# 4 S.C.R. 1014 N. SURESH NATHAN & ORS., ETC. ETC v. UNION OF INDIA & ORS. ETC. ETC

- **Citation:** [2010] 4 S.C.R. 1014
- **Court:** Supreme Court of India
- **Decided:** 2010-04-22
- **Case number:** Civil Appeal No. 8468 of 2003
- **Bench:** J.M. Panchal, A.K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/4-s-c-r-1014-n-suresh-nathan-ors-etc-etc-v-union-of-india-ors-etc-etc-26791
- **Pages:** 28

## Headnote

Assistant Engineers (Including Deputy Director of Public
Works Department) Group B(Technical) Recruitment Rules,
c 1965:
rr. 5 and 11(1) - Promotion to post of Assistant Engineer
under 50% quota for degree-holder category of Section
Officers/Junior Engineers - HELD: Clause (1) of Rule 11
0 does not provide for a separate stream or channel of
promotion exclusively for degree-holders, who have
completed three years service - In view of r.5, post of
Assistant Engineer being a selection post, merit is the sole
criteria and seniority in the grade of Section Officers/Junior
Engineers is not at all relevant - Therefore, all the Section
E Officers/Junior Engineers who are eligible for consideration
under Rule 11 (1) would be considered on the basis of
comparative merit - Constitution of India, 1950 - Articles 16
and 141 - Code of Civil Procedure, 1908 - s. 11.
F
Constitution of India, 1950:
Article 141 - Law declared by Supreme Court to be
binding on all courts - Decision of Supreme Court in N.
Suresh Nathan's case -
HELD: Was confined to the
G eligibility for consideration for promotion to 50% vacancies for
the posts of Assistant Engineers/Public Works Department,
Pondicherry meant for degree-holder or equivalent in the
grade of Section Officer/Junior Engineer, and there was no law
declared by the Court, to be binding under Article 141, on the
H
1014
~ N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1015
OF INDIA & ORS. ETC. ETC.
issue as to how Section Officers/Junior Engineers who become
A
qualified for promotion to the post of Assistant Engineers would
be considered for promotion - Nor would the said decision
constitute res judicata on the issue - Precedents - Code of
Civil Procedure, 1908 - s. 11 - Assistant Engineers (Including
Deputy Director of Public Works Department) Group
B
B(Technica/) Recruitment Rules, 1965 - rr. 5 and 11 (1 ).
Promotion of appellant nos. 1 to 7 to the posts of
Assistant Engineers, Public Works Department was
challenged by respondent nos. 2 to 7, before the Central
Administrative Tribunal. The Tribunal dismissed the
C
application holding that in view of the decision of the
Supreme Court in N. Suresh Nathan's' case, with regard
to the procedure to be adopted for promotion of Section
Officers/Junior Engineers, the applicants before it could
not be allowed to raise the point once again nor was it D
open to the Tribunal to hold otherwise. But, the writ
petition filed by the respondents challenging the order of
the Tribunal was allowed by the High Court holding inter
alia that the judgment of the Supreme Court in N. Suresh
Nathan did not operate as res judicata. A review DPC was
E
directed to be held.
Disposing of the appeals, the Court
F
HELD: 1. In N. Suresh Nathan & Ors.*, this Court
confined its decision to the qualification or eligibility for
consideration for promotion to 50% vacancies for the
post of Assistant Engineer meant for degree-holders or
equivalent in the grade of Section Officer/Junior Engineer
and held that only those Section Officers/Junior
Engineers, who had completed three years' service after G
obtaining degree, were qualified or eligible for
consideration to the 50% vacancies meant for the
category of degree-holders or equivalent. In the said
1.
(1991) 2 Suppl. SCR 423.
H
1016
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A judgment, this Court did not decide on how the Section
Officers/Junior Engineers who had completed three
years' service in the grade after the degree in Civil
Engineering or equivalent and had the qualification or
eligibility for consideration for promotion to the 50%
B vacancies meant for the category of degree-holders
wo·Jld be considered for promotion. Therefore, in N.
Su.·esh Nathan & Ors., there was no law declared by this
Court so as to be binding on the courts under Article 141
of the Constitution, on the issue as to how Section
c Officers/Junior Engineers, who become quaPfied or
eligible for promotion to the post of Assistant Engineer
would be considered for promotion;

## Text

_Characters 0–39,740 of 56,807. This is a partial read: ask again with offset=39740 for what follows._

A
B
[2010) 4 S.C.R. 1014
N. SURESH NATHAN & ORS., ETC. ETC.
V.
UNION OF INDIA & ORS. ETC. ETC.
(Civil Appeal No. 8468 of 2003)
APRIL 22, 2010
[J.M. PANCHAL AND A.K. PATNAIK, JJ.]
