T. VALSAN (D) THR. LRS. & ORS.versusK. KANAGARAJ & ORS.

456                      [2023]REPORTS
               SUPREME COURT    6 S.C.R. 456                 [2023] 6 S.C.R.


A                    T. VALSAN (D) THR. LRS. & ORS.
                                       v.
                          K. KANAGARAJ & ORS.
                      (Civil Appeal No. 3466-3468 of 2023)
B                                MAY 08, 2023
             [SANJAY KISHAN KAUL, ABHAY S. OKA AND
                        MANOJ MISRA, JJ.]
             Electricity Department, Group B (Technical) Assistant Engineer
      (Electrical) Recruitment Rules, 1979 – Promotion to the post of
C
      Assistant Engineer (Electrical) – Under the Rules, 80% of the
      vacancies for the post of Assistant Engineer were to be filled up by
      promotion and 20% by direct recruitment – Out of this 80%, 50%
      were earmarked for those Junior Engineers who possessed Degree
      in Engineering with regular service of 3 years and the other 50%
D     for those possessing Diploma with regular service of 7 years – Junior
      Engineers-private respondents, who were originally Diploma holders
      and had acquired degree during service, were promoted as Assistant
      Engineers immediately after acquiring their degree without insistence
      on 3 years of continuous service from the date of acquisition of the
      degree – Challenged by appellants who had joined the service as
E
      Junior Engineers, having already acquired an Engineering Degree
      prior to the said appointment – CAT held partly in favour of the
      appellants relying on Shailendra Dania case – High Court held in
      favour of the Respondents relying on D. Stephen Joseph case – Issue
      referred by two-Judges Bench opining that D. Stephen Joseph case
F     did not reflect the correct opinion as while construing almost
      identical Rules, the three-Judges Bench in Shailendra Dania case
      had opined to the contrary – Answering the reference, held: View
      taken in D. Stephen Joseph case is the applicable law – Under the
      Rules, the distinction is between the diploma holder and the degree
      holder and the period of service rendered as a Junior Engineer
G
      without any distinction between the years served prior to or after
      having obtained the degree – View taken by High Court upheld –
      Service Law.
            Service Law – Seniority – Held: In the absence of any statutory
      provision or rule made thereunder or under the proviso appended
H
                                      456
T. VALSAN (D) THR. LRS. & ORS. v. K. KANAGARAJ & ORS.                  457


to Article 309, once an incumbent is appointed to the post according   A
to rules, their seniority has to be counted from the date of
appointment – Constitution of India – Article 309.
      Service Law – Promotion – Two channels for promotion –
Incentive to acquire the higher degree – Discussed.
      D. Stephen Joseph v. Union of India & Ors. (1997) 4              B
      SCC 753 : [1997] 3 SCR 1040 – held applicable.
      C. Chakkaravarthy & Ors. v. M. Satyavathy, IAS & Ors.
      (2015) 16 SCC 652 – relied on.
      Shailendra Dania & Ors. v. S.P. Dubey & Ors. (2007)
      5 SCC 535 : [2007] 5 SCR 190; M. B. Joshi v. Satish              C
      Kumar Pandey (1993) 2 Supp. SCC 419 : [1992] 2
      Suppl. SCR 1; K. K. Dixit & Ors. v. Rajasthan Housing
      Board & Anr. (2015) 1 SCC 474 : [2014] 10 SCR 397;
      Anil Kumar Gupta v. Municipal Corporation of Delhi
      (2000) 1 SCC 128 : [1999] 4 Suppl. SCR 553;                      D
      Chandravathi P. K. & Ors. v. C. K. Saji & Ors. (2004)
      3 SCC 734 : [2004] 2 SCR 330; Satpal Antil v. Union
      of India (1995) 4 SCC 419 : [1995] 1 Suppl. SCR 1;
      A. K. Raghumani Singh v. Gopal Chandra Nath (2000)
      4 SCC 30 : [2000] 2 SCR 943; Pramod K. Pankaj v.
      State of Bihar (2004) 3 SCC 723 : [2003] 5 Suppl. SCR            E
      916 – referred to.
                      Case Law Reference
[2007] 5 SCR 190                referred to         Para 7
[1997] 3 SCR 1040               held applicable     Para 7             F
[1992] 2 Suppl. SCR 1           referred to         Para 10
[2014] 10 SCR 397               referred to         Para 12
[1999] 4 Suppl. SCR 553         referred to         Para 17
[2004] 2 SCR 330                referred to         Para 17            G
(2015) 16 SCC 652               relied on           Para 19
[1995] 1 Suppl. SCR 1           referred to         Para 22
[2000] 2 SCR 943                referred to         Para 22
[2003] 5 Suppl. SCR 916         referred to          Para 22
                                                                       H
458            SUPREME COURT REPORTS                          [2023] 6 S.C.R.


