Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
CASE NO.:
Appeal (civil) 6312 of 1994
PETITIONER:
CHANDIGARH ADMINISTRATION ETC. ETC
RESPONDENT:
K.K. JERATH
DATE OF JUDGMENT: 27/09/1994
BENCH:
R.M. SAHAI & N.P. SINGH
JUDGMENT:
JUDGMENT
WITH
Special Leave Petition (C) No. 16833 of 1994.
1994 SUPPL. (4) SCR 35
The Judgment of the Court was delivered by
R.M. SAHAI, J. Who is eligible to be considered for the post of Chief
Engineer in Buildings & Roads Department in the Union Territory of
Chandigarh - a Superintending Engineer from any of the disciplines -
electrical, mechanical, housing - or a Superintending Engineer (Civil)
alone? Do the Punjab Service of Engineers, Class I, P.W.D. (Buildings &
Roads Branch) Rules, 1960 (for short ’the Rules’) contemplate that when-
ever a vacancy of a Chief Engineer arises in the Union Territory of
Chandigarh it is always to be filled by transfer or deputation from a
Superintending Engineer of Punjab? These interesting questions arise in
this appeal filed, primarily, by no one else than Chandigarh Administration
itself against the order of Central Administrative Tribunal, Chandigarh
Bench, Chandigarh directing that the respondent, a Superintending En-gineer
(Electrical) of Chandigarh was eligible to be considered for promo-tion to
the post of Chief Engineer. The entire thrust of the attack on the
direction was concentrated on the prevalent practice of appointing officers
in different services in Chandigarh from Punjab Service. So much so that
the State of Punjab which has filed an application seeking leave to appeal
against the impugned order has claimed that when recruitments were made in
the Stale services it took into consideration not only the vacancies which
were existing or were likely to arise in its own State but a larger number
of officers, were appointed in expectation that they shall be transferred
to the Union Territory of Chandigarh. Whatever be the merit of such a claim
by the State of Punjab and irrespective of the practice which is being
observed since the Union Territory of Chandigarh was created, the
correctness of the order passed by the Tribunal depends not on such claim
advanced either by State of Punjab or the Stale of Haryana but on the rules
which are applicable and which provide for eligibility of a candidate for
being considered for the post of Chief Engineer.
The respondent Shri K.K. Jerath, a graduate in Electrical Engineering was
recruited as Assistant Engineer in the service of the Union Territory of
Chandigarh through the Union Public Service Commission on 26th June 1968.
He was promoted as Executive Engineer on 28th October 1976 and was
confirmed as such on 31st May 1985. He was granted selection grade with
effect from 28th October 1983. He was promoted to the post of
Superintending Engineer on 17th February 1987 by order dated 11th May 1987
on recommendation of the Departmental Promotion Committee Class I as per
letter dated 22nd April 1987 from the Union Public Service Commission, New
Delhi. He completed his period of probation for one year on 16th February
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
1988, In May 1990 the post of Chief Engineer and Secretary, Chandigarh
Administration fell vacant as the then occupant was appointed as Chairman,
Chandigarh Housing Board, In the same month the appellant wrote to the
Punjab Government to send a panel of eligible candidates to be promoted to
the post of Chief Engineer. A panel was sent. But no one was found
suitable. When similar request was made again the respondent, on coming to
know of it, filed a claim petition before the Central Administrative
Tribunal, Chandigarh in which an interim order was granted restraining the
appellant from appointing Chief Engineer on deputation till 8th June 1990.
The application for interim order was taken up finally on 8th June, 1990
and after hearing both the parties the Tribunal directed that the
respondent and other eligible Superintending Engineers in the Union
Territory cadre for the post of Chief Engineer be considered in accordance
with the Rules. In pursuance of this direction a Committee consisting of
the Home Secretary, the Finance Secretary, the Chief En-gineer and
Secretary and Law Secretary met on 26th June 1990 and it was of opinion
that none of the Union Territory cadre Superintending En-gineers were
eligible for promotion as Chief Engineer. On 23rd Oc-toberl990 the State
moved an application before the Tribunal bringing it to its notice that no
Superintending Engineer from the Union Territory having been found to be
eligible it may be permitted to appoint on a temporary basis an Engineer on
deputation from outside. This was resisted by the respondent who claimed
that the constitution of Committee was illegal and in any case the
Committee was not justified in rejecting the claim of the respondent as he
had completed three years of service as Superintending Engineer and was
thus eligible for being considered. The Tribunal, therefore, passed an
order directing the appellant to consider the respondent for the post of
Chief Engineer, subject to suitability, considering him to be eligible for
the post. This order was challenged by the appellant in this Court and the
petition was disposed of on 4th March, 1991 by directing the Tribunal to
dispose of the application pending before it on merits by 30th April 1991.
