Pattanaik, J. - (1.) These appeals are directed against the order of the Himachal Pradesh Administrative Tribunal, disposing of O.A. No. 276/87 with O.A. No. 226 of 1989. The applicants before the tribunal were Junior Engineers, working in Himachal Pradesh State Electricity Board. The dispute centres round the question as to whether it is permissible for the employer to frame Regulations, providing a separate quota of promotional avenues for the less qualified Junior Engineers in preference to the claim of the qualified diploma holder Junior Engineers. The feeder category for promotion to the post of Assistant Engineer is Junior Engineer. In the cadre of Junior Engineer, 95% of the vacancies are filled up by direct recruitment of persons, who are diploma holders and only 5% is by promotion from amonst the lower category, who are usually matriculates with I.T.I. certificate. So far as the promotion to the post of Assistant Engineers is concerned, the Board has been amending the promotion Regulation from time to time, providing for a ratio between the direct recruits and promotees and again, further providing a quota within the promotion quota, to be filled up by Junior Engineers (qualified) and Junior Engineers (unqualified). The original Regulation of the year 1973 has been amended from time to time in 1979, 1983 and 1986 and under the 1986 Regulations, 46% of the posts in the cadre of Assistant Engineer was available in promotion quota and out of the same, 28% were to be filled up by Junior Engineers (qualified), 8% by Junior Engineers (unqualified), 6% from amongst those who have passed Section A and B examination of the Institute of Engineers (service) and 4% from Draftsman. It may thus be noticed that from the inception of the service, a specified percentage of quota has been made available in the promotional cadre of Assistant Engineer for the unqualified Junior Engineers notwithstanding the fact that Junior Engineers form one cadre. In December, 1987, the direct recruits qualified Junior Engineers filed application before the Himachal Pradesh Administrative Tribunal, praying for quashing of the quota rule vis-a-vis them and the unqualified Junior Engineers, essentially on the ground that there has been a total integration of both categories of Junior Engineers and they discharge identical functions, their duties being interchangeable and inter-transferable and from the fused cadre, it is not permissible to provide a different quota for promotion to the higher post and the said provision must be held to be arbitrary and irrational and as such is liable to be struck down. The Board took a decision to prepare separate seniority list of the Junior Engineers, which is the feeder category for promotion to the post of Assistant Engineer. The separate seniority list in the cadre of Junior Engineer, one for diploma holder Junior Engineers and another for unqualified Junior Engineers was prepared in November, 1989. As by preparation of such seniority list, the original application filed by the direct recruit qualified Junior Engineers before the tribunal became infructuous, they approached this Court in Special Leave Petition No. 1072/89. A petition under Article 32 was also filed, which was registered as Writ Petition No. 91/89, challenging the self-same issue of preparation of two seniority lists. Notwithstanding the filing of Special Leave Petition in this Court, a separate application was filed before the tribunal also, which stood registered as O.A. No. 226/89, challenging the issue of separate seniority lists. The Special Leave Petition filed in this Court stood disposed of by order dated 5-10-1993 with the directions that pending applications before the Administrative Tribunal should be disposed of within six months. The tribunal ultimately disposed of the applications filed before it by order dated 29-9-1995. Out of the three members of the tribunal, the majority judgment upheld the validity of the Regulations, providing for a different quota for promotion in respect of the unqualified Junior Engineers Inter alia on the ground that it is permissible for the employer to provide for promotion on the basis of educational qualification and the Junior Engineers who are matriculates and I.T.I. qualified from a different class, than the direct recruit diploma holder Junior Engineers, who are otherwise called qualified Junior Engineers and this position has been maintained right from the inception of the service and the Regulation providing such a position cannot be held to be arbitrary or discriminatory. The minority view was that of Vice Chairman, Shri M. G. Chitkara, who came to the conclusion that there has been a complete fusion between qualified and unqualified Junior Engineers and after such fusion, it is not legally permissible to provide a different quota for promotion to the post of Assistant Engineer. The applications before the tribunal having been dismissed in view of the majority judgment, the present appeals have been filed by the direct recruits qualified Junior Engineers.
