# U.P. Senior Shiksha Sangh v. State of U.P

- **Citation:** (2021) 7 ILRA 494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-07
- **Case number:** Service Single No. 3458 of 2009
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-senior-shiksha-sangh-v-state-of-u-p-47213
- **Pages:** 27

## Headnote

A. Civil Law - UP Basic Education Act, 1972
-
Pension
-
Entitlement
thereof
-
Teachers and non-teaching staff in Basic
Schools - Appointment made prior to
enforcement of New Pension Scheme
(NPS) i.e. 01.04.2005 - Applicability of Old
7 All. U.P. Senior Shiksha Sangh Vs. State of U.P.
495
Pension Scheme (OPS) - Held, only on the
ground that the institution was brought
within purview of Payment of Salaries Act
vide notification issued on 02.12.2006
after cut-off date of enforcement of
applicability of NPS cannot be a ground
for
depriving
the
teachers
and
non
teaching staff from OPS - No justification
appears in not treating the petitioners to
be teachers and non teaching staff for
grant of benefit of OPS in case of taking of
institutions on grant in aid list after
01.04.2005 - Held further, Right of the
petitioners, who have been appointed
much prior to enforcement of NPS, to be
covered under OPS shall not be affected.
(Para 60, 62 and 71)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,977 of 85,645. This is a partial read: ask again with offset=39977 for what follows._

494 INDIAN LAW REPORTS ALLAHABAD SERIES
for the same disciplinary proceedings will
have to be initiated by holding regular
departmental enquiry. Here the shortcut
method that has been adhered to cannot at
all be subscribed by law. "

14. When the facts of the instant case
are seen in the light of Division Bench
judgement in the case of Ram Kishore
(Supra) what is apparent that the Division
Bench while considering the unamended
Rule 18 of the Financial Handbook held
that there cannot be any automatic
termination of the services of an employee
and in case of absence from duty, the same
has to be treated as misconduct and for the
said misconduct disciplinary proceedings
will have to be initiated by holding regular
departmental inquiry and the shortcut of
Rule 18 cannot be subscribed by law.

15. Rule 18 has been amended vide
notification dated 12.09.1989 wherein absence
beyond 5 years has been indicated to attract the
provisions of rules relating to disciplinary
proceedings meaning thereby that with effect
from 1989 disciplinary proceedings are sinequa-non prior to imposition of any penalty
against an employee for his absence from duty
beyond five years.

16. Admittedly, in this case, the
disciplinary proceedings have not been
initiated against the petitioner rather her
services have been dispensed with by only
issuing a show cause notice and thus the
impugned action on the part of respondents
would run foul to the settled provision of
law in this regard.

17. Accordingly, the writ petition is
partly allowed. The impugned order dated
26.12.2007, a copy of which is annexure 1
to the petitioner, passed by respondent no.
4 is quashed.

18. The court is of the view that
disciplinary proceedings should be initiated
against the petitioner but learned counsel
for petitioner contends that the petitioner is
now aged about 71 years and would not be
able to face disciplinary proceedings at her
advanced age.

19. Considering the aforesaid it is
provided that no back wages shall be
payable to the petitioner on the principle of
"no work no pay". However the period of
service rendered by the petitioner shall be
counted as service for all purposes so as to
enable the petitioner to receive pension and
other retiral dues. The arrears of pension
would be payable to the petitioner with
effect from the date of her retirement. The
action in this regard will be taken by the
respondents within three months.
----------
(2021)07ILR A494
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.07.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 3458 of 2009

U.P. Senior Shiksha Sangh ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
C,B, Pandey, Dr. Lalta Prasad Mishra, Girish
Chandra Verma, Rohit Tripathi

Counsel for the Respondent:
C.S.C.

