Himachal Pradesh High Court
Amar Nath & Another vs State Of H.P. & Others. ... on 30 September, 2015
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 1103 of 2013 Reserved on 17.9.2015 .
Date of order 30.9.2015.
Amar Nath & another ....Petitioners
versus
State of H.P. & others. ....Non-Petitioners.
______________________________________________________ _____
of
Coram
The Hon'ble Mr. Justice P.S. Rana, Judge. Whether approved for reporting or not?1Yes.
For petitioners
rt : Mr. Avneesh Bhardwaj,
Advocate.
For Non-Petitioners No. 1 & 2: Ms. Meenakshi Sharma,
Additional Advocate General
with Mr. J.S. Rana, Assistant
Advocate General.
For Non-Petitioners No.3 & 4. Mr. K.D. Sood, Sr. Advocate with Mr. Sanjeev Sood, Advocate.
--------------------------------------------------------------------------- P.S. Rana, Judge Order Present civil writ petition is filed under Article 226 of the Constitution of India.
Brief facts of case
2. It is pleaded that in the year 1988 petitioners were appointed as Laboratory Attendants in Baba Balak Nath College Chakmoh. It is further pleaded that Baba Balak Nath Temple 1 Whether the local reporters of the newspapers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 19:01:36 :::HCHP 2Trust was constituted under the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowment Act, 1984. It is further pleaded that college is affiliated to H.P. University. It is .
further pleaded that services of petitioners were regularized in the year 1993. It is further pleaded that petitioners after completion of five years of regular service became eligible to the post of Junior Laboratory Assistant/Junior Lecturer Assistant. It is further of pleaded that petitioners have filed many representations to non-
petitioners to give them due promotion but till date rt representations filed by the petitioners not disposed of by the competent authority. Petitioners sought following reliefs in the present civil writ petition:- (i) That direction be issued to the non-
petitioners to consider the case of the petitioners for promotion to the post of Junior Laboratory Assistant/Junior Lecturer Assistant.
(ii) Direct the non-petitioners to revise the pay of the petitioners and give them salary and other emoluments which are applicable to the post of Junior Laboratory Assistant/Junior Lecturer Assistant.
3. Per contra response filed on behalf of non-petitioners pleaded therein that no aid is provided by the State Government or University Grants Commission or H.P. University for running the college. It is further pleaded that offerings made by the ::: Downloaded on - 15/04/2017 19:01:36 :::HCHP 3 pilgrims/devotees are spent by the non-petitioners for maintenance of Baba Balak Nath Temple and also for running the temple affairs and its institutions. It is further pleaded that the .
income to the tune of Rs. 8.40 crore per annum is spent on salary of the employees out of the income of the Temple. It is further pleaded that petitioners are not government employee and it is further pleaded that there is no vacant post against which the of petitioners could be promoted and it is further pleaded that writ petition is not maintainable. It is admitted that petitioners are rt serving as Laboratory Attendants in Baba Balak Nath Degree College Chakmoh. It is pleaded that petitioners did not fulfill the requisite qualification for the post of Junior Laboratory Assistant/ Junior Lecturer Assistant. It is further pleaded that Amar Nath petitioner No.1 is not even matriculate with science and Sh.
Kuldeep Singh petitioner No.2 is B.A. but is not 10+2 with science.
It is further pleaded that petitioners could not be promoted as Junior Laboratory Assistant/Junior Lecturer Assistant. It is pleaded that minimum qualification for the post of Junior Laboratory Assistant is 10+2 with science subjects. It is further pleaded that Baba Balak Nath Temple Trust has its own service rules 2001 and Government service rules are not applicable to the employees of the Temple trust and its institutions. It is further ::: Downloaded on - 15/04/2017 19:01:36 :::HCHP 4 pleaded that Baba Balak Nath Temple Trust has its own bye-
laws/rules and regulations for managing its affair. Prayer for dismissal of writ petition sought.
.
