High Court of Punjab and HaryanaCWP/6374/2000dismissed

Anil Kumar Gupta v. State Of Haryana

2025-08-25Justice (To Be Nominated),Mr. Justice Kuldeep Tiwari16 pages

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2018 (1) SLR 668 6.

The claim of Anil Kumar Gupta is contested by the State stating that the ad hoc services rendered on the post of Junior Engineer (Civil) could not have been counted for the purposes of considering his eligibility for promotion. It is urged that the petitioner was regularized on 01.11.1986 and, therefore, his 5 years of substantive service as Junior Engineer with higher qualification of AMIE would be completed only in the year 1992. Petitioner's claim for promotion with effect from 1987 is accordingly opposed by the State. It is also urged that the Service Rules do not provide for maintaining seniority in the feeding cadre from the date of acquiring qualification. It is also submitted that recruitment to the post of SubDivisional Engineer by way of promotion is from different channels of promotion i.e.

, diploma holders and degree holders, etc. under Rule 6 and, therefore, the petitioner could be considered for promotion only under his quota, as per the principle of seniority-cum-merit depending upon the availability of post. The respondents further contend that none of the juniors possessing AMIE/BE qualification has been promoted or given current duty charge on the post of SDE. The respondents further contend that private respondent nos. 4 to 23 are senior to the petitioner in the feeding cadre of Junior Engineers.

So far as petitioner Pardeep Kumar Jain is concerned, he was appointed as Junior Engineer in Haryana State Minor Irrigation Tubewell Corporation (HSMITC) on 24.07.1981. He acquired the qualification of Bachelor in Engineering (Civil) from Regional Engineering College, Kurukshetra in July, 1991 as sponsored candidate from the Department. He was sent on deputation to the Public Health Engineering Department on 08.01.1997 and was subsequently absorbed in the borrowing department on 09.12.1999. He has claimed seniority over one Ashok Yadav on the ground that Ashok Yadav, although had obtained BE Degree in August 2007, but has been promoted in June, 2014, whereas the petitioner has been promoted in May, 2017, even though he had obtained BE degree in the year 1991. 8.

Petitioner Pardeep Kumar Jain filed CWP No. 7311 of 2020 before this Court, wherein a direction came to be issued to the respondents to consider his claim for promotion. Pursuant to such direction his claim came to be considered by the department vide order dated 23.06.2020. The respondents took note of petitioner's absorption order dated 09.12.1999, which contained the following stipulation: - "He will be treated as fresh appointee in this department. His seniority will be reckoned with effect from the date of joining on regular basis in this department and he will be treated junior most Junior Engineer in this Department. He would have no right of seniority and other benefits because of his old service in the HSMITC."

Relying upon the aforesaid clause, the respondents assert that the petitioner since has acquiesced to the order dated 09.12.1999, as such his seniority in the feeding cadre of Junior Engineers has been fixed only from

09.12.1999. A notification issued by the Haryana Government on 29.03.2004 has been relied upon which provided that following percentage would be maintained for recruitment to the post of SDE i.e., 50% by direct recruitment, whereas remaining 50% by promotion from the following categories: - i) 30% from the Members of Haryana PWD, Public Health Junior Engineers Services.

ii) 6% from Draftsmen members of Draftsmen and Tracers service; and iii) 14% from Haryana PWD Public Health Junior Engineer Service and Draftsmen Members of the Draftsmen and Tracers Service, possessing requisite qualification. 10.

The notification further provides that percentage indicated above would be maintained from time to time and any shortfall in the category would be made good from the future vacancies. However, no reversion/ retrenchment was to be made to facilitate filling up of such shortfall. The notification further provides that vacancies arising due to retirement, from promotion/ dismissal or death, etc. shall be filled from the category to which the vacancy belongs.

11.

The respondents have accordingly rejected the claim of petitioner Pardeep Kumar Jain on the ground that the higher qualification was already possessed by the petitioner when he was absorbed in the department and, therefore, his promotion to the post of SDE was to be based on the seniority of Junior Engineers in the feeding cadre. The Junior Engineers, who were seniors to the petitioners as per the seniority list of Junior Engineers and were possessing higher qualification and have requisite

experience after such higher qualification, could not be ignored. The respondents further asserted that the petitioner was placed at Sr. No. 241 in the seniority list, whereas Ashok Kumar Yadav was at Sr. No. 127. He also possessed the higher qualification and had completed the requisite 5 years' experience with prescribed higher qualification. Petitioner's claim for further promotion to the post of Executive Engineer was, therefore, rejected on the ground that he was to retire on 30.06.2020 by when the requisite 3 years working on the post of SDE would not be complete, as he had been promoted as SDE only on 21.07.2017. Consequently, his claim for promotion came to be rejected on 23.06.2020. The petitioner, therefore, has not only assailed the order dated 23.06.2020 but has also challenged the vires of the Service Rules as is the case in the writ petition filed by Anil Kumar Gupta.