A. Civil Law - UP Basic Education Act, 1972
-
Pension
-
Entitlement
thereof
-
Teachers and non-teaching staff in Basic
Schools - Appointment made prior to
enforcement of New Pension Scheme
(NPS) i.e. 01.04.2005 - Applicability of Old
7 All. U.P. Senior Shiksha Sangh Vs. State of U.P.
495
Pension Scheme (OPS) - Held, only on the
ground that the institution was brought
within purview of Payment of Salaries Act
vide notification issued on 02.12.2006
after cut-off date of enforcement of
applicability of NPS cannot be a ground
for
depriving
the
teachers
and
non
teaching staff from OPS - No justification
appears in not treating the petitioners to
be teachers and non teaching staff for
grant of benefit of OPS in case of taking of
institutions on grant in aid list after
01.04.2005 - Held further, Right of the
petitioners, who have been appointed
much prior to enforcement of NPS, to be
covered under OPS shall not be affected.
(Para 60, 62 and 71)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Special Appeal No.123 of 2013; U.P. Senior
Basic Shikshak Sangh Sindhi Vidyalaya Vs St. of
U.P. & ors.
2. Shailendra Daina & ors. Vs S.P. Dubey & ors.;
(2007) \5 SCC 535
3. N. Suresh Nathan & anr. Vs U.O.I. & ors.;
1992 Supp. (1) Scc 584
4. Rajinder Singh (Dr.) Vs St. of Punj. & ors.;
2001 (2) UPLBEC 1502
5. Shyam Sadan Singh (Dr.) Vs Chancellor,
Deen Dayal Upadyyay University of Gorakhpur &
ors.; 2002 (1) UPLBEC 152
6. Girdhari Lal Shankwar Vs St. of U.P. & ors.;
2014 (1) UPLBEC 657
7. Narinder S. Chadha & ors. Vs Municipal
Corporation of Greater Mumbai & ors.; 2015
(33) LCD 1743.
(Delivered by Hon'ble Irshad Ali, J.)

(C.M.A. No. 66745/2021-Correction
Application)

Heard learned counsel for the parties.

The
following
corrections
are
being incorporated in the judgment and
order dated 16.06.2021 :-

In second line of paragraph-4, "100" is
deleted and in its place, "1000" is added.

In the last line of paragraph-17,
"08.03.2020" is deleted and in its place,
"08.03.2002" is added.

In the fourth line of paragraph-38,
"1972" is deleted and in its place, "1978" is
added.

In the fifth line of paragraph-39,
"1970" is deleted and in its place, "1978" is
added.

In the seventh line of paragraph-54,
"100" is deleted and in its place, "1000" is
added.

In the eleventh line of paragraph-54,
"1972" is deleted and in its place, "1978" is
added.

Accordingly,
the
correction
application is allowed to the extent
mentioned above.

For ready reference, the corrected
order is being reproduced below :-

"(1) Heard Sri L.P. Misra, learned
counsel assisted by Sri G.C. Verma, Sri
Vinay Mishra, Sri Pt. S. Chandra, Sri Hari
Prakash Yadav and Sri K.M. Shukla,
learned counsel for the petitioner and Sri
Alok Sharma, learned Additional Chief
Standing Counsel for the respondent State,
Sri Ajay Kumar, Sri Neeraj Chaurasiya, Sri
Vindhyawasini Kumar, Sri Prashant Arora,
496 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri J.B.S. Rathour and Sri P.K. Bishen,
learned counsel for the respondents.

(2) This is a bunch of 66 writ
petitions. Facts of all the connected writ
petitions are same and is in regard to claim
of Old Pension Scheme (OPS), therefore,
this bunch of writ petitions is being decided
by means of a common order treating Writ
Petition No.3458 (S/S) of 2009 to be
leading writ petition.

(3) Brief fact of the case is that
several senior basic level institutions were
established during year 1989-1998 in which
teaching and non teaching staff were
appointed.
The
Government
has
discontinued the monthly pension scheme
vide order dated 28.03.2005 and w.e.f.
01.04.2005 placed a new contributory
pension scheme to new recruits. The
government order issued by the State
Government on 28.03.2005 has laid down
New Pension Scheme enforced w.e.f.
01.04.2005 and vide impugned order, the
State Government refused to cover the
claim of the teaching and non teaching staff
from the zone of old pension scheme on the
ground that the institutions where they have
been appointed have been brought after the
enforcement of NPS.

4) Vide order dated 02.12.2006, the
Government of U.P. admitted those 1000
institutions, who were established between
1989-1998 in grant in aid list. However,
teachers of those institutions are not being
paid benefit of pension as per OPS,
however they were appointed prior to
01.04.2005, therefore, the present bunch of
writ petitions has been filed.

5) Bunch of writ petitions were filed
before this Court claiming the relief sought
in the present bunch of writ petitions
claiming pensionary benefit under the
Scheme of 1964 challenging certain orders,
whereby members of the Association were
ordered to be governed by New Pension
Scheme (NPS) introduced vide notification
dated 28.03.2005 ignoring the fact that the
institution under which the members of the
Association were working started receiving
grant in aid after 01.04.2005.

6) The claim setup by the petitioners
of the above referred writ petitions was not
accepted by learned Single Judge and the
writ petitions were dismissed.

