# SHAILENDRA DANIA AND ORS. v v. S.P. DUBEY AND ORS

- **Citation:** [2007] 5 S.C.R. 190
- **Court:** Supreme Court of India
- **Decided:** 2006-04-17
- **Case number:** Civil Appeal No. 2219-2222 of 2002
- **Bench:** B.N. Agra Wal, P.P. Naolekarand Lokeshwarsinghpanta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shailendra-dania-and-ors-v-v-s-p-dubey-and-ors-22814
- **Pages:** 31

## Headnote

,,,
Service Law:
c
Promotion-Service experience obtained prior to acquiring higher
qualification-Counting of-For promotion from Junior Engineers to Assistant
Engineers-Slum Wing Department of Delhi Development Authority (DDA)-
Degree-holder Junior Engineers vis-a-vis Diploma-holder Junior EngineersPost of Junior Engineers-The qualification prescribed was Diploma in C:'vil
D Engineering with two years· experience whereas no experience was prescribed
for graduates in Civil Engineering-On 29.9.1990, a Memorandum was
'issued by the DDA which stipulated that a diploma-holder who had
~
subsequently acquired a Degree in Engineering would be treated as a degree-
/
holder for the purposes of promotion, irrespective of the date of acquiring
graduate qualification-A Full Bench of the High Court held that the three
E years' experience gained by the diploma-holders as Junior Engineer had to
be counted for promotion to the post of Assistant Engineer, in the event they
are duly qualified as degree-·holders-Correctness of-Held: It cannot be
said that a diploma-holder who acquired a degree during the tenure of his
service, has gained experience as a graduate Engineer just because he has
F acquired a Degree in Engineering-That would amount to saying 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-Service experience
of a degree-holder Junior Engineer could not be equated to the service
experience of a diploma-holder Junior Engineer nor could it be substituted
for the service rendered as a degree-holder-Hence, Diploma-holder Junior
G Engineers would be required to complete three years' service on the post
after having obtained a degree to become eligible for promotion to the
higher post of Assistant Engineer.
..,.,..._
The appellants and respondents were employees of the Slum Wing
H
190
SHAILENDRADANIA v. S.P. DUBEY
191
-
'v
Department (SWD) which was a part of the Municipal Corporation of Delhi A
(MCD). SWD was transferred from MCD to Delhi Development Authority
(DDA) in 1974 with the stipulation that its employees alone would be
considered for confirmation and promotion against the posts in it. In 1978,
SWD was retransferred to MCD, but once again in 1980 it was transferred
back to DDA with the stipulation that it would remain as a separate entity B
. and its emplo A. DDA, vide its Resolution, adopted Recruitment Rules of
CPWD qua the posts of Junior Engineer, Assistant Engineer and Executive
Engineer. The post of Junior Engineer was meant for 100% direct
recruitment and the qualification prescribed was "Diploma-holders in Civil
Engineering with two years' experience". However, there was no bar for
persons possessing higher qualification, viz., Degree in Engineering, for c
applying to the post of Junior Engineer and such persons were not required
to have any prior experience for appointment to the cadre of Junior Engineer
in DDA. The next higher post was that of Assistant Engineer. The Rule
provided filling up of 50% vacancies on the post of Assistant Engineer by
those who acquired a Graduate Degree in Engineering by means of direct D
recruitment or by deputation. The remaining 50% vacancies were to be filled
up on promotional basis from the post of Junior Engineers. Out of50% of
)
the promotional feeder cadre of Junior Engineers, one-half of such posts would
....,.
be filled up by promotion of diploma-holders with eight years, qualifying
service and remaining 50% quota would be filled up from the Junior
Engineers who were Graduate Engineering Degree-holders with thee years' E
qualifying service. Further promotion in the Engineering Branch was from
the post of Assistant Engineer to the post of Executive Engineer. The minimum
qualifying experience for promotion to the post of Executive Engineer for
graduate Engineers was eight years' experience in the grade of Assistant
Engineer, whereas for diploma-holders it was ten years' service in the gra

## Text

_Characters 0–39,581 of 81,238. This is a partial read: ask again with offset=39581 for what follows._

A
SHAILENDRA DANIA AND ORS.
v -
v.
S.P. DUBEY AND ORS.
APRIL 17, 2006
B
[B.N. AGRA WAL, P.P. NAOLEKARAND
LOKESHWARSINGHPANTA,JJ.]