A           CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3466-
      3468 of 2023.
            From the Judgment and Order dated 08.11.2010 of the High Court
      of Judicature at Madras in WP Nos. 26525 of 2009, 221 and 7165 of
      2010.
B           Raghavendra S. Srivatsa, Venkita Subramoniam T. R., Likhi Chand
      Bonsle, Rahat Bansal, Ms. Komal Mundhra, Advs. for the Appellants.
           Anurag Dubey, Bhupendra Kumar Bhardwaj, Ms. Anjali Tiwari,
      Ms. Geetanjali Setia, Ms. Divya Bhardwaj, S. R. Setia, Aravindh S.,
      Ms. Uma Bhuvaneswari C., Abbas B., Advs. for the Respondents.
C
            The Judgment of the Court was delivered by
            SANJAY KISHAN KAUL, J.
            1. Leave granted.
             2. The Appellants herein joined the service as Junior Engineers in
D
      the Electricity Department of the Government of Puducherry, having
      already acquired an Engineering Degree prior to the appointment to the
      post of Junior Engineer. On the other hand, the private Respondents
      joined the service as Junior Engineers with a Diploma and, in the course
      of service, obtained an Engineering Degree.
E           Factual Background:
            3. As per the Government of Pondicherry, Electricity Department,
      Group B (Technical) Assistant Engineer (Electrical) Recruitment Rules,
      1979 (hereinafter referred to as ‘the Rules’) for the post of Junior
      Engineer, 50% of the vacancies are to be filled by promotion, and the
F     remaining 50% are to be filled by direct recruitment. The next avenue
      of promotion is to the post of Assistant Engineer (Electrical).
             4. Under the said Rules, 80% of the vacancies for the post of
      Assistant Engineer are to be filled up by ‘promotion’ and 20% by
      ‘direct recruitment’. The promotion is made among Junior Engineers
G     with three years of regular service for those with a Degree in
      electrical engineering and seven years of regular service for those
      with only a Diploma in electrical engineering. A subsequent
      amendment dated 07.10.1982 was made to Rule 4 read with
      Paragraph 11 of the Recruitment Rules on the subject of
H     ‘promotion’. Thereafter, the amended Rules earmarked 50% for
T. VALSAN (D) THR. LRS. & ORS. v. K. KANAGARAJ & ORS.                        459
               [SANJAY KISHAN KAUL, J.]

those Junior Engineers who possess Degree in Engineering with                A
regular service of 3 years. The other 50% was earmarked for those
Junior Engineers who possess Diploma with regular service of 7
years.


                                                                             B




                                                                             C




                                                                             D




                                                                             E




                                                                             F


       5. Significance of the aforesaid is that in order to earn their
promotion to the post of Assistant Engineer, a Junior Engineer, possessing
an Engineering Degree, has to have fewer years of service while in the
case of a Diploma holder, the requisite period for service, to be eligible   G
for promotion, was more. We may notice that while working as a Junior
Engineer, there is no difference between a Degree holder and a Diploma
holder. The moot point, thus, which arises, is whether, for a Diploma
holder, who acquires a degree during the course of employment, the
period of service as a Junior Engineer prior to acquiring the degree is to   H
460             SUPREME COURT REPORTS                             [2023] 6 S.C.R.


