# Shankar Purwar v. The Principal

- **Citation:** (2011) 3 ILRA 1066
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-14
- **Case number:** Writ Petition No. 3314 (SS) of 2009
- **Bench:** Rajiv Sharma, Dr. Satish Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shankar-purwar-v-the-principal-42042
- **Pages:** 21

## Headnote

C.S.C.
Sri Rajnish Kumar
Sri Sidharth Dhaon

P.W.D.
U.P.
Subordinate
Engineer
Services Rules, 1951-Rule-19, 20, 23
readdress U.P. Services of Engineers
(Building of Road Branch) Class II Rules
1936-rule-12-Promotion on Post of Asst.
Engineers-Anjani Kumar Mishra caseApex Court determined promotion Quota
41-66% on occurred vacancy-petitioners
having 20 years long period of service as
Juniors
Engineers-obtained
Decree
pursuant
to
judgment-qualifying
examination held in August 2007-those
3 All] Diploma Engineers Sangh PWD and others V. State of U.P. and others
1067
junior Engineers obtained Decree prior to
date of examination-admittedly from
1997-Rule 12 of 1936 provides for
promotion-seniority
cum
suitabilitywrongly denied from consideration of
promotion-when no examination held in
every calender year-the day on which
screening
test-held-petitioners
are
eligible for consideration-order quashed
followed with consequential direction.

Held: Para 41, 47, 48

We are of the considered opinion, the
vacancies existing in promotional quota
as on 30.6.2004 are to be filled in
accordance with provisions contained in
United provinces Service of Engineers
(Buildings and Roads Branch) Class-II
Rules, 1936 in view of the judgment and
order passed by this Court in the case of
Anjani Kumar Mishra, which has been
approved by the Apex Court.

In these circumstances, there was no
justification to exclude the petitioners
from the recruitment exercise. There
was also no justification for excluding
the
petitioners
from
the
impugned
eligibility list because the petitioners had
obtained their technical qualification
prior to 30.6.2008 and as per provisions
of '1970 Rules' they fall within the zone
of eligibility.

It is an admitted position that the first
eligibility was prepared on 26.10.2007
after
the
declaration
of
qualifying
examination result, as such, the date of
eligibility, as per provisions of Rule 3 (i)
Rules,
1969
would
be
the
31st
December,

## Text

_Characters 0–39,900 of 68,479. This is a partial read: ask again with offset=39900 for what follows._

1066 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
dismissal order, which was modified by
the revisional order, is set aside. The writ
petition is, accordingly, allowed partly. . .
. . . . ."

24. Following Akhilesh Kumar
Awasthi (Supra) this Court in Uma
Shankar Purwar Vs. The Principal
Secretary, Food and Civil Supplies,
Government of U.P., Lucknow and
others (Writ Petition No.9519 of 2007,
decided on 14.9.2009) in para 7 held as
under:

"7. Admittedly, no such procedure
has been followed by the respondents in
the case in hand and on the contrary
treating as if withholding a salary for the
period of suspension can also be imposed
as a punishment under the rules though
the same is not one of the punishment
prescribed under the rules. As a result of
departmental
inquiry,
the
authority
concerned is empowered to deny full
salary during the period of suspension as
a consequence of reinstatement but final
order can be passed after deciding
whether the period of suspension was
wholly unjustified or not and then the
quantum of amount."

25. Here also, admittedly, the
procedure prescribed in Fundamental
Rule 54-B has not been followed. Denial
of full salary vide impugned order is
without affording any opportunity to the
petitioner by way of issuing a show cause
notice. The impugned order in so far as it
denies full salary during the period of
suspension without any notice to the
petitioner is thus illegal and liable to be
set-aside.

26. In the result, the writ petition
partly succeeds. The impugned order
dated 18.5.1998 imposing punishment is
set aside only to the extent it denies full
salary to the petitioner for the period of
suspension. The order of the Tribunal
shall stand modified to this extent. The
matter is remanded to the respondent
competent authority to take a fresh
decision on this aspect of the matter in
accordance with the procedure prescribed
under Fundamental Rule 54-B and the
observations made hereinabove.

27. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.09.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE DR. SATISH CHANDRA, J.

