Punjab-Haryana High Court
Jagan Nath Sharma And Another vs State Of Haryana And Others on 27 August, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 6478 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 6478 of 2010
Date of Decision : August 27, 2012
Jagan Nath Sharma and another
.... PETITIONERS
Vs.
State of Haryana and others
..... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. R.K.Malik, Sr. Advocate,
with Mr. K.K.Chahal, Advocate,
for the petitioners.
Mr. Harish Rathee, Sr. DAG, Haryana.
Mr. Sandeep Goyal, Advocate,
for respondent No. 6.
AUGUSTINE GEORGE MASIH, J.
Petitioners have approached this Court praying for issuance of a writ of certiorari quashing the impugned orders dated 15.01.2010 and 22.05.2009 (Annexure P-12 Colly) by which the claim of petitioners No. 1 and 2 respectively for promotion to the post of Assistant Excise and Taxation Officer stands rejected on the ground that they are not eligible for promotion.
CWP No. 6478 of 2010 2
It is the submission of the counsel for the petitioners that the petitioners initially were appointed as Clerks. Petitioner No. 1 was promoted as a Senior Scale Stenographer while petitioner No. 2 as an Assistant. They were promoted to the post of Taxation Inspectors on 16.08.1996 and 13.12.1991 respectively and were confirmed as such without their consent. Petitioners challenged this order of confirmation by filing CWP No. 17898 of 2006, which was allowed by this Court vide order dated 04.02.2008. In compliance thereto, petitioners were reverted in the Ministerial Cadre as per their options vide order dated 22.04.2008. Petitioners thereafter, submitted representations for promotion to the post of Assistant Excise and Taxation Officers from the date their juniors had been promoted. They did not receive any response. However, on an application moved by petitioner No. 2 under the Right to Information Act, it has come to the notice of the petitioners that their claim for promotion to the post of Assistant Excise and Taxation Officer stands rejected on the basis of the advise received by the Chief Secretary stating that they do not possess the requisite qualifications of Graduation for promotion to the post of Assistant Excise and Taxation Officer.
Counsel for the petitioners contends that as per Rule 9 (1) (b) of the Haryana Excise and Taxation Department (Group B) Service Rules, 1988, petitioners are entitled to the promotion to the post of Assistant Excise and Taxation Officer under the 6.2/3% CWP No. 6478 of 2010 3 promotion quota amongst the Assistant and Senior Scale Stenographers. As per Rule 9 (2), all promotions shall be made on seniority-cum-merit basis and seniority alone shall not confer any right to such promotions.
It is not in dispute that the petitioners are senior to private respondents No. 3 to 6 and, therefore, they had a prior right for consideration for promotion to the post of Assistant Excise and Taxation Officer. As per Appendix-B of the above mentioned Rule, the qualification prescribed for promotion to the post of Assistant Excise and Taxation Officer is Graduation from a recognized university with three years experience as Taxation Inspector or Excise Inspector or 10 years experience as Assistant/Senior Scale Stenographer. Petitioners possess Post Graduation degree in Arts from Madurai Kamaraj University, which is a higher qualification than the minimum prescribed for the post and, therefore, the petitioners deserve to be promoted to the post of Assistant Excise and Taxation Oficer from the date their juniors have been promoted and consequently to the higher post of Excise and Taxation Officer also. His contention is that merely because the petitioners possess a Graduation degree from a University, which is unrecognized, would not disentitle them for promotion. He contends that the issue with regard to a person being higher qualified for the post holding him to be eligible stands settled by this Court in the case of Jyoti K.K. and others vs. Kerala Public Service Commission and others, JT 2002 (Suppl.1) SC 85. A CWP No. 6478 of 2010 4 Division Bench of this Court in CWP No. 10926 of 2007 titled as Ashok Kumar and others vs. State of Haryana and others, decided on 21.12.2007 has also held the same. In the light of these judgments, counsel for the petitioners contends that the impugned orders cannot sustain and deserve to be set aside.
