N. SURESH NATHAN & ORS., ETC. ETC.versusUNION OF INDIA & ORS. ETC. ETC.

                       [2010) 4 S.C.R. 1014


A           N. SURESH NATHAN & ORS., ETC. ETC.
                                 V.
               UNION OF INDIA & ORS. ETC. ETC.
                 (Civil Appeal No. 8468 of 2003)

                          APRIL 22, 2010
B
            [J.M. PANCHAL AND A.K. PATNAIK, JJ.]

        Assistant Engineers (Including Deputy Director of Public
    Works Department) Group B(Technical) Recruitment Rules,
c   1965:

       rr. 5 and 11(1) - Promotion to post of Assistant Engineer
  under 50% quota for degree-holder category of Section
  Officers/Junior Engineers - HELD: Clause (1) of Rule 11
0 does not provide for a separate stream or channel of
  promotion exclusively for degree-holders, who have
  completed three years service - In view of r.5, post of
  Assistant Engineer being a selection post, merit is the sole
  criteria and seniority in the grade of Section Officers/Junior
  Engineers is not at all relevant - Therefore, all the Section
E Officers/Junior Engineers who are eligible for consideration
  under Rule 11 (1) would be considered on the basis of
  comparative merit - Constitution of India, 1950 - Articles 16
  and 141 - Code of Civil Procedure, 1908 - s. 11.

F       Constitution of India, 1950:

       Article 141 - Law declared by Supreme Court to be
  binding on all courts - Decision of Supreme Court in N.
  Suresh Nathan's case - HELD: Was confined to the
G eligibility for consideration for promotion to 50% vacancies for
  the posts of Assistant Engineers/Public Works Department,
  Pondicherry meant for degree-holder or equivalent in the
  grade of Section Officer/Junior Engineer, and there was no law
  declared by the Court, to be binding under Article 141, on the
H                               1014
~    N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1015
              OF INDIA & ORS. ETC. ETC.

    issue as to how Section Officers/Junior Engineers who become       A
    qualified for promotion to the post of Assistant Engineers would
    be considered for promotion - Nor would the said decision
    constitute res judicata on the issue - Precedents - Code of
    Civil Procedure, 1908 - s. 11 - Assistant Engineers (Including
    Deputy Director of Public Works Department) Group                  B
    B(Technica/) Recruitment Rules, 1965 - rr. 5 and 11 (1 ).

         Promotion of appellant nos. 1 to 7 to the posts of
    Assistant Engineers, Public Works Department was
    challenged by respondent nos. 2 to 7, before the Central
    Administrative Tribunal. The Tribunal dismissed the                C
    application holding that in view of the decision of the
    Supreme Court in N. Suresh Nathan's' case, with regard
    to the procedure to be adopted for promotion of Section
    Officers/Junior Engineers, the applicants before it could
    not be allowed to raise the point once again nor was it            D
    open to the Tribunal to hold otherwise. But, the writ
    petition filed by the respondents challenging the order of
    the Tribunal was allowed by the High Court holding inter
    alia that the judgment of the Supreme Court in N. Suresh
    Nathan did not operate as res judicata. A review DPC was           E
    directed to be held.

          Disposing of the appeals, the Court

        HELD: 1. In N. Suresh Nathan & Ors.*, this Court
    confined its decision to the qualification or eligibility for      F
    consideration for promotion to 50% vacancies for the
    post of Assistant Engineer meant for degree-holders or
    equivalent in the grade of Section Officer/Junior Engineer
    and held that only those Section Officers/Junior
    Engineers, who had completed three years' service after            G
    obtaining degree, were qualified or eligible for
    consideration to the 50% vacancies meant for the
    category of degree-holders or equivalent. In the said

    1.   (1991) 2 Suppl. SCR 423.                                      H
    1016    SUPREME COURT REPORTS               [2010] 4 S.C.R.


A judgment, this Court did not decide on how the Section
  Officers/Junior Engineers who had completed three
  years' service in the grade after the degree in Civil
   Engineering or equivalent and had the qualification or
  eligibility for consideration for promotion to the 50%
B vacancies meant for the category of degree-holders
  wo·Jld be considered for promotion. Therefore, in N.
   Su.·esh Nathan & Ors., there was no law declared by this
  Court so as to be binding on the courts under Article 141
  of the Constitution, on the issue as to how Section
c Officers/Junior Engineers, who become quaPfied or
  eligible for promotion to the post of Assistant Engineer
  would be considered for promotion; and, therefore, the
  decision in N. Suresh Nathan would also not constitute res
  judicata on the said issue. [Para 13-15] [1027-F-H; 1028-
D A-C-E; 1029-A-B]

        *N. Suresh Nathan & Ors. v. Union of India & Ors. (1991)
    2 Suppl. SCR 423 = (1992) 1 Suppl. SCC 584 - explained
    and distinguished.

E      2.1. Clause (1) of Rule 11 is only a provision laying
  down the qualification or eligibility for promotion to 50%
  of the posts of Assistant Engineers and the qualification
  or eligibility provided therein is either three years service
  in the grade of Section Officer/Junior Engineer after
F degree in Civil Engineering or equivalent, or six years
  service in the grade of Section Officer/Junior Engineer
  with diploma in Civil Engineering. The provision also has
  a rider that if there are Section Officers/Junior Engineers.
  who have put in three years service after acquiring
G degree or equivalent, available for consideration for
  vacancies, then they will be considered first for promotion
  and the turn for consideration for promotion of diploma-
  holders in Civil Engineering with six years service in the
  grade of Section Officer/Junior Engineer will come only
  thereafter. Thus, the Rule itself provides that if for
H
 N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1017
          OF INDIA & ORS. ETC. ETC.

vacancies in the posts of Assistant Engineers, Section        A
Officers/Junior Engineers possessing a recognized
degree in Civil Engineering or equivalent with three
years' service in the grade are not available, then Section
Officers/Junior Engineers holding diploma in Civil
Engineering with six years' service in the grade would be     B
eligible for promotion. It cannot, therefore, be accepted
that Clause (1) of Rule 11 provides for a separate stream
or channel of promotion exclusively for degree-holders,
who have completed three years service. [para 23] [1033-
E-H; 1034-A-C]                                                C

    2.2. Rule 5 of the Recruitment Rules states that the
post of Assistant Engineer in the Public Works
Department is a selection post. The Recruitment Rules,
however, do not lay down that seniority-cum-merit would
be the criteria for promotion to the selection post of        D
Assistant Engineer. The person, who is most meritorious,
is the most suitable person to be promoted to the
selection post. Thus, merit is the sole criteria for
prom'otion to the selection post and, therefore, question
of seniority in the grade of Section Officer/Junior           E
Engineer is not at all relevant for promotion to the post
of Assistant Engineer. [Para 29-30] [1036-E-F-G; 1037-E-
F]

   Dr. Jai Narain Misra v. State of Bihar & Ors. (1971) 1     F
SCC 30; and Guman Singh, etc. v. State of Rajasthan & Ors.
(1971) 2 sec 452, relied on.