Assistant Engineers (Including Deputy Director of Public
Works Department) Group B(Technical) Recruitment Rules,
c 1965:
rr. 5 and 11(1) - Promotion to post of Assistant Engineer
under 50% quota for degree-holder category of Section
Officers/Junior Engineers - HELD: Clause (1) of Rule 11
0 does not provide for a separate stream or channel of
promotion exclusively for degree-holders, who have
completed three years service - In view of r.5, post of
Assistant Engineer being a selection post, merit is the sole
criteria and seniority in the grade of Section Officers/Junior
Engineers is not at all relevant - Therefore, all the Section
E Officers/Junior Engineers who are eligible for consideration
under Rule 11 (1) would be considered on the basis of
comparative merit - Constitution of India, 1950 - Articles 16
and 141 - Code of Civil Procedure, 1908 - s. 11.
F
Constitution of India, 1950:
Article 141 - Law declared by Supreme Court to be
binding on all courts - Decision of Supreme Court in N.
Suresh Nathan's case -
HELD: Was confined to the
G eligibility for consideration for promotion to 50% vacancies for
the posts of Assistant Engineers/Public Works Department,
Pondicherry meant for degree-holder or equivalent in the
grade of Section Officer/Junior Engineer, and there was no law
declared by the Court, to be binding under Article 141, on the
H
1014
~ N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1015
OF INDIA & ORS. ETC. ETC.
issue as to how Section Officers/Junior Engineers who become
A
qualified for promotion to the post of Assistant Engineers would
be considered for promotion - Nor would the said decision
constitute res judicata on the issue - Precedents - Code of
Civil Procedure, 1908 - s. 11 - Assistant Engineers (Including
Deputy Director of Public Works Department) Group
B
B(Technica/) Recruitment Rules, 1965 - rr. 5 and 11 (1 ).
Promotion of appellant nos. 1 to 7 to the posts of
Assistant Engineers, Public Works Department was
challenged by respondent nos. 2 to 7, before the Central
Administrative Tribunal. The Tribunal dismissed the
C
application holding that in view of the decision of the
Supreme Court in N. Suresh Nathan's' case, with regard
to the procedure to be adopted for promotion of Section
Officers/Junior Engineers, the applicants before it could
not be allowed to raise the point once again nor was it D
open to the Tribunal to hold otherwise. But, the writ
petition filed by the respondents challenging the order of
the Tribunal was allowed by the High Court holding inter
alia that the judgment of the Supreme Court in N. Suresh
Nathan did not operate as res judicata. A review DPC was
E
directed to be held.
Disposing of the appeals, the Court
F
HELD: 1. In N. Suresh Nathan & Ors.*, this Court
confined its decision to the qualification or eligibility for
consideration for promotion to 50% vacancies for the
post of Assistant Engineer meant for degree-holders or
equivalent in the grade of Section Officer/Junior Engineer
and held that only those Section Officers/Junior
Engineers, who had completed three years' service after G
obtaining degree, were qualified or eligible for
consideration to the 50% vacancies meant for the
category of degree-holders or equivalent. In the said
1.
(1991) 2 Suppl. SCR 423.
H
1016
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A judgment, this Court did not decide on how the Section
Officers/Junior Engineers who had completed three
years' service in the grade after the degree in Civil
Engineering or equivalent and had the qualification or
eligibility for consideration for promotion to the 50%
B vacancies meant for the category of degree-holders
wo·Jld be considered for promotion. Therefore, in N.
Su.·esh Nathan & Ors., there was no law declared by this
Court so as to be binding on the courts under Article 141
of the Constitution, on the issue as to how Section
c Officers/Junior Engineers, who become quaPfied or
eligible for promotion to the post of Assistant Engineer
would be considered for promotion; and, therefore, the
decision in N. Suresh Nathan would also not constitute res
judicata on the said issue. [Para 13-15] [1027-F-H; 1028D A-C-E; 1029-A-B]
*N. Suresh Nathan & Ors. v. Union of India & Ors. (1991)
2 Suppl. SCR 423 = (1992) 1 Suppl. SCC 584 - explained
and distinguished.
E
2.1. Clause (1) of Rule 11 is only a provision laying
down the qualification or eligibility for promotion to 50%
of the posts of Assistant Engineers and the qualification
or eligibility provided therein is either three years service
in the grade of Section Officer/Junior Engineer after
F degree in Civil Engineering or equivalent, or six years
service in the grade of Section Officer/Junior Engineer
with diploma in Civil Engineering. The provision also has
a rider that if there are Section Officers/Junior Engineers.
who have put in three years service after acquiring
G degree or equivalent, available for consideration for
vacancies, then they will be considered first for promotion
and the turn for consideration for promotion of diplomaholders in Civil Engineering with six years service in the
grade of Section Officer/Junior Engineer will come only
thereafter. Thus, the Rule itself provides that if for
H
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1017
OF INDIA & ORS. ETC. ETC.
vacancies in the posts of Assistant Engineers, Section
A
Officers/Junior Engineers possessing a recognized
degree in Civil Engineering or equivalent with three
years' service in the grade are not available, then Section
Officers/Junior Engineers holding diploma in Civil
Engineering with six years' service in the grade would be
B
eligible for promotion. It cannot, therefore, be accepted
that Clause (1) of Rule 11 provides for a separate stream
or channel of promotion exclusively for degree-holders,
who have completed three years service. [para 23] [1033E-H; 1034-A-C]
C
2.2. Rule 5 of the Recruitment Rules states that the
post of Assistant Engineer in the Public Works
Department is a selection post. The Recruitment Rules,
however, do not lay down that seniority-cum-merit would
be the criteria for promotion to the selection post of D
Assistant Engineer. The person, who is most meritorious,
is the most suitable person to be promoted to the
selection post. Thus, merit is the sole criteria for
prom'otion to the selection post and, therefore, question
of seniority in the grade of Section Officer/Junior
E
Engineer is not at all relevant for promotion to the post
of Assistant Engineer. [Para 29-30] [1036-E-F-G; 1037-EF]
Dr. Jai Narain Misra v. State of Bihar & Ors. (1971) 1
F
SCC 30; and Guman Singh, etc. v. State of Rajasthan & Ors.