A     be excluded for computing the eligible period of service for promotion to
      the post of an Assistant Engineer.
             6. The Puducherry administration construed the Rules to mean
      that as long as the Diploma holder acquires a degree, the period spent in
      service as a Junior Engineer, before the acquisition of an engineering
B     degree, would be counted. The Appellants, thus, approached the Central
      Administrative Tribunal, Madras Bench (hereinafter referred to as ‘the
      CAT’) in O.A. No. 355/2008, challenging the decision of the Puducherry
      administration to promote the Junior Engineers, who were originally
      Diploma holders and acquired degree during service, as Assistant
      Engineers under the Degree quota, immediately after they acquired their
C     degree without insisting on a three-years of continuous service from the
      date of acquisition of the degree. This was alleged to have resulted in
      denying promotion to the Junior Engineers, who joined the service as
      Degree holders.
             Procedural History:
D
             Before the Central Administrative Tribunal
             7. The CAT, vide an order dated 20.11.2009, partly found in favour
      of the Appellants and opined that the qualifying service for Junior
      Engineers, who obtained their degree during their service for the purposes
E     of promotion to Assistant Engineer under the Degree quota, would have
      to be considered from the date when they obtained the degree. This
      view of the CAT was based on Shailendra Dania & Ors. v. S.P. Dubey
      & Ors.1. The CAT opined that the Rule in question in the present case is
      almost identical to the Rule in the aforesaid case and, thus, concluded
      that the Degree and Diploma holders are distinct, and both are entitled
F     to promotion in their respective quota. The CAT, in its wisdom, did not
      consider the case of D. Stephen Joseph v. Union of India & Ors.2 on
      the ground that the issue requires fresh consideration in view of the
      subsequent judgment of this Court in Shailendra Dania & Ors.3
             8. The aforesaid view resulted in multiple writ petitions4 being
G     filed before the High Court by several employees of the Puducherry


      1
        (2007) 5 SCC 535
      2
        (1997) 4 SCC 753
      3
        (supra)
      4
H       W.P. No. 26525 of 2009 and W.P. Nos. 221 & 7165 of 2010
T. VALSAN (D) THR. LRS. & ORS. v. K. KANAGARAJ & ORS.                           461
               [SANJAY KISHAN KAUL, J.]

Electricity Department, who were affected by the order but were not             A
impleaded as a party before the CAT.
       Arguments Before the High Court
       9. In the proceedings before the High Court, the two parties relied
upon the aforesaid two judgments – the Appellants on Shailendra Dania
& Ors.5 case while the Respondents on D. Stephen Joseph6 case.                  B
Shailendra Dania & Ors.7 case is undisputedly a latter judgment and
pertains to a different Rule, albeit it is stated to be almost similar, while
D. Stephen Joseph8 case deals with the very same Rules, in question,
as in the present case. The submission of the Respondents was that in
the Rules in question, there is nothing stipulated that the experience gained   C
after the acquisition of the Degree in Electricity Engineering was alone
to be considered.
       10. The High Court held in favour of the Respondents by allowing
the writ petition while relying on the judgment in D. Stephen Joseph9
case. In this behalf, the judgment in M.B. Joshi v. Satish Kumar                D
Pandey10 was also relied upon by the High Court, which had been cited
in D. Stephen Joseph11 case qua the aspect of interpretation of service
rules. The said case opined that when a Rule is quite specific, it would
not be proper to count the experience only from the date of acquisition
of the superior educational qualification because such an interpretation
will violate the purpose to incentivise the employee to acquire higher          E
education. The relevant past practice followed by the Department being
to the same effect, the practice of considering the tenure of a Junior
Engineer as a whole was said to have acquired the status of a Rule of
the department. Simultaneously, it was also observed that since the very
Rule, in question, had been interpreted by this Court, it was not open for      F
the CAT to have relied upon the decision qua some other Rules. In the
context of the two judgments of the Supreme Court so discussed, it was
observed that Shailendra Dania & Ors.12 case, being the latter judgment

5
  (supra)
6
  (supra)                                                                       G
7
  (supra)
8
  (supra)
9
  (supra)
10
   (1993) Supp. (2) SCC 419
11
   (supra)
12
   (supra)
                                                                                H
462                SUPREME COURT REPORTS                       [2023] 6 S.C.R.


