- (1.) In this writ petition, petitioner is seeking a writ in the nature of Mandamus, directing the respondent to consider and promote the petitioner to the post of Assistant Engineer from the date when his junior was promoted. Petitioner, after qualifying the Departmental Examination of Draftsmanship in the year 1963, was appointed in the State of Punjab as Draftsman. Petitioner was appointed as Divisional Head draftman in the office of Punjab Housing Development Board vide orderdated 16.6.1978. Initially, the petitioner was placed on probation for a period of one year. Vide order dated 31.10.1979, he was allowed to cross the probation period. Subsequently, vide order dated 4.8.1981 petitioner was promoted to the post of Circle Head Draftsman on probation for a period of one year. During the period of probation, his work and conduct was found satisfactory and vide order dated 18.10.1982, he was allowed to cross the probationary period ending 2.9.1982. Petitioner was not considered for promotion to the post of Assistant Engineer, which is a next higher post. He made representation to the respondent. The Superintending Engineer (C.II) Punja Housing Development Board, Amritsar vide his letter dated 3.6.1986, recommended the case of the petitioner to the Housing Commissioner, Punjab Housing Development Board, Chandigarh, stating therein that petitioner is the senior-most Circle Head Draftsman in the Department, and he has got experience of 9 years as Draftsman, 8 years as Head Draftsman and 5 year as Circle Head Draftsman in the Board. The Superintending. Engineer again reiterated the recommendation vide his letter dated 26.6.1986. The Petitioner was also informed vide letter dated 24.11.1986 that his name for promotion to the post of Assistant Engineer will be considered when next point allocable to the category of Draftsman occurs. Respondent instead of promoting the petitioner, promoted one Sudershan Kumar Khosla as Assistant Engineer on 27.12.1985, who ranked junior to the petitioner in the tentative seniority-list. After promotion of aforesaid S.K.Khosla, petitioner made a detailed representation, and in reply to the said representation petitioner was informed vide order dated 19.2.1991 that his case would be considered only from the date of passing the final Trade test of Draftsman (Civil). Petitioner has filed the present writ petition, impugning the action of the respondent in not promoting him, on the ground that when the petitioner joined the Department, there was no condition that the petitioner was to qualify or pass the final Trade Test from the Department, Technical Education and Industrial Training, Punjab. For promotion to the post of Assistant Engineer, the only requirement is that a person must be a Draftman and has put in service of 10 years. Thus, according to the petitioner, under the rules, he being the senior-most and eligible, was entitled to be considered.
(2.) Mrs. Tejinder Kaur, IAS, Housing Commissioner, has filed written statement on behalf of the respondent. In the written statement, the respondent has stated that the petitioner was originally appointed as Head Draftsman under the Rules known as P.W.D. B & R (Draftsman and Tracer) Service, Rules, 1965. The requirement under these Rules was that the incumbent must be having diploma in Civil Engineering or Certificate in Civil Engineering or a Certificate in Civil Draftsman awarded by the State Board for Technical Education or from any other recognised Institution. Petitioner did not possess any of these qualifications at the time he joined the job of Head Draftsman. Respondent has further stated that the case of the petitioner was considered every time for promotion to the post of Assistant Engineer, but he was not found fit on the ground that the minimum qualification, i.e. he had not obtained diploma in Civil Engineering as envisaged by Rules 7 to 10 of the Rules.
(3.) The terms and conditions of appointment of Sub-Divisional Engineer are governed by the Punjab Service of Engineer, Class II P.W.D.(Building and Roads Branch) Rules, 1965, (in short in 1965 Rules) which are Operating in the Punjab Housing Development Board. The recruitment to the Service for Cadre and Ex- Cadre post has to be made from the sources listed as per Ruie-6 of the 1965 Rules. Rule 6(1) reads as under:- "6. Recruitment of Service (1) Recruitment to the service for cadre and ex- cadre post shall be made in the following manner only from the sources listed below in the promotions and the order indicated against a lot of every 40 vacancies:- Method of Recruitment Proportion Allocation to each source in a lot of 40 vacancies. 1. Direct appointment 26 5 6 5 5 5 2. Promotion from the members of Punjab PWD (B & R) Sectional Officers (Engineering) Service. 8 2 1 2 1 2 3. Promotion from draftsmen members 2 1 - - 1 of the draftsmen and tracer service 4. Promotion from members of Punjab 4 - 1 1 1 1 PWD (B & R) Sectional Officers (Engineering) Service and the Draftsmen member of the Draftsmen and tracer service possessing qualifications prescribed in Appendix 'B'. 40 8 8 8 8 8 According to Rule 7(2) of the 1965 Rules, the requirement of experience in 10 years if the person has to be promoted from source Nos. 2 and 3. Rule 7(2) reads as under:- "7(2). In the case of appointment by promotion from sources 2 and 3 under rule 6(1)-a member of the Punjab, P.W.D. (B & R) Sectional Officers (Engineering) Service of a Draftsman member of a B & R Branch Draftsman and Tacers and has put in a service of ten years." As per rule 7(2), the total requirement of experience in the service for promotion to the post of Assistant Engineer (Sub-Divisional Engineer) is 10 years. Admittedly, petitioner was having more than 25 years' experience at the time of filing of the writ petition. Petitioner's case for promotion is not being considered only on the ground that at the time of joining the job as Head Draftsman, he did not possess diploma in Civil Engineering or Certificate in Civil Engineering or a Certificate in Civil Draftsman awarded by the State Board for Technical Education or from any other recognised institution. In the appointment letter dated 16.6.1978 vide which the petitioner was appointed as Divisional Head Draftsman, there was no condition that petitioner was to qualify or pass the final trade test from the Department, Technical Education and Industrial Training, Punjab. It is admitted that the petitioner acquired the requisite qualifications in January, 1986, while he was in service. He was also promoted to the post of Circle Head Draftsman. Respondent now cannot be allowed to turn around and say that petitioner did not have requisite qualification at the time of appointment in the year 1976. Respondent apparently waived the want of requisite information on the date of appointment and acquiesced his appointment for more than 25 years. Respondent by its own conduct is estopped from questioning the want of requisite qualification of petitioner at the time of appointment. In the tentative seniority-list petitioner was shown senior to S.K Khosla, who was promoted as Assistant Engineer in the year 1985. At the time when this junior to the petitioner was promoted, petitioner had more than 10 years' experience as Head Draftsman as required under Rule 7(2) of the 1965 Rules. Petitioner, thus, was entitled to be considered for promotion from the date his junior was promoted. The stand of the respondent that petitioner was not found to be fit as such on the ground that he did not have the requisite qualification at the time of appointment, cannot be sustained. I am also not prepared to accept the argument of learned counsel for the respondent that case of the petitioner can be considered only in the year 1996 when he would be completing 10 years' service as Draftsman after having obtained requisite qualification. The Rule requires 10 years' experience as Draftsman for promotion to the post of Assistant Engineer. The requirement that the incumbent to the post must possess diploma of Civil Engineering was required to be considered at the time of appointment as Draftsman. As already noticed, petitioner after having passed the Departmental examination in 1983, was appointed in the State of Punjab as Draftsman and thereafter, on the basis of his long experience, he was appointed as Divisional Head Draftman in the office of Punjab Housing Development Board, thereafter he was also promoted as Circle Head Draftsman. It is, thus, too late in the day for the respondent to contend that the petitioner would be considered for promotion only when he complete 10 years' experience the acquiring after requisite qualification.;