7) Being aggrieved by the judgment
passed by learned Single Judge, a special
appeal was preferred by the petitioners,
which was also dismissed vide judgment
and order dated 04.12.2015. A review
application was filed mainly on the ground
that the Division Bench in dismissing the
appeal has relied on the judgment passed
by this court in the case of Budhiram Vs.
State of U.P. and others; Civil Misc.
Writ Petition No.45217 of 2012 decided
vide judgment and order dated 26.09.2012.

8) The judgment and order passed in
the
case
of
Budhiram
(Supra)
was
subsequently set aside by the Division
Bench with remission of the case to learned
Single Judge for a fresh decision of the
issue along with pending petitions.

9) In view of the judgment in the case
of Budhiram (Supra), this bunch of writ
petitions is being decided after hearing
learned counsel for the parties.

10) In certain writ petitions connected
to the bunch matter, by means of interim
orders passed by this Court, G.P.F. from
the salary of the teaching and non teaching
staff have been deducted and after passing
7 All. U.P. Senior Shiksha Sangh Vs. State of U.P.
497
the impugned orders challenged in the writ
petitions, the claim of applicability of Old
Pension Scheme (OPS) was rejected and
the deduction of GPF amount was stopped.

11) In the writ petitions filed by U.P.
Senior Basic Shikshak Sangh by enclosing
copy of list of members, a direction was
issued for deposit of court fee by the
members. The members have paid the court
fee, which has been filed before this court
through supplementary affidavit.

12) Certain conditions of the teachers
are governed by the rules known as U.P.
Recognized Basic (Junior High School)
(Recruitment and Condition of Service of
Teachers) Rules, 1978 (for short "Rules of
1978") and certain condition of the non
teaching staff are governed under the U.P.
Recognised Basic Schools (Junior High
Schools) (Recruitment And Conditions Of
Service Of Ministerial Staff And Group 'D'
Employees) Rules, 1984 (for short, "Rules
of 1984").

13) Rule 19 of Rules of 1978 provides
for payment of provident fund to the
teachers and Head Masters employed in
recognized schools in accordance with
scheme applicable to the aided institutions.

14) Rule 19 of 1978 Rules has been
amended
through
notification
dated
04.12.2019 and proviso has been aided to
the effect that Rule 19 shall not be effective
for teaching and non teaching staff
appointed after 01.04.2005.

15) A Tri Benefit Scheme was
introduced to the teaching and non teaching
staff who were getting G.P.F. but were not
getting benefit of insurance and pension.
Accordingly, a government order was
issued on 10.08.1978, as per said
scheme. Further government order has been
issued
on
23.05.1998
followed
by
government order dated 10.03.1978 by
which it was directed that the Tri Benefit
Scheme of 1965 would be available to the
teachers of the aided schools.

16) At earlier point of time, to meet
out the pensionary benefits to teachers
appointed during course of non aided
institution recognized under the relevant
provisions, it was permitted to deposit
amount
of
fund
with
interest
upto
30.09.1998 for the service rendered of
teaching and non teaching staff before
providing grant in aid which will be
counted for payment of pension.

17) The cut off date fixed was extended
by the further government order issued on
17.02.1999. The State Government through a
policy decision taken on 15.07.1999 directed
the Director, All Regional Directors and All
District Basic Education Officers (DBEO) for
fixation of salary of teaching and non
teaching staff to whom grant in aid was
extended by counting their service from the
date of approval granted by the DBEO for
appointment. The government order for
deposition of fund issued another government
order dated 08.03.2002 fixing a cut of date.

18) Writ Petition No.75746 of 2005
was filed challenging the cut off date in the
government order dated 26.07.2001 from
30.06.1999 to 31.03.2002. The writ petition
was allowed vide judgment and order dated
08.09.2006 with a direction for extension
of cut of date.

19) Another writ petition - Writ-A
No.23525 / 2012 was filed before this
Court, which was allowed vide judgment
498 INDIAN LAW REPORTS ALLAHABAD SERIES
and order dated 04.05.2012 against which
Special Appeal No. 503 / 2014 was filed by
the State, which was dismissed by the
Division Bench of this Court considering
that the payment was made prior to
01.04.2005 and approval was granted
before the said date.

20) Vide notification issued on
28.03.2005, NPS was implemented w.e.f.
01.04.2005 to whom who were appointed
on or after 01.04.2005. Applications were
invited for taking the institution on grant in
aid list on fulfilling requirement of scheme
notified by the State Government. In regard
to 1000 recognized junior high schools, 800
boys schools recognized upto 30.04.1988
and 200 girls schools recognized upto
24.03.1999 and accordingly, the institutions
were brought within purview of Payment of
Salaries Act, 1978.