On the other hand, counsel for the respondents contends that the petitioners have obtained degree of Bachelor of Arts from Mumbai Hindu Vidyapeeth, which is a fake university. In support of this contention, reliance has been placed on a communication dated 30.04.1998 received from the Kurukshetra University. Reference has also been made to the communication dated 30.08.2000 from the Commissioner, Higher Education to the Commissioner, Excise and Taxation Department, Haryana. He contends that the petitioners do not possess the requisite educational qualifications for promotion and, therefore, are not entitled to promotion.
I have considered the submissions made by the counsel for the parties and with their assistance, have gone through the records of the case.
The only controversy involved in the present case is that whether the petitioners are entitled to promotion to the post of Assistant Excise and Taxation Officer on the basis of the Post Graduate degree obtained by them?
The qualification, as prescribed for promotion to the post of Assistant Excise and Taxation Officer as provided in Appendix-B reads as follows:-
CWP No. 6478 of 2010 5
"Sr. No. Designation of post Academic Academic Qualifications & Qualifications & Exp. if any for direct Exp. If any for recruitment appointment other than direct recruitment
1. Xxx Xxx Xxx
2. Asstt. Excise & Graduate of a i) Graduate of a Taxation Officer recognized recognized University University
ii) Three years Exp.
as Taxation
Inspector or Excise
Inspector; or
iii) 10 years Exp. As
Asstt./Senior Scale
Stenographer"
A perusal of the above would show that apart from the experience, which the petitioners fulfil, a Graduation degree from a recognized university is a must for consideration for promotion to the post. Admittedly the degree of Bachelor of Arts possessed by the petitioners from Mumbai Hindu Vidyapeeth, which is a fake university, cannot be made the basis for promotion. The submission, which has been made by the counsel for the petitioners, is based upon the letter from the Secretary to Government of Haryana dated16.06.1979 (Annexure P-13), wherein it has been clarified that if a candidate possesses higher qualifications in the same line and has passed such higher examination in the same division or class as prescribed for the minimum qualifications applicable to a particular post, then he shall be considered eligible for that post. In para 2 thereof, an illustration has also been mentioned that if the minimum educational CWP No. 6478 of 2010 6 qualification prescribed for a post is Matric First Division and if candidates with higher qualifications such as Higher Secondary or BA have applied for it, then such candidates who have passed the higher examination in the first division would be eligible although they may not have passed the Matric Examination in the first division.
These instructions do not, in any manner, help the claim of the petitioners as the same do not waive away the minimum qualifications prescribed for the post as in the example given, it is Matriculation. What has been said primarily is that if after that, higher qualification is obtained, then the requirement of the division if obtained lower than prescribed in the basic qualification can be covered up with the higher division in the higher qualification.
In the present case, petitioners do not possess the basic educational qualification of Graduation and, therefore, cannot be said to be qualified for promotion. It has been asserted by the petitioners that as per the rules applicable to the Madurai Kamaraj University, for obtaining a Post Graduate Degree, a candidate may not be a Graduate but he has to only pass the entrance test and no formal education is required. Since the petitioners have obtained their Post Graduate Degree i.e. M.A. from the said university, the petitioners are entitled to promotion as they possess higher qualifications. This contention cannot be accepted as without the basic qualification of Graduation, as is mandated under the statutory Rules, they cannot be promoted. The judgments, which have been relied upon in the CWP No. 6478 of 2010 7 cases of Jyoti K.K. and others (supra) and Ashok Kumar and others (supra), were cases where the Court, on the basis of the records and instructions as also the syllabus, had come to a conclusion that the petitioners had possessed the lower basic qualification and then obtained higher qualification in the concerned field which was prescribed for the post.
In the present case, this is not the position. The facts of the case of the petitioners are different from the judgments, which have been cited by the counsel for the petitioners and, therefore, are not applicable to the case in hand. Since the petitioners do not possess the mandated qualifications under the statutory Rules nor is the case of the petitioners covered by the instructions dated 16.06.1979 (Annexure P-13) issued by the Government of Haryana, the petitioners cannot be held eligible for promotion to the post of Assistant Excise and Taxation Officer.
The impugned orders being in accordance and consonance with the statutory Rules governing the service do not call for any interference by this Court. The writ petition, therefore, stands dismissed.
(AUGUSTINE GEORGE MASIH )
August 27, 2012 JUDGE
pj
CWP No. 6478 of 2010 8