M.M. Kumar, J. - (1.) THE instant appeal under Clause 10 of the Letters Patent is directed against an agreed order dated 10.10.2007 passed by the learned Single Judge. On the agreed statement made by the counsel for the parties stating that the matter was covered by the judgment of Hon'ble the Supreme Court rendered in the case of State of Punjab and others versus Arun Kumar Aggarwal and others 2007 (5) SLR 237, the writ petition has been disposed of by the learned Single Judge. The petitioner -appellants have also challenged in this appeal subsequent order dated 4.2.2009 rendered by the learned Single Judge dismissing the application for recalling order dated 10.10.2007, holding that the said order was passed in the presence of the counsel for the parties on the statement made by them. The short issue raised on the merit of controversy is whether the judgment in Arun Kumar Aggarwal's case (supra Arun supra) would apply to the vacancies of the year 1999 or not. If it is held that the judgment would not apply to the vacancies of Sub Divisional Officers /Assistant Engineers relating to the year 1999 then such vacancies are required to be filled up in accordance with the view taken by a Division Bench judgment of this Court rendered in the case of Gurmej Singh and another v. State of Punjab (CWP No. 16691 of 1997, decided on 07.01.1998 (P -3). The aforesaid judgment had attained finality because SLP has been dismissed on 14.05.1999 by a Speaking order of Hon'ble the Supreme Court. The net result of the aforesaid situation would be that it is only graduate Junior Engineers like the appellants who could be considered and promoted to the post of Sub Divisional Officer/Assistant Engineers and that diploma holders would not have any right. The instructions to the contrary issued on 23.04.1992 (P -2) were set aside by the Division Bench in Gurmej Singh's case (supra). Facts may first be noticed. The petitioner -appellants are Junior Engineers in the Irrigation Branch of the Public Works Department in the respondent State of Punjab. Appellant Nos. 1 and 2 joined the service in December 1990 and April 1985 respectively. They are aspiring for promotion on the post of Sub Divisional Officer/Assistant Engineer. The services of the Junior Engineers working in the Overseers Engineering Service, Irrigation Branch of the respondent State were to be governed by the service rules, namely, the Punjab Service of Engineers, Class -II (Irrigation Branch) Rules, 1941 (for brevity, 'the 1941 Rules')[P -l/A]. 1941 Rules -Promotion as Sub Divisional Officer/Assistant Engineer. If a Junior Engineer is graduate or equivalent qualified. A brief survey of 1941 Rules would show that for promotion to the post of Sub Divisional Officer/Assistant Engineer. A degree or equivalent qualification is essential requirement and diploma holders are not eligible. Rule 3 of the 1941 Rules talks about the nationality and other qualifications of candidates. As per Clause (c) of Rule 3 no person could be appointed to service unless he possesses one of the University degrees or other qualifications prescribed in Appendix 'A' to the 1941 Rules. It may be observed here that Appendix 'A' to the Rules, to which reference has been made in Rule 3(c), lays down a degree in Engineering from certain Institutions/Universities as the prescribed qualification for appointment to Class -II Service. However, note appended to Rule 3 clarified that qualification laid down in Clause (c) may be waived in case of the members of the Overseer Engineering Service, Irrigation Branch, for promotion to Class II Service to be given under proviso to Rule 5. Rule 5 of the 1941 Rules deals with the appointment to service and states that the appointment to the service could be made from the classes mentioned in Rule 4. But no person could be appointed to the service unless he possesses the qualifications specified in Rule 3, which in turn refers to Appendix 'A' appended to the 1941 Rules. Rule 5 further specifies that no Temporary Engineer could be taken into service and no member of the Overseers Engineering Service or Draftsman Service could be promoted to the Service unless he is declared fit for service by the Commission on the report of the Chief Engineer. A further stipulation has been laid down that such person must be serving in the Department and must have held an appointment for not less than 2 years continuously before the date of entry into the service. He must not be less than 26 years or more than 50 years of age on the first day of June immediately preceding the date on which he was taken into the service. After promotion the members of Overseers Engineering Service or Draftsman Service are obliged to pass the Department's Professional and Revenue Examinations of the Irrigation Branch. However, proviso to Rule 5 clothed the Chief Engineers with the power of relaxation of the above rule with respect to possessing of qualifications specified in Rule 3 in order to grant promotion to a outstanding meritorious member of the Overseer Engineering Service of Irrigation Branch, Punjab, and Irrigation Branch (Provincial Draftsman and Tracers) Service.
(2.) THE petitioner -appellants claimed that under the 1941 Rules though there were various modes provided for induction into Service but no separate quota was provided as to how the number of posts in the service would be apportioned amongst various eligible persons. On 20.8.1957, the Secretary to Government of Punjab, Public Works Department (Irrigation Branch) issued a letter to the effect that in view of a large number of temporary Engineers being in employment of the Irrigation Branch due to heavy expansion on account of Bhakra Nangal and other projects, the Government had decided that till further orders no officer should be appointed by direct recruitment to P.S.E. Class II and henceforth the same be filled up by promotion from amongst temporary Engineers and Sectional Officers and Head Draftsmen in the ratio of 75% : 25% respectively. Later on the above percentage was revised from time to time and ultimately on 23.4.1992 (P -2), the same has been fixed as under: - JUDGEMENT_259_LAWS(P&H)7_2011.htm It is evident that 55% quota has been earmarked for temporary Engineers by way of direct recruitment. Out of the remaining 45% by way of promotion, 25% has been prescribed for Junior Engineers Civil and Mechanic, 6% for the members of the Drawing Section and 14% for AMIE qualified persons. 14% quota of AMIE qualified persons has been further bifurcated into 11 % for Junior Engineers and 3% for Drawing Staff. In this manner, the total quota for Junior Engineers by promotion comes out to be 36% and remaining 9% comes to the share of Draftsman. These instructions apparently made non -graduate engineers eligible for promotion as Sub Divisional Officer/Assistant Engineer which is patently against Rule 3(i)(c) of 1941 Rules. Prescription of quota for Junior Engineer by letter dated 23.04.1992 (P -2) declared illegal by the Division Bench.
(3.) THE next promotion of the Junior Engineer is to the rank of Sub Divisional Engineer (also called Assistant Engineer), which is also governed by the 1941 Rules. Some of the Junior Engineers working in the Punjab Irrigation Department, who were having the qualification of AMIE and treated as Graduates in Engineering, filed CWP Nos. 16691 of 1997 and 12725 of 1997 before this Court challenging order dated 23.4.1992 (P -2) on the ground that prescribing of 31% quota for the categories of Junior Engineer (Civil), Junior Engineers (Mechanical) and members of the Drawing Staff for further promotion to the rank of Sub Divisional Engineer (Assistant Engineer) ultra vires 1941 Rules because no promotion could be made of those Junior Engineers who do not answer the qualifications provided under Rule 3 of the 1941 Rules. On 7.1.1998 (P -3), a Division Bench of this Court In Gurmej Singh's case (supra) allowed the aforementioned writ petitions holding that if the rules are silent as to the percentage of quota meant for different feeder categories, the same could be provided by Executive instructions but the quota could be only for such members of the feeder cadres who are qualified for the purposes of promotion to the higher post. For unqualified persons no quota could be provided. The Division Bench further observed that the non -degree holders are ineligible for promotion to P.E.S. Class II as per the requirement of Rule 3(i)(c) and Rule 5 of the 1941 Rules.;