21) The Director of Basic Education
issued an order for deposition of salary to
teaching and non teaching staff, to whom
grant
in
aid
was
extended
through
government order dated 02.12.2006 as per
provisions mentioned in government order
dated 15.07.1999, wherein it has been
provided that salary of teaching and non
teaching staff shall be fixed from the date
of approval granted by the DBEO.

22) Vide notification issued on
14.08.2008 by the State Government, it has
been clarified that NPS implemented w.e.f.
01.04.2005 shall be applicable to employees,
who were appointed on or after 01.04.2005.

23) Applications were filed by the
petitioners before the State Government
requesting therein for extension of date for
depositing management's fund and payment
of pension to the teachers and non teaching
staff who have been appointed prior to
01.04.2005. The petitioners of Writ Petition
No.8340 of 2009 and 1031 of 2009
submitted applications for extension of
time but no decision was communicated
even after recommendation made by
respondent No.2 dated 26.10.2007.

24) Direction was issued by this
Court to the State Government for giving
information in regard to recommendation
made by respondent No.2 for extension of
date. Thereafter, the impugned order dated
08.04.2009 has been passed.

25) Assailing the impugned order,
submission of learned Senior Counsel for
the petitioners is that the impugned order is
neither policy decision not government
order, therefore, the rider imposed in regard
to applicability of NPS upon the petitioners
is arbitrary and contrary to applicable rules.

26) Their next submission is that vide
impugned order the Special Secretary of
State Government has tried to modify the
NPS implemented upon the employees who
entered in service on or after 01.04.2005. In
case of petitioners, in bunch of matters,
none of the petitioner has entered in service
on
or
after
01.04.2005.
Thus,
his
submission is that the impugned order is
contrary to NPS and cannot be modified by
an
executive
order
passed
by
the
respondents.

27) Their further submission is that
the impugned order overlooked Rule 19 of
Rules of 1978. Rule 19 does not carve out
the distinction between aided and unaided
institutions. The Special Secretary has also
failed to appreciate the fact that the service
rendered by the teachers and non teaching
staff while the institution was not on grant
in aid list has been made basis for taking
the institution on the list of grant in aid.
7 All. U.P. Senior Shiksha Sangh Vs. State of U.P.
499

28) The State Government issued
government
orders
according
to
government order issued in year 1978 as
per scheme of 1965 and decisions were
taken for depositing the managerial fund in
regard to adding the service of teachers and
non teaching staff rendered by them before
providing grant in aid for payment of
pensionary benefits.

29) His further submission is that the
Special Secretary was having no authority
to add his own view by passing the
impugned order in the notification dated
28.03.2005, whereby NPS was enforced.

30) In support of his submissions, he
relied upon certain judgments, which are as
under:

i) U.P. Senior Basic Shikshak
Sangh Sindhi Vidyalaya Vs. State of U.P.
and others; Special Appeal No.123 of 2013.

ii) Shailendra Daina and others
Vs. S.P. Dubey and others; 2007 (5) SCC
535.

iii)
N.
Suresh
Nathan
and
another Vs. Union of India and others;
1992 Supp. (1) Scc 584.

iv) Rajinder Singh (Dr.) Vs. State
of Punjab and others; 2001 (2) UPLBEC
1502.

v) Shyam Sadan Singh (Dr.) Vs.
Chancellor,
Deen
Dayal
Upadyyay
University of Gorakhpur and others; 2002
(1) UPLBEC 152.

vi) Girdhari Lal Shankwar Vs. State
of U.P. and others; 2014 (1) UPLBEC 657.

vii) Narinder S. Chadha and
others Vs. Municipal Corporation of
Greater Mumbai and others; 2015 (33)
LCD 1743.

31) Per contra, learned counsel for the
respondents submitted that the Special
Secretary by passing the impugned order
has committed no error and the order
impugned has been passed in consonance
with provisions of NPS.

32) He next submitted that the
impugned order challenged in bunch of
writ petitions does not suffer from any
illegality and is just and valid.

33) His further submission is that the
provisions relied upon by learned Senior
Counsel
for
the
petitioners
is
not
applicable,
therefore,
the
submission
advanced by learned Senior Counsel for the
petitioners is misplaced and submitted that
the
writ
petitions
filed
claiming
applicability of OPS are liable to be
dismissed.

34) I have considered the submissions
advanced by learned counsels for the
parties and perused the material on record.