     R. B. Desai & Anr. v. S. K. Khanolkar & Ors. (1999) 7
SCC 54; Chandravathi P.K. & Ors. v. C.K. Saji & Ors. 2004
(2) SCR 330 = (2004) 3 SCC 734; Shailendra Dania & Ors.       G
v. S. P. Dubey & Ors. 2007 (5) SCR 190 = (2007) 5 SCC 535;
and M.B. Joshi v. Satish Kumar Pandey 1993 Supp.(2) SCC
419, referred to.

    Suman Gupta v. State of J & K (1983) 4 SCC 339;           H
    1018   SUPREME COURT REPORTS              [2010) 4 S.C.R.


A Munidra Kumar v. Rajiv Govi/ (1991) 3 SCC 368; Satya
  Narain Shukla v. U.0.1. (2006) 9 SCC 69; P.U. Joshi v.
  Accountant General (2003) 2 SCC 632; U. 0.1. v. Pushpa Rani
  (2008) 9 SCC 242; lnderjeet Khurana v. State of Haryana
  (2007) 3 sec 102; u.0.1. v. A.K. Naruta (2007) 11 sec 10;
B and A. K. Raghumani Singh & Ors. v. Gopal Chandra Nath
  & Ors. (2000) 2) SCR 943 = (2000) 4 SCC 30, cited.
       2.3. In the absence of any indication in the
  Recruitment Rules that seniority in the grade of Section
  Officer/Junior Engineer will be counted for the purpose
C of promotion to the post of Assistant Engineer,
  consideration of all Section Officers/Junior Engineers
  under Clause (1) of Rule 11 of the Recruitment Rules who
  are eligible for such consideration has to be done on the
  basis of assessment of the comparative merit of the
D eligible candidates and the most suitable or meritorious
  candidate has to be selected for the post of Assistant
  Engineer. Such a method of selection will be consistent
  with Rule 5 of the Recruitment Rules and Article 16 of the
  Constitution which guarantees to all citizens eqµality of
E opportunity in matters of public employment. [Par.a 34)
  [1040-F-H; 1041-A]

       2.4. In the considered opinion of the Court, therefore,
  the practice adopted by the Government on the advice
F of the UPSC of counting the service of the eligible
  candidates from the date of acquisition of the degree in
  Civil Engineering by them and the judgment and order of
  the High Court directing that the entire service of eligible
  candidates, both prior and after acquisition of the degree
G of Civil Engineering by them, would be counted for the
  purpose of promotion to the post of Assistant Engineer
  under Clause (1) of Rule 11 of the Recruitment Rules are
  contrary to the fundamental right guaranteed under
  Article 16 of the Constitution and r. 5 of the Recruitment
  Rules which are made under Article 309 of the
H Constitution. [Para 34) [1041-8-C]
 N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1019
          OF INDIA & ORS. ETC. ETC.
     3. The judgment of the High Court is set aside and        A
the Government of Pondicherry is directed to consider,
in accordance with merit, the cases of all Section Officers/
Junior Engineers, who have completed three years'
service in the grade of Section Officers/Junior Engineers.
It is made clear that the promotions to the posts of           8
Assistant Engineers already made pursuant to the
judgment and order of the High Court will not be
disturbed until the exercise is carried out for promotion
in accordance with merit as directed in this judgment and
on completion of such exercise, formal orders of               C
promotion to the vacancies in the posts of Assistant
Engineers which arose during the pendency of the cases
before this Court are passed in case of those who are
selected for promotion and, after such exercise only,
those who are not selected for promotion may be
reverted to the post of Section Officer/Junior Engineer.       D·
[para 35] [1041-D-G]
                    Case Law Reference:
    (1991) 2 Suppl. SCR 423 distinguished        . para 7 .
                                                               E
    (1999) 1 sec 54            referred to ·       para 8
    (2000) 2) SCR 943          cited               para 8
    2004 (2) SCR 330           referred to         para 18
    2007 (5) SCR 190           referred to         para 19     F

    (1971) 1 sec 30            relied on           para 29
    (1971) 2 sec 452           relied on           para 30
    (1983) 4 sec 339           cited               para 31
                                                               G
    (1991) 3. sec 368          cited               para 31
    (2006) 9 sec 69            cited               para 31
    (2003) 2 sec 632           cited               para 31
                                                               H
    1020     SUPREME COURT REPORTS               [2010) 4 S.C.R.


A          (2008) 9 sec 242         cited               para 31
        (2001) 3 sec 102            cited               para 31
        (2007) 11 sec 10            cited               para 31
        1993 Supp. (2) sec 419 referred to              para 32
B
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8468 of 2003.

        From the Judgment & Order dated 23.6.2003 of the High
    Court of Judicature at Madras in Writ Petition No. 11236 of
c   2000.

                                WITH
    C.A. Nos. 698 of 2004, 3649-3650 of 2010 & 8470 of 2003.

0      J.L. Gupta, L.N. Rao, M.S. Ganesh, V.G. Kanagaraj,
  Rakesh Dwivedi, K.V. Viswanathan, Satya Mitra Garg, S.
  Thananjayan, G. Balaji (for Mis. Mahalakshmi Balaji & Co.) S.R.
  Setia, V.G. Pragasam, S.J. Aristotle, P. Ramasubramanian,
  M.A. Chinnasamy, K. Krishna Kumar, Neha Sharma, S.
E Krishna, Preetika Dwivedi, Mukti Chaudhary, Amit Singh,
  Abhishek Kaushik, P .B. Subramaian for the appearing parties.

        The Judgment of the Court was delivered by

        A.K. PATNAIK, J.1. Leave granted in S.L.P. (C) Nos.
    7174-7175 of 2009.

        2. These ate appeals against the judgment and order
    dated 23.06.2003 passed by a· Division Bench of the Madras
    High Court in Writ Petition No.11236 of 2000.
                         J
      3. The relevant facts briefly are that the Government of
G Pondicherry, Planning & Development Department, made the
  Assistant Engineers (inclu(:ling Deputy Director of Public Works
  Department) Group 'B' (Technical) Recruitment Rules, 1965 [for
  short 'the Recruitment Rules'] for the post of Assistant
  Engineers for the Public Works Department initially by a
H
 N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1021
  OF INDIA & ORS. ETC. ETC. [AK. PATNAIK, J.]

