Himachal Pradesh High Court
Prem Lal vs State Of Himachal Pradesh & Others on 16 March, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.7408 of 2020 Date of Decision: 16.03.2023 ____________________________________________________________________ .
Prem Lal .......Petitioner Versus State of Himachal Pradesh & others ... Respondents _____________________________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 For the Petitioner: Mr. Praveen Chandel, Advocate.
For the Respondents:
Mr. Rajan Kahol and Mr. B.C.Verma, Additional Advocate Generals.
___________________________________________________________ Sandeep Sharma, Judge(oral):
Though petitioner was initially engaged as daily wage Beldar on 1.1.1996 in the respondent-Department, but subsequently, in October, 2007, his services were regularized in terms of policy of regularization framed by the State of Government. After completion of requisite number of years, he was promoted as Work Inspector on
2.9.2012. Though petitioner being regular employee became eligible for promotion to the post of Junior Engineer (Civil) in terms of Recruitment & Promotion Rules for the post of Junior Engineer, but he was not considered on the ground that diploma in Civil Engineering obtained through distance mode by the petitioner is not recognized by the Govt.
Petitioner filed representation to the department, but fact remains that no heed was paid to the request made by the petitioner and as such, he was compelled to approach the erstwhile HP State Administrative 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 17/03/2023 20:33:08 :::CIS 2Tribunal by way of OA No.3335 of 2019, which on account of abolishment of the Tribunal, stands transferred to this court for .
adjudication, praying therein for following relief:-
"i). That the Respondent Department may kindly be directed to consider the case of the Applicants for the promotion to the post of Junior Engineer (Civil) alongwith all consequential benefits in the interest of justice."
2. Facts, as have been noticed herein above are not in dispute as is evident from the reply filed by the respondent-State. In nutshell, case of the respondents as has been stated in the reply and has been further canvassed by the learned Additional Advocate General is that since petitioner was not having requisite qualification in terms of Recruitment and Promotion Rules, framed by the Department for promotion for the post of Junior Engineer (Civil), his case was rightly not considered. Learned Additional Advocate General submitted that petitioner has passed the Diploma in Civil Engineering in the year, 2011 from Janardan Rai Nagar Vidyapeeth, Rajasthan, through distance education mode, which is not a recognized mode as per the Recruitment and Promotion Rules. Learned Additional Advocate General argued that since petitioner did not have requisite qualification, his claim for promotion to the higher post rightly came to be rejected. In support of this aforesaid argument, learned Additional Advocate General placed heavy reliance upon the judgment rendered by Hon'ble Apex Court in SLP(C) No.19851-19852/2020, titled Orissa Lift ::: Downloaded on - 17/03/2023 20:33:08 :::CIS 3 Irrigation Corporation Limited versus Rabi Sankar Patro and others, alongwith other connected SLPs, decided on 3.11.2017 as .
well as the advice of the Government conveyed vide letter dated 19.6.2019 in case Dharmender Kumar and others, wherein it has been held that the Diploma/Degree obtained from deemed Universities upto the year 2007-2008 can only be considered for promotion and in case through IGNOU year 2009-2010.
3. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that it is not in dispute that petitioner was initially engaged as daily wage Beldar, but his services were regularized in the year, 2007, and thereafter, he was promoted to the post of Work Inspector on 2.9.2012 and since then, he has been rendering his services in the department in the aforesaid capacity, petitioner became entitled for promotion to the post of Junior Engineer after his being regularized in the department. For the post of Junior Engineer, department has framed Recruitment & Promotion Rules, clause 10 whereof reads as under:
" (i) 45% by direct recruitment on regular basis or by recruitment on contract basis as the case may be.
ii) 30% by batch wise basis on regular basis or by recruitment on contract basis at departmental level from amongst the candidate(s) who possess requisite professional qualification or its equivalent from an Institution University duly recognized by the Central or State Government on the basis of seniority of the batch (batch wise basis).