35) To resolve the controversy
involved in the present matter, the
judgments relied upon by learned counsel
for the petitioners are being quoted below:-

i) U.P. Senior Basic Shikshak
Sangh Sindhi Vidyalaya Vs. State of U.P.
and others; Special Appeal No.123 of
2013.

ii) Shailendra Daina and others
(Supra):
500 INDIAN LAW REPORTS ALLAHABAD SERIES

"26. In N. Suresh Nathan v.
Union of India a three Judge Bench was
called upon to decided a similar question
as involved in the present case, namely,
whether the three years' service prior to
obtaining teh degree or three years' service
after obtaining the degree. The relevant
Rule 11 provided for recruitment by
promotion from the grade of Junior
Engineers. Two categories weer provided
therein viz. one of degree-holder Junior
Engineers with three years' service in the
grade and the other of diploma-holder
Junior Engineers with six years; service in
the grade, the provision being for 50%
from each category. While interpreting the
rule, this Court said that the entire scheme
did indicate that the period of three years
can commence only from the date of
obtaining the degree and not earlier. The
service in the grade as a diploma holder
and, therefore, that period of three years
service can commence only from the date of
obtaining the degree and not earlier. The
service in the grade as a diploma-holder
prior to obtaining the degree cannot be
counted as service in the grade with a
degree for the purpose of three years'
service as a degree-holder. The Court
observed as follows: (SCC p.586 papa 4)

"4.In our opinion, this appeal has
to be allowed. There is sufficient material
including the admission of respondent
diploma-holders that the practice followed
in the department for a long time was that
in the case of diploma-holder Junior
Engineers who obtained the degree during
service, the period of three years' service in
the grade for eligibility for promotion as
degree - holders commenced from the date
of obtaining the degree and the earlier
period of service as diploma-holders was
not counted for this purpose. This earlier
practice was clearly admitted by the
respondent diploma -holders in para 5 of
their application made to the Tribunal at
p115 of the paper book. This also appears
to be the view of the Union Public Service
Commission contained in their letter dated
December 6, 1968 extracted at pp. 99-100
of the paper book in the counter affidavit of
Respondents 1 to 3. The real question,
therefore, is whether the construction made
of this provision in the rules on which the
past practice extending over a long period
is based is untenable to require upsetting it.
If the past practice is based on one of the
possible constructions which can be made
of the rules then upsetting the same now
would not be appropriate. It is in this
perspective that the question raised has to
be determined.

From a reading of the aforesaid
judgment,
it
is
apparent
that
after
construing the relevant rule the Court has
found that the past practice followed in the
Department
is
consistent
with
the
interpretation provided to the relevant Rule
by the Court.

27. The same question once again
came before another two Judge Bench of
this Court in M.B. Joshi v. Satish Kumar
Pandey. This time an interpretation was
required with reference to a quota of 10%
for the graduate Sub-Engineers completing
eight years of service. The relevant Rule
provided for Sub-Engineers to qualify for
promotion
to
the
post
of
Assistant
Engineers and qualifying service provided
was twelve years for diploma holders and
eight years for such Sub Engineers who
had obtained degree of graduation in the
course of service. By an executive order,
50% quota by promotion was sub-divided
prescribing 35% for diploma holders
completing twelve years of service, 5% for
Draftsmen and Head Draftsmen completing
7 All. U.P. Senior Shiksha Sangh Vs. State of U.P.
501
twelve years of service and 10% for
graduate Engineers completing eight years
of service. The Court was called upon to
consider whether the period of eight years
can only be counted from the date when the
diploma holder sub Engineers acquired the
degree of Engineering and not prior to the
said date. The controversy arose between
the parties is summarised in para 5 of the
judgment as under: (SCC pp 422-23)

"5. The short controversy arising
in these cases relates to the determination
of seniority amongst the diploma holder
Sub Engineers who acquired the degree of
graduation in Engineering during the
period of service qualifying them for
promotion in 8 years to the post of
Assistant Engineer.

29. In para 11 of the judgment,
the Court discussed the ratio and held:
(M.B. Joshi Case, SCC p. 426)

"11. A perusal of the above
observations made by this Court clearly
show that the respondent diploma-holders
in that case has admitted the practice
followed in that department for a long time
and the case was mainly decided on the
basis of past practice followed in that
department for a long time. It was clearly
laid down in the above case that if the past
practice is based on one of the possible
constructions which can be made of the
rules then upsetting the same now would
not ber appropriate. It was clearly said 'it
is in this perspective that the question
raised has to be determined'. It was also
observed as already quoted above that the
Tribunal was not justified in taking the
contrary view and unsettling the settled
practice in the department. That apart the
scheme of the rules in N. Suresh Nathan
case was entirely different from the
scheme of the rules before us. The rule in
that case prescribed for appointment by
promotion
of
Section
Officers/Junior
Engineers provided that 50 per cent quota
shall be from Section Officers possessing a
recognised degree in Civil Engineering was
made equivalent with three years' service in
the grade. Thus, in the scheme of such rules
the period of three years' service was
rightly counted from the date of obtaining
such degree. In the cases in hand before us,
the scheme of the rules is entirely
different".