(1971) 2 sec 452, relied on.
R. B. Desai & Anr. v. S. K. Khanolkar & Ors. (1999) 7
SCC 54; Chandravathi P.K. & Ors. v. C.K. Saji & Ors. 2004
(2) SCR 330 = (2004) 3 SCC 734; Shailendra Dania & Ors.
G
v. S. P. Dubey & Ors. 2007 (5) SCR 190 = (2007) 5 SCC 535;
and M.B. Joshi v. Satish Kumar Pandey 1993 Supp.(2) SCC
419, referred to.
Suman Gupta v. State of J & K (1983) 4 SCC 339;
H
1018
SUPREME COURT REPORTS
[2010) 4 S.C.R.
A Munidra Kumar v. Rajiv Govi/ (1991) 3 SCC 368; Satya
Narain Shukla v. U.0.1. (2006) 9 SCC 69; P.U. Joshi v.
Accountant General (2003) 2 SCC 632; U. 0.1. v. Pushpa Rani
(2008) 9 SCC 242; lnderjeet Khurana v. State of Haryana
(2007) 3 sec 102; u.0.1. v. A.K. Naruta (2007) 11 sec 10;
B and A. K. Raghumani Singh & Ors. v. Gopal Chandra Nath
& Ors. (2000) 2) SCR 943 = (2000) 4 SCC 30, cited.
2.3. In the absence of any indication in the
Recruitment Rules that seniority in the grade of Section
Officer/Junior Engineer will be counted for the purpose
C of promotion to the post of Assistant Engineer,
consideration of all Section Officers/Junior Engineers
under Clause (1) of Rule 11 of the Recruitment Rules who
are eligible for such consideration has to be done on the
basis of assessment of the comparative merit of the
D eligible candidates and the most suitable or meritorious
candidate has to be selected for the post of Assistant
Engineer. Such a method of selection will be consistent
with Rule 5 of the Recruitment Rules and Article 16 of the
Constitution which guarantees to all citizens eqμality of
E opportunity in matters of public employment. [Par.a 34)
[1040-F-H; 1041-A]
2.4. In the considered opinion of the Court, therefore,
the practice adopted by the Government on the advice
F of the UPSC of counting the service of the eligible
candidates from the date of acquisition of the degree in
Civil Engineering by them and the judgment and order of
the High Court directing that the entire service of eligible
candidates, both prior and after acquisition of the degree
G of Civil Engineering by them, would be counted for the
purpose of promotion to the post of Assistant Engineer
under Clause (1) of Rule 11 of the Recruitment Rules are
contrary to the fundamental right guaranteed under
Article 16 of the Constitution and r. 5 of the Recruitment
Rules which are made under Article 309 of the
H Constitution. [Para 34) [1041-8-C]
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1019
OF INDIA & ORS. ETC. ETC.
3. The judgment of the High Court is set aside and
A
the Government of Pondicherry is directed to consider,
in accordance with merit, the cases of all Section Officers/
Junior Engineers, who have completed three years'
service in the grade of Section Officers/Junior Engineers.
It is made clear that the promotions to the posts of 8
Assistant Engineers already made pursuant to the
judgment and order of the High Court will not be
disturbed until the exercise is carried out for promotion
in accordance with merit as directed in this judgment and
on completion of such exercise, formal orders of C
promotion to the vacancies in the posts of Assistant
Engineers which arose during the pendency of the cases
before this Court are passed in case of those who are
selected for promotion and, after such exercise only,
those who are not selected for promotion may be
reverted to the post of Section Officer/Junior Engineer.
D ·
[para 35] [1041-D-G]
Case Law Reference:
(1991) 2 Suppl. SCR 423 distinguished
. para 7 .
E
(1999) 1 sec 54
referred to ·
para 8
(2000) 2) SCR 943
cited
para 8
2004 (2) SCR 330
referred to
para 18
2007 (5) SCR 190
referred to
para 19
F
(1971) 1 sec 30
relied on
para 29
(1971) 2 sec 452
relied on
para 30
(1983) 4 sec 339
cited
para 31
G
(1991) 3. sec 368
cited
para 31
(2006) 9 sec 69
cited
para 31
(2003) 2 sec 632
cited
para 31
H
A
B
1020
SUPREME COURT REPORTS
[2010) 4 S.C.R.