Writ Petition No. 3314 (SS) of 2009

Diploma Engineers Sangh PWD and
others

 ...Petitioners
Versus
State of U.P. and others ...Opp. Parties

Counsel for the Petitioner:
Sri Sameer Kalia

Counsel for the Respondent:
C.S.C.
Sri Rajnish Kumar
Sri Sidharth Dhaon

P.W.D.
U.P.
Subordinate
Engineer
Services Rules, 1951-Rule-19, 20, 23
readdress U.P. Services of Engineers
(Building of Road Branch) Class II Rules
1936-rule-12-Promotion on Post of Asst.
Engineers-Anjani Kumar Mishra caseApex Court determined promotion Quota
41-66% on occurred vacancy-petitioners
having 20 years long period of service as
Juniors
Engineers-obtained
Decree
pursuant
to
judgment-qualifying
examination held in August 2007-those
3 All] Diploma Engineers Sangh PWD and others V. State of U.P. and others
1067
junior Engineers obtained Decree prior to
date of examination-admittedly from
1997-Rule 12 of 1936 provides for
promotion-seniority
cum
suitabilitywrongly denied from consideration of
promotion-when no examination held in
every calender year-the day on which
screening
test-held-petitioners
are
eligible for consideration-order quashed
followed with consequential direction.

Held: Para 41, 47, 48

We are of the considered opinion, the
vacancies existing in promotional quota
as on 30.6.2004 are to be filled in
accordance with provisions contained in
United provinces Service of Engineers
(Buildings and Roads Branch) Class-II
Rules, 1936 in view of the judgment and
order passed by this Court in the case of
Anjani Kumar Mishra, which has been
approved by the Apex Court.

In these circumstances, there was no
justification to exclude the petitioners
from the recruitment exercise. There
was also no justification for excluding
the
petitioners
from
the
impugned
eligibility list because the petitioners had
obtained their technical qualification
prior to 30.6.2008 and as per provisions
of '1970 Rules' they fall within the zone
of eligibility.

It is an admitted position that the first
eligibility was prepared on 26.10.2007
after
the
declaration
of
qualifying
examination result, as such, the date of
eligibility, as per provisions of Rule 3 (i)
Rules,
1969
would
be
the
31st
December,
2007.
Therefore,
noninclusion
of
the
names
of
Junior
Engineers, who possessed the technical
degree, prior to 31.12.2007 is wholly
unjustified as these Junior Engineers
were having technical degree prior to the
preparation of the eligibility list for
promotion, i.e. 26.10.2007.
Case law discussed:
(2007) 1 UPLBEC 260; Writ petition no. 9127
of 2003, Vijay Kumar & others vs. State of
U.P. and others; AIR 1981 SC 41; Writ petition
no. 3428 (SS) of 2001, Diploma Engineers
Sangh, Public Work department vs. State of
U.P. And others

(Delivered by Hon'ble Rajiv Sharma,J.)

1. Heard Sri S. K. Kalia, Senior
Advocate assisted by S/Sri Sameer Kalia,
M.D. Singh Sekhar, Senior Advocate, C.
B. Pandey, Dr. L.P. Misra, I.P.Singh,
Deepak Srivatava, Vikas Budhwar, Rohit
Tripathi, Arun Kumar Shukla, Rajeev
Singh, S.K.Yadav Warsi, S.P.Singh, K. S.
Pawar,
Harshvardhan
Singh,
Ms.Madhumita Bose for the petitioners
and S/Sri Prashant Chandra, Sri Kapil
Deo, Senior Advocates, J. N. Mathur,
Additional Advocate General assisted by
Sri H. P. Srivastava, Additional Chief
Standing
Counsel,
Siddarth
Dhaon,
Rajnish Kumar, Anupam Mehrotra etc.
for the opposite parties.

2. The aforesaid bunch of writ
petitions relates to promotion from the
post of Junior Engineer to the post of
Assistant Engineer in the Public Works
Department. Promotion to the post of
Assistant Engineer has long checkered
history. In the past, the matter went upto
Hon'ble Apex Court on a number of
occasions and in spite of decisions
rendered in the cases of Diploma
Engineers' Sangh, P.D. Agrawal and
Anjani Kumar Misra, the matter could not
be settled and now again the controversy
relating to promotion has arisen.

3. In all these writ petitions, the
dispute revolves amongst the Junior
Engineers Degree Holders with Diploma
holders (who subsequently obtained the
degree) with regard to promotion on the
vacancies pertaining to the year 1997-98
till selection year 2003-04.
1068 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

4. Petitioners were appointed as
Junior Engineers in the Public Works
Department in the State of Uttar Pradesh
in accordance with the United Provinces
Service of Engineers (Buildings and
Roads) Branch Class-II, Rules, 1936
(hereinafter called the '1936 Rules'). At
the time of appointment, the petitioners
were possessing only Diploma in Civil
Engineering. However, it is stated that
subsequently, the petitioners have also
obtained Bachelors Degree in Civil
Engineering.