31. Similar issue once again
came before a two-Judge Bench of this
Court in D. Stephen Joseph v. Union of
India.
The
exact
question
was
as
follows:(SCC p. 754, para 1)

"[W]hetehr for promotion to the
post of Assistant Engineer in the 50%
promotion quota reserved for the person
possessive degree in Electrical Engineering
from a recognized university or an
equivalent with three years' regular service
in the grade of Junior Engineers in the
Electricity Department, Government of
Pondicherry, three years' experience as
Junior Engineer in the grade is to be
counted from the date of acquisition of the
degree in Electrical Engineering or the
length of service in the grade of Junion
Engineers is to be reckoned if the
incumbent at the time of promotion to the
50% quota also possesses degree in
Electrical Engineering.

32. The ambit of N. Suresh
Nathan case is explained in D. Stephen
Joseph wherein it is said in para 5 that the
State Government is labouring under a
wrong impression as to the applicability of
502 INDIAN LAW REPORTS ALLAHABAD SERIES
the past practice as indicated in N. Suresh
Nathan case. This Court, in the said
decision, has only indicated that the past
practice should not be upset if such
practice
conforms
to
the
Rule
for
promotion and consistently followed for
some tiem past. The Rule has been
interpreted in a particular manner and N.
Suresh Nathan case only indicates that past
practice
must
be
referable
to
the
applicability of the Rule as interpreted by
the Court's order in a particular manner
consistently for some time and would lend
support to the interpretation of the Rule.
The Court emphasises that any past
practice dehors the Rule cannot be taken
into
consideration
as
past
practice
consistently
followed
for
long
by
interpreting the Rule and N. Suresh Nathan
case was distinguished in the facts of that
case and the language of the Rule which
came up for consideration. D. Stephen
Joseph provides for promotion to 50%
quota from Junior Engineers possessing
degree in Electrical Engineering from a
recognised university with three years'
regular service in the grade of Junior
Engineers. On the plain language of the
rule, this Court has held that the
requirement of the Rule is three years'
experience as Junior Engineer in the grade
and not the acquisition of degeee in
Electrical Engineering. Thus, it cannot be
said that in M.B. Joshi and D. Stephen
Joseph the Court has taken a different view
than what was taken by a three Judge
Bench in N. Suresh Nathan Case. In N.
Suresh
Nathan
case
the
Court has
interpreted the Rule which provides for a
particular length of service in the feeder
post as qualifying service completed with
educational qualification to enable the
candidates to be considered for promotion
and, thus the experience so obtained in the
service
would
necessarily
mean
the
experience obtained after the requisite
qualification was acquired. Thus, the
decision turns on the language of the Rule
and has distinguished N. Suresh Nathan
case on that basis.

33. In Anil Kumar Gupta v.
Municipal
Corporation
of
Delhi
the
relevant
rules
which
came
up
for
consideration
provided
for
essential
qualification for appointment viz (A)
degree in civil engineering (b) two years
professional experience. The age was not
exceed 30 years (relaxable for government
servant
and
MCD
employees).
The
applications were received for appointment
to the post of Assistant Engineer (Civil) in
the engineering department of MCD. The
applications
were
received
from
the
departmental candidates as well as other.
The
selection
board
of
MCD
has
prescribed the norms for awarding marks.
So far as the experience part was
concerned, break up was; upto two
years'experience-'no marks" 3 to 12 years,
and above experience @ 1/2 mark i.e. for
ten years - 5 marks, and viva vice - 15
marks. The question for consideration was
whether the pre degree experience of the
candidate can be taken into consideration
for awarding the marks or whether the
candidate's
experience
being
after
obtaining the degree is to be taken into
consideration for awarding the marks. In
para 20 of the judgment, the Court has said
that the provisions regarding experience
speaks only of professional experience of
two years and does not, in any manner,
connect it with the degree qualification.
Further, the Court has considered N.
Suresh Nathan case and said in para 22
that N. Suresh Nathan case was based
initially on the practice followed in the
department over a long number of years
and when the rules were understood as full
7 All. U.P. Senior Shiksha Sangh Vs. State of U.P.
503
service of three years after obtaining the
degree and on that basis it was held that
the service was not include the service
while holding a diploma. In para 23, the
court cautioned that any practice which is
dehors the rules can be no justification for
the department to rely upon. Such past
practice must relate to the interpretation of
the rule in a particular manner and while
interpreting
the
language
of
the
notification, the court held that two years,
professional experience need not entirely
be the experience obtained after obtaining
the degree. Requirement is only degree and
two years, professional experience and not
the experience as degree holder. We are
afraid that the observation of the Court that
N. Suresh Nathan case was decided mainly
on the past practice followed in the
department, would not be a correct reading
of N. Suresh Nathan Case. This case was
essentially decided on the interpretation of
the rule and the Court found support to that
interpretation from the past practice
followed in the department. Thus, it
appears from this judgment that essentially
N. Suresh Nathan case was not followed on
the interpretation of the Rule, which came
in question for consideration before the
Court and it was held that the professional
experience required cannot be read to have
any connection with the degree in civil
engineering
and,
therefore,
the
professional
experience
in
service
irrespective of a degree in civil engineering
would be considered for alloting marks by
the selection board.