Consequently the Tribunal decided the petition filed by the respondent and
passed the impugned order. It held that the services of the engineers in
the Buildings & Roads Department of the Union Territory of Chandigarh and
their promotion to the post of Chief Engineer is regulated by the Rules, It
found that the respondent being a member of the service as provided in the
Rules he could not be excluded from consideration for the post of Chief
Engineer on the plea that he belonged to the Electrical Wing, It was also
held that the post of Chief Engineer was a post of merit and, therefore, no
member of the service could be promoted to it nor any one could be
appointed to it by transfer unless he satisfied the basic criteria of
merit. The Tribunal was of opinion that there was no clear indication in
the Rules if the post of Chief Engineer could be filled by bringing an
officer from outside on deputation. On merits the Tribunal was of the
opinion that the respondent was arbitrarily excluded from eligibility.
Further the appellant attempted to appoint another person from Punjab
Service contrary to the provisions of the Rules and to over-reach the order
passed by the Tribunal. It also held that despite the direction issued by
the Tribunal the appellant excluded the respondent from consideration by
holding him unsuitable without following proper procedure for consideration
and assigning any valid reason for the same. The Tribunal consequently
quashed the appointment of a deputationist from Punjab Service as being
violative of statutory rules and directed that fresh Departmental Promotion
Committee may be constituted which may consider the eligible candidates in
accordance with the provisions of statutory rules and the policy
instructions on the subject issued by the Chandigarh Administration from
time to time. The Tribunal further directed that in case it was found that
no one suitable was available from Chandigarh Administration then only the
appellant shall appoint the Chief Engineer by selecting a suitable person
on deputation purely as an ad-hoc arrangement with a clear provision that
the moment the onion Territory cadre Superintending Engineer becomes
available for promotion to the post his claim would be duly considered for
promotion to that post.
Since till now no rules have been framed by the appellant and the draft
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
rules are still awaiting approval the appointment and promotion to the post
of Chief Engineer in the Union Territory of Chandigarh is undisputedly
governed by the Rules. The ’service’ under rule 3 comprises of Assistant
Executive Engineers, Executive Engineers, Superintending En-gineers and
Chief Engineers, Method of recruitment to the service is provided by rule
5. It contemplates appointment by direct recruitment, by transfer of an
officer already in the service of a State Government or the Union Territory
and by promotion from class-II service. Sub-rule (4) of rule 5 provides
that ’all first direct appointments to the Service shall be to the posts of
Assistant Executive Engineers’ except in exceptional cases where an
appointment for reasons to be recorded may be made directly to the post of
Executive Engineer. All other posts, i.e., of Executive Engineer,
Superintending Engineer and Chief Engineer are promotional posts. Rule 9
provides that ’subject to the provisions of sub-rules (2) and (3), members
of the Service shall be eligible for promotion to any of the posts in the
Service, namely, Executive Engineers, Superintending Engineers and Chief
Engineers’. It is thus clear that the post of Chief Engineer is primarily a
promotional post. The eligibility for being considered for appointment to
the post of Chief Engineer is provided by clause (c) of sub-rule (3) of
rule 9 which reads as under :
"R.9. - Promotion with service.-
(1)...................................................
(2)...................................................
(3) A member of the service shall not be eligible for promotion to the rank
of -
(c) Chief Engineer, unless he has rendered three years service as
Superintending Engineer:
Provided that, if it appears to be necessary to promote an officer in
public interest the Government may, for reasons to be recorded in writing
either generally for a specified period or in any individual case reduce
the periods specified in clauses (a), (b) and (c) in such extent as it may
deem proper".