,,,
Service Law:
c
Promotion-Service experience obtained prior to acquiring higher
qualification-Counting of-For promotion from Junior Engineers to Assistant
Engineers-Slum Wing Department of Delhi Development Authority (DDA)-
Degree-holder Junior Engineers vis-a-vis Diploma-holder Junior EngineersPost of Junior Engineers-The qualification prescribed was Diploma in C:'vil
D Engineering with two years· experience whereas no experience was prescribed
for graduates in Civil Engineering-On 29.9.1990, a Memorandum was
'issued by the DDA which stipulated that a diploma-holder who had
~
subsequently acquired a Degree in Engineering would be treated as a degree-
/
holder for the purposes of promotion, irrespective of the date of acquiring
graduate qualification-A Full Bench of the High Court held that the three
E years' experience gained by the diploma-holders as Junior Engineer had to
be counted for promotion to the post of Assistant Engineer, in the event they
are duly qualified as degree-·holders-Correctness of-Held: It cannot be
said that a diploma-holder who acquired a degree during the tenure of his
service, has gained experience as a graduate Engineer just because he has
F acquired a Degree in Engineering-That would amount to saying 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-Service experience
of a degree-holder Junior Engineer could not be equated to the service
experience of a diploma-holder Junior Engineer nor could it be substituted
for the service rendered as a degree-holder-Hence, Diploma-holder Junior
G Engineers would be required to complete three years' service on the post
after having obtained a degree to become eligible for promotion to the
higher post of Assistant Engineer.
..,.,..._
The appellants and respondents were employees of the Slum Wing
H
190
SHAILENDRADANIA v. S.P. DUBEY
191
-
'v
Department (SWD) which was a part of the Municipal Corporation of Delhi A
(MCD). SWD was transferred from MCD to Delhi Development Authority
(DDA) in 1974 with the stipulation that its employees alone would be
considered for confirmation and promotion against the posts in it. In 1978,
SWD was retransferred to MCD, but once again in 1980 it was transferred
back to DDA with the stipulation that it would remain as a separate entity B
. and its emplo A. DDA, vide its Resolution, adopted Recruitment Rules of
CPWD qua the posts of Junior Engineer, Assistant Engineer and Executive
Engineer. The post of Junior Engineer was meant for 100% direct
recruitment and the qualification prescribed was "Diploma-holders in Civil
Engineering with two years' experience". However, there was no bar for
persons possessing higher qualification, viz., Degree in Engineering, for c
applying to the post of Junior Engineer and such persons were not required
to have any prior experience for appointment to the cadre of Junior Engineer
in DDA. The next higher post was that of Assistant Engineer. The Rule
provided filling up of 50% vacancies on the post of Assistant Engineer by
those who acquired a Graduate Degree in Engineering by means of direct D
recruitment or by deputation. The remaining 50% vacancies were to be filled
up on promotional basis from the post of Junior Engineers. Out of50% of
)
the promotional feeder cadre of Junior Engineers, one-half of such posts would
....,.
be filled up by promotion of diploma-holders with eight years, qualifying
service and remaining 50% quota would be filled up from the Junior
Engineers who were Graduate Engineering Degree-holders with thee years' E
qualifying service. Further promotion in the Engineering Branch was from
the post of Assistant Engineer to the post of Executive Engineer. The minimum
qualifying experience for promotion to the post of Executive Engineer for
graduate Engineers was eight years' experience in the grade of Assistant
Engineer, whereas for diploma-holders it was ten years' service in the grade
F
,.;.;-
of Assistant Engineer.
The appellants were graduates with Engineering Degree and joined the
Department of Junior Engineers as direct recruits. In the year 1984, the
Junior Engineers and the Assistant Engineers, who were diploma-holders,
assailed the constitutional validity of the rules in the matter of requirement G
of differential service experience between the graduates and he diploma-
--rholders for promotion to the higher cadres, viz., Assistant Engineers and
Executive Engineers respectively before the High Court. Another writ petition
was filed before the High Court challenging the resolution which allowed
DDA to distinguish the diploma-holders and degree-holders in the matter of
experience and promotion as Executive Engineers. The High Court allowed H
192
SUPREME COURT REPORTS
[2007) 5 S.C.R.
A both the writ petitions and struck down the rule and the resolution. However,
v- -
the judgment of the high Court was reversed by this Court in Roop Chand
Adlakha 's case.
In 1989, on of the respondents filed a writ petition challenging the note
appended by the Departmental Promotion Committee (DPC) in 1971 to relax
B the rules in favour of the diploma-holders, who, while in service acquired
degree qualification so that they could be considered for promotion to the post
of Assistant Engineer.
In 1990, the Slum Wing Graduate Engineers' Association filed a writ
C petition before the High Court and sought direction against the DDA to fill
up the posts of Assistant Engineers belonging to the degree-holders' quota
and claimed that the diploma-holders were much in excess of their quota. A
Division Bench of the high Court directed the DDA to convene a DPC for
each of the three years in order that promotion is made and a parity of 1: 1 is
maintained between the promotees. A DPC was held in which the appellants
D were considered on the basis of their seniority.