(2.) Mr. Gopal Subramanium, the learned senior counsel, appearing for the appellants, contended with vehemence that the Junior Engineers, having formed a cadre, people from two different sources being brought to the cadre namely the direct recruit qualified diploma holders and the promotee matriculate I.T.I. certificate persons, there cannot be any further differentiation amongst them, providing for quota for promotional post and the Regulation providing such quota must be struck down as violative of Articles 14 and 16 of the Constitution. In support of this contention, the learned senior counsel relied upon Roshan Lal Tandon, (1968) 1 SCR 185; Mervyn Coutinho, (1966) 3 SCR 600 and Mohd. Shujat Ali, (1975) 3 SCC 76. Mr. Subramanium also further contended that in the cadre of Junior Engineer, which is the feeder cadre for promotion to the post of Assistant Engineer, a common seniority list having been drawn up, the employer cannot only for the purpose of promotion, direct preparation of two seniority lists and such a direction violates the equality clause, engrafted in Article 16 of the Constitution. The learned counsel also urged that except in cases where Constitution itself provides for a reservation in favour of a specified group of people, as provided in Article 16(4), there cannot be a reservation by any other mode and providing a quota in favour of unqualified Junior Engineers, tantamounts to reservation in their favour, which is not constitutionally permissible. According to the learned counsel, prescribing a quota in the promotional cadre itself is discriminatory and the decision of this Court in Murugesan, (1993) 2 SCC 340, will have no application to the facts and circumstances of the present case.
(3.) Mr. V. A. Bobde, the learned senior counsel, appearing for the Board-respondent, on the other hand contended that right from the inception of the Regulations in December, 1973, the diploma holder direct recruits and the unqualified matriculate Junior Engineers have been treated differently and there has all along been a specified percentage of posts in the cadre of Assistant Engineer, made available to such qualified matriculate Junior Engineers, though such quota has been increased from time to time, depending upon the cadre strength and chances of promotion of such unqualified Junior Engineers and this being the position, the said Regulation cannot be struck down. According to Mr. Bobde, the Regulation, itself by suitable provisions balances the equity amongst the qualified diploma holder Junior Engineers and unqualified matriculate Junior Engineers, inasmuch as for a diploma holder Junior Engineer, mere seven years of service as Junior Engineer is sufficient for consideration of promotion to the post of Assistant Engineer, whereas in case of unqualified matriculate Junior Engineers, it is twelve and fifteen years of service, that is necessary. The Rule making authority have specified this condition notwithstanding the fact that all of them have been working as Junior Engineers. According to Mr. Bobde, the Regulation itself considers the diploma holder qualified Junior Engineers and matriculate unqualified Junior Engineers differently, obviously depending upon their respective qualification and such a differential treatment is permissible and does not violate Article 14 of the Constitution, as has been held by this Court in Murugesan, (1993) 2 SCC 340 as well as in the case of S. N. Deshpande vs. Maharashtra I. D. Corpn., 1993 Supp (2) SCC 194. Mr. Bobde also urged that the direction to have two seniority lists is obviously dependent upon the provisions of separate quota for promotion to the post of Assistant Engineer, depending upon their basic qualification and the object of such direction is to have competition amongst equals and this is permissible under the Constitution. According to Mr. Bobde, providing quota for different category of persons available in the feeder cadre for promotion to the higher cadre only effectuates the guarantee of equal opportunity, enshrined in Article 16(1) and such a provision cannot be held to be reservation, as contemplated under Article 16(4). The learned counsel urged that the employer is duty bound to see that stagnation at a particular stage is avoided, if possible, which is conducive for the Administration and with that point in view, fixing of quotas to ensure an efficient service is a matter of policy for the employer to decide and unless the decision is arbitrary or irrational, cannot be interfered with by the Court, and therefore, the majority judgment of the tribunal is unassailable.;