Notification dated 31.01.1966. The Recruitment Rules were A
amended by a Notification dated 08.08.1986 and as per the
amended Recruitment Rules the post of Assistant Engineer in
the Public Works Department, Pondicherry, was a selection
post and appointment to the 20% of the posts of Assistant
Engineer was to be by direct recruitment and to the 80% of the B
posts by promotion. 50% of the promotion quota was to be filled
up by Section Officers (now Junior Engineers) possessing a
recognized degree in Civil Engineering or equivalent with three
years service in the grade, failing which Section Officers holding
diploma in Civil Engineering with six years service in the grade c
and the remaining 50% of the promotion quota was to be filled·
up by Section Officers (Junior Engineers) possessing a
recognized diploma in Civil Engineering with six years service
in the grade.

     4. On 24.09.1968, the Chief Secretary, Governm~nt of D
Pondicherry, wrote to the Secretacy, Union Public Service
Commission (for short 'the UPSC') thaflhere were Section
Officers with diploma qualification who have acquired degree
in Civil Engineering or equivalent and have putting in several
years in service and having become qualified for consideration E
for 50% quota of the post of Assistant Engineers to be filled
up by promotion and questions have arisen whether the service
rendered by such Section Officers before and after possessing
the degree or equivalent can be taken into account for
consideration for promotion under the degree holders quota F
and whether their cases may be considered under the diploma ·
holders quota as well for promotion to the post of Assistant
Engineer. In the letter dated 24.09.1968, the Chief Secretary
sought the advice of the Commission regarding the correct
procedure to be followed in such cases. The UPSC gave its G
advice in its letter dated 06.12.1968 that the services of Section
Officers, who qualify as graduates while in service, should be
counted from the date they passed the degree or equivalent
examination or from the date they started drawing Rs.225/- p.m.
in the prescribed scale, whichever was earlier and Section H
    1022     SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A   Officers may continue to be considered in the diploma holders
    quota in case it is advantageous to them and the Government
    followed this advice of the UPSC.

          5. In 1989, however, some Junior Engineers, who were
    formerly Section Officers working in the Public Works and Local
8
    Administration Department of Government of Pondicherry, filed
    O.A. No. 552 of 1989 in the Central Administrative Tribunal,
    Madras Bench, (for short 'the Tribunal') and in its judgment and
    order dated 09.01.1990 the Tribunal held that when the
C   Recruitment Rules require three years service in grade, the
    Section Officers (now Junior Engineers) who ceased to be
    mere diploma holders having acquired the degree qualification
    have to be regarded as having total experience put in the grade
    of Section Officers before and after acquiring the degree
    qualification and there was nothing in the Recruitment Rules to
D   warrant the exclusion of a part of the experience acquired by
    such Junior Engineers while functioning in the grade of Section
    Officers (Junior Engineers). The Tribunal accordingly directed
    that the cases of the applicants in the O.A. be considered for
    promotion to the post of Assistant Engineers on par with other
E   degree holders Junior Engineers taking due note of their total
    length of service rendered in the grade of Junior Engineers and
    such a consideration should be along side other Junior
    Engineers, who might have acquired the necessary degree
    qualification earlier than the applicants while holding the post·
F   of Junior Engineers.

       6. The judgment and order dated 09.01.1990 of the
  Tribunal was challenged by N. Suresh Nathan and Others before
  this Court in Civil Appeal No. 4542 of 1991 and this Court
G interpreting Rule 11 of the Recruitment Rules held in the
  judgment reported in 1992 Supp. (1) SCC 584 that the period
  of three years' service in the grade required for degree-holders
  as qualification for promotion in the category of degree-holders
  must mean three years' service in the grade as a degree-holder
H and, therefore, that period of three years can commence only
   N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1023
     OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

  from the date of obtaining the degree and not earlier and this        A
  interpretation of ~ule 11 was in conformity With the past
  practice followed consistently by the Government and that the
  Tribunal was not justified in taking the contrary view and
  accordingly allowed the appeal. Review Petition No.50 of 1993
  was filed against the judgment and order dated 22.11.1991 of          8
  this Court in the aforesaid case but the same was dismissed
  on 31.01.1993.

         7. Thereafter, appellant Nos. 1 to 7 were promoted to the
   post of Assistant Engineer on 08.03.1997. Respondent Nos.
   2 to 7 challenged the promotion of the appellant Nos. 1 to 7 C
   before the Tribunal in O.A. No. 359 of 1997 contending inter
,. alia that this Court in its judgment in N. Suresh Nathan & Ors.
   v. Union of India & Ors. (supra) has only held that three years'
   service required for eligibility for the promotion quota reserved
   for the category of degree-holders or equivalent should be D
   considered from the date of acquiring the degree or equivalent,
   but has not decided the question of seniority as between
   degree-holders or equivalent and diploma-holders in the grade.
   The Gov~rnment of Pondicherry in its reply filed in 0. A. No.359
   of 1997 before the Tribunal contended that the Departmental E
   Promotion Committee met on 29.09.1996 and keeping in view
   the direction of this Court in the judgment in N. Suresh Nathan
   & Ors. v. Union of India & Ors. (supra) selected the Section
   Officers/Junior Engineers to the post of Assistant Engineers by
   preparing two lists, one list for considering promotions to the F
   post of Assistant Engineer for the degree-holders quota and
   another list for considering promotion to the post of Assistant
   Engineers for the diploma-holders quota. The Government of
   Pondicherry further clarified in its reply that in the first list those
   who had joined as Section Officers/Junior Engineers witb G
   degree in Civil Engineering were placed above the Section
   Officers/Junior Engineers who had joined the service with
   diploma in Civil Engineering but had subsequently acquired
   degree in Civil Engineering and in the second list, the Section
   Officers/Junior Engineers who had joined with diploma ·were H
    1024    SUPREME CvURT REPORTS                  [2010] 4 S.C.R.


A placed in order of seniority counted from the date of the joining
  in the grade. By the judgment and order dated 27.08.1999, the
  Tribunal dismissed O.A. No.359of1997 after holding that this
  Court has already taken a specific view in N. Suresh Nathan's
  case (supra) with regard to the procedure to be adopted for
B promotion of Junior Engineers in the Public Works Department
  of Pondicherry construing the recruitment rules and the
  applicants in O.A. should not be allowed to raise the point once
  again and that the judgment of this Court in N. Suresh Nathan's
  case was binding on the Tribunal and it was not open for the
C Tribunal to hold otherwise insofar as the interpretation of the
  recruitment rules for the post of Assistant Engineer in the Public
  Works Department in Pondicherry is concerned.