(2008) 9 sec 242
cited
para 31
(2001) 3 sec 102
cited
para 31
(2007) 11 sec 10
cited
para 31
1993 Supp. (2) sec 419 referred to
para 32
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8468 of 2003.
From the Judgment & Order dated 23.6.2003 of the High
Court of Judicature at Madras in Writ Petition No. 11236 of
c 2000.
WITH
C.A. Nos. 698 of 2004, 3649-3650 of 2010 & 8470 of 2003.
0
J.L. Gupta, L.N. Rao, M.S. Ganesh, V.G. Kanagaraj,
Rakesh Dwivedi, K.V. Viswanathan, Satya Mitra Garg, S.
Thananjayan, G. Balaji (for Mis. Mahalakshmi Balaji & Co.) S.R.
Setia, V.G. Pragasam, S.J. Aristotle, P. Ramasubramanian,
M.A. Chinnasamy, K. Krishna Kumar, Neha Sharma, S.
E Krishna, Preetika Dwivedi, Mukti Chaudhary, Amit Singh,
Abhishek Kaushik, P .B. Subramaian for the appearing parties.
The Judgment of the Court was delivered by
A.K. PATNAIK, J.1. Leave granted in S.L.P. (C) Nos.
7174-7175 of 2009.
2. These ate appeals against the judgment and order
dated 23.06.2003 passed by a· Division Bench of the Madras
High Court in Writ Petition No.11236 of 2000.
J
3. The relevant facts briefly are that the Government of
G Pondicherry, Planning & Development Department, made the
Assistant Engineers (inclu(:ling Deputy Director of Public Works
Department) Group 'B' (Technical) Recruitment Rules, 1965 [for
short 'the Recruitment Rules'] for the post of Assistant
Engineers for the Public Works Department initially by a
H
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1021
OF INDIA & ORS. ETC. ETC. [AK. PATNAIK, J.]
Notification dated 31.01.1966. The Recruitment Rules were
A
amended by a Notification dated 08.08.1986 and as per the
amended Recruitment Rules the post of Assistant Engineer in
the Public Works Department, Pondicherry, was a selection
post and appointment to the 20% of the posts of Assistant
Engineer was to be by direct recruitment and to the 80% of the
B
posts by promotion. 50% of the promotion quota was to be filled
up by Section Officers (now Junior Engineers) possessing a
recognized degree in Civil Engineering or equivalent with three
years service in the grade, failing which Section Officers holding
diploma in Civil Engineering with six years service in the grade c
and the remaining 50% of the promotion quota was to be filled·
up by Section Officers (Junior Engineers) possessing a
recognized diploma in Civil Engineering with six years service
in the grade.
4. On 24.09.1968, the Chief Secretary, Governm~nt of
D
Pondicherry, wrote to the Secretacy, Union Public Service
Commission (for short 'the UPSC') thaflhere were Section
Officers with diploma qualification who have acquired degree
in Civil Engineering or equivalent and have putting in several
years in service and having become qualified for consideration
E
for 50% quota of the post of Assistant Engineers to be filled
up by promotion and questions have arisen whether the service
rendered by such Section Officers before and after possessing
the degree or equivalent can be taken into account for
consideration for promotion under the degree holders quota
F
and whether their cases may be considered under the diploma ·
holders quota as well for promotion to the post of Assistant
Engineer. In the letter dated 24.09.1968, the Chief Secretary
sought the advice of the Commission regarding the correct
procedure to be followed in such cases. The UPSC gave its
G
advice in its letter dated 06.12.1968 that the services of Section
Officers, who qualify as graduates while in service, should be
counted from the date they passed the degree or equivalent
examination or from the date they started drawing Rs.225/- p.m.
in the prescribed scale, whichever was earlier and Section
H
1022
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A Officers may continue to be considered in the diploma holders
quota in case it is advantageous to them and the Government
followed this advice of the UPSC.
5. In 1989, however, some Junior Engineers, who were
8 formerly Section Officers working in the Public Works and Local
Administration Department of Government of Pondicherry, filed
O.A. No. 552 of 1989 in the Central Administrative Tribunal,
Madras Bench, (for short 'the Tribunal') and in its judgment and
order dated 09.01.1990 the Tribunal held that when the
C Recruitment Rules require three years service in grade, the
Section Officers (now Junior Engineers) who ceased to be
mere diploma holders having acquired the degree qualification
have to be regarded as having total experience put in the grade
of Section Officers before and after acquiring the degree
qualification and there was nothing in the Recruitment Rules to
D warrant the exclusion of a part of the experience acquired by
such Junior Engineers while functioning in the grade of Section
Officers (Junior Engineers). The Tribunal accordingly directed
that the cases of the applicants in the O.A. be considered for
promotion to the post of Assistant Engineers on par with other
E degree holders Junior Engineers taking due note of their total
length of service rendered in the grade of Junior Engineers and
such a consideration should be along side other Junior
Engineers, who might have acquired the necessary degree
qualification earlier than the applicants while holding the post·
F of Junior Engineers.
