as such the judgment passed by the
Division bench of this court attained finality.

(29) Apparently, after the passing of the
Aruvendra Kumar Garg's case, as per the old
rules of 1936, there remained a promotion
quota of 25% to be filled from Junior
Engineers/Computers satisfying the eligibility
requirement specified by Rule 9 as per the
1943 amendment. 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.

(30)
The
qualifying
examination
envisaged by Rule 9(ii) was a qualifying
examination
prescribed
by
State
Government.
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, however 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.
6 All. Prabodh Kumar Pathak Vs. State of U.P.
209

D. Prelude to the Dispute

(31) Obviously, the office order dated
11.2.2003 seemed to have been issued
contrary to the scheme of the 1936 Rules
and to some extent to the benefit & favour
of Diploma holder Junior Engineers and as
such the same was subject matter of
challenge by the degree holder J.E in Vijay
Kumar & Others V/s State of Uttar
Pradesh (CMWP No. 9127/2003) and
other connected matters. A Division bench
of this court vide a judgement & order
dated 16th of July, 2004 quashed the
Government order dated 11.02.2003 and a
direction
was
issued
to
the
state
Government to make promotions at the
earliest, strictly in accordance with the
Rules, which means the concept of written
examination was revived.

(32) Before the aforesaid order dated
16.07.2004, was passed by the Ld. Division
bench of this court, two noticeable things
transpired, firstly, not only the state
government went ahead with the process of
interview of the diploma J.E as per its
office order dated 11.02.2003, dehors that
the same was quashed vide order dated
16.07.2004 in Vijay Kumar's case ( supra),
but the state Government, presumably
thinking that with the passing of the
judgment in Aruvendra Kumar Garg's
case the entire promotional quota stood
wiped out, issued a G.O dated 20.02.2003,
prescribing 41.66% promotional quota post
and apparently laid down procedure for
promotion to fill up existing backlog
vacancies under the old rule 1936. In order
to make the issue more complicated, the
state Government vide another letter dated
21.02.2003, asked Uttar Pradesh P.S.C to
decide the date for convening D.P.C for the
purpose of promotion to the post of A.E
against the existing backlog vacancies,
which was estimated to be 219 post.