5. Rule (iv) of the aforesaid 1936
Rules provides that for the post of
Assistant Engineers, the recruitment can
be made by direct recruitment as well as
by promotion. As regard recruitment by
promotion, Rule 5 (iv) specifically
provides that the recruitment on the post
of Assistant Engineer may be made by
promotion from the members of United
Provinces Subordinate Engineer Service
or Upper Subordinates in the Public
Works Department (Building and Roads
Branch) which have shown exceptional
merit. Further, Rule 9 (2) of the said
Rules provides that for promotion under
Rule 5 (iv) the qualifying examination has
to be passed. Rule 9 (2) was amended
vide
United
Provinces
Service
of
Engineers (Buildings and Roads Branch)
(Class-II) (Amendment) Rules, 1966
whereby under amended rule, Rule 5 (iv)
the
incumbent
should
either
pass
qualifying examination or hold technical
qualification as prescribed in Clause (I) of
the Rules meaning thereby he may hold
the Degree in Engineering. Rule 12 as
amended by U.P. Service of Engineers
(Buildings and Roads Branch) (Class-II)
(Second
Amendment)
Rules,
1992
provided that recruitment by promotion to
the post of Assistant Engineer shall be
made on the basis of "seniority subject to
the rejection of unfit" in accordance with
U.P.
promotion
by
Selection
in
Consultation
with
Public
Service
Commission (Procedure) Rules, 1970 as
amended from time to time.

6. It has been urged that the
department did not hold qualifying
examination after the year 1970. Though
initially no quota has been fixed for
recruitment on the post of Assistant
Engineers through promotion, but latter
quota was fixed for recruitment on the
post of Assistant Engineers through
promotion and, therefore, the vacancies
which were falling within the promotion
quota were to be filled up only by way of
promotion but the same could not be
filled as the department did not hold
qualifying examinations after the year
1970. The Rules referred to above, were
subjected to various amendments and the
department was helpless to cope up with
the amended rules for the purposes of
making promotion on the post of
Assistant Engineers and this situation
generated the litigation and after a long
drawn
litigation,ultimately
the
controversy was set at rest, on 3.11.2006,
in Anjani Kumar Misra's vs. State of
U.P. and others (2007)1 UPLBEC 260
case and the High Court has determined
the vacancies of promotion quota from the
year 1997-98 till selection year 2003-04.
Of late, the qualifying examination was
held and the result was declared on
24.10.2007.

7. The grievance of the petitioners in
nutshell is that they were fully eligible for
promotion on the post of Assistant
Engineer as they were having Degree in
Engineering on the date when the
eligibility list was prepared but they were
3 All] Diploma Engineers Sangh PWD and others V. State of U.P. and others
1069
denied promotions solely on the ground
that the petitioners did not possess Degree
in Engineering on 1st July, 2003 and the
private respondents were promoted on the
post of Assistant Engineer. According to
the petitioners, the posts were lying
vacant
and
the
petitioners
having
completed 7 years of satisfactory service
on the post of Junior Engineer ought to
have been promoted but on account of
hostile treatment they were denied their
legitimate claim.

8. Sri M.D. Singh Sekhar , Senior
Advocate appearing on behalf of the some
of the petitioners submitted that Rule 19
of The Overseer/Junior Engineer Service
Rules, 1951, talks about the probation
period of two years. Rule 22 talks about
the departmental examination which is
required
to
be
passed
within
the
prescribed period with condition that if
any
candidate
does
not
pass
the
departmental examination within the said
period the increment in pay shall be
withheld. Rule 23 talks about the
confirmation by clearly stating therein
that the confirmation after completing a
probation period would be subject to
passing the departmental examination.

9. Another set of rules in the name
and style of "Qualifying Examination
Rules
for
Promotion
in
Class-II
Engineering Service" were enacted. In
the said rules in the heading of eligibility
((ik=rk) contemplates a provision that all
the Junior Engineers and Junior Engineers
(Technical)
shall
be
eligible
for
promotion on the post of Assistant
Engineer
after
confirmation
and
completion of seven years service as
Junior Engineer. Rule 6 of Appendix 25
in the head of eligibility makes a
provision that those Junior Engineers who
have passed AMIE Examination (Part 'A'
and Part 'B') or passed B.E./B. Tech.
Examination will be considered for their
promotion on the post of Assistant
Engineer and there would be no rider for
rendering seven years of service as Junior
Engineer.

10. Clarifying the position, it has
been submitted that from the Rules,
referred to above, it is clear that no Junior
Engineer could be promoted on the post
of Assistant Engineer until or unless he
passed the Qualifying Examination or
passed AMIE Examination (Part 'A' and
Part
'B')
or
passed
B.E./B.Tech.
examination. The combined reading of
Appendix 25 of Qualifying Examination
Rules
for
promotion
on
Class-II
Engineering Services reveals that no
Junior Engineer could be promoted on the
post of Assistant Engineer until or unless
he is confirmed on the post of Junior
Engineer and had not passed either the
Qualifying
Examination,
AMIE
Examination (Part 'A' and Part 'B') or
passed B.E./B. Tech. examination subject
to relaxation of service of seven years as a
Junior Engineer provided to the Junior
Engineers
who
passed
the
AMIE
Examination (Part 'A' and Part 'B') and
B.E./B. Tech. Examination.

