- (1.) THESE batch of writ petitions have been filed by degree holder (BE/aime) Junior Engineers of Lok Nirman Vibhag of Government of U. P challenging the various steps of process of promotion on the posts of Assistant Engineers including the validity and correctness of prescription of quota for promotion, determination of vacancies and preparation of eligibility list and also validity and applicability of new Rules of recruitment namely The Uttar Pradesh Public Works Department Group-B Civil Engineering Service Rules, 2004, hereinafter referred to as new Rules 2004, for the post of Assistant Engineers published under the notification dated 3-1-2004. Although, individual petitions comprehend grievances of only individual petitioners but our effort is to comprehend all necessary facts and to decide the issues raised in these batch of writ petitions so that the controversy may be set at rest. The petitioners of Writ Petitions No. 2750/2004, 39299/2005, 51288/2005, 1549/2004, 58513/2005 and 47560/2005 have challenged the provisions of the aforesaid Rules pertaining to the recruitment on the posts in question and alternatively have also challenged the process of selection that the aforesaid notification shall not cover the vacancies of Assistant Engineers prior to the date of commencement of the notification. Since the facts and grounds of aforesaid writ petitions are almost similar, therefore, we would like to state the facts of Anjani Kumar Misra & Anr. 's case only to resolve the controversy involved in the aforesaid cases.
(2.) IT is stated in the aforesaid case that there are Rules regulating process of promotion from the post of Junior Engineer to the post of Assistant Engineer known as U. P. Service of Engineers (Building and Road Branch) (Class II) Rules, 1936 as amended from time to time (hereinafter referred to as the Old 1936 Rules ). Rule 3 of which deals with the definition clause and Rule 4 provides strength of cadre of service. Rule 5 provides for source of recruitment, Rule 6 empowers the Government to decide the vacancies to be filled from the sources specified under the aforesaid Rule 5. Rule 9 provides for technical qualification for appointment. On 21-7-1959 a notification was issued by the State Government making amendment to the Old 1936 Rules whereby in clause (iv) of Rule-5 the words 'upper-subordinate' had been deleted and the existing clause (a) of Rule-6 was substituted by new provisions containing 25% of vacancies in the service are reserved or earmarked for selected qualified members of Subordinate Engineering Service and Computers. The vacancies so reserved has to be shared by members of Subordinate Engineering Service and Computers in approximate proportion of their relative cadre strengths at the time of selection in question. Rule 9 of Old 1936 Rules as initially existed provided technical qualifications required to be possessed for the post of Assistant Engineer. Sub-clause (ii) provided that no officer would be promoted under Rule 5 (iv) unless he had passed any qualifying examination, which the Government may prescribe. Vide Government Notification dated 1st October, 1966, contained in Annexure-3 of the writ petition the United Provinces Service of Engineers (Building and Road Branch) Class II Amendment Rules, 1966 came into force, whereby existing original Rule 9 of Old Rules 1936 had been substituted by new rules. By means of the substitution so effected a provision was made that an officer could be promoted to the post of Assistant Engineer after having passed the qualifying examination as prescribed by the State Government or in case he possessed the technical qualification prescribed in Rule 9 (i) of the 1936 Rules. The effect of the said amendment was that a Junior Engineer possessing any of the qualifications prescribed under Rule 9 (i) was no longer required to pass the qualifying examination, which was necessary to be passed only by such Junior Engineers who did not possess the technical qualification specified under Rule 9 (i ). Thereafter certain amendments were made to Rules 3 (c), 5 and 6 of the old 1936 Rules by notification No. 492 dated 28-7-1969 and in 1971 by means of another notification amendment was effected to Rule 23 of the 1936 Rules. The validity of amendments made to Rules 3 (c), 5 and 6 by the 1969 notification and amendments effected in Rule 23 by the 1971 notification were subject-matter of challenge in P. D. Agarwal's case. The aforesaid challenge was accepted by Hon'ble Apex Court by means of its judgment and order dated 8-6-1987 reported in (1987) 3 SCC 622, P. D. Agarwal v. State of U. P. & Ors. , A. I. R. 1987 SC 1676.