43. Taking into consideration the
entire scheme of the relevant rules, it is
obvious that diploma-holders will not be
eligible for promotion to the post of
Assistant Engineer in their quota unless
they have eight years service, whereas the
graduate engineers would be required
to have three years service experience
apart from their degree. If the effect and
the intent of the rules were such to treat the
diploma as equivalent to a degree for the
purpose of promotion to the higher post,
then induction to the cadre of Junior
Engineers from two different channels
would be required to be considered similar,
without subjecting the diploma-holders to
any further requirement of having a further
qualification of two years service. At the
time of induction in to the service to the
post of Junior Engineers, degree in
engineering is a sufficient qualification
without there being any prior experience,
whereas diploma-holders should have two
years' experience apart from their diploma
for induction in the service. As per the
service rules, on the post of Assistant
Engineer, 50% of total vacancies would be
filled up by direct recruitment, whereas for
the promotion specific quota is prescribed
for a graduate Junior Engineer and a
diploma-holder Junior Engineer. When the
quota is prescribed under the rules, the
promotion of graduate junior engineers to
the higher post is restricted to 25% quota
fixed. So far as the diploma holders are
concerned, their promotion to higher post
is confined to 25%. As an eligibility
criterion, a degree is further qualified by
three years service for the junior engineers,
whereas eight years service is required for
the diploma holders. Degree with three
years service experience and diploma with
eight
years
service
experience
itself
indicates qualitative difference in the
service rendered as degree-holder Junior
Engineer
and
diploma-holder
Junior
Engineer. Three years' service experience
as a graduate Junior Engineer and eight
years' service experience as a diplomaholder Junior Engineer, which is the
504 INDIAN LAW REPORTS ALLAHABAD SERIES
eligibility cri terion for promotion, is an
indication of different quality of service
rendered. In the given case, can it be said
that a diploma-holder who acqu ired a
degree during the tenure of his service, has
gained experience as an Engineer just
because he has acquired a degree in
Engineering. That would amount to say
that the experience gained by him in his
service as a diploma-holder is qualitatively
the same as that of the experience of a
graduate Engineer. The Rule specifically
made difference of service rendered as a
graduate Junior Engineer and a diplomaholder Junior Engineer. Degree-holder
Engineer
's
cxpcricnce
cannot
be
substituted
with
diploma-holder's
experience. The distnction between the
experience of degree-holders and diplomaholders is maintained under the Rules in
further promotion to the post of Executive
Engineer also, wherein there is no separate
quota assigned to degree-holders or to
diploma-holders and the promotion is to be
made
from
the
cadre
of
Assistant
Engineers. The Rules provide for different
service experience for degree-holders and
diploma holders. Degree-holder Assistant
Engineers having eight years of service
experience would be eligible for promotion
to the post of Executive Engineer, whereas
diploma-holder Assistant Engineers would
be required to have ten years' service
experience on the post of Assistant
Engineer to become eligible for promotion
to the higher post. This indicates that the
Rule itself ·makes differentia in the
qualifying service of eight years for degree
holders and ten years' service experience
for diploma-holders. The Rule itself makes
qualitative
difference
in
the
service
rendered on the same post. It is a clear
indication of qualitative difference of the
service on the same post by a graduate
Engineer and a diploma-holder Engineer.
It appears to us that different period of
service attached to qualification as an
essential criterion for promotion is based
on administrative interest in the service.
Different period of service experience for
degree-holder
Junior
Engineers
and
diploma holder Junior Engineers for
promotion to the higher post is conducive
to the post manned by the Engineers. There
can be no manner of doubt that higher
technical knowledge would give better
thrust to administrative efficiency and
quality output. To carry out technical
specialised job more efficiently, higher
technical
knowledge
would
be
the
requirement.
Higher
educational
qualifications develop broader perspective
and therefore service rendered on the same
post by more qualifying person would be
qualitatively different. Engineers to the
higher post is restricted to 25% quota
fixed. So far as the diploma-holders are
concerned, their promot ion to t he higher
post is confined to 25%. As an eligibility
criterion, a degree is further qual iJied by
three
years'
service
for
the
Junior
Engineers, whereas eight years' serv ice is
required for the diploma-holders. Degree
with three years' service experience and
diploma
with
eight
years'
service
experience itsel f indicates qualitative
differencc in the service rendered as
degree-holder
Junior
Engineer
and
diploma-holder Junior Engineer. Three
years' service experience as a graduate
Junior Engineer and eight years' service
experience as a diploma-holder Junior
Engineer, which is the eligibility cri terion
for promotion, is an indication of different
quality of service rendered. In the given
case, can it be said that a diploma-holder
who acqu ired a degree during the tenure
of his service, has gained experience as an
Engineer just because he has acquired a
degree in Engineering. That would amount
7 All. U.P. Senior Shiksha Sangh Vs. State of U.P.
505
to say that the experience gained by him in
his
service
as
a
diploma-holder
is
qualitatively the same as that of the
experience of a graduate Engineer. The
Rule specifically made difference of service
rendered as a graduate Junior Engineer
and a diploma-holder Junior Engineer.
Degree-holder Engineer 's cxpcricnce
cannot be substituted with diploma-holder's
experience. The distnction between the
experience of degree-holders and diplomaholders is maintained under the Rules in
further promotion to the post of Executive
Engineer also, wherein there is no separate
quota assigned to degree-holders or to
diploma-holders and the promotion is to be
made
from
the
cadre
of
Assistant
Engineers. The Rules provide for different
service experience for degree-holders and
diploma holders. Degree-holder Assistant
Engineers having eight years of service
experience would be eligible for promotion
to the post of Executive Engineer, whereas
diploma-holder Assistant Engineers would
be required to have ten years' service
experience on the post of Assistant
Engineer to become eligible for promotion
to the higher post. This indicates that the
Rule itself ·makes differentia in the
qualifying service of eight years for degree
holders and ten years' service experience
for diploma-holders. The Rule itself makes
qualitative
difference
in
the
service
rendered on the same post. It is a clear
indication of qualitative difference of the
service on the same post by a graduate
Engineer and a diploma-holder Engineer.
It appears to us that different period of
service attached to qualification as an
essential criterion for promotion is based
on administrative interest in the service.
Different period of service experience for
degree-holder
Junior
Engineers
and
diploma -holder Junior Engineers for
promotion to the higher post is
conducive to the post manned by the
Engineers. There can be no manner of
doubt that higher technical knowledge
would give better thrust to administrative
efficiency and quality output. To carry out
technical specialised job more efficiently,
higher technical knowledge would be the
requirement.
Higher
educational
qualifications develop broader perspective
and therefore service rendered on the same
post by more qualifying person would be
qualitatively different.

