Rajasthan High Court - Jaipur
Alla Noor Khan vs State Of Rajasthan on 2 April, 2013
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CIVIL WRIT PETITION NO.3579/1997 (Alla Noor Khan Vs. State of Rajasthan & Ors.) Date of Order : 02nd April, 2013 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Mahendra Shah, for the petitioner/s. Mr.Pradeep Kalwania, Addl.GC. BY THE COURT:
The application filed by the petitioner for taking additional documents on record is allowed for the reasons mentioned therein and as not opposed by learned counsel for the respondent/s. The documents along with reply to the application are ordered to be taken on record.
With the consent of learned counsel for both the parties, the writ petition is heard and decided finally.
By this writ petition, a challenge is made to the order of promotion dated 30.08.1996 at Annexure 2.
It is stated that petitioner obtained qualification of 'Madhyama' in the year 1982, thus become eligible for promotion to the post of Lower Division Clerk (for short LDC). Many candidates junior to the petitioner working on the post of Class IV were given promotion vide order dated 30.08.1996. The promotion aforesaid was based on same qualification as was possessed by the petitioner in the year 1982. In view of discrimination, the writ petition was filed. It is subsequently came to the notice of petitioner that many other persons junior to petitioner have also been given promotion based on same qualification of 'Madhyama', accordingly petitioner is entitled for similar benefit of promotion. Hence, direction be given to the respondents to include petitioner's name for promotion in the order dated 30.08.1996 at Annex.2.
Learned counsel for the respondent/s, on the other hand, submits that petitioner is not entitled for promotion as the qualification of 'Madhyama' was de-recognized by the State Government vide Notification dated 28th June, 1985. After de-recognition, a question came up before this Court as to whether one would be eligible for promotion to the post of LDC. The issue was decided by the Division Bench in the case of Shanker Lal Verma & 13 Ors. Vs The Rajasthan Electricity Board reported in 1999 (1) WLC (Raj.) 1. Therein, it was held that candidates holding qualification of Prathma and Madhyama would not be entitled for promotion if vacancy arose subsequent to de-recognition of the qualification. in view of above, petitioner is not entitled for promotion.
I have considered the submissions made by learned counsel for the parties and perused the record.
The grievance of petitioner is regarding discrimination in regard to promotion.
During the course of arguments, it is brought to the notice of the Court that subsequent to judgment of this Court in the case of Shankar Lal Verma (supra), orders of reversion of those promoted after de-recognition were passed but set aside by this Court. The parity has been claimed by the petitioner.
The question for my consideration is as to whether a candidate holding qualification of 'Madhyama' can claim promotion for the vacancy subsequent to de-recognition of qualification.
To answer the aforesaid question, relevant para Nos. 31 to 33 of the judgment in the case of Shankar Lal Verma (surpa) are quoted hereunder for ready reference:
31. From the case law discussed above, it is clear that a rule can be amended retrospectively, but such retrospective effect cannot be allowed to take away vested rights of citizens. It has also not been disputed before us that the amended rule would apply to vacancies which arise after the date on which the amending notification was issued. The questions to be decided, therefore, are as to whether the amended qualification in the rule would apply to Class IV employees who had acquired the equivalent qualification prior to amendment of the rule, and as to whether a vested right is conferred on the petitioners on their acquiring the equivalent qualification at a time when the equivalent qualification was not deleted from the rules. The contention that all candidates who had acquired the equivalent qualifications prior to the amendment in the rules deleting the equivalent qualifications would be deemed to have acquired that qualification in the legitimate expectation that by acquiring that qualification, they would become eligible for promotion as that was the qualification then prescribed under the rules for promotion to the post of L.D.C., cannot be accepted. There is nothing on record to show that any promise was held out by the respondents to the petitioners that they would be considered for promotion if they acquired the qualifications they have acquired. Moreover, if the contention is accepted, it would lead to absurd result as different candidates for; the same post at the same selection would be having different qualifications depending on the dates on which such qualifications were acquired. Thus, those who have acquired the same qualifications after the amendment in the rules would be ineligible but those who had acquired that qualification earlier to the amendment in the rules would be eligible.
