R. M. Sahai, J. - (1.) Validity of the Karnataka Public Works Engineering Department Service (Recruitment) (Amendment) Rules, 1985 has been challenged by the Assistant Engineers, recruited directly, both on the ground of constitutional invalidity as it treats unequals as equals and also for giving retrospective appointment to the diploma holders and seniority even prior to the date of their eligibility.
(2.) Engineering services in the Public Works Department (PWD) of the country can justly feel proud for having contributed largest number of decisions from this Court touching upon nearly every aspect of service law the most common being seniority. This has resulted to a large extent due to different set of rules framed in different States to accommodate and benefit one set of employees over other either to mitigate injustice arising out of peculiar circumstances as in the State of Andhra Pradesh due to merger of the State of Hyderabad, or because of sympathetic consideration of supposed injustice as in the State of Karnataka or due to pressure and pull depending on the strength of the Association of Employees of one or the other group coupled with if the Chief Engineer in the State was a promotee or direct. In either view in services such as engineering services where similar pattern prevails and same hierarchy is maintained between draftsman, designer, supervisor, junior engineer, assistant engineer, executive engineer throughout the country it is not only desirable but just and proper that the States by common consensus may adopt same set of rules which may pave the way for promoting national integrity eliminating disparity amongst employees reducing litigation and improving harmony. Necessity for it is demonstrated by these appeals and writ petitions as when facts are adverted it shall be clear how the State of Karnataka by erroneous understanding of a decision given by this Court on rules framed in the neighbouring States in Andhra Pradesh in completely different circumstances narrated in detail in Mohammad Shujat Ali v. Union of India (1975) 3 SCC 76 attempted to adopt it resulting in grave injustice. What was held to be reasonable and not shocking by this Court for one State has become discriminatory and unreasonable for other.
(3.) Reverting to the issues in dispute what was assailed, vehemently, in these appeals directed against the order of the Karnataka Administrative Tribunal (KAT), Bangalore was its failure to quash the gradation list issued by the Government in breach of its earlier order. It was also urged that the rules framed in 1985 having been made effective from 1976 were violative of Arts. 14 and 16 of the Constitution but the Tribunal in its first order having read down the rules the appellants did not challenge its correctness. How far these challenges are well founded and what relief can be granted can be comprehended better only after the background in which these rules were framed is narrated. When Karnataka Public Works Engineering Departments Service (Recruitment) Rules were framed in 1960 the two principal sources of recruitment were Assistant Engineer and Junior Engineers. The minimum qualification for the two were degree and diploma, respectively, in civil and mechanical engineering. In the cadre of Junior Engineer it appears there was further sub-division. Some were appointed as Junior Engineers and others as supervisors and draftsman etc. The pay scales of the two were not the same. In 1969 the rules were amended and 50% of Junior Engineers could be degree holders. This amendment led to litigation between the two class of Junior Engineers the details of which and consequence thereof are narrated in the object and reasons of the Karnataka Civil Services (Classification) Amendment Act 9 of 1975. It was mentioned that even though the High Court on construction of the rule equated the graduate and non-graduate junior engineers in one cadre, 'it was never the intention of the State Government either to treat them as equals or to give the same scales of pay to both the categories and in fact the non-graduate junior engineers have been separately encadred also.' The Act provided that notwithstanding any judgment or decree or order of any Court or any equation of the posts made at any time, "(i) the category of posts of non-graduate Junior Engineers shall be and shall with effect from 1st November, 1956 be deemed to have been classified as a category separate and distinct from the category of posts of Junior Engineers (Graduate); (ii) the scale of pay admissible to such non-graduate Junior Engineers shall be and shall with effect on and from the such date, be deemed to have been only those specified for such category of posts (and revised from time to time in the Government order and Rules mentioned in the Schedule to this Act and not those admissible to the categories of posts of Junior Engineers (Graduates);" The distinction between the two classes of junior engineers on qualification was thus legislatively recognised. As has been seen earlier this distinction existed from before. And since the promotional avenue for degree holders