11. From the aforesaid Rules, it is
further evident that even the Degree
Holders who had been appointed as Junior
Engineers until or unless they are
confirmed on the said post of Junior
Engineer, they cannot be promoted.
Whereas
in
the
present
case,
the
incumbents who were not confirmed on
01.07.2003 and were not having the
minimum criteria for promotion on the
post of Assistant Engineer but de hors to
the provisions of Act and Rules by the
1070 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
promotion order dated 2.08.2008, the
appointees between the period August,
2001 to June, 2003 were promoted on the
post of Assistant Engineer even prior to
their completion of probation period and
confirmation.

12. It has also been pointed out that
some of the Junior Engineers who were
appointed in April, 2003 and completed
the probation period in the year, 2005
they have also been promoted on the post
of Assistant Engineer treating them
eligible for promotion on 1.7.2003 de hors
to the provisions of Act and Rules by two
promotion lists dated 2.8.2008 and
3.7.2009.

13. Replying to the argument raised
by some of the respondents that for
promotion on the post of Assistant
Engineer, only appointment on the post of
Junior Engineer on a substantive vacancy
is sufficient, it has been argued on behalf
of the petitioners that such an argument is
absolutely contrary to the provisions of
Rules contained in "Public Works
Department,
Uttar
Pradesh
Subordinate Engineering Service Rules,
1951" The relevant part of Rules 1951,
Rule 3 (g) which defines Member of
Service is as follows:-

"Rules, 1951 Part I Rule 3 (g)
'Member of the Service' means a person
appointed in substantive capacity under
the provisions of these rules or of rules
enforced previous to the introduction of
these rules of rules to a post in the cadre
of the service. As such a member will be
designated as an 'Overseer'. "

14. From the combined reading of
Public Works Department, Uttar Pradesh
Subordinate Engineering Service Rules,
1951 [in short referred to as '1951
Rules'], particularly, Rules 3(g),19,20 and
23, it is absolutely clear that Rule 3(g)
talks about the substantive capacity, and
not about the appointment on substantive
capacity
and
any
Junior
Engineer
appointed under the Rules, 1951 to gain
substantive capacity for being member of
the cadre of service required to fulfill the
conditions
as
envisaged
under
the
provisions of Rule 19, Rule 22 and Rule
23, i.e. any appointee on the post of
Junior Engineer under the Rules, 1951
until or unless had not completed two
years probation period and passed the
departmental examination and had not
been confirmed, will be deemed to
continue as a probationer Overseer or
Junior Engineer. Only after confirmation,
any probationer could be said to be a
member of service as defined in sub rule
3(g) of '1951 Rules'.

15. It has also been urged that if the
arguments as advanced by the private
respondents are accepted that the Diploma
Holder Junior Engineer until or unless
does not complete seven years service as
a Junior Engineer would not be eligible
for promotion on the post of Assistant
Engineer then it will create an awkward
situation, but in practice, the Diploma
Holder Junior Engineers are always being
permitted to appear in the Qualifying
Examination
for
promotion
after
completion of three years service and in
the case, any such Diploma Holder Junior
Engineer
passed
the
Qualifying
Examination, but he would not be
considered for promotion on the post of
Assistant Engineer until or unless he
completed the seven years service as
Junior Engineer. It is only on account of
the prevailing practice and interpretation
of the provisions of Appendix 25, the
3 All] Diploma Engineers Sangh PWD and others V. State of U.P. and others
1071
Diploma Holder Junior Engineers who
have been appointed during the period
August, 2001 to June, 2003 have not been
permitted to appear in the Qualifying
Examination, 2007 on the pretext that
they have not completed three years
service on 1.7.2003. On the similar
anomaly, the recruited Degree Holders on
or against substantive vacancy are not
eligible without there being confirmation
for promotion on the post of Assistant
Engineer.