There is no further indication in the rule whether the post of Chief
Engineer shall be filled in by a Superintending Engineer (Civil,) (Mechani-
cal) or (Electrical). Clause (4) of rule 2 defines a ’Chief Engineer’ to
mean a Chief Engineer of Public Works Department, Buildings & Roads Branch
and includes a post declared by Government as of equivalent
responsibility’, A reading of this definition along with what is provided
by rule 3 specifying the strength of service and the definition of
Executive Engineer and Superintending Engineer make it abundantly clear
that the Chief Engineer is at the apex of service which comprises of four
layers. The Assistant Engineer is at the threshold. The next post in
hierarchy is Executive Engineer who under sub-rule (9) of rule 2 means, ’an
officer-in-charge of a division and includes an officer holding a post of
equivalent responsibility". Over him is the Superintending Engineer defined
in sub-rule (13) of rule 2 to mean, ’an officer-in-charge of an area known
as a Circle or whose duties are of equivalent responsibility to the charge
of a Circle’. The last promotional post under the Rules is from
Superintending Engineer to Chief Engineer. It is further clear that the
Rules contemplate three wings - civil, electrical and mechanical. Any
officer appointed in any wing becomes a member of the service and under
explanation under Sub-rule (1) of rule 9 he is liable to be promoted from
one rank to another and such promotion is regarded as a promotion within
the same cadre. Therefore, even through one officer may belong to one wing
or the other, he continues to be a member of the service within meaning of
sub-rule (14) of rule 2 which defines a service to mean, ’the Punjab
Service of Engineers Class I, P.W.D. (Buildings and Roads Branch)’. To say,
therefore, that the post of Chief Engineer is a post in the wing or cadre
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
of Civil Engineer, would not be correct. The engineer in the electrical or
mechanical wing is as much a member of the service as a civil engineer.
Therefore, when the Rules provide that the Superintending Engineer who has
put in three years of service is eligible to be considered for promotion to
the post of Chief Engineer then in absence of any rule to the contrary it
has to be held that the field of eligibility is not confined to
Superintending Engineer (Civil) only, but it extends and includes
Superintending Engineer from other branches as well.
What was vehemently argued, however, to assail the order of the Tribunal,
was that since these Rules are for Buildings and Roads Branch, it is only a
Superintending Engineering (Civil) who could be appointed to the post of
Chief Engineer. The learned counsel for the appellant and intervenors urged
that the members of the Service under the Rules having been divided in
three cadres, i.e., Civil, Electrical and Mechanical and the post of Chief
Engineer being a promotional post only for Civil Engineers, the Tribunal
committed an error of law in directing that the respondent who is
Superintending Engineer (Electrical) shall be deeemed to be eligible for
it. The learned counsel submitted that a ’member of the Service’ was
eligible for promotion from one rank to another in his own cadre, i.e.,
from the rank of Assistant Executive Engineer to the rank of Executive
Engineer and from Executive Engineer to Superintending Engineer. Ac-cording
to him any person appointed as Assistant Engineer (Mechanical) or
(Electrical) was appointed to the cadre of such Engineer, therefore, he
could be promoted in the cadre only. Reliance was placed on rule 6 which
prescribes qualification for recruitment to the Service. It was urged that
since no person could be appointed to the Service unless he possessed one
of the university degrees or other qualifications prescribed in Appendix B
of the Rules unless the qualification was waived by the Government, it was
apparent that a person appointed to a particular cadre on the strength of
his qualification could be promoted within the cadre from one rank to the
other. In support of the submission, Note to Appendix B of rule 6 which
reads as under was relied :
"The candidates to be appointed for Civil posts shall be recruited with
qualification in Civil Engineering, where as those recruited in the
Electrical Engineering Unit shall possess qualifications in Electrical
Engineering. Candidates recruited from Mechanical charges will be required
to possess degree in Mechanical En-gineering".