32. It is also to be noted that these are not the cases of derecognition of a degree, diploma or certificate issued by a particular institution because of some fault on the part of the institution awarding the same. The cases of derecognition of particular institutions and consequently derecognition of the degrees, diplomas and certificates issued by such institutions have to be distinguished from service matters in which certain qualifications are deleted from the rules. Removing or deleting a qualification from eligibility criteria cannot be said to be derecognition of that qualification or a degree, diploma or certificate. It only means that the degree, diploma or certificate has ceased to be the eligibility qualification for a particular post. It does not take away from the candidate, the degree, diploma or certificate conferred by the institutions. For example, if the eligibility qualification for a particular post was earlier 'Graduate' and by amendment, it is raised to 'Post graduate', it does not mean that degree possessed by the candidates are derecognised. What it simply means is that the eligibility qualifications are enhanced and a higher qualification is now required. It is also to be taken into account that purpose behind amendment to the rule was not to derecognise any degree, diploma or certificate, it was only to delete certain qualifications from the eligibility criteria. This may be because of the changed situation in which the employer may find that candidates who have passed the Secondary School Examination from the Statutory Boards and Universities are available in sufficient numbers and it was not necessary to consider the candidates having equivalent qualifications. The respondents cannot be forced to accept equivalence of certain qualifications and to accept such equivalence for all times to come.
33. In the result, we conclude that there is no force in the contention of the petitioners that the amended qualifications shall not apply to them because they had acquired the equivalent qualifications prior to the amendment of the rules. In, our opinion, the amended rule and the qualifications will apply even to the candidates who have obtained the equivalent qualifications prior to the date of enforcement of amended rule. However, the amended qualifications shall not be applicable to the vacancies which had occurred prior to the date of enforcement of the amended rule and such vacancies shall be filled in in accordance with the qualifications prescribed as on the date of occurrence of vacancies. We, therefore, answer the reference accordingly. The petitions shall now be listed before appropriate Bench for decision in accordance with law in the light of this decision.
The perusal of the para quoted above reveals that a candidate would not be entitled for promotion on the post of LDC, if possessing qualification of 'Madhyama' for a vacancy subsequent to de-recognition.
If the facts of this case are looked into, the claim of promotion has not been made against the vacancy prior to de-recognition. The order of promotion, challenged herein, is of the year 1996, thus subsequent to de-recognition and does not indicate that vacancies were for the period prior to de-recognition.
In view of above and taking note of the judgment of Division Bench, a direction for promotion in favour of the petitioner cannot be given for vacancy subsequent to year 1985 otherwise it will go contrary to the judgment of Division Bench.
The question, however, comes as to whether petitioner can claim parity as candidates having qualification of 'Madhyama' were earlier promoted.
If the answer is to be given simplicitor, it can be favourable to the petitioner. A candidate, if similarly placed should not be deprived to get benefit. The matter, however, does not end here because after the judgment in the case of Shankar Lal Verma (supra), the order of demotion were passed. The demotion order was challenged and set aside considering the fact that for those, who were promoted earlier to the judgment in the case of Shanker Lal Verma (surpa), it will operate prospectively. Accordingly their promotions were saved. The petitioner herein is, however, claiming promotion now based on parity. The question of parity does not arise herein because those promoted prior to judgment in the case of Shankar Lal Verma (supra) have been saved but based on it, direction for promotion has not been given after aforesaid judgment. In fact, after judgment of Division Bench, the direction of the nature prayed by the petitioner cannot be given because it will then run counter to what has been held by the Hon'ble Apex Court. In view of above, I am refraining myself to pass any order contrary to the ratio propounded by the Division Bench for those seeking promotion against the vacancies after de-recognition.
In the background aforesaid and looking to the judgment of Division Bench, I am unable to accept the prayer made in the writ petition.
Accordingly, the writ petition so as the stay application are dismissed.
(M.N. BHANDARI), J.
S/No.13 Preety, Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preety Asopa Jr.P.A.