In the meanwhile, on 20.9.1990, a Memorandum was issued by the DDA
which stipulated that a diploma-holder who had subsequently acquired a
Degree in Engineering would be treated as a degree-holder for the purposes
of promotion, in respective of the date of acquiring graduate qualification.
E However, by giving effect to the said Memorandum a fresh DPC was convened
which changed the seniority list in favour of the respondents. The said
Memorandum was quashed by the High Court. A Division Bench dismissed
the appeal preferred by the diploma-holders. An Establishment Order was
issued to promote the diploma-holders on current duty chare basis. A writ
F petition challenging the said order was allowed by the high Court. This Court
dismissed the Special Leave Petitions in /imine challenging the aforesaid
order of the High Court.
Pursuant to the High Court directions the DDA issued a final seniority
list of the Engineers. The appellants were promoted as Assistant Engineers
G on the recommendation of the DPC. One of the respondents filed a writ petition
for quashing of the above-mentioned seniority list. A Full Bench of the High
Court held that the note issued by the DPC in 1971 was in violation of the
statutory rules, that the DPC had no jurisdiction as the same had not been
approved by the DDA and that the practice which was followed pursuant to
Note of 1971 till 1982 was illegal and without jurisdiction. The Full Bench
H further held that the experience gained by the diploma-holders as Junior
(
(
•
.I
~
SHAILENDRA DANIA v. S.P. DUBEY
193
Engineer has to be counted for promotion to the post of Assistant Engineer, A
in the event they are duly qualified as degree-holders. Hence the appeals.
The following question arose before this Court:-
Whether a diploma-holder Junior Engineer, who obtained a degree while
in service, became eligible for promotion to the post of Assistant Engineer on B
completion of three years of service after he obtained the Engineering Degree
or on completion of three years of service prior to obtaining the Degree in
Engineering?
Allowing the appeals, the Court
HELD: 1.1. Taking into consideration the entire scheme of the relevant
rules, it is obvious that the diploma-holders would not be eligible for promotion
c
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 intent of the rules D
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 into the service to
the post of Junior Engineers, Degree in Engineering is a sufficient qualification E
without there being any prior experience, whereas diploma-holders should have
two years' experience apart from their diploma for their 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 F
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 the 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 G
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 diploma-holder Junior
Engineer, which is the eligibility criteria for promotion, is an indication of H
194
SUPREME COURT REPORTS
[2007] 5 S.C.R.
A different quality of service rendered. (Para 40] (217-H; 218-A-E]
Kimti Lal Kathuria v. Delhi Development Authority, (1988) Lab IC 434
Del, Roop Chand Ad/akha v. Delhi Development Authority, [1989) Supp. 1
SCC 116, R. K. Milla/ v. Union of India, 45 [1991) DLT 589 (Del), Slwn Wing
Delhi Development Authority Graduate Engineers' Association (Regd). v.
B D.D.A., 46 [1992) DLT 486 (DB) and f.!. Suresh Nathan v. Union of India,
(1992) Supp. 1SCC584, referred to.
1.2. In the given case, it cannot be said that a diploma-holder who
acquired a degree during the tenure of his service, has gained experience as
a graduate Engineer just because he has acquired a Degree in Engineering.
C That would amount to saying 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 experience cannot be substituted with diploma-holder's
D
experience. The distinction between the experience of degree-holders and
diploma-holders is maintained under the rules in further promotion to the
post of Executive Engineer also, wherein then' 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. (Para 40] (218-F-G]
E
MB. Joshiv. Satish Kumar Pandey, [1993] Supp. 2 SCC 419, D. Stephen
Joseph v. Union of India, (1997] 4 SCC 753 and Anil Kumar Gupta v.
Municipal Corporation of Delhi, [2000) 1 SCC 128, referred to.
2.1. The rules provide for different service experience for degree-holders
and diploma-holders. Degree-holder Assistant Engineers having eight years
F of service experience would be eligible for promotion to the post of Executive
Engineer, whereas diploma-holder Assistant Engineers would be required 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 di.f}erentia in the qualifying service of eight years for degree-holders
and 10 years' service experience for diploma-holders. The rule itself makes
G 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.
(Para 40( [218-H; 219-A-B(
2.2. Different period of service attached to qualification as an essential
H criterion for promotion is based on administrative interest in the service.