12.

We have heard Mr. Sanjiv Gupta learned counsel for the petitioners and Mr. Bhupender Singh learned Additional Advocate General, Haryana.

13.

Rule 6 of the 1966 Rules specifies the different sources for appointment to the post in a fixed ratio. The Junior Engineer having 5 years' experience of the post with higher qualification of AMIE/BE has a separate quota for promotion to the post of Sub-Divisional Engineer (SDE). Rule 7 provides for qualifications for appointment by way of direct recruitment as well as by promotion. As per Rule 7 (3)(ii) of the 1966 Rules, an appointment by promotion from the source under Rule 6(1) requires the employee to possess any of the qualifications included in Appendix-B, i.e.

he has put in 5 years of service in case he possesses AMIE qualification and 2 years service in case he is a degree holder. 14.

Rule 9 of the 1966 Rules lays down the mode of promotion as per seniority-cum-merit. The inter se seniority of the members is determined as per Rule 12. In case of promoted officers from a particular source, it has to be as per the list approved under Rule 9. When the statutory Rules are cumulatively analyzed, it becomes clear that separate seniority is not required to be maintained of a candidate from the date of acquiring his higher qualification. As and when the post meant for a particular category becomes available, the senior most incumbent possessing requisite qualification is then to be considered for promotion irrespective of the date of acquiring the higher qualification.

15.

The petitioners' submission, that promotions ought to be made on the basis of seniority reckoned from the date of acquiring higher qualification alone, does not flow from the provisions of the applicable service rules. Rule 9 read with Rules 7 and 12 of the Rules clearly postulate that promotions are to be based on seniority-cum-merit, subject to availability of posts and satisfaction of eligibility criteria. 16.

The petitioners have assailed Rules 9 and 12 of the 1966 Rules on the ground that they do not specifically provide for promotion of a Junior Engineer (Civil) to the post of Sub-Divisional Engineer (Civil) after attaining the higher qualification of AMIE, etc. as is provided for in Rule 7(3)(ii) of the 1966 Rules. The underline premise on which such submission is made is that the eligibility for promotion having been acquired by the incumbent, he becomes entitled to be promoted. This premise, however, has

no sanctity in law. It is by now well settled that mere eligibility does not confer any right of promotion for the incumbent. We may refer to the judgment of the Supreme Court in I. Chuba Jamir and others vs The State of Nagaland and others 2009 (15) SCC 169, wherein it has been held as under: - 38 (

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17.

So far as right of an employee for promotion is concerned, the position in law is by now well settled as per which the limited right with the employee is to be considered for promotion, and that there is no vested right as such for promotion. Reference in this regard can be made to the judgment of the Supreme Court in P. Sakthi vs The Government of Tamil Nadu and others, 2025 INSC 620.

18.

In Nirmal Chandra Sinha vs Union of India and others 2008

(14) SCC 29, the Supreme Court has clearly held that a promotion takes effect from the date it is granted and not from the date when the vacancy occurs on the promoted post, or the promoted post is created. The observations contained in para are reproduced as under: - ?

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In Union of India and another vs Manpreet Singh Poonam etc. 2022 (6) SCC 105, the Supreme Court has held that a vacancy alone does not give an employee the right to a retrospective promotion, particularly when the rules for promotion include a prescribed selection process. Promotions and related benefits are governed by the specific rules for such posts and not by rules for a different post.

20.

In the light of the principles settled by the Supreme Court in the aforesaid decisions, we have no hesitation in rejecting the petitioners' challenge to the vires of the Rules 9 and 12 of the 1966 Rules on the ground that they do not provide for promotion on mere attaining of higher qualification as is provided in Rule 7(3)(ii) of the 1966 Rules. The challenge to the vires of the Rules is, therefore, rejected. 21.

Coming to the issue of promotion, Mr. Sanjiv Gupta learned counsel for the petitioner, has placed reliance upon the judgment of Supreme Court in Shailendra Dania and others vs S. P. Dubey and others ; 2007 (5) SCC 535 to buttress petitioner's claim for promotion. In this case promotion to the post of Assistant Engineer was from separate channels of Junior Engineers possessing diploma and degree. 50% posts were to be filled up by direct recruitment, while 50% were to be filled by way of promotion. 50% promotion quota was equally divided between Junior Engineers possessing degree on completion of 3 years of service after obtaining Engineering Degree and 8 years' service for the diploma holders.

