Punjab-Haryana High Court
Gurinder Singh Chahal vs State Of Punjab And Ors on 5 December, 2014
Author: Harinder Singh Sidhu
Bench: Harinder Singh Sidhu
CWP-23675-2012 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.23675 of 2012
Date of Decision : December 05, 2014
Gurinder Singh Chahal ... Petitioner
Versus
State of Punjab and others ...Respondents
CORAM:
HON'BLE MR.JUSTICE HARINDER SINGH SIDHU
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported
in the Digest?
Present: Mr. Randhir Singh, Advocate
for the petitioner.
Mr. Manjit Singh Naryal, Addl. A.G., Punjab
Mr. Sapan Dhir, Advocate
for Mr. Parambir Singh, Advocate
for respondents No. 2 to 4.
Mr. Puneet Gupta, Advocate
for respondent No. 5.
--
HARINDER SINGH SIDHU, J.
The petitioner has filed this writ petition praying for quashing order dated 16.07.2012 (Annexure P-12) passed by respondent No.2 promoting respondent No.5 to the post of CWP-23675-2012 [2] Superintending Engineer. The ground urged is that he does not possess the requisite educational qualification for the post of Superintending Engineer as required under the Punjab State Agricultural Marketing Board (Class-I) Service Rules, 1988 (for short 'the 1988 Rules').
The petitioner was appointed as Junior Engineer in the Punjab Mandi Board, Chandigarh on 11.02.1987. He possesses the degree in Civil Engineering from Punjab University, Chandigarh which he acquired in the year 1984. The petitioner was promoted to the post of Assistant Engineer on 20.08.1990 in the quota of Degree holders. Later, he was promoted to the post of Executive Engineer vide order dated 12.08.1999.
On the other hand, respondent No.5, was appointed as Junior Engineer (Public Health) on 16.07.1981 on the basis of diploma in Engineering (Civil) obtained from Punjab State Board of Technical Education, Punjab, Chandigarh. Respondent No. 5 was promoted as Sub Divisional Officer (Public Health) on 01.01.1992. Respondent No.5 was promoted to post of Executive Engineer vide order dated 14.03.2000.
It is averred that as per the seniority list of Executive Engineers, circulated by the respondent-Board on 11.05.2012 CWP-23675-2012 [3] (Annexure P-4), the seniority number of the petitioner was 19 whereas the seniority number of respondent No.5 was 21. In March, 2004, respondent No.5 acquired a certificate of membership from the Institution of Mechanical Engineers (Mumbai).
The services of the petitioner and respondent No.5 are governed by the 1988 Rules. Rule 2 of the 1988 Rules contains the definitions. Sub Rule (i) of Rule 2 defines recognized University or Institute. The said provision as also Rule 19 empowering the appointing authority to grant relaxation of provisions under the 1988 Rules, are reproduced as under:
"2. Definition.- In these rules unless the context otherwise requires-
(a) to (h) xxx xxx xxx
xxx
(i) `recognised university or institute' means.-
(i) any University or institute incorporated by law in India;
(ii) in the case of degrees, diplomas or certificates obtained as a result of examinations held before the 15th August, 1947 the Punjab, Sind or Dacca University; and
(iii) any other University or institute which is CWP-23675-2012 [4] recognized by the Government for the purpose of these rules.
xxx xxx xxx "19. Power to relax.-Where the appointing authority is of the opinion that it is necessary or expedient so to do, it may by order for reasons to be recorded in writing and with the prior approval of the Government, relax any of the provisions of these rules with respect to any class or category of persons;
Provided that the provisions relating to educational qualifications and experience shall not be relaxed."
It is averred that the Institute of Mechanical Engineers (India) is a society registered under the Societies Registration Act, 1860. Neither it is an Institute incorporated by law in India, nor it has been recognized by the Government for the purpose of the rules.