Provided that for the purpose & appointment under this sub- column, the year wise combined seniority list shall be prepared wherein the candidate senior in batch in such recruitment year shall be reckoned senior to the candidate who has obtained diploma in Civil Engineering in subsequent batch ::: Downloaded on - 17/03/2023 20:33:08 :::CIS 4 Provided further that where in a recruitment year more than one candidate of the same batch are eligible to be considered for appointment then their inter-se-seniority will determined with reference to their date of appointment in that recruitment year, or the time of making selection for recruitment on contract basis, as .
the case may be.
Under Clause 11 recruitment by promotion, against 25% quota following provisions have been made for the respective feeder categories:-
(i) By promotion from amongst the surveyor having Degree in Civil Engineering or its equivalent from an Institution University duly recognized by the Central or State Govt. with 2 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade failing which the quota will go to Column 11(ii) below :
0.5%
(ii) By Promotion from amongst the Surveyor having three years regular full time Diploma in Civil Engineering or its equivalent from an Institution University duly recognized by the Central or State Government with 3 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, failing which the quota will go to Column 11(iii) below:
0.5%
(iii) By Promotion from amongst the Surveyor having regular full time ITI Course of two years duration in the trade of Surveyors Draughtsman/Civil) or its equivalent from an 111/Institution duly recognized by the Central or State Government with 8 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, failing which the quota will go to Column 11(iv) below:
11.5%
(iv) By Promotion from amongst the Work Inspector three years Diploma in Civil Engineering or its equivalent from an Institution University duly recognized by the Central or State Government with 3 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, failing which the quota will go to Column 11(v)below:
2.5%
(v) By Promotion from amongst the Work Inspector having regular full time Degree in Civil Engineering or its equivalent from an Institution University duly recognized by the Central or State Government with 2 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, failing which the quota will go to Column 11(vi) below:
0.5%
(vi) By Promotion from amongst the Work Inspector having two years ITI Course in the trade of Surveyors Draughtsman (Civil) or its equivalent from an IT Institution duly recognized by the Central or ::: Downloaded on - 17/03/2023 20:33:08 :::CIS 5 State Government with 8 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, failing which the quota will go to Column 11(vi) below;
5.5% .
(vii) By promotion from amongst the Work Inspector who are matriculates or possess its equivalent qualification with at least 15 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, and completed successfully the prescribed Departmental training course of 06 months duration, failing which the quota will go to Column 11(i) above;
4%
4. Bare reading of aforesaid Recruitment and Promotion Rules, clearly reveals that category of 'Work Inspector', to which the petitioner belong, is one of the feeder category for promotion to the post of Junior Engineer(Civil), case of the petitioner for promotion is/was to be considered under Clause 11 against 25% quota. Clause 11.4 clearly provides that "Work Inspectors" having three years Diploma in Civil Engineering or its equivalent from an Institution/University duly recognized by the Central or State Government with three years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, are also entitled to be promoted against 2.5% quota out of total quota of 25%. Since, in the instant case, it is not in dispute that petitioner at the time of consideration of his case for promotion to the post of Junior Engineer was working as "Work Inspector" on regular basis and he had service of more than three years, dispute, if any, is only with regard to qualification of Diploma obtained by the petitioner through distance mode.
5. Mr. Rajan Kahol, learned Additional Advocate General, while inviting attention of this Court to Clause 11.4, argued that since ::: Downloaded on - 17/03/2023 20:33:08 :::CIS 6 Diploma awarded by Janardan Rai Nagar Rajasthan Vidyapeeth Rajasthan, through distance education mode, is not recognized as per .
Recruitment and Promotion Rules, there is/was no occasion, if any, for considering the case of the petitioner for promotion to the higher post, however, learned Additional Advocate General was unable to dispute that similar situate persons as detailed in rejoinder to the reply filed by the petitioner to the reply filed by the respondents, who have also obtained Diploma/Degree through distance mode from the unrecognized University, were granted promotion to the post of Junior Engineer, however, he attempted to carve out a distinction by stating that diplomas/degrees obtained from deemed Universities upto the year 2007-2008 could only be considered for promotion. Apart from above, learned Additional Advocate General further argued that Hon'ble Apex Court in Orissa Lift Irrigation Corporation's case (supra), categorically stated that any Diploma/Degree obtained through distance mode shall not be taken into consideration for eligibility, if any, for appointment as well as for promotion.