was better, the diploma holders working in the department used to acquire degree while continuing the service. The department was sympathetic towards such employees and even in 1965 the Board of Chief Engineers recommended that such Supervisors, draftsman and other officials should be granted four advance increments in their respective scales of pay or the minimum pay of Junior Engineers whichever was higher and then they may be absorbed as Junior Engineer below the person who was drawing pay equal to them at the time of absorption. Later on it was recommended that the pay fixation should be done from the date the results of degree examinations were announced provided there existed a clear vacancy. In 1973 the Board again recommended for retrospective amendment of the rules since 1965. Whether these recommendations were accepted by the Government and if so to what extent is not clear as the Government has not filed any affidavit which could have given a clear picture. However to complete narration even the Government of India was keen to improve the conditions of diploma holders. So much so that it issued letters to State Governments to organise part-time degree courses in engineering colleges to enable the diploma holders to improve their qualifications. In pursuance of this letter issued from the Ministry of Education and Youth Services the Government of Karnataka issued letter in 1971 to the Engineering College sanctioning scheme for part-time evening classes. The course was started from 1973. After completing two years of the course the Association of Diploma Holders working as Junior Engineers Grade II made representation that they were undergoing strenuous life by attending both the college and office to serve the department better therefore their pay scale be increased to Junior Engineer Grade I and separate cadre be maintained for promotion to the post of Assistant Engineer by deducting four years of service as Junior Engineer. The representation was founded on the premise that nature of work performed by the two was same. In 1977 the Board of Chief Engineers after considering the representation recommended for the recruitment of Junior Engineer Division II and provide for filling up vacancies by promotion from the cadre of Junior Engineer Division II who acquire a B.E. degree or equivalent while in service in addition to existing procedure of recruitment. On this recommendation the Secretary in the Government in the same year recommended that 10% vacancies of Junior Engineer in Division I may be reserved for Junior Engineer Division II who acquired the B.E. degree. Having achieved equation of pay, status and even promotion in the cadre of Junior Engineer Division I the Diploma Holders staked their claim for promotion as Assistant Engineer. And the Board of Chief Engineers in January, 1978 recommended to the Government that such of those who obtained degree while in service could be promoted to the post of Assistant Engineer and could be placed below the last directly recruited Assistant Engineer on the date of their acquiring degree. It was not accepted by the Government and in February, 1978 they were informed that since the cadre of Assistant Engineer (now Assistant Executive Engineer) and Junior Engineer (now Assistant Engineer) were different with different scales of pay a Junior Engineer who incidentally happened to acquire a degree of Engineering could not be absorbed as Assistant Engineer. It was however suggested that proposal may be examined for making a provision in the rules for recruitment for Junior Engineer who possessed a degree in Engineering. Various proposals were considered, thereafter, and the cadre of Assistant Executive Engineer was increased with proportionate increase in promotional quota of Junior Engineer acquiring degree. This led to further demand of sanctioning four advance increments as recommended in 1965 and to absorb the Junior Engineer Division II as Junior Engineer Division I from the last date of examination. In 1984 better promotional avenues were provided and one sixth of the cadre strength was reserved for Junior Engineer to be promoted as Assistant Engineer Division II. While all this was going on the Engineer Subordinate Service Rules in the neighbouring State of Andhra Pradesh were amended and the supervisor etc. who acquired the engineering degree became eligible for the post of Assistant Engineer by transfer subject to satisfying certain conditions. It was upheld by this Court in Devi Prasad v. Govt. of Andhra Pradesh, (1980) Suppl. SCC 206 as the Court did not find that the rule giving weightage for having served as Junior Engineer was unreasonable or shocking. The Association of Diploma Holders therefore in response to Government's letter submitted alternative proposal stating therein, "This Association after examining the various aspects in this matter it is resolved unanimously to request the Chief Engineer (C and B) to recommend the Andhra Pattern i.e. counting 1/3 of the previous service and to absorb in the cadre of assistant engineers from the date of passing the examination. This Association though