:r
- '<
. '
SHAILENDRA DANIA v. S.P. DUBEY
195
Different pf:riod of service experience for degree-holder Junior Engineers A
and diploma-holder Junior Engineers for promotion to the higher post is
conductive 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 qu~lity output To carry out technical specialized
job more efficiently, higher technical knowledge would be the requirement B
Higher educational qualifications develop broader perspective and, therefore,
service rendered on the same post by a more qualifying person would be
qualitatively different. (Para 401 (219-B-DI
A.K. Raghumani Singh v. Gopal Chandra Nath, (2000) 4 SCC 30,
referred to.
c
3.1. The service experience required for promotion from the post of
Junior Engineer to the post of Assistant Engineer by a degree-holder in the
limited quota of degree-holder Junior Engineers cannot be equated with the
service rendered as a diploma-holder nor can it be substituted for service
rendered as a degree-holder. When the claim is made from a fixed quota, the D
condition necessary for becoming eligible for promotion has to be complied
)
with. The 25% specific quota is fixed for degree-holder Junior Engineers
)
with the experience of three years. Thus, on a plain reading, the experience
so required would be as a degree-holder Junior Engineer. 25% quota for
promotion under the rule is assigned to degree-holder Junior Engineers with
three years' experience, whereas for diploma-holder Junior Engineers eight E
years' experience is the requirement in their 25% quota.
(Para 411 (219-E-F)
State of Jammu and Kashmir v. Triloki Nath Khosa, (197411SCC19,
referred to.
3.2. Educational qualification along with number of years of service was
recognized as conferring eligibility for promotion in the respective quota fixed
F
for graduates and diploma-holders. There is a watertight compartment for
graduate Junior Engineers and diploma-holder Junior Engineers. They are
entitled for promotion in their respective quotas. Neither a diploma-holder G
Junior Engineer could claim promotion in the quota of degree-holders because
--.,:
he has completed three years of service nor can a degree-holder Junior
Engineer make any claim for promotion quota fixed for diploma-holder Junior
Engineers. Fixation of different quota for promotion from different channels
of degree-holders and diploma-hi;lders itself indicates that service required
for promotion is an essential eligibility criterion along with degree or H
196
SUPREME COURT REPORTS
[2007) 5 S.C.R.
A diploma, which is service rendered as a degree-holder in the present case.
The particular years of service being the cumulative requirement with certain
educational qualification providing for promotional avenue within the specified
quota, cannot be anything but the service rendered as a degree-holder and
not as a diploma-holder. The service experience as an eligibility criterion
B cannot be read to be any other thing because this quota is specifically made
for the degree-holder Junior Engineers. [Para 41) [219-G-H; 220-A-B)
4. As a necessary corollary, the diploma-holder Junior Engineers who
have obtained a Degree in Engineering during the tenure of service, would be
required to complete three years' service on the post after having obtained a
C degree to become eligible for promotion to the higher post if they claim the
promotion in the channel of degree-holder Junior Engineer, there being a
quota fixed for graduate Junior Engineers and diploma-holder Junior
Engineers for promotion to the post of Assistant Engineers.
[Para 421 [220-C-D)
D
Indian Airlines Ltd. v. S. Gopalakrishnan, [2001) 2 SCC 362, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2219-2222 of
2002.
From the Judgment and Order dated 25.01.2002 of the High Court of
E Delhi in C.W.P. Nos. 1427 & 591of1989, 1923 & 1664of1993.
WITH
C.A. No. 4104 of 2002, T.C. (C) Nos. 83 & 84 of 2005, 2, 3, 46, 4 7, 48,
49, 50 of2006 and C.A. No. 1999 of2007.
F
P.P. Malhotra, ASG., J.L. Gupta, Dr. Rajeev Dhawan, P.N. Mishra, R.
Venkataramani and G.D. Gupta, Dhruv Mehta, Harshvardhau Jha, Yashraj
Deora, Mannoj Mehta (for K.L. Mehta & Co.), Shobha Abhishek Sarkar, S.K.
Rout, Onkar Prasad, M.P. Siddique, R.C. Kaushik, Binu Tamta, Sanjiv Sen,
Praveen Swarup, Ashok K. Mahajan, BimaI Roy Jad, V.B. Saharaya and Viresh
G
B. Saharya (for Saharya & Co,) for the appearing parties and S.P. Dubey InPerson.
The Judgment of the Court was delivered by
P.P. NAOLEKAR, J. I. Leave granted in S.L.P.(C) No. 9239 of2002.
H
2. The appellants and the respondents herein are employees of the Slum
V' -
J
I
"{-
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SHAILENDRA DANIA v. S.P. DUBEY [P.P. NAOLEKAR, J.]
197
Wing Department (hereinafter referred as "SWD"). SWD was part of the A
Municipal Corporation of Delhi (hereinafter referred as "MCD") before 1974.
SWD was transferred from MCD to Delhi Development Authority (hereinafter
referred as "DOA") in 1974 with the stipulation that its employees alone
would be considered for confirmation and promotions against the posts in it.