16. It has also been asserted on
behalf of the petitioners that in utter
disregard of the statutory provisions of the
Act and Rules, the Engineer-in-Chief
(Head of the Department of P.W.D.) after
the
Qualifying
Examination,
2007
prepared the eligibility list on 26.10.2007
wherein the names of the Degree Holder
Junior Engineers appointed during the
period August, 2001 to June, 2003 their
names had not been included in the said
list
on
the
criteria
of
eligibility
contemplated in the Manual and meaning
of 'member of service' defined in Rules,
1951 (Part I) 3 (g). Surprisingly, later on,
de hors to the provisions of Act and Rules
the Degree Holder Junior Engineers
appointed during the period August, 2001
to June, 2003 were promoted vide
promotion list dated 2.8.2008 from serial
no. 13 to serial no. 51. Further, twenty
seven Degree Holder Junior Engineers
appointed during the period August, 2001
to June, 2003 have been accorded
promotion by order dated 3.7.2009.

17. It is an admitted position that
Qualifying Examination as per Rules for
Promotion
in
Class-II
Engineering
Services was held in the year, 2007 and
the first eligibility list was prepared on
26.10.2007, and as per the direction of the
Hon'ble Supreme Court in para 14 given
in the Diploma Engineers Sangh's case
(2007 (5) ADJ 63 SC), a list of all
candidates in the feeder post mandatorily
required to be prepared in order of
seniority and, thereafter, the suitability for
promotion of the candidate is required to
be adjudged.

18. Inviting our attention towards
the decision rendered by the Apex Court
in Diploma Engineers' Sangh [supra]
decided on 20.03.2007 (Civil Appeal
No.3228 of 2005) and reported in 2007
(5) ADJ 63 (S.C.), it was urged that the
question had already attained finality
between the parties with regard to the
promotion on the vacancies for the post of
Assistant Engineer prior to 30.6.2004 and
as per the order of Hon'ble Supreme
Court,
the
date
of
eligibility
for
promotion,
as
per
the
Qualifying
Examination Rule, 2007 is required to be
seen on the day of preparation of the
eligibility list i.e. on 26.10.2007, but
surprisingly, the opposite party had
discriminated and excluded the names of
all those Junior Engineers, who passed the
technical degree prior to the day of
preparation of the eligibility list for
promotion i.e. on 26.10.2007 and as such,
it has been vehemently argued that the
promotion accorded to the Degree Holder
Junior Engineers who have been recruited
during the period August, 2001 to 30th
June, 2003 are liable to be set aside and
the Junior Engineers who obtained the
technical degree prior to the date of first
eligibility list prepared on 26.10.2007
(after holding the Qualifying Examination
and declaration of result by U.P.P.S.C. in
pursuance of the direction of Hon'ble
Supreme Court dated 20.03.2007) they
are
entitled
to
be
considered
for
1072 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
promotion on the post of Assistant
Engineer in accordance with law.

19. On behalf of the private
respondents, it has been submitted that the
backlog
vacancies
existing
in
the
promotional quota as on 30.6.2004 and
are to be filled up in accordance with
provisions contained in 1936 Rules as
well as per provisions of U.P. Promotion
by Selection in Consultation with Public
Service Commission (Procedure) Rules,
1970, which are also applicable to the
U.P. Public Works Department, the
promotion to the post of Assistant
Engineer (Civil) is to be made after
consultation with the Public Service
Commission. In compliance of the order
dated 20.3.2007 passed in the case of
Diploma Engineer Sangh vs. State of U.P.
and
others
(supra),
qualifying
examinations were held by the Public
Service Commission from 12.8.2007 to
18.8.2007.

20.

According
to
private
respondents, the petitioners have no locus
standi to maintain the writ petition as,
admittedly, the petitioners have obtained
degree in Civil Engineering in the year
2006-2007 and as such they cannot be
considered for promotion against the
backlog vacancies existing in quota of
promotion for the year 2003-04. It is well
settled principle of law that writ petition
at the instance of persons, who on the cutoff date were not holding necessary
qualification, is not maintainable.

21. Clarifying the position, it has
been submitted that the eligibility list
dated
21.1.2009
was
prepared
in
accordance with the provisions of the U.P.
Promotion By Selection in Consultation
with
Public
Service
Commission
(Procedure) Rules, 1970, and the names
of private respondents were incorporated
in the said eligibility list as they were
having requisite qualification of degree in
Civil Engineering prior to 1.7.2003,
which is the cut off date for having the
requisite qualification for the purpose of
being considered for promotion to the
post of Assistant Engineer (Civil) against
the backlog vacancies existing in the
quota of promotion for the year 2003-04.
On the other hand, some of the petitioners
did not possess the degree in Civil
Engineering on the cut off date and
subsequently acquired degrees in the year
2007 and also because the petitioners
could not pass the qualifying examination
held by the department, therefore, their
names were not incorporated in the
eligibility list dated 21.1.2009. As the
petitioners were not having requisite
qualification on the cut off date, they were
not considered for promotion against the
33 backlog vacancies existing in the quota
of promotion for the year 2003-04,
whereas the private respondents, who
were fully eligible prior to cut off date in
terms of Rule 9 of 1936 Rules, were
promoted vide order dated 3.7.2009 and
there is nothing wrong in it.