6. The judgment and order dated 09.01.1990 of the
Tribunal was challenged by N. Suresh Nathan and Others before
this Court in Civil Appeal No. 4542 of 1991 and this Court
G interpreting Rule 11 of the Recruitment Rules held in the
judgment reported in 1992 Supp. (1) SCC 584 that the period
of three years' service in the grade required for degree-holders
as qualification for promotion in the category of degree-holders
must mean three years' service in the grade as a degree-holder
H and, therefore, that period of three years can commence only
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1023
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
from the date of obtaining the degree and not earlier and this
A
interpretation of ~ule 11 was in conformity With the past
practice followed consistently by the Government and that the
Tribunal was not justified in taking the contrary view and
accordingly allowed the appeal. Review Petition No.50 of 1993
was filed against the judgment and order dated 22.11.1991 of 8
this Court in the aforesaid case but the same was dismissed
on 31.01.1993.
7. Thereafter, appellant Nos. 1 to 7 were promoted to the
post of Assistant Engineer on 08.03.1997. Respondent Nos.
2 to 7 challenged the promotion of the appellant Nos. 1 to 7
C
before the Tribunal in O.A. No. 359 of 1997 contending inter
,. alia that this Court in its judgment in N. Suresh Nathan & Ors.
v. Union of India & Ors. (supra) has only held that three years'
service required for eligibility for the promotion quota reserved
for the category of degree-holders or equivalent should be D
considered from the date of acquiring the degree or equivalent,
but has not decided the question of seniority as between
degree-holders or equivalent and diploma-holders in the grade.
The Gov~rnment of Pondicherry in its reply filed in 0. A. No.359
of 1997 before the Tribunal contended that the Departmental
E
Promotion Committee met on 29.09.1996 and keeping in view
the direction of this Court in the judgment in N. Suresh Nathan
& Ors. v. Union of India & Ors. (supra) selected the Section
Officers/Junior Engineers to the post of Assistant Engineers by
preparing two lists, one list for considering promotions to the
F
post of Assistant Engineer for the degree-holders quota and
another list for considering promotion to the post of Assistant
Engineers for the diploma-holders quota. The Government of
Pondicherry further clarified in its reply that in the first list those
who had joined as Section Officers/Junior Engineers witb
G
degree in Civil Engineering were placed above the Section
Officers/Junior Engineers who had joined the service with
diploma in Civil Engineering but had subsequently acquired
degree in Civil Engineering and in the second list, the Section
Officers/Junior Engineers who had joined with diploma ·were
H
1024
SUPREME CvURT REPORTS
[2010] 4 S.C.R.
A placed in order of seniority counted from the date of the joining
in the grade. By the judgment and order dated 27.08.1999, the
Tribunal dismissed O.A. No.359of1997 after holding that this
Court has already taken a specific view in N. Suresh Nathan's
case (supra) with regard to the procedure to be adopted for
B promotion of Junior Engineers in the Public Works Department
of Pondicherry construing the recruitment rules and the
applicants in O.A. should not be allowed to raise the point once
again and that the judgment of this Court in N. Suresh Nathan's
case was binding on the Tribunal and it was not open for the
C Tribunal to hold otherwise insofar as the interpretation of the
recruitment rules for the post of Assistant Engineer in the Public
Works Department in Pondicherry is concerned.
8. Aggrieved, respondents Nos.3, 4, 5 and 6 filed Writ
Petition No.11236 of 2000 before the Madras High Court
D against the judgment and order dated 27.08.1999 of the
Tribunal in O.A. No.359of1997 and by the impugned judgment
and order, a Division Bench of the Madras High Court held
inter alia that in N. Suresh Nathan & Ors. v. Union of India &
Ors. (supra) this Court only decided the question of eligibility
E for promotion to the posts of Assistant Engineer meant for the
category of degree-holders or equivalent, but did not decide
the question of seniority of Section Officers/Junior Engineers,
who had acquired a degree in Civil Engineering or equivalent
after joining as Section Officers/Junior Engineers and,
F therefore, the judgment of this Court in N. Suresh Nathan &
Ors. (supra) did not operate as res judicata. The Division
Bench of the Madras High Court, relying on the decisions of
this Court in R. B. Desai & Anr. v. S. K. Khano/kar & Ors.
[(1999) 7 SCC 54) and A. K. Raghumani Singh & Ors. v. Gopal
G Chandra Nath & Ors. [(2000) 4 SCC 30), further held in the
impugned judgment and order that the entire service of a
person concerned even before acquiring the degree in Civil
Engineering or equivalent have to be counted for the purpose
of seniority and promotion and directed that a review DPC
H should be held to consider the question of promotion of the
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1025
. OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
petitioners before the High Court vis-a-vis respondents 2 to 8
A
and other eligible persons, who had become eligible by the date
of sitting of the DPC in 1996 and accordingly allowed the Writ
Petition.
9. Mr. Jawahar Lal Gupta, Mr. L. Nageswar Rao and Mr.
B
M.N. Rao, learned senior counsel appearing for the appellants,
submitted that the view taken by the High Court in the impugned
judgment and order is the same as has been taken by the
Tribunal in its order dated 09.01.1990 in the earlier O.A. No.552
of 1989 and as the order dated 09.01.1990 of the Tribunal in
C
O.A. No.552 of 1989 has been set aside by this Court in N.