In 1978, SWD was retransferred to MCD, but once again in May 1980 it was B
transferred back to ODA with the stipulation that it would remain as a
separate entity and its employees would not be merged with ODA. For
recruitment of various staff members in DOA, vide its Resolution No.574
dated 13.11.1963, DOA adopted Recruitment Rules of CPWD qua the posts
of Junior Engineer, Assistant Engineer and Executive Engineer. In the hierarchy
of Engineering Cadre, the initial post is of Junior Engineer (Section Officer or C
S.O ). The post is meant for I 00% direct recruitment and the qualification
prescribed was "Diploma-holders in Civil Engineering with two years'
experience". However, there was no bar for persons possessing higher
qualification, viz., Degree in Engineering, for applying to the post of Junior
Engineer and such persons were not required to have any prior experience D
for appointment to the cadre of Junior Engineer in ODA. The next higher post
is that of Assistant Engineer. The rule provided filling up of 50% vacancies
on the post of Assistant Engineer by those who acquired a Graduate Degree
in Engineering by means of direct recruitment or by deputation. The remaining
50% vacancies were to be filled up on promotional basis from the pool of
Junior Engineers. Out of 50% of the promotional feeder cadre of Junior E
Engineers, one-half of such posts would be filled up by promotion of diplomaholders with eight years' qualifying service and remaining 50% quota would
be filled up from the Junior Engineers who were Graduate Engineering Degreeholders with three years' qualifying service. Thus, the diploma-holders having
eight years of qualifying service and Graduate Engineering Degree-holders F
with three years' qualifying service would be considered for promotion to the
post of Assistant Engineer within their quota of 25% each. Further promotion
in the Engineering Branch is from the post of Assistant Engineer to the post
of Executive Engineer. The minimum qualifying experience for promotion to
the post of Executive Engineer for graduate Engineers is eight years' experience G
in the grade of Assistant Engineer, whereas for diploma-holders it is ten
years' service in the grade of Assistant Engineer.
3. The appellants were graduates with Engineering Degree and joined
the Department as Junior Engineers as direct recruits. On 7 .6.1985 and 24.6.1985,
some diploma-holder Junior Engineers were promoted on ad hoc basis as H
198
SUPREME COURT REPORTS
[2007] 5 S.C.R.
A Assistant Engineers.
First phase of litigation
4. In the year 1984, the Junior Engineers and the Assistant Engineers,
who were diploma-holders, assailed constitutional validity of the rules in the
B matter of requirement of differential service experience between the graduates
and the diploma-holders for promotion to the higher cadres, viz., Assistant
Engineers and Executive Engineers respectively before Delhi High Court. In
W.P. No.2132 of 1984 (Kimti Lal Kathuria and Ors. v. DDA,) the challenge
was to the rule prescribing three years' and eight years' service experience
C for graduates and diploma-holders respectively to the posts of Assistant
Engineers and a discrimination thus brought about between them. W.P. No.2082
of 1984 (Niranjan Goel and Ors v. DDA,) pertained to the constitutional
validity of the analogous provisions in the rules adopted by Resolution
No. I 05 dated 16.6.1971. The distinction made for promotion of degree-holder
promotees and diploma-holder prornotees was struck down by Delhi High
D Court. It was held that the diploma-holders should be governed by the same
eligibility promotional qualifications that were applicable to degree-holders. In
W.P. No.2082of1984, the Delhi High Court struck down Resolution No.105
dated 16.6.1971 which allowed DOA to distinguish between diploma-holder
and degree-holder Assistant Engineers in the matter of experience and
E promotion as Executive Engineers. By a common judgment dated 2.9.1987
reported as Kimti Lal Kathuria and Ors. v. Delhi Development Authority and
Ors., (1988) Labour Industrial Cases 434 (Del) = ( 1988) 1 SLR 293, the Court
held that the prescription of differential standards - based even on the
differences in technical, educational qualifications - is violative of Articles 14
F and 16 of the Constitution. However, in Roop Chand Adlakha and Ors. v.
De!hi Development Authority and Ors., [ 1989] Supp. I SCC 116, a two-Judge
Bench of this Court reversed the above-mentioned judgment of the Delhi
High Court.
G
H
Second phase of litigation
5. In 1971, the Departmental Promotion Committee (hereinafter referred
as "DPC"), appended a Note relaxing the rules in favour of diploma-holders,
who while in service acquired degree qualification, so that they could be
considered for promotion to the post of Assistant Engineer on the following
basis :-
I.
The period of three years should comprise of at least two years
SHAILENDRA DANIA v. S.P. DUBEY [P.P. NAOLEKAR, J.)
199
after graduation plus 3/8 of the service rendered in ODA or other A
government organization or local body as S.O. subject to a
maximum of one year benefit.
2.
If a S.O., who has done graduation, completes eight years' service
as S.O. on the date earlier than the date on which the period of
two years after graduation expires, he should be given promotion B
from such earlier date notwithstanding the fact that he has not
completed two years' service after graduation.