(3.) ON 4-8-1987 a notification was issued by the State Government making amendment to 1936 Rules including Rules 5, 6, 9, 12, 13 and 16 of the existing Rule and on 25-9-1997 another notification was issued by State Government whereby Rule 5 of 1936 Rules was again substituted by new Rules. The aforesaid notifications are on record as Annexures 5 and 6 of the writ petition. The effect of the amendment so referred to above was to specify a separate promotion quota of 8. 33% for degree holder Junior Engineers in promotion to the post of Assistant Engineer. The validity of notifications dated 4-8- 1987 and 25-9-1997 was subject-matter of challenge before this Court by means of four writ petitions including Writ Petition No. 42762 of 2000, Aruvendra Kumar Garg v. State of U. P. & Ors. A Division Bench of this Court while deciding all aforesaid writ petitions jointly in Aruvendra Kumar Garg's case vide judgment and order dated 22-3-2002, contained in Annexure-7 of the writ petition (reported in 2002 (1) LBESR 963 (All) : 2002 (2) E. S. C. 148), has quashed the impugned notifications dated 4-8-1987 and 25-9-1997 being ultra virus of Articles 14 and 16 of the Constitution. Against the aforesaid judgment a Special Leave Petition has been filed before the Apex Court by Aruvendra Kumar Garg & Ors. but vide order dated 1st August, 2006 the Hon'ble Apex Court has permitted the appellant of said case to withdraw the Civil Appeal No. 40195 of 2002, Aruvendra Kumar Garg v. State of U. P. , with Civil Appeal No. 4194 of 2002. It is further stated in the petition that under the 1936 Rules as available after the judgment of High Court dated 22-3-2002 there retained a promotion quota of 25% to be filled from Junior Engineers/computers satisfying the eligibility requirement specified by Rule 9. As a further consequence Junior Engineer/computers of Lok Nirman Vibhag who had either passed qualifying examination as envisaged under Rule 9 (ii) or had passed Associate Membership Examination of the Institute of Engineers (India) or possessed a Bachelor degree in Engineering were eligible for consideration for promotion to the post of Assistant Engineer. The qualifying examination envisaged by Rule 9 (ii) is a qualifying examination prescribed by State Government. The original prescribed qualifying examination was governed by Rules as printed in the Manual of Orders of the year 1955. The relevant extracts of the 1955 Manual of Orders governing the qualifying examination is on record as Annexure-9 of the writ petition. The relevant extracts of Rules governing qualifying examination as printed in Appendix (iv) of 1969 Edition of Manual of Order is on record as Annexure-10 of the writ petition. The scheme specified above was partly modified by notification issued in the year 1969, 1970 and 1972 and such modified Rule governing qualifying examination as contained in Appendix 25 of the Manual of Order as published in the year 1997 is enclosed as Annexure-11 of the writ petition. It is stated that since the qualifying examination envisaged under Rule 9 (ii) was the qualifying examination for treating candidates not possessing Bachelor of Engineering degree/associate Membership of Institute of Engineers, at par with the aforesaid qualification and the Rules governing the qualifying examination would demonstrate that the qualifying examination was envisaged as a written examination based upon a specified course curriculum for testing the technical knowledge of the candidates in Engineering but on 11-2-2003 the State Government issued an office order making provision that the qualifying examination under Rule 9 (ii) of the Rules would comprise only of an oral interview to be conducted by a three Member Committee A copy of the office order dated 11-2-2003 is on record as Annexure-12 of the writ petition. It is stated that the office order dated 11-2-2003 had been issued arbitrarily, contrary to the scheme of the 1936 Rules and further for conferring unwarranted benefit upon Diploma holder Junior Engineers.;