Suresh Nathan & Ors. (supra), the impugned judgment and
order of the High Court cannot be sustained. They referred to
the earlier order dated 09.01.1990 of the Tribunal in O.A.
No.552 of 1989 to show that the Tribunal had directed the
authorities to consider the applicants in the O.A. for promotion
D
to the post of Assistant Engineer at par with other degreeholder Junior'Engineers taking due note of their total length of
service rendered in the grade of Junior Engineer, both before
and after acquiring the degree of Civil Engineering or
equivalent, and submitted that this Court set aside this direction
E
of the Tribunal in the judgment in N. Suresh Nathan & Ors.
(supra). They further submitted that once this Court set aside
the order dated 09.01.1990 of the Tribunal in O.A. No.552 of
1989 on the ground that the order of the Tribunal was norln
conformity with Rule 11 of the Recruitment Rules and the
F
practice followed by the Department, the decision of this Court
on the issue constitutes res judicata and the interpretation of
Rule 11 of the Recruitment Rules by this Court was a
declaration of law binding on the High Court under Article 141
of the Constitution.
G
10. Mr. M.S. Ganesh, learned senior counsel appearing
for the Government of Pondicherry, reiterated these contentions
of the learned counsel for the appellants.
11. Mr. Rakesh Dwivedi and Mr. K.V. Viswanathan,
H
1026
SUPREME COURT REPORTS
[2010) 4 S.C.R.
A learned counsel appearing for respondents No. 2 to 19, in their
reply, contended that the High Court has rightly held in the
impugned judgment and order that in N. Suresh Nathan & Ors
(supra), this Court only decided the question of eligibility of
Section Officers or Junior Engineers for promotion to the post
B of Assistant Engineers meant for the category of degreeholders and not the method in which the eligible candidates will
be consid6red for promotion.
12. Para 5 of the judgment in N. Suresh Nathan & Ors.
C (supra) which contains the ratio decided by this Court is quoted
herein below:
D
E
F
G
H
"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 qualifications
for direct recruitment from the two sources, namely,
degree-holders and diploma-holders with three years'
professional experience. In other words, a degree is
equated to diploma with three years' professional
experience. Rule 11 provides for recruitment by promotion
from the grade of Section Officers now called Junior
Engineers. There are two categories provided therein -
one is of degree-holder Junior Engineers with three years'
· service in the grade and the other is of diploma-holder
Junior Engineers with six years' service in the grade, the
provision being for 50 per cent from each category. This
matches with Rule 7 wherein a degree is equated with
diploma with three years' professional experience. In the
first category meant for degree-holders, it is also provided
that if degree-holders with three years' service in the grade
are not available in sufficient number, then diploma-holders
with six years' service in the grade may be considered in
the category of degree-holders also for the 50 per cent
vacancies meant for them. The entire scheme, therefore,
does indicate that the period of three years' service in the
grade required for degree-holders according to Rule 11
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1027
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
as the qualification for promotion in that category must
A
mean three years' service in the grade as a degree-holder
and, therefore, that 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 prior to
obtaining the degree cannot be counted as service in the
B
grade with a degree for the purpose of three years' service
as a degree-holder. The only question before us is of the·
construction of the provision and not of the validity thereof
and, therefore, we are only required to construe the
meaning of the provision. In our opinion, the contention of c
the appellants degree-holders that the rules must ·be
construed to mean that the three years' service in the
grade of a degree-holder for the purpose of Rule 11 is
three years from the date of obtaining the degree is quite
tenable and commends to us being in conformity with the
0
past practice followed consistently. It has also been so
understood by all concerned till the raising of the present
controversy recently by the respondents. The tribunal was,
therefore, not justified in taking the contrary view and
unsettling the settled practice in the department."
13. On a close reading of the aforesaid para 5 of the
judgment of this Court in N. Suresh Nathan & Ors. (supra), we
find that this Court confined its decision to the qualification or
eligibility for consideration for promotion to 50% vacancies for
E
the post of Assistant Engineer meant for degree-holders or
F
equivalent in the grade of Section Officers/Junior Engineers and
held that only those Sections Officers or Junior Engineers, who
had completed three years' service after obtaining degree, were
qualified or eligible for consideration to the 50% vacancies
meant for the category of degree-holders or equivalent. In the
G
judgment in N. Suresh Nathan & Ors. (supra), this Court did not
decide on how the Section Officers/Junior Engineers who had
completed three years' service in the grade after the degree
in Civil Engineering or equivalent and had the qualification or
eligibility for consideration for promotion to the 50% vacancies
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SUPREME COURT REPORTS
[2010] 4 S.C.R.
A meant for the category of degree-holders would be considered
for promotion.