On 24.2.1989, S.P. Dubey, one of the respondents herein, filed a writ petition
(W.P. No.591 of 1989) before the High Court of Delhi and challenged the
validity of the above-mentioned Note, which was adopted by the DPC in 1971. C
It was contended that once a diploma-holder acquired a degree qualification,
the entire experience gained by him prior to obtaining the degree qualification
should be counted for considering the eligibility to the post of Assistant
Engineer in degree quota.
6. One Naresh Kumar Gera, on 15.5.1989, filed another writ petition (W.P. D
No.1427 of 1989) before the High Court of Delhi against ODA and challenged
the above-mentioned Note adopted by the DPC in 1971 as arbitrary on the
ground that it was not proportionate to the length of service rendered as
Junior Engineer holding Diploma in Electrical Engineering and accordingly
sought quashing of the rules.
E
7. In January 1990, Slum Wing Graduate Engineers' Association filed a
writ petition (W.P. No.250of1990) before the High Court of Delhi and sought
direction against ODA to fill up posts of Assistant Engineers belonging to
degree-holders' quota and claimed that diploma-holders were much in excess
of their quota. The petitioners therein alleged that the intention and the spirit F
behind the Recruitment Rules was that there should be parity between the
degree-holders and diploma-holders in the matter of promotion to the post of
Assistant Engineer.
8. On 5 .3 .1991, a Division Bench of the High Court of Delhi granted an
interim order in W.P. No.250 of 1990 and directed DOA to convene a DPC for G
each of the three years, i.e., January-1988, 1989 and 1990 in order that promotion
be made and a parity of I: I is maintained between the promotees. The relevant
observations of the High Court in that regard are as follows:-
"We are informed that after January, 1987 till today no DPC has been
held. DPCs are required to be held at least once a year. This being so, H
200
A
B
c
SUPREME COURT REPORTS
[2007] 5 S.C.R.
we direct the ODA to hold a DPC for each of the succeeding years,
namely, 1988, 1989 and 1990 and make regular promotions of eligible
candidates in such a way that as far as possible parity between the
Degree-holders and the Diploma-holders is attained. The regular
promotions so made sh1ll, however, be subject to any direct recruitment,
which may be made in accordance with the rules against the quota
meant for direct recruits. If as a result of such direct recruitment, any
of the promotees have to be reverted then the reversion should be
done in such a way that the remaining Assistant Engineers who are
promotees should maintain the parity, namely 50% should be from
Degree-holders and 50% from Diploma-holders. For the purpose of
seniority at least, if not for other benefits, about which we make no
observations, the promotions or regularization should be made with
effect from the date when the vacancies were available and the
candidates became eligible for promotion. The DPC should be convened
within a period of six weeks from today."
D
9. In the meanwhile, on 20.9.1990, a Memorandum was issued by ODA
which stipulat~d that a diploma-holder who had subsequently acquired a
Degree in Engineering would be tre<.ted as a degree-holder for the purposes
of promotion, irrespective of the date of acquiring graduate qualification. It
also stipulated that the Recruitment Rules recognize only a 'Degree' or a
E 'Diploma' for purposes of promotions and did not stipulate any minimum
experience after acquisition of 'Degree'. It was further stated therein that even
if an officer had acquired his degree just before the meeting of DPC, he would
be considered as a degree-holder for that and any subsequent DPCs and the
benefit of the past service would not be available for reckoning seniority.
F
JO. On 1.5.1991, a DPC was held in which the appellants were considered
on the basis of their seniority. However, on 5.7.1991, by giving effect to the
Memorandum dated 20.9.1990, a fresh DPC was convened which changed the
seniority list in favour of the respondents as a diploma-holder who had
subsequently acquired a Degree in Engineering would be treated as degreeholder for the purposes of promotion, irrespective of the date of acquiring
G graduate qualification.
11. The aforementioned Memorandum was challenged by way of a writ
petition W.P. No. 3336 of(1990)- R.K. Mittal & Anr. v. Union of India & Ors.,
before a Single Judge of the Delhi High Court. By its judgment dated 19.8.1991
H which was reported as 45 ( 199 I) DL T 589, the High Court quashed the
.... -
•
SHAILENDRA DANIA v. S.P. DUBEY [P.P. NAOLEKAR, J.]
201
decision dated 20.9.1990 of DDA and allowed the writ on a limited ground that A
....
prior to issuance of the said circular, principles of natural justice were not
complied with. The relevant observations are as follows :-
" ... , I am of the view that the impugned decision has been taken, in
violation of the principles of natural justice, as admittedly, no
opportunity of being heard was given to the Degree-holders, as well B
as, the Diploma-holders. The result is that in my opinion, the case
should be remanded back to the ODA, for taking the decision afresh,
after inviting objections, or comments, both from the Degree-holders
._,
and Diploma-holders Junior Engineers. The representatives of both
•
these categories be also given opportunity of being heard. After this, c
it is for the DDA to interpret or clarify the rules."