         8. Aggrieved, respondents Nos.3, 4, 5 and 6 filed Writ
    Petition No.11236 of 2000 before the Madras High Court
D   against the judgment and order dated 27.08.1999 of the
    Tribunal in O.A. No.359of1997 and by the impugned judgment
    and order, a Division Bench of the Madras High Court held
    inter alia that in N. Suresh Nathan & Ors. v. Union of India &
    Ors. (supra) this Court only decided the question of eligibility
E   for promotion to the posts of Assistant Engineer meant for the
    category of degree-holders or equivalent, but did not decide
    the question of seniority of Section Officers/Junior Engineers,
    who had acquired a degree in Civil Engineering or equivalent
    after joining as Section Officers/Junior Engineers and,
F   therefore, the judgment of this Court in N. Suresh Nathan &
    Ors. (supra) did not operate as res judicata. The Division
    Bench of the Madras High Court, relying on the decisions of
    this Court in R. B. Desai & Anr. v. S. K. Khano/kar & Ors.
    [(1999) 7 SCC 54) and A. K. Raghumani Singh & Ors. v. Gopal
G   Chandra Nath & Ors. [(2000) 4 SCC 30), further held in the
    impugned judgment and order that the entire service of a
    person concerned even before acquiring the degree in Civil
    Engineering or equivalent have to be counted for the purpose
    of seniority and promotion and directed that a review DPC
H   should be held to consider the question of promotion of the
 N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1025
 . OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

petitioners before the High Court vis-a-vis respondents 2 to 8       A
and other eligible persons, who had become eligible by the date
of sitting of the DPC in 1996 and accordingly allowed the Writ
Petition.

     9. Mr. Jawahar Lal Gupta, Mr. L. Nageswar Rao and Mr.           B
M.N. Rao, learned senior counsel appearing for the appellants,
submitted that the view taken by the High Court in the impugned
judgment and order is the same as has been taken by the
Tribunal in its order dated 09.01.1990 in the earlier O.A. No.552
of 1989 and as the order dated 09.01.1990 of the Tribunal in         C
O.A. No.552 of 1989 has been set aside by this Court in N.
Suresh Nathan & Ors. (supra), the impugned judgment and
order of the High Court cannot be sustained. They referred to
the earlier order dated 09.01.1990 of the Tribunal in O.A.
No.552 of 1989 to show that the Tribunal had directed the
authorities to consider the applicants in the O.A. for promotion     D
to the post of Assistant Engineer at par with other degree-
holder Junior'Engineers taking due note of their total length of
service rendered in the grade of Junior Engineer, both before
and after acquiring the degree of Civil Engineering or
equivalent, and submitted that this Court set aside this direction   E
of the Tribunal in the judgment in N. Suresh Nathan & Ors.
(supra). They further submitted that once this Court set aside
the order dated 09.01.1990 of the Tribunal in O.A. No.552 of
1989 on the ground that the order of the Tribunal was norln
conformity with Rule 11 of the Recruitment Rules and the             F
practice followed by the Department, the decision of this Court
on the issue constitutes res judicata and the interpretation of
Rule 11 of the Recruitment Rules by this Court was a
declaration of law binding on the High Court under Article 141
of the Constitution.                                                 G

      10. Mr. M.S. Ganesh, learned senior counsel appearing
for the Government of Pondicherry, reiterated these contentions
of the learned counsel for the appellants.

     11. Mr. Rakesh Dwivedi and Mr. K.V. Viswanathan,                H
    1026    SUPREME COURT REPORTS                  [2010) 4 S.C.R.

A learned counsel appearing for respondents No. 2 to 19, in their
  reply, contended that the High Court has rightly held in the
  impugned judgment and order that in N. Suresh Nathan & Ors
  (supra), this Court only decided the question of eligibility of
  Section Officers or Junior Engineers for promotion to the post
B of Assistant Engineers meant for the category of degree-
  holders and not the method in which the eligible candidates will
  be consid6red for promotion.

       12. Para 5 of the judgment in N. Suresh Nathan & Ors.
C (supra) which contains the ratio decided by this Court is quoted
  herein below:

        "5. The Recruitment Rules for the post of Assistant
        Engineers in the PWD (Annexure C) are at pages 57 to
        59 of the paper book. Rule 7 lays down the qualifications
D       for direct recruitment from the two sources, namely,
        degree-holders and diploma-holders with three years'
        professional experience. In other words, a degree is
        equated to diploma with three years' professional
        experience. Rule 11 provides for recruitment by promotion
E       from the grade of Section Officers now called Junior
        Engineers. There are two categories provided therein -
        one is of degree-holder Junior Engineers with three years'
      · service in the grade and the other is of diploma-holder
        Junior Engineers with six years' service in the grade, the
F       provision being for 50 per cent from each category. This
        matches with Rule 7 wherein a degree is equated with
        diploma with three years' professional experience. In the
        first category meant for degree-holders, it is also provided
        that if degree-holders with three years' service in the grade
        are not available in sufficient number, then diploma-holders
G
        with six years' service in the grade may be considered in
        the category of degree-holders also for the 50 per cent
        vacancies meant for them. The entire scheme, therefore,
        does indicate that the period of three years' service in the
        grade required for degree-holders according to Rule 11
H
 N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1027
   OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

      as the qualification for promotion in that category must A
      mean three years' service in the grade as a degree-holder
      and, therefore, that period of three years can commence
      only from the date of obtaining the degree and not earlier.
      The service in the grade as a diploma-holder prior to
      obtaining the degree cannot be counted as service in the B
      grade with a degree for the purpose of three years' service
      as a degree-holder. The only question before us is of the·
      construction of the provision and not of the validity thereof
      and, therefore, we are only required to construe the
      meaning of the provision. In our opinion, the contention of c
      the appellants degree-holders that the rules must ·be
      construed to mean that the three years' service in the
      grade of a degree-holder for the purpose of Rule 11 is
      three years from the date of obtaining the degree is quite
      tenable and commends to us being in conformity with the
                                                                    0
      past practice followed consistently. It has also been so
      understood by all concerned till the raising of the present
      controversy recently by the respondents. The tribunal was,
      therefore, not justified in taking the contrary view and
      unsettling the settled practice in the department."
                                                                    E
      13. On a close reading of the aforesaid para 5 of the
judgment of this Court in N. Suresh Nathan & Ors. (supra), we
find that this Court confined its decision to the qualification or
eligibility for consideration for promotion to 50% vacancies for
the post of Assistant Engineer meant for degree-holders or F
equivalent in the grade of Section Officers/Junior Engineers and
held that only those Sections Officers or Junior Engineers, who
had completed three years' service after obtaining degree, were
qualified or eligible for consideration to the 50% vacancies
meant for the category of degree-holders or equivalent. In the G
judgment in N. Suresh Nathan & Ors. (supra), this Court did not
decide on how the Section Officers/Junior Engineers who had
completed three years' service in the grade after the degree
in Civil Engineering or equivalent and had the qualification or
eligibility for consideration for promotion to the 50% vacancies H
    1028    SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A   meant for the category of degree-holders would be considered
    for promotion.