iii) N. Suresh Nathan and
another (Supra) :-

"4. In our opinion, this appeal
has to be allowed. There is sufficient
material
including
the
admission
of
respondents diploma holders that the
practice followed in the department for a
long time was that in the case of diplomaholder Junior Engineer who obtained the
degree during service, the period of three
years service in the grade for eligibility for
promotion as degree holder commenced
from the date of obtaining the degree and
the earlier period of service as diploma
holders was not counted for this purpose.
This earlier practice was clearly admitted
by the respondents diploma-holders in para
5 of their application made to the tribunal
at page 115 of the paper book. This also
appears to be the view of the UPSC in their
letter dated December 6, 1968 extracted as
pages 99-100 of the paper book in the
counter affidavit of respondent 1 to 3. The
real question, therefore, is whether the
construction made of this provision in the
rules on which the past practice extending
over a long period is based is untenable to
require of upsetting it. If the past practice
is based on one of the possible construction
506 INDIAN LAW REPORTS ALLAHABAD SERIES
which can be made of the rule then
upsetting the same now would not be
appropriate. It is in this perspective that
the question raised has to be determined.

5. The recruitment rules for the
post of Assistant Engineers in the PWD
(annexure C) are at pages 57 to 59 of the
paper book. Rule 7 lays down the
qualification for direct recruitment from
the two sources, namely, degree holders
and diploma-holders with three years
professional experience. In other words, a
degree is equitted to diploma with three
years professional experience.