" .... The impugned decision dated September 20, 1990, is quashed and
set aside. I remand the matter back to the DDA, with dim:tion to
decide the matter afresh, within a period of six months, after inviting
objections I comments from all concerned and after giving an D
opportunity of being heard, to the representatives of Degree-holder
and Diploma Holder Junior Engineers."
~
The diploma-holders by way of a Letters Patent Appeal (L.P.A. No. 43 of 1991)
challenged the decision of the Single Judge dated 19.8.1991. On 5.2.1991, an
Establishment Order was issued to promote diploma-holders on current duty E
charge basis. The same was questioned by filing a writ petition W.P. No. 2382
of (1991) - Slum Wing Delhi Development Authority Graduate Engineers'
Association (Regd) & Ors. v. D.D.A. & Ors., By its decision dated 12.2.1992
reported as 46 (1992) DLT 486 (DB)= 1992 (22) DRJ 548, the Delhi High
Court's Division Bench dismissed the LPA and allowed the writ petition
F
holding that three years' experience required for degree-holders' eligibility
....
quota had to be considered after acquiring the degree. The High Court
summarized the issues as follows :-
"Herein, the main controversy is whether a Diploma holder Junior
Engineer, who obtains degree while in service becomes eligible for G
promotion as Assistant Engineer on rendering three years' service
would include therein the period of service rendered by him prior to
.
--,..
the obtaining of the Degree or he has to render three years' service
after obtaining the Degree to become eligible for promotion to the
-
post of Assistant Engineer.. .....
H
202
SUPREME COURT REPORTS
[2007) 5 S.C.R.
A
... Here the only point for our consideration is whether three years
service as Junior Engineer has to be after obtaining degree or the
.,..
earlier service of the Junior Engineer while he I ding oiploma only can
also be considered"
12. The Division Bench of the High Court relied upon the observations
B of this Court as propounded in N. Suresh Nathan and Anr. v. Union of India
and Ors., [1992] Supp. l SCC 584 wherein the Court has observed that 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'
~ ,
c professional experience. Rule 11 provides for recruitment by promotion from
the grade of Section Officers (now called Junior Engineers) which provides
two categories of Junior Engineers, i.e., degree-holder Junior Engineers with
three years' service in the grade and the diploma-holder Junior Engineers with
six years' service in the grade and promotional quota of 50% from each
category which matches with Rule 7 wherein a degree is equated with diploma
D with three years' professional experience. The entire scheme, therefore, does
indicate that the period of three years' service in the grade required for
degree-holders according to Rule 11 as the qualification for promotion in that
category must mean three years' service in the grade as a degree-holder and,
I
therefore, that period of three years can commence only from the date of
-.'
E obtaining the degree and not earlier and this interpretation of Rule 11 is quite
tenable and commends to us being in conformity with the past practice
followed consistently. It has also been so understood by all concerned till the
raising of the present controversy.
., .
13. On 25.2.1992, one of the respondents herein S.P. Dubey and others
F challenged the abovementioned judgment of the Delhi High Court dated
12.2.1992 before this Court by way of Special Leave Petition (Civil) Nos. 773739of1992. The ODA also filed Special Leave Petitions (Civil) Nos. 7114-16
of 1992 against the aforesaid judgement. This Court dismissed these petitions
vide order dated 20.8.1992 in limine.
G
14. Pursuant to the directions contained in the judgment dated 12.2.1992
of the Division Bench of the Delhi High Court, DOA by a circular dated
30. i 0.1992 issued tentative seniority list of the Engineers and indicated their
placement as per their eligibility for promotion as Assistant Engineer upto
,.... .
15.10.1992. On 19.3.1993, the final seniority list of graduate Junior Engineers
(Civil) indicating their placement as per eligibility for promotion as Assistant -
H
SHAILENDRA DANIA v. S.P. DUBEY [P.P. NAO LE KAR, J.)
203
Engineer (Civil) was circulated. On 22.3.1993. the appellants were promoted as A
-
·-(
Assistant Engineers (Civil) on the recommendations of DPC against the
vacancies arising during calendar year spanning from 1.1.1988 to 1992 as per
the seniority list prepared by the Department in accordance with the judgment
dated 12.2.1992 of the High Court. The seniority list so drawn was based on
two principles, namely,
B
I.
The date on which the select.on panel of Degree-holders was
approved for appointment as Junior Engineers, and
2.
The date of acquisition of degree by a Diploma-holder Junior
Engineer working in the Department,
Provided that the persons in ( 1) above would maintain their inter se c
seniority by the selection panel;
Provided further that ifthere are more than one Diploma-holder Junior
Engineer acquiring degree as in (2) above, then they will be assigned
inter se seniority according to the order in which their names figure D
in 1987 list.
>
15. On 22.3.1993, the Department issued a corrigendum with regard to
the seniority position.