A     of three-Judges, had distinguished itself from the earlier judgment in D.
      Stephen Joseph13 case, being the judgment of two-judges, on the true
      interpretation of that Rule, in question.
             11. The aforesaid resulted in the Special Leave Petition being
      filed before this Court.
B            Initial Proceedings Before this Court
            12. The two-Judges Bench of this Court, in terms of the order
      dated 30.01.2018, referred the issue to be considered by a larger Bench.
      While making the reference, the two-Judges Bench opined that D.
      Stephen Joseph14 case apparently was not reflecting the correct opinion
C     as while construing almost identical Rules, a larger Bench of three-Judges
      had opined to the contrary in Shailendra Dania & Ors.15 case as also
      in K.K. Dixit & Ors. vs. Rajasthan Housing Board & Anr.16, wherein
      this Court had opined that the period of experience must be reckoned
      from the date of acquisition of the Degree. This is how the matter came
D     up before the three-Judges Bench, as now constituted for our
      consideration in the reference.
             The debate before us
             13. On behalf of the Appellants, it was sought to be canvassed
      that the interpretation of the Rule ought to be governed by the two
E     principles:
             i.    The prescription of an educational qualification and a certain
                   number of years of experience in the designated post is a
                   cumulative requirement. A higher educational qualification
                   makes a qualitative difference in the service rendered by the
F                  incumbent. Therefore, such prescription of a lesser number
                   of years of experience for promotion has a rational nexus to
                   the object sought to be achieved, namely, achieving efficiency
                   at work.
             ii.   Watertight compartments are created for the two classes of
G                  employees - the ones with the higher educational qualification
                   requiring lesser number of years of service, and the ones

      13
         (supra)
      14
         (supra)
      15
         (supra)
      16
H        (2015) 1 SCC 474
T. VALSAN (D) THR. LRS. & ORS. v. K. KANAGARAJ & ORS.                          463
               [SANJAY KISHAN KAUL, J.]

             with lesser educational qualification requiring higher number     A
             of years of service. This demarcation has a direct nexus with
             the object stated above, and any breach of such demarcation
             will amount to treating unequal’s as equals, thereby defeating
             the purpose of the Rule.
       14. It was submitted that the three-Judges Bench in Shailendra          B
Dania & Ors. 17 case had taken into account the aforementioned
principles and had interpreted an almost identical Rule. That judgment
had been further followed and relied upon by this Court in K.K. Dixit &
Ors.18 case. It was further submitted that the two-Judges Bench judgment
in D. Stephen Joseph19 case had no precedential value, and it is sub
silentio as to the actual text of the Rule and the difference in the quality   C
of service rendered by a Degree holder Junior Engineer vis-à-vis a
Diploma holder Junior Engineer was neither placed nor covered by this
Court. That judgment was stated to be completely based only on the
arguments of a past practice and not as to the actual meaning and
interpretation of the relevant Rule.                                           D
       15. While referring to the Rule, it was submitted that the plain and
dictionary meaning of the word “with” is “accompanied by”. The
synonyms in the dictionary are “accompanied by, escorted by,
alongside, in addition to, as well as”. Thus, the submission of the
Appellants was that irrespective of the use of the word “with” or “and”,       E
it is a conjunctive phrase and in the light of settled principles, the
requirement of educational qualification and service experience is a
cumulative requirement.
       16. The Appellants contended that they had qualified as Junior
Engineers holding Degrees for a much longer period of time than the            F
private Respondents, who had entered the service only as Junior Engineers
holding Diplomas and actually earned their promotions almost immediately
once they acquired their Degrees by coming into the Degree quota. This
was stated to permit the private Respondents to infiltrate into the quota
meant for the Degree holders based on a wrong interpretation of the
Rule and relying on the earlier judgment of this Court in the case of D.       G
Stephen Joseph20.
17
   (supra)
18
   (supra)
19
   (supra)
20
   (supra)                                                                     H
464             SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A             17. On the other hand, it was urged on behalf of the Respondents
      while commending the view taken in D. Stephen Joseph’s21 case that
      the view in that case and Shailendra Dania & Ors.22 case is really not
      in variance. The Rule was stated to be different. Apart from that,
      observations made in Shailendra Dania & Ors.23 case, which would
      show that the view taken in D. Stephen Joseph24 case has not been
B
      faulted. A reference was also made to two other judicial pronouncements
      of this Court in Anil Kumar Gupta v. Municipal Corporation of Delhi25
      and Chandravathi P.K. & Ors. v. C.K. Saji & Ors.26, which had also
      endorsed the view taken in D. Stephen Joseph27case and, thus, that
      case cannot be said to be a sub silentio. These two judgments are once
C     again of a three-Judges Bench, and the latter judgment had set down the
      principles to be followed as regards the counting of the service period of
      Diploma holders.
             18. The effect of the aforesaid pronouncements was stated to be
      that in case of the Electricity Department of the Union Territory of
D     Puducherry, the principle that has emerged in respect of the Rules is
      that for the purpose of the eligibility for promotion as Assistant Engineer,
      Diploma holders can count their service prior to the acquisition of their
      degree.
             Analysis of the aforesaid judgments and our view:
E            19. On examining the controversy in the context of the arguments
      urged and the judicial precedents, we can say that actually, the issue is
      no more res integra in view of the judgment of this Court in C.
      Chakkaravarthy & Ors. v. M. Satyavathy, IAS & Ors.28 Though it is
      a two-Judges Bench view, the very issue has been examined, which is
F     really sought to be debated before us. It was observed in para 10 as
      under:
             “There is, in our opinion, considerable merit in that submission of
             the petitioners. There is no gainsaying that this Court has