14. Article 141 of the Constitution states that the law
declared by this Court shall be binding on all the courts within
8 the territory of India. In N. Suresh Nathan & Ors. (supra) this
Court has set aside the order of the Tribunal dated 09.01.1990
in O.A. No.552 of 1989 after declaring that Section Officers/
Junior Engineers having three years' service in the grade after
they acquired degree in Civil Engineering or equivalent will
C become qualified or eligible for promotion to the 50%
vacancies meant for the category of degree-holders or
equivalent. In N. Suresh Nathan & Ors. (supra) this Court has
not declared any law on how these Sections Officers/Junior
Engineers, who had become qualified or eligible for promotion
to the post of Assistant Engineer under the category of degreeD holders or equivalent, would be considered for such promotion.
There was, therefore, no law declared by this Court on how
Section Officers or Junior Engineers, who become qualified or
eligible for promotion to the post of Assistant Engineer would
be considered for promotion, which was binding on the courts
E under Article 141 of the Constitution.
15. Section 11 of the Code of Civil Procedure Code (for
short 'CPC') titled Res judicata' states that no court shall try
any issue which was directly or substantially in issue between
F the same parties and which has been heard and finally decided
by a competent court. Thus, unless an issue directly and
substantially raised in the former case is heard and decided
by the competent court, the principle of res judicata will not be
attracted. In N. Suresh Nathan & Ors. (supra) this Court, while
G settjng aside the order dated 09.01.1990 in O.A. No.552 of
1989, has decided that those Section Officers/Junior Engineers
who complete three years' service after acquiring the degree
in Civil Engineering or equivalent are qualified or eligible for
consideration for promotion to the 50% quota of vacancies for
H the post of Assistant Engineer under the degree-holders
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1029
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
category but has not decided how such Section Officers/Junior
A
Engineers who are qualified or eligible will be considered for
such promotion under the degree-holders category. The
decision of this Court in N. Suresh Nathan & Ors. (supra),
therefore, did not constitute res judicata on the issue regarding
the manner in which Section Officers/Junior Engineers who
B
were qualified or eligible for consideration for promotion to the
post of Assistant Engineer would be considered for promotion.
16. The High Court was, therefore, right in taking the view
that in N. Suresh Nathan & Ors. (supra), this Court was
concerned only with the question of eligibility but was not
C
concerned whether the past services rendered by the diplomaholders would be counted for the purpose of seniority and that
neither Article 141 of the Constitution nor the principle of res
judicata was a bar for Tribunal or the High Court to consider
whether past services of Section Officers/Junior Engineers who
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were diploma-holders before they acquired degree in Civil
Engineering or equivalent could be counted for the purpose of
promotion for the 50% vacancies for the post of Assistant
Engineers meant for the category of degree-holders or
equivalent.
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17. Learned counsel for the appellants next submitted that
Rule 11 of the Recruitment Rules provides for two streams or
channels of promotion to the post of Assistant Engineer, Public
Works Department, one stream or channel is for Sections
Officers or Junior Engineers possessing a recognized degree
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in Civil Engineering or equivalent and the other for Section
Officers/Junior Engineers holding diploma in Civil Engineering.
They submitted that it is for this reason that the UPSC in its
letter dated 06.12.1968 advised the Government that the
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services of Section Officers/Junior Engineers, who qualify as
graduates while in service, should be counted from the date
they passed the degree or equivalent while considering them
for promotion for the channel or stream of promotion meant for
Section Officers or Junior Engineers having degree in Civil
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SUPREME COURT REPORTS
[2010) 4 S.C.R.
A Engineering or equivalent and the Government of Pondicherry
has acted on this advice of the UPSe.
18. Mr. Nageswar Rao cited the decision in Chandravathi
P. K. & Ors. v. C.K. Saji & Ors. [(2004) 3 sec 734) in which
8 the question for consideration was whether in terms of th.e
scheme of the Kerala Engineering Service (General Branc;h)
Rules, diploma-holders were entitled to claim any weightage
for the service rendered by them prior to their acquisition of
degree qualification in the matter of promotion or transfer to
C higher posts when specific quota is fixed for graduates and
diploma-holders in the matter of promotion and this Court, on
a conjoint reading of Rules 4 and 5 of the Kerala Engineering
Service (General Branch) Rules, held that a diploma-holder
Assistant Engineer who subsequently acquired a degree
qualification would be eligible for promotion as Assistant
D Executive Engineer, only in the event he fulfils the conditions
precedent therefor and not otherwise and his case could be
considered only after the cases of promotion of those who had
been holding such degree qualification have been considered.
E
19. Mr. Ganesh adopted these arguments of learned
counsel for the appellants and cited the decision in Shailendra
Dania & Ors. v. S. P. Dubey & Ors. [(2007) 5 sec 535)
wherein this Court interpreting the rules for promotion to the
post of Assistant Engineers in CPWD, which has adopted by
F the DOA, found that 25% of the total posts of Assistant
Engineers were to be filled up by promotion from the category
of graduate Junior Engineers and 25% of the total posts were
to be filled up by diploma-holders with eight years' service and
held that a separate quota was, thus, prescribed for promotion
G of Junior Engineers for degree and diploma-holders to the
higher post of Assistant Engineer. He submitted that in the
aforesaid case of Shailendra Dania & Ors. (supra), this Court
emphatically held that the service experience required for
promotion from the post of Junior Engineer to the post of
Assistant Engineer in the limited quota of degree-holder Junior
H
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1031
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
Engineers in the service experience of a degree-holder and
A
cannot be equated with the service rendered as a diplomaholder. Relying on this decision, learned counsel for the
Government of Pondicherry submitted that the prior service
experience of a Section Officer or Junior Engineer while he was
diploma-holder and when he had not acquired the degree in
B
Civil Engineering or equivalent cannot be counted for the
purpose of consideration for the 50% quota of promotion to the
post of Assistant Engineer meant for degree-holders.