Rule 8 of 1988 Rules is as under:
"8. Method of recruitment and qualifications.- (1) Subject to the provisions of sub-rule (4) appointment to the service shall be CWP-23675-2012 [5] made in the manner specified in Appendix 'B'.
Provided that if, no suitable candidate is available for appointment by promotion to a post in the Service, such post shall be filled in by transfer or by taking a person on deputation as the appointing authority may decided in this behalf. (2) No person shall be appointed to a post in the service until he possesses the qualifications and experience as specified against that post in Appendix 'B'.
(3) All appointments by promotion to the Service, shall be made by selection on the basis of of seniority-cum-merit, and no person shall be entitled to claim promotion on the basis of seniority alone.
(4) xxx xxx xxx"
Serial No.5 of the Appendix `B' deals with the recruitment by way of promotion and by way of transfer on deputation to the post of S.E. Relevant part is extracted as under:-
Sr. Designation Method of Qualification for recruitment Remarks No of the post recruitment CWP-23675-2012 [6] By direct By promotion By transfer on recrui- deputation tment 1 2 3 4 5 6 7
1. xx xx xx xx xx xx
5. Superint-ending (i) By Degree in From amongst Engineer Promotion; or Engineering the regular and should Superintendin
(ii) By transfer have an g Engineer on deputation experience of (Civil) (working working as an in the Executive departments Engineer in of Government the Board for of Punjab or in a minimum the State period of Government seven years undertakings) who have an experience of working as such for a minimum period of one year.
Based on the aforesaid provisions of the Rule, it is averred that the certificate issued by the Institution of Mechanical Engineers, India (Mumbai), is not a valid educational qualification for promotion to the post of S.E. It is averred that this position was recognized by the respondents while preparing the agenda for DPC (Departmental Promotion Committee) meeting for promotion to the post of S.E. on 26.03.2012, wherein, the case of respondent No.5 for promotion was rejected on the ground that with the qualification of AME, he is not eligible for promotion to the post of Superintending Engineer. The relevant agenda note dealing with the case of respondent No. 5 is reproduced below:
CWP-23675-2012 [7] "It was decided by the Departmental Promotion Committee on 01.10.2007 that this Officer has obtained the qualification of Associate Membership Examination (Mechanical) from Institution of Mechanical Engineering, Mumbai but as per Punjab State Agricultural Marketing Board Service, the basic qualification of Public Health Cadre is Diploma in Civil Engineering for Junior Engineer and for Sub Divisional Officer, degree in Civil Engineering has been prescribed. In this way, this officer is not eligible for promotion to the post of Superintending Engineer with the qualification of AME (Mechanical)."
Despite the respondents being clear about the ineligibility of respondent No. 5 for promotion to the post of S.E., he was promoted to the post of S.E. vide order dated 16.07.2012 (Annexure P-12) It is this promotion order of respondent No.5 that is impugned in the present writ petition.
It is stated that the promotion is illegal and arbitrary as the qualification of AME has not been specified as qualification for promotion to the post of S.E. and only degree in Engineering has been prescribed as the essential qualification for promotion to the said post. The Institution of CWP-23675-2012 [8] Mechanical Engineers (India) does not fulfill the criteria of a recognized institute as provided in the Rule 2 (ii) of 1988 Rules and hence, certificate of AME issued by the Institute is not a valid educational qualification for making promotion to the services in the Board. The power of relaxation contemplated in Rule 19 does not extend to relaxation of the educational qualifications and experience as it has been specifically mentioned in Rule 19 that the provisions relating to educational qualification and experience shall not be relaxed.