4. Per contra separate response filed on behalf of non-
petitioner No.2 pleading therein that present writ petition is not maintainable against non-petitioner No.2. It is pleaded that non-
petitioner No.2 has no role in the service matter relating to of appointment/promotion of staff working in private college. It is further pleaded that petitioners are employees of privately rt managed trust and it is further pleaded that petitioners are not governed by recruitment & promotion rules notified by the State Government. Prayer for dismissal of writ petition sought.
5. Petitioners also filed rejoinder and reasserted the allegations mentioned in the writ petition.
6. Court heard learned counsel for the petitioners and non-
petitioners and also perused the record carefully. Following points arises for determination:-
1) Whether civil writ petition filed under Article 226 of the Constitution of India is liable to be accepted as mentioned in the memorandum of grounds of writ petition?
2) Relief.::: Downloaded on - 15/04/2017 19:01:36 :::HCHP 5
Findings upon point No.1 with reasons.
7. Submission of learned Advocate appearing on behalf of the petitioners that petitioners are entitled for promotion to the post of .
Junior Laboratory Assistant/Junior Lecturer Assistant is rejected being devoid of any force for the reasons hereinafter mentioned.
Minimum qualification for the post of Junior Laboratory Assistant/Junior Lecturer Assistant is 10+2 with science subjects.
of Sh. Amar Nath petitioner No.1 did not possess minimum educational qualification for the post as he is not 10+2 with rt science subjects. Even co-petitioner No.2 Sh. Kuldeep Singh also did not possess minimum qualification for the post. Sh. Kuldeep Singh has qualified B.A. but not 10+2 with science subjects. It is well settled law that employees who did not possess basic minimum qualification for the post is not legally entitled for promotion as per law. See 2002 (5) SCC 756 State of Punjab vs. Kuldeep Singh. Following principle should be considered in case of promotion. (i) Under Article 16 of the Constitution right to be considered for promotion is a fundamental right. (ii) Consideration for promotion must be fair according to established principles governing service jurisprudence. (iii) Court will not interfere with assessment made by DPCs unless employee establishes that non promotion was bad according to Wednesbury ::: Downloaded on - 15/04/2017 19:01:36 :::HCHP 6 principles or it was malafides. See 2008 (8) SCC Page 395 titled Badrinath vs. Government of Tamil Nadu. Also see AIR 1999 SC page 3471 titled Ajit Singh vs. State. Also see 2014 (10) .
SCC 398 State of Jharkhand vs. Bhadey Munda and another.
See 1995 (1) SCC page 23 titled Chandra Gupta vs. Secretary Govt. of India Ministry of Environment & Forests. See AIR 1988 SC 902 titled R. Prabha Devi vs. Govt of India. See of 2007 (9) SCC page 555 titled Union Public Service Commission vs. Sukanta Kar. See 1996 (1) SCC page 650 rt titled State of H.P. vs. Surinder Kumar. See 2007 (10) SCC 513 titled S.B. Bhattacharjee vs. S.D. Majumdar. See AIR 1987 Apex Court page 1889 State Bank of India vs. Mohd.
Mynuddin. See AIR 1996 SC page 665 titled S.L. Soni vs. State of M.P. See 1993 (1) SCC page 17 Indian Airlines Corporation vs. Capt. K.C. Shukla.
8. Submission of learned Advocate appearing on behalf of the petitioners that non-petitioners be directed to revise pay of the petitioners and give them salary and other emoluments which are applicable to the Junior Laboratory Assistant/junior Lecturer Assistant is rejected for the reasons hereinafter mentioned. In view of the fact that the petitioners did not possess basic minimum educational qualification for the post of Junior ::: Downloaded on - 15/04/2017 19:01:36 :::HCHP 7 Laboratory Assistant/Junior Lecturer Assistant it is held that the petitioners are not legally entitled for the salary and emoluments which are applicable for Junior Laboratory Assistant/Junior .
Lecturer Assistant. Point No.1 is decided against petitioners.
Relief (Point No.2):
9. In view of the findings upon point No.1 writ petition filed under Article 226 of the Constitution of India is dismissed. No of order as to costs. Writ petition is disposed of. Pending applications if any also disposed of.
rt
September 30, 2015 (P.S. Rana)
(kck) Judge
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