The learned counsel urged that every post in the Service is classified as
Civil, Electrical or Mechanical. And since the post of the Chief Engineer
in the Engineering Department of the Chandigarh Administration belonged to
the Civil Cadre, no other Superintending Engineer from any other branch or
cadre could be considered to be eligible for it. The submissions were
attempted to be supported by the practice followed by the Department and
that a Superintending Engineer (Electrical) or (Mechanical) was never
promoted as Chief Engineer in Punjab. It was further urged that in fact
even though there were senior Superintending Engineers (Electrical) or
(Mechanical) in Punjab Service, yet all the four posts of Chief Engineers
were occupied by Superintending Engineers (Civil) only. It was also
submitted that the Department has been following this practice as a Civil
Engineer has to undergo and study the course for electrical and mechanical
whereas it was not vice-versa. The learned counsel submitted that the
Department has understood and construed these Rules in view of the Note to
Appendix B of rule 6 so that a person appointed in the Cadre of Civil,
Electrical, Mechanical or Building Depart-ment is entitled to move up on
promotional ladder in his own cadre so much so that if a cadre closed at
the level of Executive Engineer or Superintending Engineer, then no
engineer of one cadre could claim promotion to the other cadre. Therefore,
any Superintending Engineer in the Cadre of Electrical or Mechanical could
not claim to be appointed as Chief Engineer in Buildings and Roads
Departments as it was a post for promotion of Civil Engineer only.
Despite strenuous effort, none of the learned counsel could make good their
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
submissions that the post of Chief Engineer was a promotional post for
Superintending Engineer (Civil) only. No rule supports the sub-mission that
the post of Chief Engineer is a cadre post of civil engineer. Even
otherwise, the submission does not bear close scrutiny. An engineer is no
doubt appointed in different branches on the qualifications held by him.
For instance, a graduate in civil engineering may not be eligible for being
appointed as Assistant Executive Engineer (Mechanical) or (Electri-cal).
These are different branches and the bifurcation is made not only in the
service but the education itself is imparted for all these branches
separately. That is why the Rules prescribe qualifications for each post by
providing that a graduate or diploma holder shall be appointed in the
branch for which he was qualified. But that does not help the appellant as
even assuming that the Rules contemplate three different Cadres, namely,
Civil, Electrical and Mechanical, and each Cadre may have promotional
avenue depending on the strength of the Cadre which clearly depends on the
workload etc. the question still is whether the post of Chief Engineer is a
cadre post for Civil Engineer. It does not appear to be so from the Rules.
The definition of ’Chief Engineer’ shows that he is Chief Engineer,
Buildings & Roads Branch. This branch comprises not only of civil en-gineer
but electrical and mechanical as well, To argue, therefore, that the post
of Chief Engineer is in the cadre of civil would not be in consonance with
the Rules.
Nor is there any merit in the submission that there being no post for
Electrical Superintending Engineer in Chandigarh, till recently, it was
indicative that the post of Chief Engineer was a post to be filled from
Superintending Engineer (Civil). It is common knowledge that the workload
in civil branch is much more in P.W.D. than electrical and mechanical and,
therefore, it may be that in the Cadres of Electrical and Mechanical, the
promotional ladder may not be as extensive and high as civil. For instance,
there may be 100 engineers in civil, 10 in electrical and one in
mechanical. Consequently, there may be more posts of superintend-ing
engineer in civil than electrical and may be none in mechanical. And,
therefore, whenever occasion arose in past a Superintending Engineer
(Civil) was promoted. But once a post is created by the Government in
mechanical or electrical then there is no indication in the Rules nor is
there any rationale for excluding a Superintending Engineer appointed in
the Electrical or Mechanical Branch from the field of eligibility for the
post of Chief Engineer. It may be true that due to non-existence of post of
Superintending Engineer in one branch, there may be senior Executive
Engineers who due to paucity of promotional avenues may be stagnating, but
that cannot furnish any basis for excluding that Superintending En-gineer
who has reached the promotional avenue in his own cadre. The illustration
given above may be examined again. If there is only one post of executive
engineer (mechanical) and no post of superintending engineer then can it be
said that in the other branch, namely, electrical where there are 10 posts
of executive engineers and one post of superintending engineer no promotion
can be granted from the post of executive engineer to superintending
engineer as the senior Executive Engineers in Mechanical Branch were
stagnating as Executive Engineer only. And if the answer is in negative as
it undoubtedly appears to be then it is equally fallacious to argue that a
Superintending Engineer of the Electrical Department cannot be eligible for
being appointed to the post of Chief Engineer only because he might be
junior in service to an Executive Engineer in the Mechanical Branch who
might be stagnating due to absence of any post of Superin-tending Engineer.