In the written statement filed on behalf of the official respondents No.2 to 4, it is stated that respondent No.5 has been promoted against the reserved category post, whereas, the petitioner is from the General Category. It is stated that in the cadre of Superintending Engineer there are a total of 7 posts for promotion, out of which 2 posts were reserved for the Scheduled Castes and as respondent No.5 was the only eligible candidate against the two reserved posts so he was promoted and the petitioner not being from the reserved category can raise no grievance against the same. The qualification of respondent No.5 regarding his possessing certificate of membership from Institution of Mechanical Engineer has been admitted. It is stated that the respondent-
Board had got the professional qualification of respondent
CWP-23675-2012 [9]
No.5 verified from Director (Higher Education), Ministry of Human Resource Development. The latter was specifically requested to intimate as to whether the qualification of AME (Mechanical) is equivalent to qualification of Bachelor of Engineering (BE Regular Course) or Associate Membership of Institute of Engineers (AMIE), if not its level viz-a-vis BE and AMIE. In response, it was intimated on behalf of the Ministry of Human Resource Development, Government of India that as per notification dated 24.11.2006 (Annexure R-4), a recognition was granted to the Institute of Mechanical Engineers (India) and their degrees and diplomas will be recognized for the purpose of employment in the Central Government. In the said notification, it is also stated that in the case of students who were registered prior to 10.06.2002, their degree/diploma will be recognized for employment in the Central Government. As respondent No.5 had been registered prior to 10.06.2002, he was rightly promoted In the written statement filed by respondent No.5, the same point that the petitioner belongs to General Category, whereas, respondent No.5 belongs to the Scheduled Caste Category has been reiterated. It is stated that in terms of the provisions of Section 7 of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, de-
CWP-23675-2012 [10] reservation of any reserved vacancy is prohibited. It is stated that as respondent No.5 was promoted against a vacancy reserved for Scheduled Caste, the petitioner being a General Category candidate can have no grouse.
It has been contended by learned counsel for the petitioner that the provisions of the Rules are very clear. The essential qualification for promotion to the post of Superintending Engineer as per Appendix 'B' to Rule 8 of the 1988 Rules is a degree in Engineering and experience of working as an Executive Engineer in the Board for a minimum period of 7 years. As the petitioner does not possess a degree in Engineering, the petitioner could not have been considered for promotion. He relies on the judgments of this Court in Som Dutt v. State of Haryana and another, 1984 (1) ILR (Punjab) 400, Narender Kumar and another v. Haryana Public Service Commission (CWP No. 6704 of 2011 decided on 24.04.2012), Prabal Jyoti v. State of Haryana and others 2012 (4) RSJ 71 and Dr. Akashdeep Singh and others v. State of Punjab and others 2014 (2) SCT 400 to contend that the specific eligibility condition prescribed in the Service Rules has to be strictly adhered to. If in the Rules, a holder of an equivalent qualification to the one prescribed, is not made eligible, in that event even though the person may be CWP-23675-2012 [11] possessing equivalent qualification, he cannot be considered eligible. It is contended that the qualification possessed by respondent No.5 is neither the prescribed qualification nor is it an equivalent qualification.
Learned counsel for the respondents have not been able to dispute the aforesaid settled legal proposition but have contended that the petitioner belongs to the General Category, whereas, respondent No.5 has been promoted against a vacancy meant for Scheduled Castes and as the petitioner could not be promoted against the said vacancy, he can have no grievance against the promotion of respondent No.5.
In reply to this, learned counsel for the petitioner has contended that though he neither has nor claims any right for promotion against the reserved vacancy, yet the illegal promotion of respondent No.5 would adversely affect the petitioner, inasmuch as, respondent No.5 having been promoted prior to the petitioner would claim seniority over and above him.
After having considered the submissions of learned counsel for the parties and going through the records, I am inclined to agree with the contention of learned counsel for the petitioner.
