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Bhanwar Lal Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 777 of 1978
Judge
Reported in1985WLN(UC)183
AppellantBhanwar Lal
RespondentState of Rajasthan and anr.
DispositionPetition allowed
Cases ReferredH.C. Sharma v. Delhi Municipality
Excerpt:
constitution of india - article 16 and rajasthan service of engineers (public health branch) rules, 1968--amendment relating to bifurcation of cadre given retrospective effect--rights accrued to petitioner taken away--held, amendment is hit by article 16 and is struck down;as such amendment in the rules with regard to bifurcation of cadre of engineering subordinate person being quota for graduates and diploma holders in schedule also hit by article 16 and is hereby struck down. the amendment of rule cannot be made retrospective and take away the right accrued to the petitioner.;writ allowed. - - 4. i have heard the learned counsel for the petitioner as well as learned counsel for the non-petitioners......by order dated 4-5-70. the post of engineering sub-ordinate has now been re-designated as junior engineer by a notification dated 6-1-75. petitioner was confirmed as junior engineer (civil) vide order dated 5-2-75 (annx. 1). petitioner passed a.m.i.e. (civil) on 25-1-76 and after passing the said examination, petitioner was given higher start which is given to a degree-holder w.e.f. 25-1-76 by order dt. 4-11-1976 passed by the chief engineer (annx. 2) the rajasthan service of engineers (public) health branch) rules 1968 were amended vide the amendment to the rules published in the rajasthan rajpatra dt. july 1, 1976, by which it was provided that promotion to the post of assistant engineer (civil) will be 50% by promotion i.e. 25% from the sub-engineers and 25% from the junior.....
Judgment:

S.N. Bhargava, J.

1. Petitioner passed his Diploma in Civil Engineering from Jodhpur Polytechnic College in the year 1969 and was initially appointed as an Overseer (Civil) in the Public Engineering Department by order dated 4-5-70. The post of Engineering Sub-ordinate has now been re-designated as Junior Engineer by a Notification dated 6-1-75. Petitioner was confirmed as Junior Engineer (Civil) vide order dated 5-2-75 (Annx. 1). Petitioner passed A.M.I.E. (Civil) on 25-1-76 and after passing the said examination, petitioner was given higher start which is given to a degree-holder w.e.f. 25-1-76 by order dt. 4-11-1976 passed by the Chief Engineer (Annx. 2) the Rajasthan Service of Engineers (Public) Health Branch) Rules 1968 were amended vide the amendment to the rules published in the Rajasthan Rajpatra dt. July 1, 1976, by which it was provided that promotion to the post of Assistant Engineer (Civil) will be 50% by promotion i.e. 25% from the Sub-Engineers and 25% from the Junior Engineers. The term Junior Engineer and Sub-Engineer were also defined by Rule and note was however inserted in the Schedule:

Up to the date the cadre of Engineering Subordinate (Civil) have been separated as Sub-Engineer and Junior Engineer, the Service of the Engineering Subordinates (Civil) will qualify as experience for further promotion as hithertofore.

Thus, petitioner came in the cadre of the Junior Engineer having the requisite qualifications. Another Notification dated 18-6-77 was issued and published in the Rajasthan Rajpatra dated June 23, 1977, by which the earlier amendment published vide Notification dt. 22-6-76 published in Rajasthan Rajpatra dt. July 1, 1976, was given retrospective effect from 1-4-75. By the amendment, in the Rules of 1967 proviso (iv) to Rule 6 was also added, enabling the Sub-Engineers to be appointed as Junior Engineer on attaining the necessary qualifications. Proviso (iv) was also added to Rule 28 regarding seniority of sub-Engineers and Junior Engineers after the bifurcation of the cadre. The Schedule was also amended providing separate direct recruitment for the post of Junior Engineer (Civil) and Sub-Engineer (Civil). This amendment was also given retrospective effect from 1-4-1975 by another notification dated 28-7-1978.

2. The Petitioner was promoted on ad hoc basis as Assistant Engineer (Civil) by order dated October 20, 1978 (Annx. 4). As a result of this amendment, Petitioner being not due for promotion from the arena of Junior Engineer for the post of Assistant Engineer, therefore, the order dated 21-10-1978 (Annx. 5) has been issued, by which his promotion to the post of Assistant Engineer has been cancelled. Thus, the petitioner stands reverted as Junior Engineer in view of the amendments in the Rules w.e.f. 1-4-1975. It is against this order the present writ petition has been filed challenging the order dated 21-10-1978 (Annx. 5) and it has further been prayed that amendments in the Rules of 1968 vide Notification dated 22-6-1976 read with amendments dated 18-6-1977 and amendment in the Rules of 1967 dated May, 1977 read with amendment dated 28-7-1978 be declared ultra vires of the Constitution and be struck down, so far as it relates to the bifurcation of the cadre of the Engineering Sub-ordinate. A further declaration has also been sought that the petitioner is eligible to the post of Assistant Engineer in the quota of Junior Engineers and a further direction for the respondents be issued that he should be considered for promotion to the post of Assistant Engineer.

3. No reply has been filed on behalf of the State inspite of notice and service to them.

4. I have heard the learned counsel for the petitioner as well as learned counsel for the non-petitioners.

5. Learned counsel for the petitioner has placed reliance on 1983(2) SC Cases page 33 State of Gujarat v. Raman Lal Keshav Lal Soni, and, : (1984)IILLJ362SC K.C. Arora v. State of Haryana wherein it has been observed that retrospective operation of the amended law should be only in relation to the present status and rights of the affected persons. It cannot take away the rights which have already been acquired by such persons at the time of the enforcement of the principal law. Petitioner had passed his examination of A.M.I.E. on 25-1-1976 and he was also given increased pay on that basis and he was even promoted as Assistant Engineer as he was eligible under the earlier unamended Rules, and, by making amendments retrospectively his right of consideration has been taken away, which is not permissible under the law, as has been held by in these two Supreme Court Cases.

6. Learned counsel for the Petitioner has further relied on 1974 SC 1631 Mohd. Sujat Ali v. Union of India and 1983 S.C. page 881 H.C. Sharma v. Delhi Municipality; wherein it has been held that separate quota for graduate engineer's promotion to the post of Assistant Engineer on the basis of qualifications is not permissible. In that case both diploma holders and graduate engineers were eligible for being promoted as Assistant Engineers. Supreme Court has observed in these cases that the Rule of promotion which by conceding non-graduate supervisors eligible for being promoted to the post of Assistant Engineer reserves higher quota of vacancies for promotion for graduate supervisors as against the no-graduate supervisors, cannot be upheld being violative of guarantee of equal opportunity provided in Article 16. As such amendment in the Rules with regard to bifurcation of cadre of engineering subordinate person being quota for graduates and diploma holders in schedule also hit by Article 16 and is hereby struck down. The amendment of Rule cannot be made retrospective and take away the rights accrued to the petitioner, and, therefore, the Rules cannot have retrospective effect.

7. The writ petition, is, therefore, allowed and the amendment in the Rules of 1967 and 1968 in so far as they relate to the bifurcation of the cadre of the Engineering Subordinate (Civil) is struck down.

8. In the result order dated 21-10-1978 (Annx. 5) is also struck down and the petitioner's case for further promotion may be considered for his promotion to the post of Assistant Engineer and all other subsequent promotions in accordance with law.

9. The writ petition is allowed. Parties shall bear their own costs.


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