22. It has been next contended that
the assertion of the petitioners that they
were eligible for promotion and the
impugned orders promoting the private
respondents is invalid, is wholly incorrect
as for the purpose of being considered for
promotion to the post of Assistant
Engineer (Civil), a Junior Engineer (Civil)
is required to pass qualifying examination
held by the department or to obtain degree
in Civil Engineering from recognized
institute in accordance with Rule 9(i) of
1936 Rules.
3 All] Diploma Engineers Sangh PWD and others V. State of U.P. and others
1073

23. Elaborating further, it has been
argued that the post of Assistant Engineer
(Civil) in the Public Works Department is
a selection post and as such seniority
alone is not the criteria for promotion.
The seniority of a candidate will be of
relevance only once the candidate is
having a degree in Civil Engineering in
terms of Rule 9(i) of 1936 Rules read with
Rule 4 and Rule 6 of U.P. Promotion By
Selection in Consultation with Public
Service Commission (Procedure) Rules,
1970. For the back vacancies existing in
quota of promotion for the year 2003-04
the cut off date was 1.7.2003 and as on
the said date, none of the petitioners
possessed the minimum qualification and
as such merely on the basis of seniority,
they could not have been considered for
promotion to the post of Assistant
Engineer (Civil) and, therefore, their
names were rightly not incorporated in the
eligibility list on the claim raised by them
on the basis of seniority.

24. As regard to the applicability of
the judgment rendered in Diploma
Engineers Sangh vs. State of U.P. and
others(supra) decided on 20.3.2007, it has
been argued that the issue decided by the
Apex Court that qualifying examination
would
mean
written
examination.
Therefore, it has no concern with the
controversy involved in the present writ
petitions and has nothing to do with the
promotion of the private respondents as
Assistant Engineer as they were fully
eligible as per rules for promotion on
higher post being degree holders before
the cut-off date. Further, the assertion of
the petitioners that in the said judgment
direction given for filling up the vacancies
is wholly incorrect. As a matter of fact,
the direction for filling of backlog
vacancies in quota of promotion was
allegedly issued in Anjani Kumar Mishra
vs. State of U.P. others (supra).

25. On behalf of the State
Government, it has been stated that as per
directions of the Hon'ble Supreme Court
under 41.66% promotional quota the year
wise vacancies of the selection year 199798 to selection year 2003-04 were
calculated, which came to 186 and
intimation
was
sent
to
the
State
Government by the Engineer-in-Chief,
PWD, Lucknow. It has also been pointed
out that this Court vide judgment and
order dated 3.11.2006 passed in Writ
Petition No. 2750 (SS) of 2004 and other
connected writ petitions, had cancelled
the promotions of the persons promoted
on the post of Assistant Engineer
pertaining to selection years 1997-98 (9
vacancies), 1998-99 (32 vacancies), 1992000 (21 vacancies) and 2000-2001 (11
vacancies). Junior Engineers, who were
promoted
being
aggrieved
by
the
aforesaid judgment and order dated
3.11.2006
preferred
Special
Leave
petitions and the Apex Court had granted
stay orders, therefore, excluding 73 posts
out of total 186 vacancies, selection was
held to fill up 113 vacancies under the
provisions
of
Rules
of
1936.
Consequently, 95 selected candidates
were promoted vide order dated 2.8.2008.

26. It has been vehemently argued
that there is no irregularity in the process
of selection in making these promotions.
The letter dated 27.2.2009 sent by the
Engineer-in-Chief is perfectly legal and
justified. It is also wrong to allege that the
petitioners were not afforded opportunity
to appear in the Test. In fact, members of
the
Sangh
had
deliberately
not
participated
in
the
qualifying
examination.
Promotions
of
33
1074 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
candidates, whose names find place in the
list appended to the letter dated 27.2.2009
were eligible and possess prescribed
eligibility qualification.

27. Promotion to the post of
Assistant Engineers in the Department of
Public Works was governed by the U.P.
Service of Engineers (Building and Road
Branch) Rules, 1936 [ in short referred to
as 1936 Rules]. Later on the said 1936
Rules were superseded by U.P. Public
Works
Department
Group-B
Civil
Engineering Service Rules, 2004 (in short
referred to as '1936 Rules). The said 1936
Rules were amended vide notification
dated 4.8.1987 prescribing the promotion
quota. This Rule again went under
alteration
vide
notification
dated
25.9.1997 modifying the promotion quota
of Degree holder junior Engineers and
Diploma holder Junior Engineers. Both
the aforesaid notifications were quashed
by this Court vide its judgment and order
dated 22.3.2002.