        14. Article 141 of the Constitution states that the law
  declared by this Court shall be binding on all the courts within
  the territory of India. In N. Suresh Nathan & Ors. (supra) this
8
  Court has set aside the order of the Tribunal dated 09.01.1990
  in O.A. No.552 of 1989 after declaring that Section Officers/
  Junior Engineers having three years' service in the grade after
  they acquired degree in Civil Engineering or equivalent will
C become qualified or eligible for promotion to the 50%
  vacancies meant for the category of degree-holders or
  equivalent. In N. Suresh Nathan & Ors. (supra) this Court has
  not declared any law on how these Sections Officers/Junior
  Engineers, who had become qualified or eligible for promotion
  to the post of Assistant Engineer under the category of degree-
D holders or equivalent, would be considered for such promotion.
  There was, therefore, no law declared by this Court on how
  Section Officers or Junior Engineers, who become qualified or
  eligible for promotion to the post of Assistant Engineer would
  be considered for promotion, which was binding on the courts
E under Article 141 of the Constitution.

        15. Section 11 of the Code of Civil Procedure Code (for
  short 'CPC') titled Res judicata' states that no court shall try
  any issue which was directly or substantially in issue between
F the same parties and which has been heard and finally decided
  by a competent court. Thus, unless an issue directly and
  substantially raised in the former case is heard and decided
  by the competent court, the principle of res judicata will not be
  attracted. In N. Suresh Nathan & Ors. (supra) this Court, while
G settjng aside the order dated 09.01.1990 in O.A. No.552 of
  1989, has decided that those Section Officers/Junior Engineers
  who complete three years' service after acquiring the degree
  in Civil Engineering or equivalent are qualified or eligible for
  consideration for promotion to the 50% quota of vacancies for
H the post of Assistant Engineer under the degree-holders
 N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1029
   OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

category but has not decided how such Section Officers/Junior       A
Engineers who are qualified or eligible will be considered for
such promotion under the degree-holders category. The
decision of this Court in N. Suresh Nathan & Ors. (supra),
therefore, did not constitute res judicata on the issue regarding
the manner in which Section Officers/Junior Engineers who           B
were qualified or eligible for consideration for promotion to the
post of Assistant Engineer would be considered for promotion.

      16. The High Court was, therefore, right in taking the view
that in N. Suresh Nathan & Ors. (supra), this Court was
 concerned only with the question of eligibility but was not        C
concerned whether the past services rendered by the diploma-
 holders would be counted for the purpose of seniority and that
 neither Article 141 of the Constitution nor the principle of res
judicata was a bar for Tribunal or the High Court to consider
whether past services of Section Officers/Junior Engineers who      D
were diploma-holders before they acquired degree in Civil
 Engineering or equivalent could be counted for the purpose of
 promotion for the 50% vacancies for the post of Assistant
 Engineers meant for the category of degree-holders or
equivalent.                                                         E

     17. Learned counsel for the appellants next submitted that
Rule 11 of the Recruitment Rules provides for two streams or
channels of promotion to the post of Assistant Engineer, Public
Works Department, one stream or channel is for Sections             F
Officers or Junior Engineers possessing a recognized degree
in Civil Engineering or equivalent and the other for Section
Officers/Junior Engineers holding diploma in Civil Engineering.
They submitted that it is for this reason that the UPSC in its
letter dated 06.12.1968 advised the Government that the             G
services of Section Officers/Junior Engineers, who qualify as
graduates while in service, should be counted from the date
they passed the degree or equivalent while considering them
for promotion for the channel or stream of promotion meant for
Section Officers or Junior Engineers having degree in Civil
                                                                    H
    1030    SUPREME COURT REPORTS                [2010) 4 S.C.R.


A   Engineering or equivalent and the Government of Pondicherry
    has acted on this advice of the UPSe.

        18. Mr. Nageswar Rao cited the decision in Chandravathi
  P. K. & Ors. v. C.K. Saji & Ors. [(2004) 3 sec 734) in which
  the question for consideration was whether in terms of th.e
8
  scheme of the Kerala Engineering Service (General Branc;h)
  Rules, diploma-holders were entitled to claim any weightage
  for the service rendered by them prior to their acquisition of
  degree qualification in the matter of promotion or transfer to
C higher posts when specific quota is fixed for graduates and
  diploma-holders in the matter of promotion and this Court, on
  a conjoint reading of Rules 4 and 5 of the Kerala Engineering
  Service (General Branch) Rules, held that a diploma-holder
  Assistant Engineer who subsequently acquired a degree
  qualification would be eligible for promotion as Assistant
D Executive Engineer, only in the event he fulfils the conditions
  precedent therefor and not otherwise and his case could be
  considered only after the cases of promotion of those who had
  been holding such degree qualification have been considered.

E      19. Mr. Ganesh adopted these arguments of learned
  counsel for the appellants and cited the decision in Shailendra
  Dania & Ors. v. S. P. Dubey & Ors. [(2007) 5 sec 535)
  wherein this Court interpreting the rules for promotion to the
  post of Assistant Engineers in CPWD, which has adopted by
F the DOA, found that 25% of the total posts of Assistant
  Engineers were to be filled up by promotion from the category
  of graduate Junior Engineers and 25% of the total posts were
  to be filled up by diploma-holders with eight years' service and
  held that a separate quota was, thus, prescribed for promotion
G of Junior Engineers for degree and diploma-holders to the
  higher post of Assistant Engineer. He submitted that in the
  aforesaid case of Shailendra Dania & Ors. (supra), this Court
  emphatically held that the service experience required for
  promotion from the post of Junior Engineer to the post of
  Assistant Engineer in the limited quota of degree-holder Junior
H
 N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1031
   OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

Engineers in the service experience of a degree-holder and               A
cannot be equated with the service rendered as a diploma-
holder. Relying on this decision, learned counsel for the
Government of Pondicherry submitted that the prior service
experience of a Section Officer or Junior Engineer while he was
diploma-holder and when he had not acquired the degree in                B
Civil Engineering or equivalent cannot be counted for the
purpose of consideration for the 50% quota of promotion to the
post of Assistant Engineer meant for degree-holders.