      21
         (supra)
G     22
         (supra)
      23
         (supra)
      24
         (supra)
      25
         (2000) 1 SCC 128
      26
         (2004) 3 SCC 734
      27
         (supra)
      28
H        (2015) 16 SCC 652
T. VALSAN (D) THR. LRS. & ORS. v. K. KANAGARAJ & ORS.                              465
               [SANJAY KISHAN KAUL, J.]

      unequivocally declared that promotion to the post of Assistant               A
      Engineers in the service shall be on the basis of merit and merit
      alone and that seniority of the candidates cannot be taken as an
      input for determining such merit. This Court has also very clearly
      rejected the procedure followed by the Government whereby the
      date on which the candidate had acquired his degree qualification
                                                                                   B
      was taken as a determining factor. That being so, and given the
      large number of candidates eligible for consideration the
      Government was entitled to adopt the method of restricting the
      zone of consideration based on the number of vacancies. Inasmuch
      as the Government relied upon the DoPT guidelines for achieving
      that objective it committed no fault. The question, however, is              C
      whether the Government could draw-up a list of eligible candidates
      not by reference to the length of service in the cadre but by
      reference to the date on which the candidates acquired the eligibility
      which, as noticed earlier, was itself dependent upon the date on
      which the candidate acquired the degree qualification. Since,
                                                                                   D
      however, the acquisition of a degree qualification itself was not
      based on any consistently uniform criterion, test or procedure, the
      date on which such a qualification was acquired and resultantly
      the date on which the candidate attained their eligibility was also
      bound to be anything but uniform and non-discriminatory. As
      between the date of acquiring eligibility and the date of entering           E
      service as a Section Officer/Junior Engineer the latter was, in our
      opinion, a more intelligible, fair and reasonable yardstick to be
      applied for drawing-up the list of eligible candidates by the review
      DPC. Inasmuch as the review DPC relied upon the date of
      acquiring eligibility as the basis for preparation of the list of eligible
                                                                                   F
      candidates, it committed a mistake which needs to be corrected.”
       20. A reading of the aforesaid paragraph shows that the promotion
to the post of Assistant Engineer was to be based on merit and merit
alone. The seniority of candidates could not be taken into account for
determining such merit. In this merit-based selection, there was a
qualifying prescription to be so considered on merits. The time period             G
spent in the service as Junior Engineer was at variance dependent on
whether the person had a qualifying Degree or a qualifying Diploma.
There was no necessity for a Degree to perform the job of a Junior
Engineer, and all persons were alike. The distinction only came into play
when the merit-based promotion had to take effect. Thus, as to when                H
466                 SUPREME COURT REPORTS                         [2023] 6 S.C.R.