28. Later on, the State Government
issued
a
Government
Order
dated
11.2.2003 whereby the provisions were
made for holding interview examination
for the purposes of eligibility test of
Junior Engineers, who were not covered
under the provisions of Rule 9(1).
Validity of the aforesaid government
order
dated
11.2.2003
was
again
questioned before this Court in writ
petition no. 9127 of 2003; Vijay Kumar &
others vs. State of U.P. and others and
vide judgment and order dated 16.7.2004
this Court set-aside the Government
Order dated 11.2.2003 and provided that
promotions shall be made strictly in
accordance with the '1936 Rules' at the
earliest.

29. Against the above said judgment
and order of the High Court, Diploma
Holder Engineers' Sangh filed Special
Leave Petition No. CC 8440 of 2007,
before the Apex Court, which was
converted into Civil Appeal No. 3228 of
2005. Initially, an interim order was
granted by the Hon'ble Supreme Court
providing that any promotion made would
be subject to the outcome of the Special
Leave Petition. But this SLP which was
converted into Civil Appeal filed before
the Hon'ble Supreme Court was, however,
finally, dismissed vide judgment and
order dated 20/3/2007 by upholding the
judgment of the Division Bench of this
High Court with a further direction to the
State Government to hold the qualifying
examination qua diploma holders Junior
Engineers within a period of four months.
It was further provided that any Junior
Engineer who has been promoted in
pursuance of the interim order granted by
the Hon'ble Supreme Court referred to
above would continue on the promoted
post on ad hoc basis only subject to his
being regularly promoted in accordance
with the Rules, 1936 and in case they fail
to clear the qualifying examination such
persons shall stand reverted to the original
post of Junior Engineers.

30. After the dismissal of the
aforesaid Civil Appeal, one Lakhan Lal
has approached this Court at Allahabad
seeking promotion on the post of
Assistant Engineer in terms of the
Government Order dated 24/9/2007 and
judicial verdicts in this regard. Total 84
vacancies were required to be filled up by
promotion in accordance with the Rules,
1936, and, therefore, required the Chief
Engineer, Administration 'K', P.W.D.
Lucknow to forward the list of suitable
candidates category wise so that further
3 All] Diploma Engineers Sangh PWD and others V. State of U.P. and others
1075
action
may
be
taken.
The
State
Government also refers to writ petition
filed before this Court by one Shri Anjani
Kumar Mishra, being Writ Petition No.
2750 of 2004 wherein the High Court
vide
judgment
and
order
dated
03/11/2006
cancelled
the
promotion
granted in respect of the 32 vacancies of
the year 1998-99, 21 vacancies of the year
1999-2000; and 11 vacancies of the year
2000-2001. This led to filing of Special
Leave to Appeal No. 8786 of 2006 before
the Hon'ble Supreme Court, namely,
Atibal Singh & Ors Vs. State of U.P. and
Special Leave to Appeal No. 19037 of
2006, Jang Bahadur Singh & Ors Vs.
B.D. Tripathi & Ors. The Hon'ble
Supreme
Court
vide
order
dated
10/8/2007 has directed status quo to be
maintained in respect of the aforesaid
appellants.

31. Before proceeding further, it
would be apt to reproduce various
provisions of Service Rules governing the
recruitment, confirmation etc.

32. Rule 5 of the '1936 Rules' deals
with the source of recruitment to the post
of Assistant Engineer and it reads as
under:-

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

(i)by
direct
appointment
from
amongst engineer students who have
passed out of the Thomson Civil
Engineering College, Roorkee and who
have completed a course of training the 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,
Building
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."

Rule-9 deals with the possession of
qualification by a person for being
considered for promotion on the post of
Assistant Engineer and says as under:-

"9. (i) 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 has passed the examination
for, and is qualified by age for election to
the
Associate
Membership
of
the
Institution of Engineer (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
1076 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

(e) he has passed the Associate-ship
Examination of the City and Guilas
Institute (Imperial College of Science and
Technology, South Kersington) 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 rules 5 (iv) unless he has
passed such qualifying examination which
the Governor may prescribe."

33.

By
a
notification
dated
1.10.1966, Rule-9 of the '1936 Rules'
which prescribed Technical Qualification
for
recruitment
and
promotion
of
Assistant Engineers was amended as
under:-

"No officer shall be promoted to the
Service (Under Rule 5 (a)(iii) and 5(b) (ii)
unless he has passed such qualifying
examination
as
the
Governor
may
prescribed or unless he possesses any of
the technical qualifications prescribed in
clause (1) of this Rule."