20. Learned counsel appearing for the respondents 2 to
19, on the other hand, submitted that Rule 11 of the Recruitment
C
Rules does not provide for two streams or channels of
promotion as contended by learned counsel for the appellants
and it only lays down the qualification or eligibility of three years'
service after degree in Civil Engineering or equivalent as a
qualification or eligibility and once a diploma-holder acquires
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a degree in Civil Engineering or equivalent, his entire length of
service both prior to acquisition of such degree in Civil
Engineering or equivalent and after acquisition of such degree
or equivalent has to be taken into consideration at the time of
consideration for promotion to the post of Assistant Engineer
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meant for degree-holders.
21. Mr. Viswanathan cited this Court's decision in R. B.
Desai & Anr. v. S. K. Khanolkar & Ors. [(1999) 7 SCC 54] for
proposition that if at the time of consideration for prpmotion,
F
the candidates concerned have acquired eligibility, then unless
a rule specifically gives an advantage to a candidate with earlier
eligibility, the date of seniority should prevail over the date of
eligibility. He submitted that in the present case, the rules for
promotion from the post of Section Officer or Junior Engineer
G
to Assistant Engineer did not give any such priority to the
candidates acquiring earlier eligibility. He submitted that
Chandrava~hi P. K. & Ors. v. C.K. Saji & Ors. (supra) was a
case where the rules, namely, the Kerala Engineering Service
(General Branch) Rules, were different from the Recruitment
H
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SUPREME COURT REPORTS
[2010] 4 S.C.R.
A Rules in the present case and the Kerala Engineering Service
(General Branch) Rules clearly provided for two different
streams or channels of promotion for the posts of Assistant
Engineer, i.e. for diploma-holders and degree-holders. He
submitted that in Shailendra Dania & Ors. v. S. P. Dubey &
B Ors. (supra) cited by the learned counsel for the appellants and
the Government of Pondicherry, the question for consideration
was whether a diploma-holder Junior Engineer, who obtained
a degree while in service, became eligible for promotion to the
post of Assistant Engineer on completion of three years of
c service after he obtained the Engineering degree or on
completion of three years of service prior to obtaining the
degree in Engineering and while answering this question, this
Court held that a diploma-holder Junior Engineer became
eligible for promotion to the post of Assistant Engineer on
0 completion of three years' service after he obtained the
Engineering degree. He submitted that the decision of this
Court in Shai/endra Dania & Ors. (supra), therefore, is not an
authority for proposition that the service of diploma-holders put
in prior to the acquisition of the degree or equivalent by him
will have to be ignored while considering them for promotion
E to the post of Assistant Engineer meant for degree holders.
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G
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22. Rule 11 of the Recruitment Rules in the present case
is quoted herein below :-
"11. In case of recruitment
by promotion/deputation/
Transfer grades from which
promotion/deputation/
transfer to be made.
Promotion
1. Section Officer
possessing a recognized
degree in Civil
Engineering or Equivalent
with 3 Years service in
the grade failing which
Section Officers holding
diploma in Civil
Engineering with 6 years
service in the grade -
50%.
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1033
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
2.Section Officers
A
possessing a recognized
diploma in Civil
Engineering with 6 years
service in the grade -
50%"
B
23. A plain reading of Rule 11 of the Recruitment Rules
quoted above would make it clear that for the 50% quota for
the posts of Assistant Engineer mentioned under Clause 1 of
Rule 11, Section Officers (now Junior Engineers) possessing
C
recognized degree in Civil Engineering or equivalent with three
years' service in the grade, failing which Section Officers
possessing diploma in Civil Engineering with six years' service
in the grade would be eligible for consideration for promotion.
All that the Rule provides is that if for vacancy in the post of
Assistant Engineer, Section Officers possessing recognized
D
degree in Civil Engineering or equivalent with three years'
service in the grade are not available, Section Officers holding
diploma in Civil Engineering with six years service in the grade
could be considered for promotion. Clause 1 of Rule 11 is,
therefore, only a provision laying down the qualification or
E
eligibility for promotion to 50% of the posts of Assistant
Engineer and the qualification or eligibility provided therein is
either three years service in the grade of Section Officers or
Junior Engineers after degree in Civil Engineering or equivalent
or six. years service in the grade of Section Officers or Junior
F ·
Engineers with diploma in Civil Engineering. This provision also
has a rider that if there are Section Officers/Junior Engineers,
who have put in three ,years service after acquiring degree or
equivalent, available for consideration for vacancies, then they
will be considered first for promotion and the turn for
G
consideration for promotion of diploma-holders in Civil
Engineering with six years service in the grade of Section
Officers/Junior Engineers will come only thereafter.