The Supreme Court after analyzing the service rules held that 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 be substituted for service rendered as a degree holder. When the claim is made for a fixed quota, the condition necessary for becoming eligible for promotion has to be complied with. The two channels of promotion were held to be watertight compartments and a respective claim for promotion had to be made with reference to its specific quota.

diploma holder Junior Engineer could claim promotion in the quota of degree holder, nor can a degree holder Junior Engineer make any claim for promotion for the quota fixed for diploma holder. This principle laid down by the Supreme Court does not advance the cause of the present petitioners. There is no separate quota earmarked for promotion for degree holders vis-àvis diploma holders. The criteria for promotion herein is seniority-cummerit. Thus, the promotion can be offered to those who are senior and possess the eligibility and promotional post is available for them. It has not been shown by the petitioners that any ineligible person junior to them is promoted.

22.

Reliance is also placed by the petitioners upon judgment of Supreme Court in Parveen Gera's case (supra), wherein while interpreting a similar provision in the recruitment rules, the Court held that the eligibility criteria for promotion has to be reckoned only from the date when AMIE qualification is obtained. It is only the experience, obtained after passing the higher qualification, which can be taken into consideration. This principle of law has to be applied in the particular service rules applicable to the petitioners. The submission advanced on behalf of the petitioners, to provide for separate maintenance of seniority or for grant of promotion, on acquiring the requisite experience with higher qualification, as a matter of right, finds no support from the judgment of the Supreme Court in this case. 23.

In N. Suresh Nathan's case (supra), the question raised was different. The Court held that seniority between the degree holders and diploma holders for promotion to the post of Assistant Engineer was not

relevant since it was a selection post. The Recruitment Rules did not provide that seniority-cum-merit would be the criteria for promotion. 24.

Reliance is also placed upon judgment of the Supreme Court in Union of India and others vs N.R. Banerjee and others 1997 (9) SCC 287. This decision arose out of a direction issued by the Tribunal to constitute a Departmental Promotion Committee and to take confidential reports of the eligible candidates for a particular year. This direction was issued as the employees were to retire in the year 1994. Therefore, the confidential report of 1993 was to be looked into and not the confidential reports of 1994. This judgment has no applicability to the facts of the present case. 25.

The judgment of the Supreme Court in Union of India and others vs Vipincandra Hiralal Shah 1996 (6) SCC 721, related to a distinct exigency i.e., clubbing of vacancies of a number of years while preparing the select list for promotion to the Indian Administrative Service from the State Civil Service. The Court endorsed the directions of the Tribunal to prepare a separate select list for each year based on vacancies arose in that particular year. This was a case on the facts of its own and its principles are not shown to have any applicability in this case.

26.

The Division Bench judgment of this Court in Sukhdev Singh and others vs Haryana Power Generation Corporation Limited and others 2018 (4) SCT 716, also is a judgment on the facts of its own. This Court was interpreting Regulation 9 of the Regulations 92/12 which provided for separate channel of recruitment to the post of Assistant Engineer. It was held that 121⁄2% quota for accelerated promotion based upon higher qualification

has to be filled on the basis of seniority of a candidate possessing requisite experience for the post with higher qualification. 27.

The Division Bench judgment of this Court also in CWP No. 10931 of 1990 Gian Singh vs The State of Haryana and another decided on 18.01.2011, do not advance the cause of the petitioners urged in the present petitions, either.

28.

The petitioners have also placed reliance upon a judgment of learned Single Judge in Ram Kumar Sharma vs State of Haryana, 1996 (4) SCT 715 wherein the petitioner has joined as Junior Engineer (Mechanical) in Haryana PWD on 27.09.1973. He passed AMIE examination in the year 1982. Consequently, he became eligible to be considered for promotion on 01.01.1983, as against respondent no.3 and 4, although they had joined as Junior Engineers on 17.10.1968 and 03.10.1961 but had obtained qualification only in the year 1983 and consequently became eligible to be considered for promotion on 01.01.1994.

29.

The petitioners have also relied upon judgment of the Supreme Court in Union of India and others vs N. C. Murali and others 2017 (13) SCC 575, wherein it has been held that unless there is specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystallize on the date of occurrence of vacancy and the promotion is to be extended on the date when it is actually effected.

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