Reliance was placed by the learned counsel appearing for the State of
Punjab on Office Memorandum issued on 4th November 1966 on the subject,
’transaction of business in the Ministries of the Government of India in
relation to matters concerning the Union Territory of Chandigarh.’ It
provided for creation and continuance of certain posts existing in the
Union Territory of Chandigarh from 1st November, 1966. It further provided
that except for the Department of Printing and Stationery, Architecture and
Post Graduate Institute of Medical Education and Re-search, Chandigarh the
post in the other departments under the control of the Chief Commissioner
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
will be filled up by deputation mainly from Pun-jab/Haryana State cadres.
The learned counsel urged that this indicated that the appellant in filling
the post of Chief Engineer from an eligible person from Punjab was acting
in accordance with the Office Memorandum issued by the Union of India. The
learned counsel emphasised the word ’mainly’ used in the Memorandum and its
construction by this Court in Swaran Lata v. Union of India & Ors., [1979]
2 SCR 953. Suffice it to say that when the order was issued the Union
Territory of Chandigarh had been constituted and, therefore, it was
necessary to provide for the filling up of the posts which were in
existence or were likely to arise in future from officers of Punjab and
Chandigarh cadre. But it could not be con-strued as precluding the officers
who have been appointed by the Chan-digarh Administration in the meantime
in different posts as it had to be filled by officers from Punjab and
Chandigarh. That could not have been the purpose and objective of the
Office Memorandum nor it can reasonably be construed in the manner as
argued by the learned counsel. Further the word ’mainly’ used in the
Memorandum has not been construed by this Court to mean ’exclusively".
Therefore, if an officer who is eligible for being appointed to a post in
Chandigarh cannot be excluded on the basis of this office Memorandum from
the zone of eligibility.
Much was attempted to be made out from rule 10 which permits appointment by
transfer in special circumstances with the approval of the commission to
the service and the provisions in the Rules permitting appointment by
transfer and it was urged that the Rules themselves con-template that an
officer of the Punjab Service could be appointed by the administration to
the exclusion of any person in Chandigarh if the State was of opinion that
it was in the interest of service. It is true that the Rules do permit
appointment by transfer. But sub-clause (6) of rule 5 itself provides that
appointment by transfer of an officer will normally be made to the rank of
Executive Engineer except that specialists may be recruited to any rank. A
reasonable reading of the rule would indicate that the appointing authority
should not resort to appoint an officer above the rank of Executive
Engineer by transfer. The appointment of specialist is no doubt permissible
but that should be resorted to only if the officers in the State are not
available. The Rules cannot be understood to confer an unfettered
discretion in the State Government or the appointing authority who may
appoint any person from outside to the exclusion of a person from the cadre
unless it is found that the person concerned is not eligible and if
eligible then not suitable. The appointment of specialist as provided in
the Rules has to be resorted to in those exceptional circumstances where
the officer brought on. transfer is exceptional and the like of whom cannot
be found in the State itself. If the word ’specialist’ is understood as
empowering the State to appoint anyone it considers appropriate it may lead
to arbitrariness. It has, therefore, to be limited to those exceptional
cases where public interest demands that a person from outside should be
appointed as he is of extraordinary merit and a specialist in the branch on
which he is being appointed and no officer from the State is available to
be appointed.
