SUPREME COURT OF INDIA

Before:- Mrs. Sujata V. Manohar and G.B. Pattanaik, C.J.I., JJ.

Civil Appeal No. 4620 of 1998 (arising out of SLP (C) No. 954 of 1998). D/d. 4.9.1998.

State of W.B. and another - Appellants

Versus

Avijit Chowdhury and others - Respondents

Constitution of India, Article 309 - W.B. Services (Revision of Pay and allowances ) Rules, 1970, Sch, I, Part B - Re-designation - As sub-Assistant Engineers in PWD - Sough for - On acquiring diploma as per Notification dated 19.11.1974 - Subsequent Rules of 1981 and 1991 do not prove for such re-designation - Moreover respondent acquired diploma in Engineering only during the period 1988-1991 when the Rule of 1970 were not in force or stood and amended as per notification of 3.7.1981 - Tribunal without ascertain their designation could not apply judgment of Debdas Kumar's case.

[Paras 4 to 6]

Cases Referred :-

State of West Bengal v. Debdas Kumar, 1991 Supp (1) SCC 138.

JUDGMENT

Leave granted.

2. The respondents claim re-designation as Sub-Assistant Engineers in the Public Works Department of the Government of West Bengal on the basis of a notification dated 19th of November, 1974. The exact designation of the six respondents who were the applicants before the Tribunal is not known. They have described themselves in the application before the Tribunal as holding offices for gain in different divisions of the Public Works Department. The Tribunal has allowed their applications originally filed as a writ petition before the High Court.

3. The notification of 19th of November, 1974 has been issued in exercise of powers conferred by the proviso to Article 309 of the Constitution of India by the Governor making amendments to the West Bengal Services (Revision of Pay and Allowances) Rules, 1970. By the said notification Schedule I, Part B of the said Rules of 1970 has been amended, inter alia, to provide that all Tests Relief Overseers and other Diploma Holder Engineers will henceforth be termed as Sub-Assistant Engineers. The respondents acquired a diploma in Engineering while in service sometime between the years 1988 and 1991. The respondents claim re-designation as Sub-Assistant Engineer under the said notification by virtue of having acquired a diploma in Engineering. There is, however, a further notification dated 30th of July, 1981 also issued under the proviso to Article 309 of the Constitution by the Governor, further amending the West Bengal Services (Revision of Pay and Allowances) Rules, 1970. Under the said notification of 1981 Schedule I, Part 8 has been again amended, inter alia, to provide that Tests Relief Overseers and other Diploma holder Engineers shall not henceforth be termed as Sub-Assistant Engineers. Thus, looking to the West Bengal Services (Revision of Pay and Allowances) Rules, 1970 as further amended in 1981 by the said notification of 30th July, 1981, the respondents are not entitled to claim re-designation as Sub-Assistant Engineers under the Rules of 1970.

4. This notification appears to have been overlooked by both the sides and was not placed before the Tribunal. We cannot, however, ignore it while considering the said Rules of 1970 as in force at the relevant time. Furthermore, the West Bengal Services (Revision of Pay and Allowances) Rules, 1970 were, on 31-7-1981, replaced by the West Bengal Services (Revision of Pay and Allowances) Rules, 1981 (hereinafter referred to as the Rules of 1981). Clause 3 of the said Rules of 1981 provides that these Rules shall have effect notwithstanding anything contrary contained in any other rules, orders or notifications and all such other rules, orders or notifications including the West Bengal Services Rules Part I, shall have effect subject to the provisions of these Rules. The 1981 Rules, therefore, override the earlier West Bengal Services (Revision of Pay and Allowances) Rules of 1970. The Rules of 1981 do not provided for any automatic re-designation as Sub-Assistant Engineer of those who acquire a diploma in Engineering. The Rules of 1981 have thereafter been replaced by the West Bengal Services (Revision of Pay and Allowances) Rules of 1990 which also do not provide for such re-designation.

5. The respondents rely upon a decision of this Court in the case of State of West Bengal v. Debdas Kumar, 1991 Supp (1) SCC 138, where this Court gave effect to the notification of 19-11-1974. This Court held that the "other diploma holder Engineers" in the notification of 19-11-1974 who are entitled to be termed as Sub-Assistant Engineers are only persons like Operators-cum-Mechanics, or electricians working in various departments in the Engineering service. When these persons acquire a diploma in Engineering they would get re-designated as Sub-Assistant Engineers. But this provision will not apply to members of the clerical cadre who may subsequently acquire a diploma in Engineering. The writ petition in that case had been filed in 1978 and the petitioners had acquired a diploma in Engineering prior to the notification of 31-7-1981 or the coming into force of the West Bengal Services (Revision of Pay and Allowances) Rules, 1981. In the first place, the Tribunal could not have applied this judgment without ascertaining whether the six respondents before it were in any Engineering service, and not clerical or other posts. Secondly, the Tribunal could not have applied the notification of 19-11-1974 in view of the subsequent amendment to the West Bengal Services (Revision of Pay and Allowances) Rules, 1970 by the notification of 30-7-1981, as also in view of the replacement of those Rules by the West Bengal Services (Revision of Pay and Allowances) Rules of 1981, and thereafter by the West Bengal Services (Revision of Pay and Allowances) Rules of 1990.

6. The Tribunal has also unnecessarily made observations about the Recruitment Rules to the Engineering Services under the P.W.D., Government of West Bengal which came into force in 1986. Calling these Rules arbitrary in view of the judgment of this Court in State of West Bengal v. Debdas Kumar, 1991 Supp (1) SCC 138 (supra) is unwarranted. The Recruitment Rules provide, inter alia, for recruitment to the post of SuAssistant Engineer by selection, a diploma in Civil Engineering or its equivalent is a qualification prescribed for the post. It seems that the respondents were considered for selection under the Recruitment Rules of 1986 to the post of Sub-Assistant Engineer after they acquired a diploma in Engineering but were not selected. They are not entitled to be re-designated as Sub-Assistant Engineers as they acquired a diploma in Engineering only during the period 1988-1991 when the Rules of 1970 were not in force or stood, in any event, amended as per the notification of 30-7-1981.

7. The appeal is, therefore, allowed and the impugned judgment and order of the Tribunal is set aside. The original writ petition/application is dismissed.

Appeal allowed.