     20. Learned counsel appearing for the respondents 2 to
19, on the other hand, submitted that Rule 11 of the Recruitment         C
Rules does not provide for two streams or channels of
promotion as contended by learned counsel for the appellants
and it only lays down the qualification or eligibility of three years'
service after degree in Civil Engineering or equivalent as a
qualification or eligibility and once a diploma-holder acquires          D
a degree in Civil Engineering or equivalent, his entire length of
service both prior to acquisition of such degree in Civil
Engineering or equivalent and after acquisition of such degree
or equivalent has to be taken into consideration at the time of
consideration for promotion to the post of Assistant Engineer            E
meant for degree-holders.

      21. Mr. Viswanathan cited this Court's decision in R. B.
Desai & Anr. v. S. K. Khanolkar & Ors. [(1999) 7 SCC 54] for
proposition that if at the time of consideration for prpmotion,          F
the candidates concerned have acquired eligibility, then unless
a rule specifically gives an advantage to a candidate with earlier
eligibility, the date of seniority should prevail over the date of
eligibility. He submitted that in the present case, the rules for
promotion from the post of Section Officer or Junior Engineer            G
to Assistant Engineer did not give any such priority to the
candidates acquiring earlier eligibility. He submitted that
 Chandrava~hi P. K. & Ors. v. C.K. Saji & Ors. (supra) was a
case where the rules, namely, the Kerala Engineering Service
(General Branch) Rules, were different from the Recruitment              H
    1032    SUPREME COURT REPORTS                 [2010] 4 S.C.R.

A Rules in the present case and the Kerala Engineering Service
   (General Branch) Rules clearly provided for two different
  streams or channels of promotion for the posts of Assistant
   Engineer, i.e. for diploma-holders and degree-holders. He
  submitted that in Shailendra Dania & Ors. v. S. P. Dubey &
B Ors. (supra) cited by the learned counsel for the appellants and
  the Government of Pondicherry, the question for consideration
  was whether a diploma-holder Junior Engineer, who obtained
  a degree while in service, became eligible for promotion to the
  post of Assistant Engineer on completion of three years of
c service after he obtained the Engineering degree or on
  completion of three years of service prior to obtaining the
  degree in Engineering and while answering this question, this
  Court held that a diploma-holder Junior Engineer became
  eligible for promotion to the post of Assistant Engineer on
  completion of three years' service after he obtained the
0
  Engineering degree. He submitted that the decision of this
  Court in Shai/endra Dania & Ors. (supra), therefore, is not an
  authority for proposition that the service of diploma-holders put
  in prior to the acquisition of the degree or equivalent by him
  will have to be ignored while considering them for promotion
E to the post of Assistant Engineer meant for degree holders.

         22. Rule 11 of the Recruitment Rules in the present case
    is quoted herein below :-

F     "11. In case of recruitment       Promotion
      by promotion/deputation/          1. Section Officer
      Transfer grades from which        possessing a recognized
      promotion/deputation/             degree in Civil
      transfer to be made.              Engineering or Equivalent
                                        with 3 Years service in
G
                                        the grade failing which
                                        Section Officers holding
                                        diploma in Civil
                                        Engineering with 6 years
                                        service in the grade -
H                                       50%.
 N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1033
  OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

                                       2.Section Officers              A
                                       possessing a recognized
                                       diploma in Civil
                                       Engineering with 6 years
                                       service in the grade -
                                       50%"                            B

      23. A plain reading of Rule 11 of the Recruitment Rules
quoted above would make it clear that for the 50% quota for
the posts of Assistant Engineer mentioned under Clause 1 of
Rule 11, Section Officers (now Junior Engineers) possessing            C
recognized degree in Civil Engineering or equivalent with three
years' service in the grade, failing which Section Officers
possessing diploma in Civil Engineering with six years' service
in the grade would be eligible for consideration for promotion.
All that the Rule provides is that if for vacancy in the post of
Assistant Engineer, Section Officers possessing recognized             D
degree in Civil Engineering or equivalent with three years'
service in the grade are not available, Section Officers holding
diploma in Civil Engineering with six years service in the grade
could be considered for promotion. Clause 1 of Rule 11 is,
therefore, only a provision laying down the qualification or           E
eligibility for promotion to 50% of the posts of Assistant
Engineer and the qualification or eligibility provided therein is
either three years service in the grade of Section Officers or
Junior Engineers after degree in Civil Engineering or equivalent
or six. years service in the grade of Section Officers or Junior       F·
Engineers with diploma in Civil Engineering. This provision also
has a rider that if there are Section Officers/Junior Engineers,
who have put in three ,years service after acquiring degree or
equivalent, available for consideration for vacancies, then they
will be considered first for promotion and the turn for                G
consideration for promotion of diploma-holders in Civil
Engineering with six years service in the grade of Section
Officers/Junior Engineers will come only thereafter. Thus, the
 Rule itself provides that if for vacancies in the post of Assistant
Engineer, Section Officers possessing a recognized degree in           H
    1034    SUPREME COURT REPORTS                 [2010] 4 S.C.R.

A Civil Engineering or equivalent with three years' service in the
  grade are not available, then Section Officers holding diploma
  in Civil Engineering with six years' service in the grade would
  be eligible for promotion. We, therefore, cannot accept the
  submission of learned counsel for the appellants and the
B Government of Pondicherry that Clause 1 of Rule 11 provides
  for a separate stream or channel of promotion exclusively for
  degree-holders, who have completed three years service and
  we are of the opinion that learned counsel for the respondents
  2 to 19 are right in the submission that Clause 1 of Rule 11
c only lays down the qualification or eligibility for consideration
  for promotion to 50% of the posts of Assistant Engineers.

        24. In Chandravathi P. K. & Ors. v. C.K. Saji & Ors.
  (supra), cited by Mr. L. Nageshwara Rao, on the other hand,
  this Court held that under Rules 4 and 5 of the Kerala
D Engineering Service (General Branch) Rules there were
  separate avenues of promotion for the degree-holders and the
  diploma holders. This will be clear from the observations of the
  Court in para 30 of the judgment in Chandravathi P. K. ,& Ors.
  v. C.K. Saji & Ors. (supra), quoted herein below:
E
       "A bare perusal of Rules 4 and 5 of the Kerala Engineering
       Service (General Branch) Rules would clearly go to show
       that the avenues for promotion for the degree-holders and
       the diploma holders were separate ....... " [(2004) 3 sec
F      734 at 748]

       25. In Shailendra Dania & Ors. v. S. P. Dubey & Ors.
  (Supra) cited by learned counsel Mr. Ganesh, this Court
  similarly found that there were two different channels or streams
  of promotion for degree-holders and diploma holders to the
G post of Assistant Engineer in the relevant rules. This will be
  clear from the findings in para 44 of the judgment quoted herein
  below:

        "...... There is watertight compartment for graduate Junior
H       Engineers and diploma-holder Junior Engineers. They are
 N. SU RESH NATHAN & ORS., ETC. ETC. v. UNION 1035
   OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

    entitled for promotion in their respective quotas. Neither a        A
    diploma-holder Junior Engineer could claim promotion in
    the quota of degree-holders because he has completed
    three years of service nor can a degree-holder Junior
    Engineer make any claim· for promotion quota fixed for
    diploma-holder Junior Engineers. [(2007) 5 SCC 533 at               B
    560)1"

     26. In the present case, on the other hand, Clause 1 of Rule
11 of the Recruitment Rules does not provide for "separate
avenues" or ''watertight compartments" for promotion to the post . C
of Assistant Engineers fqr degree-holders and diploma-
holders. As we have seen Clause 1 Rule 11 of the Recruitment
Rules only lays down the qualification or eligibility for
considerai.Jn for promotion to the post of Assistant Engineers
earmarked for the 50% quota. The two decisions of this Court
in Chandravathi P. K. & Ors. v. C.K. Saji & Ors. (supra) and D
Shai/endra Dania & Ors. v. S. P. Dubey & Ors. (Supra) are,
therefore, of no assistance to the appellants.

     27. In R. B. Desai & Anr. v. S. K. Khano/kar & Ors. (supra)
cited by Mr. Viswanathan, this Court found that the amended             E
rules of 1988 pertaining to the promotion to the cadre of
Assistant Conservator of Forests provided that Range Forest
Officers with five years regular service in the grade and
possessing diploma of Forest Rangers' Training from Forest
Rangers College in India or equivalent were eligible for                F
promotion to the post of Assistant Conservator of Forests and
the Court held in para 9:

    "............. that if at the time of consideration for promotion
    the candidates concerned have acquired the eligibility, then
    unless the rule specifically gives an advantage to a                G
    candidate with earlier eligibility, the date of seniority should
    prevail over the date of eligibility. The rule under
    consideration does not give any such priority to the
    candidates acquiring earlier eligibility and, in our opinion,
    rightly so. In service law, seniority has its own weightage         H
    1036    SUPREME COURT REPORTS                     [2010] 4 S.C.R.

A       and unless and until the rules specifically exclude this
        weightage of seniority, it is not open to the authorities to
        ignore the same. [(1999) 7 sec 54 at 58)

        28. In the passage of the judgment of this Court in R.8.
B Desai & Anr. V. S. K. Khanolkar & Or5. (supra) quoted above,
  it is laid down that in service law, seniority has its own
  weightage and unless and until the rules specifically exclude this
  seniority, it is not open to the authorities to ignore the ..;ame. In
  the aforesaid case though the post of ACF was mentioned to
  be a selection post in the amended rules of 1988, the question
C whether for a selection post seniority would have weightage or
  merit would have weightage while considering the eligible
  candidates for promotion was not raised or decided and the
  only question which was raised before this Court was whether
  ranking assigned in the eligibility list or the ranking assigned
D to the seniority list should be given weightage and this Court
  held that between the candidates who are eligible, ranking in
  seniority must be given weightage irrespective of the date for
  which the candidate becomes eligible.

E      29. In the present case, we find that Rule 5 of the
  Recruitment Rules states that the post of Assistant Engineer
  in the Public Works Department, Pondicherry, is a selection
  post. The Recruitment Rules, however, do not lay down that
  seniority-cum-merit would be the criteria for promotion to the
F selection post of Assistant Engineer. In Dr. Jai Narain Misra
  v. State of Bihar & Ors. [(1971) 1 SCC 30) a three-Judge
  Bench of this Court held that the question of seniority was not
  relevant for promotion to the selection post in the language of
  the judgment of this Court in Dr. Jai Narain Misra v. State of
G Bihar & Ors. (supra):
                                                  '
         "It was not disputed before us that the post of Director of
         Agriculture is a selectjon post. Therefore, the question of
         seniority was not relevant in making the selection. It is for
         theState Government to select such officer as it considers
         as most suitable. In this view we think the High Court was
 N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1037
   OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

    not justified in going into the question of seniority nor will    A
    we be justified in going into that question."

Thus, the question of seniority in the grade of Section Officers
or Junior Engineers is not at all relevant for promotion to the
post of Assistant Engineer in the Public Works Department,
                                                                      8
Government of Pondicherry. The practice adopted by the
Government of Pondicherry in consultation with the UPSC of
counting the services of Section Officers or Junior Engineers,
who qualified as graduates while in service from the date they
passed the degree or equivalent examination and placing them          C
in order of seniority accordingly for the purpose of consideration
for promotion to the post of Assistant Engineer under Clause
1 of Rule 11 of the Recruitment Rules is contrary to Rule 5 of
the Recruitment Rules. Similarly, the direction of the High Court
in the impugned judgment and order to count the entire service
of a person concerned even befo(e acquiring degree in Civil           D
Engineering for the purpose of seniority and promotion to the
post of Assistant Engineer under Clause 1 of Rule 11 of the
Recruitment Rules is contrary to Rule 5 of the Recruitment
Rules.
                                                                      E
     30. The person, who is most meritorious, is the most
suitable person to be promoted for the selection post. Merit, in
other words, is the sole criteria for promotion to the selection
post. In Guman Singh, etc.· v. State of Rajasthan & Ors. [1971
(2) SCC 452] a five-Judge Bench of this Court speaking                F
through Vaidialingam, J. explained how merit of candidates for
promotion is to be assessed in para 35 at page 408 of the
judgment in the following words:

     " ........... No doubt the term 'merit' is not capable of an
     easy definition, but it can be safely said that merit is a sum   G
     total of various qualities and attributes of an employee such
     as his academic qualifications, his distinction in the
     University, his character, integrity, devotion to duty and the
     manner in which he discharges his official duties. Allied
     to this may be various other matters or factors such as his      H
    1038    SUPREME COURT REPORTS                   [2010] 4 S.C.R.


A       punctuality in work, quality and outturn of work done by him
        and the manner of his dealings with his superiors and
        subordinate officers and the general public and his rank
        in the service. We are only indicating some of the broad
        aspects that may be taken into account in assessing the
B       merits of an officer. In this connection it may be stated that
        the various particulars in the annual confidential repois of
        an officer, if carefully and properly noted, will also ~ive a
        very broad and general indication regarding the merit of
        an officer."

C Where, therefore, there are large number of eligible candidates
  available for consideration for promotion to a selection post,
  the Government car 1 issue executive instructions consistent with
  the principle of merit on the method to be followed for
  considering such eligible candidates for promotion to the
D selection post.