A     the person obtained the degree as a method of advancement of his
      knowledge and entitling him to an earlier consideration in the time period
      would not be relevant.
            21. The Department of Personnel and Training, “Instructions and
      Guidelines on Seniority”, have been placed before us. As far as the
B     seniority of promotees is concerned, the relevant portion is as under:
                “2.2. SENIORITY OF PROMOTEES
                .........
                2.2.1 Where promotions to a grade are made from more than one
C               grade and quotas have been laid down for each feeder grade, the
                eligible persons shall be arranged in separate lists in the order of
                their relative seniority in their respective grades. The officers in
                each grade, assessed as fit by the Departmental Promotion
                Committee shall be interpolated in the ratio prescribed for each
                grade in the recruitment rules for the post.”
D
              22. A three Judges Bench of this Court in Chandravathi P.K. &
           29
      Ors. referred to a number of earlier judgments on the issue, including
      D. Stephen Joseph30, Satpal Antil v. Union of India31, Anil Kumar
      Gupta 32, A.K. Raghumani Singh v. Gopal Chandra Nath 33 and
      Pramod K. Pankaj v. State of Bihar34 and quoted with approval of the
E     last of these judgments. The principle laid down is that in the absence of
      any statutory provision or rule made thereunder or under the proviso
      appended to Article 309 of the Constitution of India, once an incumbent
      is appointed to the post according to rules, their seniority has to be counted
      from the date of appointment.
F            23. In Shailendra Dania & Ors.35 case, it was noticed in para
      36 that the past practice would be a relevant aspect while construing the
      service rule. The aforementioned judgment distinguished itself from D.
      Stephen Joseph36 case on the ground that the interpretation of the rules

      29
         (supra)
G     30
         (supra)
      31
         (1995) 4 SCC 419
      32
         (supra)
      33
         (2000) 4 SCC 30
      34
         (2004) 3 SCC 723
      35
         (supra)
      36
H        (supra)
T. VALSAN (D) THR. LRS. & ORS. v. K. KANAGARAJ & ORS.                          467
               [SANJAY KISHAN KAUL, J.]

would be determined on a case-to-case basis, and the wordings of the           A
rules as well as past practices are important criteria. Similarly, in the
present case, the Electricity Department has a past practice of considering
the years of service prior to the acquisition of the degree.
       24. The principle of past practice being of significance has also
been noticed in M.B. Joshi37 case. This judgment also discusses the            B
aspect where there are two channels for promotion (as in the present
case) and illustrates that if the total time period of service was not to be
counted, then there could not be said to be any incentive to acquire the
higher degree except as an academic pursuit. The incentive is that if you
acquire a higher degree as compared to a diploma, you come into a
channel which entitles consideration, albeit on merit, in a fast lane with     C
less number of years of service required in the cadre.
       25. In our view, one of the important aspects is the wording of the
Rule itself. According to the Rules, 50 percent of the promotion quota is
from Junior Engineers with three years of regular service in the grade
“and” possessing a degree in Electrical Engineering. The Rule does not         D
say from which date the time period of regular service has to be counted,
but there is a twin requirement of three years of regular service as also
a degree. As against this, the second scheme of 50 percent promotion
from Junior Engineers uses the word “with” seven years of regular
service in the grade and possessing a diploma in Electrical Engineering.       E
Thus, the distinction is between the diploma holder and the degree holder
and the period of service rendered as a Junior Engineer without any
distinction between the years served prior to or after having obtained
the degree. Accepting the plea of the Appellant would amount to insertion
into the requirement of the Rules, which is not stipulated. Further, this is
how the Rule has been understood by the Department, the framers of             F
the Rules, and accordingly, the Rules have been uniformly implemented
in the Electricity Department over a period of time. In view of the above,
due weightage must be given to the view of the framers of the Rules.
          Conclusion:
                                                                               G
       26. In view of the aforesaid, we uphold the view taken by the
High Court opining that there is no distinction between the time period
served before or after the acquisition of the degree so long as the degree
is acquired and is the basis for consideration of the promotion. We are,
37
     (supra)                                                                   H
468                  SUPREME COURT REPORTS                    [2023] 6 S.C.R.


A     thus, of the view that for all the aforesaid reasons for the Department in
      question, the view taken in D. Stephen Joseph38 is held to be applicable
      law, and we answer the reference accordingly.
                27. The appeals are accordingly dismissed.

B     Divya Pandey                                              Appeals dismissed.
      (Assisted by : Shevali Monga, LCRA)




C




D




E




F




G




      38
H          (supra)