The point for decision in this case is whether CWP-23675-2012 [12] respondent No.5, who possesses a certificate from the Institution of Mechanical Engineer, India (Mumbai) can be considered to be qualified for promotion to the post of Superintending Engineer in terms of the requirement of the 1988 Rules, which require a degree in Engineering. This question has to be answered in negative in view of the settled law as enunciated in the decisions of this Court referred to by learned counsel for the petitioner. In Som Dutt's case (supra), it has been observed as under:
"10. Now what has been said above would apply equally and indeed with greater force where the qualifications are prescribed by an Act itself or by statutory rules framed thereunder. In such a situation, the respondent-State would have the added ground of claiming that a literal or strict compliance with the statute be adhered to. It is an ordinary and indeed a sound cannon of construction that one should not normally add or subtracts from a statutory prescription. The wisdom or the policy of both the legislature and their delegates in the framing of rules thereunder (which on the authority on States of Uttar Pradesh & Ors. v. Babu Ram Upadhya, AIR 1961 Supreme Court CWP-23675-2012 [13] 75, become part and parcel of the Act.) is not to be easily questioned and overridden and therefore, it is not for the Court to intrude into this somewhat sensitive field. Way back in Banarsi Das and others v. The State of Uttar Pradesh and others, 1956 SCR 357, it was held as axiomatic that it is clear that the government is within its rights to lay down certain qualifications for the new recruits, and again in University of Mysore v. C.D. Govinda Rao & another, AIR 1965 Surpeme Court 491, their Lordships even in the absence of statutory rules had observed that on the aspect of academic qualifications, the courts would naturally hesitate to intervene particularly when the matter has been duly considered by the persons authorised to do so. Therefore, once qualifications have been laid down by binding statutory provisions, then the concept of strict compliance therewith would entitle the State to insist that these be meticulously satisfied and extraneous considerations like qualification other than those prescribed being either the exact equivalents, or technically higher than those, would be irrelevant to the issue and indeed may well be CWP-23675-2012 [14] contrary to the statutory prescription."
On analysis of the above and other relevant judgments, a Single Bench of this Court in Narender Kumar's case (supra) culled out the following propositions:-
"From the above judgments it is clear that (i) the employer has a prerogative to prescribe the qualification for a particular post or service which is either prescribed under the rules and if not depending upon the needs and requirement of the post the employer can accordingly prescribe the same, if such a qualification has been prescribed and has been advertised the employer can insist upon strict adherence thereto. (ii) If the employer prescribes the essential qualification for appointment to a particular post and where it is not mentioned about the eligibility of the equivalent course to the prescribed qualifications either in the statutory rules or in the advertisement, absence of such a clause clearly indicates that the employer did not desire to appoint a person possessing equivalent qualification. (iii) A Court should not generally delve into determining as to whether a particular qualification is an exact equivalent to the CWP-23675-2012 [15] one prescribed in the advertisement/statutory rules and leave the same to the employer to determine.
(iv) Insistence on the advertisement, qualifications is also essential for the reason that if there is any deviation from the qualifications mentioned in the advertisement it would give rise to a grievance for all those who had some or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. This would amount to a fraud on public as public posts are to be filled in accordance with Articles 14 and 16 of the Constitution of India and any violation thereof cannot permitted by the Court nor can the Court be a party to such illegal process of appointment."
Similarly, there is no merit in the contention of the Ld. Counsel for the respondents that the petitioner who belongs to the general category has no locus to challenge the promotion of Respondent No.5 who has been promoted against a vacancy meant for the reserved category. The petitioner, no doubt, cannot claim any right for promotion against a reserved category, but the illegal promotion of respondent No. 5 would CWP-23675-2012 [16] certainly adversely impact the seniority of the petitioner as and when he is promoted as S.E. Moreover, if the promotion of the respondent No.5 is illegal being in violation of the service rules, a member of the service adversely affected thereby cannot be denied the right to assail the same.
Thus, this petition is allowed. The order dated 16.07.2012 (Annexure P-12) promoting respondent No. 5 to the post of Superintending Engineer is quashed.
December 05, 2014 (HARINDER SINGH SIDHU)
gian JUDGE
GIANENDER KUMAR
2014.12.08 18:03
I attest to the accuracy and
integrity of this document