:::-
16. SWD was transferred to MCD on 1.9.1992 and hence the appellants
moved an application before the High Court. The High Court passed an order E
on 21.9. 1992 that in view of the transfer, the decision of the High Court dated
12.2.1992 would be implemented by MCD within three months from 21.9.1992.
17. One of the respondents herein S.P. Dubey - through writ petition
before the High Court of Delhi (W.P. No. 1664of1993), prayed for quashing F
'
the above-mentioned seniority list and sought for a direction that promotions
to the post of Assistant Engineers be made on the basis of the seniority list
issued by the authority in 1984 and 1987. Several other writ petitions were
filed before the High Court of Delhi, which questioned the above-mentioned
seniority list. S.P. Dubey and others through another writ petition before the
High Court of Delhi (W.P. No.1923of1993) prayed for quashing the promotions G
to the post of Assistant Engineers made by MCD vide orders dated 22.3.1993 .
.. -.'I.
18. On 12.3.2001, a Division Bench of the Delhi High Court vide its order
referred Civil Writ Petition Nos. 591of1989, 1427 of 1989, 1664of1993 and
1923 o!' 1993 along with some other petition·s for decision by a Bench of three H
204
SUPREME COURT REPORTS
[2007) 5 S.C.R.
A Judges of the High Court in view of the fact that it felt that the earlier decision
of the High Court dated 12.2.1992 in Slum Wing Delhi Development Authority
,. __
Graduate Engineers Association (Regd.) & Ors. v. D.D.A. & Ors., (supra},
which followed the decision of this Court in N. Suresh Nathan and Anr. v.
Union of India and Ors., (supra), required to be considered as N. Suresh
Nathan's Case had not been subsequently followed by this Court in other
B cases like M.B. Joshi and Ors. v. Salish Kumar Pandey and Ors., [1993] Supp.
2 SCC 419; D. Stephen Joseph v. Union of India and Ors., (1997] 4 SCC 753;
Anil Kumar Gupta and Ors. v. Municipal Corporation of Delhi and Ors.,
[2000] I SCC 128; and A.K. Raghumani Singh and Ors. v. Gopal Chandra
Nath and Ors., [2000] 4 SCC 30 as regards the applicability of eligibility criteria
C in the Recruitment Rules for promotion to the post of the Assistant Engineer.
19. Accordingly, the matter was placed before the Full Bench of the
Delhi High Court. The present appeals by special leave have been filed before
this Court against the interim and common order dated 25.1.2002 passed by
the Full Bench of the Delhi High Court. The Full Bench of the Delhi High
D Court after consideration of the relevant decisions, the rule in question and
the facts found from the record has recorded the findings that (i) it cannot
be said that the DDA followed a consistent practice to the effect that experience
for the purpose of promotion to the post of Assistant Engineer would be
counted only after a candidate acquires a degree; and (ii) the Note which was
E issued by DPC in 1971 was in violation of the statutory rules dated 13.11.1963.
It was observed that DPC had no requisite jurisdiction therefor, the same had
not been approved by the DDA and such Note was ultra vires. Consequently,
the appropriate practice which was followed pursuant to the Note of 1971 till
6.12.1982 was held to ie wholly illegal and without jurisdiction and thus in
the eye of law to be non est. The issue of res judicata was decided in the
F light of the aforementioned findings. With reference to the Note issued by the
DPC in 1971, it was observed that in a case where the fundamental right of
a person, by reason of a wrong interpretation of statute would be taken away,
which would render a decision nullity, cannot operate as res judicata. It was
further said that a candidate in terms of Article 16 of the Constitution oflndia
G does not have a right to pro.notion, but he has the fundamental right to be
considered therefor. Right to be considered in terms of Article 16 would
embrace within its fold consideration in accordance with law and in a fair, just
and equitable manner. If a candidate is deprived of his right to be considered
for promotion on misinterpretation a~d misconstruction of a statutory
provision, the same in the aforementioned situation would attract the wrath
H of Article 16 and on that ground an earlier decision would not attract the
SHAILENDRA DANIA v. S.P. DUBEY (P.P. NAOLEKAR, J.]
205
.. --\
principle of res judicata. An unreasoned order at the thresholcl does not A
constitute a binding precedent nor would such an order operate as res
judicata. As for the interpretation of the rule regarding the past service of
the diploma-holders, the Court held that the diploma-holders and the degreeholders were at par. The educational qualification was to be considered for
the purpose of eligibility alone. Once it is held that both the degree-holders B
and the diploma-holders had been performing the same type of functions,
there cannot be any doubt whatsoever that their experience would be counted
. ...,
for the purpose of their promotion irrespective of their educational qualification .
As and when diploma-holders acquire qualification, only then they become
eligible for consideration in the degree-holders' quota.