In the written submissions filed on behalf of the appellant an attempt has
been made to suggest that the present set up of Engineering Depart-ment of
Chandigarh Administration is a continuation of the Capital Projects set up
existing prior to reorganisation of the State of Punjab in 1966. It is
stated that Capital Project reorganisation was created mainly by taking
engineers from Punjab P.W.D., Buildings & Roads Brach, and the posts were
created commensurate with the job requirements. A copy of the Order of
Punjab Government dated 9.3.1953 indicated the sanction of the post is
appended which shows that the posts in the Capital Project were sanctioned
as follows :
Chief Enginer 1
Superintendent Engineer 1
Planning Circle
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
Superintendent Engineer 1
Construction Circle
Executive Engineer 3
Construction Division
Executive Engineer 1
Materials Division
Executive Engineer 1
Electrical & Machanical Division
After the reorganisation continuation of temporary Group ’A’ posts are
stated to have been sanctioned by the Government of India, Ministry of
Urban Development from time to time. Copy of one such sanction for the year
1991-92 has been attached. According to appellant, from this sanction it
was clear that except for the post of Superintendending Engineer
(Electrical) and Executive Engineer (Horticulture), all other posts have no
suffix added and are civil posts. From these, it has been attempted to
Support the argument advanced earlier that it was only the Superintending
Engineer (Civil) who was eligible to be considered for the post of Chief
Engineer. Suffice it to say that prior to reorganisation of State of Punjab
in 1966 there might have been no post of Superintending Engineer (Electri-
cal) or (Mechanical) but that cannot furnish basis for submitting that even
after 1966 when such posts were created, the incumbents of that post could
be excluded from eligibility to the post of Chief Engineer only because no
such post existed in 1966. Nor is there any merit in the submission that
since in 1992 the different post of engineers carried the suffix as
Electrical or Horticulture, therefore, the inference arises in law that the
post of Chief Engineer was a cadre post of Civil Engineers.
In Chandigarh the service has four branches - Civil, Electrical and Public
Health and Roads and Horticulture. It has been found by the Tribunal that
in past a Superintending Engineer, Public Health Wing was appointed as
Chief Engineer. The effort on part of the intervenors in the written
submission to dilute it when no objection was raised before Tribunal nor
the appellant challenged it in the petition filed in the Court cannot be
appreciated. However, on the construction of the rule, the Government in
appointing a Superintending Engineer of Public Health as Chief Engineer did
not commit any error of law. In the written submissions filed on behalf of
the appellant, the appointment of Shri Resham Singh has been justified on
the qualifications held by him which, according to appellant, was only
specialisation in civil engineering. For the reasons which have already
been mentioned earlier, it is not necessary to enter into this controversy
as to whether a Superintending Engineer who held the qualification as were
held by Shri Resham Singh could be considered to be a Specialist in civil
engineering and the thus eligible for the post of Chief Engineer.
Before concluding it is necessary to point out that apart from the
appellant the State of Punjab also filed a Special Leave Petition and an
application for permission to file the S.L.P. Another application was filed
by the intervenor who in the meantime claims to have become eligible for
being appointed as Chief Engineer. Even though the application of the
intervenor was not allowed at the time of hearing nor it appears necessary
to allow it yet the learned counsel appearing for the parties were heard at
length to ensure that no injustice is done to anyone. The intervenor also
filed a written argument and attempted to bring on record certain facts
which have been vehemently opposed in the written arguments filed by the
respondent both on merits and for inaccuracy of statement of facts. Since
the application for intervention is not being allowed and the appeal is
being decided as a matter of law on construction of rule it does not appear
necessary to say any further. The intervenor’s Application Nos. I.A. No. 3/
1991 is rejected. The application filed by the State of Punjab for
intervention is also rejected. The application filed on behalf of the State
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
of Punjab to file the SLP is allowed.
In this connection it is necessary to mention that during hearing it
transpired that all the four Chief Engineers working in the State of Punjab
are from the civil side. The apprehension of those Chief Engineers ex-
pressed through their counsel and even by personal appearance by one of the
Chief Engineers was that if the construction as given by the Tribunal is
upheld a litigation may start which may result in reversion of the
occupants of that office. It is clarified that the decision that is being
rendered is in respect of the post of the Chief Engineer in Chandigarh.
Further, so far as the State of Punjab is concerned the construction that
is being placed on these Rules shall be prospective, as it has not been
brought to the notice that anyone from the Punjab Service challenged the
appointment of Chief Engineer from the Civil Branch.
In the result, this appeal fails and is dismissed. The SLP filed by the
State of Punjab is also dismissed. The appellant is directed to open the
sealed envelope containing the proceedings of D.P.C. held in the meantime
in pursuance of direction of this Court and proceed in accordance with law
as directed by the Tribunal. Time to comply with Tribunal’s order is
extended by one month from today.
Appeal and petition dismissed.