34. Later on, the '1936 Rules' were
amended from time to time fixing quota
for direct recruits and promotion quota
etc. which had been the subject matter in
earlier writ petitions filed either by the
Sangh or private individuals, a bird's eye
view of which has been given in
preceding paragraphs.

35. At this juncture it would be
relevant to point out that determining the
eligibility for the post of Junior Engineer
is governed by Uttar Pradesh Public
Works
Department
Subordinate
Engineering Services, 1951 ( in short
referred as '1951 Rules'). Rule 3(g)
defines 'Member of the Service' and it
means a person appointed in substantive
capacity under the provisions of these
rules or of rules in force previous to the
introduction of these rules. Rule 19 talks
about the probation period of two years.
Rule 22 provides about the departmental
examination which is required to be
passed within the prescribed period with
condition that if any candidate does not
pass the departmental examination within
the said period the increment in pay shall
be
withheld.
Rule
23
deals
with
confirmation
and
provides
that
the
confirmation after completing a probation
period would be subject to passing the
departmental examination. Relevant rules
reads as under:-

"19. Probation:- A person on
appointment in or against a substantive
vacancy shall be placed on probation for
a period of two years.

Provided
that
officiating
and
temporary service, is it is continuous,
shall count towards the period of
probation to the maximum extent of one
year.

22.Department examination- (1) All
temporary and officiating overseers must
pass
the
department
examination
prescribed in the Manual of Orders,
Public Works Department, Volume I,
within three years of jointing their
appointment. If they fail to pass the above
examination within the prescribed period
their increment in pay shall be withheld.
Subject to the orders of the Chief
Engineer a stopped increment may be
allowed to be drawn when the overseer
3 All] Diploma Engineers Sangh PWD and others V. State of U.P. and others
1077
has passed the examination, with effect
from the first day of the month following
that in which the examination, with effect
from the first day of the month following
that in which the examination is held, and
the period during which the increment
was withheld may also be allowed to be
counted for purposes of further the
increment in the time-scale. Arrears of
increments may also be granted in special
cases
where
failure
to
pass
the
examination was due to circumstances
beyond the overseer's control.

(2)Candidate
appointed
to
a
substantive vacancy shall be required to
pass the examination during the period of
probation, if they have not already done
so.

23.Confirmation- Subject to the
provisions of rule, 22 a probationer shall
be confirmed in his appointment at the
end of his period of probation, or
extended period of probation, if the Chief
Engineer
considers
him
fit
for
confirmation
and
his
integrity
is
certified."

36. Thus, a person becomes a
member of service when he is appointed
in
substantive
capacity.
For
being
substantively appointed, an incumbent has
to at least complete the period of
probation and a person who is not
substantively appointed cannot be treated
to be a member of service. This aspect of
the matter has been considered by the
Apex Court in Baleshwar Das and
others etc. v. State of U.P. and others,
AIR 1981 SC 41 on which reliance has
been placed by the petitioners' Counsel. In
paragraph 26 and 33 of the report, the
Apex Court held as under:

"26. .... it falls that merely because
the person is a temporary appointee, it
cannot be said that he is not substantively
appointed if he fulfills the necessary
conditions for regular appointment such
as probation and consultation with Public
Service Commission etc. From this stand
of the State Government if falls that
temporary
appointees,
whose
appointments have received the approval
of the Public Service Commission and
who have run out the two years of
probation, must be deemed to be
appointed in a substantive capacity.

33.Once we understand 'substantive
capacity' in the above sense we may be
able to rationalize the situation, if the
appointment is to a post and the capacity
in which the appointment is made is of
indefinite probation, if the Public Service
Commission has been consulted and has
approved, if the tests prescribed have
been taken and opposed, if probation has
been prescribed and has been approved,
one may well say that post was held by
the incumbent in a substantial capacity."

37. As per Rules of Qualifying
examination an eligible person can
qualify the same in three years and the
said examination be conducted each year.
It is not in dispute that no qualifying
examination was conducted since 1972
and for the first time it was conducted
pursuant
to
the
notification
dated
3.8.1987.

38. At this juncture, it is pertinent to
mention that in Anjani Kumar Mishra
and others vs. State of U.P. and others
[(2007) 1 UPLBEC 260], this Court
disapproved the allocation of vacancies in
the quota of promotion for the recruitment
years 1997-98 to 2003-04 and directed for
1078 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
allocation of vacancies in accordance with
quota as provided in the G.O. dated
20.2.2003, which prescribed 41.66%
quota for promotion and 58.34% quota for
direct
recruitment
and
ultimately
calculated the number of vacancies in the
quota of promotion as 186. Paragraphs
117 to 120, which are relevant in the
present context are reproduced herein:-

"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.