strongly feel that 50% of the previous service is the most reasonable period however considering the other factors has decided to recommend to Government at least 1/3 of the service." The basis for this claim was assumption that the nature of work performed by the Junior and Assistant Engineers was same. Similar claim was made before Pay Commissions as well. It was never accepted. And even though the Official (Pay) Committee of 1985 did not agree with the assertion of the diploma holders that the nature of their work was same as turned out by the Graduate Junior Engineers and observed, 'that contention of the Graduate that their services are utilised for superior type of work for which they have acquired competence by their higher qualification appears to be more acceptable', and agreed with the report of Narayan Pay Commission, yet the Cabinet in its meeting decided that the, 'assumption of law department that the work of Junior Engineer and Assistant Engineer are substantially similar' was correct. This furnished basis for amending rules in 1985 relevant portions of which are extracted below: 1. TITLE AND COMMENCEMENT: (1) These rules may be called the Karnataka Public Works Engineering Department Service (Recruitment) (Amendment) Rules, 1985. (2) They shall be deemed to have come into force on the first of January, 1976. 2. AMENDMENT OF THE SCHEDULE- In the schedule to the Karnataka Public Works Engineering Department Services (Recruitment) Rules, 1960, in the entries relating to the category of posts of "Assistant Engineer" for columns (2) and (3) the following shall be substituted, namely:- 'By direct recruitment or by transfer of a Junior Engineer. for Direct recruitment: Should be a holder of a degree in Civil Engineering or Mechanical Engineering depending upon the requirements, as the case may be or of a Diploma Certificate from a recognised Institute of Engineers that he has passed Parts A and B of the Associate Membership Examination of the Institute of Engineers or equivalent qualification. Age:Must not have attained the age of thirty five years. For transfer: Must possess B.E., or AMIE (India) qualification in Civil Engineering, or Mechanical Engineering. Note 1:The option of the Junior Engineer shall be obtained before such transfer within the time stipulated by the Government. Note 2:The transfer shall be effective from the date of graduation subject to the availability of vacancies without ignoring the inter se seniority among those eligible for such transfer. Note 3:A Junior Engineer who is appointed by transfer as Assistant Engineer on or after 1-1-1976 shall be entitled to count one-third of the service rendered by him as Junior Engineer prior to appointment as Assistant Engineer, subject to a maximum of 4 years, as if he had been in the post of Assistant Engineer for the purpose of consideration for promotion to the 1 post of Assistant Executive Engineer Division I and subject to the following conditions, namely:- (i) The seniority of a Junior Engineer who is appointed as Assistant Engineer shall be fixed in the category of Assistant Engineers with reference to the notional date arrived at after giving weightage of service as aforesaid; (ii) A Junior Engineer who is appointed as Assistant Engineer shall put in a minimum service of two years, on duty as Assistant Engineer, after such appointment and a total service of five years as Assistant Engineer, inclusive of the service given as weightage to become eligible for promotion as Assistant Executive Engineer Division-I." When these rules were promulgated its validity was challenged before the KAT even before any appointment was made. The Tribunal did not find any violation of Art. 14 or 16 as similar rule giving weightage in the State of Andhra Pradesh had been upheld by this Court. But it construed Note (2) to the rules as providing eligibility only. In effect a diploma holder was entitled to appointment by transfer if he had acquired higher qualifications but his placement could not be pushed beyond four years from the date of appointment. Yet when seniority list was published in 1988 the Junior Engineers appointed by transfer in 1988 were given their seniority by giving benefit both under Notes (2) and (3). How did it work, can be explained by taking illustration of a Junior Engineer transferred in 1988 He has been placed at serial No. 801 in the list. He acquired the degree qualification in July, 1976. Since on notional working out the vacancy was found to exist in December, 1976 his seniority was pushed to 1976 as rule having come in force on that day and he being qualified was deemed to have been appointed as an Assistant Engineer and thereafter he was given weightage of four years being one-third of the service he had rendered as Junior Engineer. He thus came to be placed as Assistant Engineer from December, 1972. Consequently a second claim petition was filed before the Tribunal. It was dismissed as it did not find any illegality in placement of the diploma holder as the weightage of four years was given only from the date the rule is deemed to have come into force namely 1976.;