       31. Learned counsel for the appellants however submitted
  that when the Recruitment Rules are silent on the procedure to
  be adopted by the Government in selecting the candidates for
E promotion, the Government is the best authority to decide what
  procedure to be adopted in such promotion· and the Court will
  not interfere with the procedure so adopted unless it was
  unconstitutional, arbitrary, unreasonable or otherwise illegal. In
  support of this submission, Mr. L. Nageswar Rao cited the
F decisions of this Court in Suman Gupta v. State of J & K
  [(1983) 4 SCC 339], Munidra Kumar v. Rajiv Govil [(1991) 3
  SCC 368], Satya Narain Shukla v. U.0.1. [(2006) 9 SCC 69],
  P.U. Joshi v. Accountant General [(2003) 2 SCC 632], U.0.1.
  v. Pushpa Rani [(2008) 9 SCC 242], lnderjeet Khurana v.
G State of Haryana [(2007) 3 SCC 102] and U.0.1. v. A.K. Narula
  [(2007) 11 sec 1O]. Learned counsel for the appellants
  submitted that in the present case the Government of
  Pondicherry in consultation with the UPSC has adopted the
  procedure since 1968 that the services of Section Officers/
  Junior Engineers who qualified as graduates while in service
H
                       ..

 N. SU RESH NATHAN & ORS., ETC. ETC. v. UNION 1039
   OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

should be counted from the date they passed the degree or            A
equivalent examination for the promotion under clause 1 Rule
11 of the Recruitment Rules and this procedure is not
unconstitutional, arbitrary, unreasonable or illegal and,
therefore, the High Court by the impugned judgment and order
should not have interfered with this procedure and should not        B
have directed that the entire service of a person concerned
even before acquiring the degree in civil engineering or
equivalent has to be counted for the purpose of seniority and
promotion to the post of Assistant Engineer under clause 1 of
Rule 11 of the Recruitment Rules. Learned counsel appearing          c
for the Government of Pondicherry adopted this contention of
the learned counsel of the appellants.

      32. Learned counsel for the respondents No.2 to 19, in
their reply, submitted that the Government cannot adopt a
procedure for selection by way of promotion to the post of           D
Assistant Engineer contrary to trye Recruitment Rules. They
submitted that the Recruitment Rules do not provide that for
promotion under clause 1 of Rule 11, the services of Section
Officers/Junior Engineers who qualified as graduates while in
service, would be counted from the date they passed the              E
degree or equivalent examination and their services prior to the
date of passing the degree or equivalent examination would be
ignored. They further submitted that the Government also cannot
adopt the procedure of selection which violates the fundamental
right guaranteed under Article 16 of the Constitution of India to    F
equality of opportunity in matters of public employment. They
submitted that once a candidate became eligible or qualified
to be considered for promotion to the post of Assistant
Engineer under clause 1 of Rule 11 of the Recruitment Rules,
he has a right to be considered for such promotion and such          G
consideration cannot be denied by laying down a procedure
which ignores his seniority in the grade of Section Officer/Junior
Engineer. They relied on the decision of this Court in M.B. Joshi
v. Satish Kumar Pandey [1993 Supp.(2) SCC 419].
                                                                     H
    1040    SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A      33. In M.B. Joshi v. Satish Kumar Pandey (supra), the
  State Government had been applying the principle of counting
  the seniority of Graduate Sub-Engineers from the date of their
  continuous officiation irrespective of the date on which such
  diploma-holder Sub-Engineer acquired the degree of
B graduation in Engineering and on the basis of such seniority,
  the Departmental Promotion Committee was considering
  Graduate Sub-Engineers for promotion to the post of Assistant
  Engineers. When this method adopted by the State
  Government was challenged by some of the Sub-Engineers
c before the Madhya Pradesh Administrative Tribunal, Jabalpur,
  the Tribunal held that the seniority of such Sub-Engineers must
  be determined from the date of acquiring the degree of
  graduation in Engineering and this Court held that the Tribunal
  was wrong in determining the seniority from the date of
  acquiring degree of Engineering and it ought to have been
0
  determined on the basis of length of service on the post of Sub-
  Engineer and the Government was right in doing so and there
  was no infirmity in the orders passed by the Government. In this
  case also, the question did not arise whether for selection post
E seniority would have weightage or merit would have weightage
  while considering the eligible candidates for promotion.

       34. As we have seen, Rule 5 of the Recruitment Rules in
  the present case states that the post of Assistant Engineer is
  a selection post and the Recruitment Rules no where provide
F that seniority-cum-merit would be the criteria for promotion. In
  the absence of any indication in the Recruitment Rules that
  seniority in the grade of Section Officers I Junior Engineers will
  be counted for the purpose of promotions to the post of
  Assistant Engineer, consideration of all Section Officers I Junior
G Engineers under Clause 1 of Rule 11 of the Recruitment Rules
  who are eligible for such consideration has to be done on the
  basis of assessment of the comparative merit of the eligible
  candidates and the most suitable or meritorious candidate has
  to be selected for the post of Assistant Engineer. Such a
H method of selection will be consistent with Rule 5 of the
  N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1041
    OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

  Recruitment Rules and Article 16 of the Constitution which         A
  guarantees to all citizens equality of opportunity in matters of
  public employment. In our considered opinion, therefore, the
· practice adopted by the Government of Pondicherry on the
  advice of the UPSC of counting the service of the eligible
  candidates from the· date of acquisition of the degree in Civil    B
  Engineering by them and the impugned judgment and order of
  the High Court directing that the entire service of eligible
  candidates, both prior and after acquisition of the degree of
  Civil Engineering by them, would be counted for the purpose
  of promotion to the post of Assistant Engineer under Clause 1      c
  of Rule 11 of the Recruitment Rules are contrary to the rules
  made under Article 309 of the Constitution and the fundamental
  right guaranteed under Article 16 of the Constitution.

     35. For the aforesaid reasons, we set aside the impugned
judgment of the High Court and direct the Government of              D
Pondicherry to consider the cases of all Section Officers or
Junior Engineers, who have completed three years' service in
the grade of Section Officers or Junior Engineers, for promotion
to the vacancies in the post of Assistant Engineer, Public Works
Department, Government of Pondicherry, in accordance with            E
their merit. We make it clear that the promotions to the post of
Assistant Engineers already made pursuant to the judgment
and order of the High Court will not be disturbed until the
exercise is carried out for promotion in accordance with merit
as directed in this judgment and on completion of such               F
exercise, formal orders of promotion to the vacancies in the
posts of Assistant Engineer which arose during the pendency
of the. cases before this Court are passed in case of those who
are selected for promotion and after su.:h exercise only those
who are not selected for promotion may be reverted to the post       G
of Section Officer or Junior Engineer.

     The appeals are disposed of accordingly w;th no order as
to costs.

 R.P.                                     Appeals disposed of.       H