6. However, after having carefully perused judgment rendered by Hon'ble Apex Court in Orissa Lift Irrigation Corporation's case (supra), this Court finds merit in the contention of learned counsel representing the petitioner that in aforesaid judgment, Hon'ble Apex Court has observed nothing with regard to Diplomas, rather that judgment specifically deals with the degrees, if any, awarded by deemed Universities through distance mode. At this stage, learned Additional ::: Downloaded on - 17/03/2023 20:33:08 :::CIS 7 Advocate General while fairly admitting that finding given by the Hon'ble Apex Court is with regard to degrees, vehemently argued that .
analogy would remain same, especially when Hon'ble Apex Court stated that degrees obtained through distance mode shall not be taken as eligibility for appointment and promotion. However, this Court is not impressed with aforesaid contention of learned Additional Advocate General for the reason that in para-3 of the afore judgment, Hon'ble Apex Court while disposing of M.A No.38 of 2018 in C.A No.17907 of 2017, has clarified that paragraphs No. 34 and 46 of the judgment pertains to validity of degrees in engineering conferred by the deemed to be Universities through distance education mode and this Court was not called upon to consider validity of diplomas conferred by such deemed to be Universities. In the aforesaid paras, Hon'ble Apex Court clearly ruled that validity of courses leading to Diplomas was not the subject matter of the judgment, meaning thereby ruling given by the Hon'ble Apex Court strictly pertains to degrees awarded by the deemed Universities through distance education mode and as such, same could not be made applicable in the cases of Diplomas, if any, obtained through distance mode. It would be apt to take note of following paras of aforesaid judgment hereinbelow:-
"1. M.A. No. 38 of 2018 in C.A. No.17907/2017 The applicant, IASE, Deemed to be University seeks clarification that the judgment applied only to courses leading to degrees in Engineering awarded by Deemed to be Universities through distance education mode and that diploma courses are not covered by the judgment.::: Downloaded on - 17/03/2023 20:33:08 :::CIS 8
Mr. M.L. Verma, learned Senior Advocate invited our attention to the advertisement issued by AICTE. His submissions on the issue in question are on lines similar to the submissions advanced by Mr. Dhruv Mehta, learned Senior Advocate.
.
2. We also heard Mr. Maninder Singh, learned Additional Solicitor General who appeared on behalf of AICTE.
3. It is true, as is evident from paragraphs 34 and 46 of the judgment that the controversy in the present case pertained to validity of degrees in Engineering conferred by the Deemed to be Universities through distance education mode and this Court was not called upon to consider validity of diplomas conferred by such Deemed to be Universities. However the advertisement issued by AICTE covers diploma courses as well. We therefore accept the submissions advanced by Mr. Dhruv Mehta and Mr. M.L. Verma, learned Senior Advocates and clarify that validity of such courses leading to diplomas was not the subject matter of the judgment.
4. At the same time, courses leading to award of degrees, whether graduate or post graduate degrees, was certainly the matter in issue. We therefore reject the submission of Mr. Kapil Sibal, learned Senior Advocate and do not find any infirmity in the understanding of and the advertisement issued by AICTE.
5. Mr. Anupam Lal Das, learned Advocate is right that JRN, AAI and IASE had no expertise in the field or subjects of Engineering and the status of Deemed Universities conferred on them was not because of their excellence in the field of Engineering. As against these three Deemed to be Universities, the case of VMRF stood on a better footing as its field of activity and excellence also included subjects in Engineering. However that was not the only basis of the judgment. The facts still remain that conferral of degrees in Engineering through distance education mode was never approved in principle by AICTE and the Study Centres were never inspected or approved. We therefore reject the submission of Mr. Anupam Lal Das, learned Advocate.
6. If award of degrees in Engineering through distance education mode by Deemed to be Universities, as a concept or principle was not accepted by AICTE, it is immaterial whether the Study Centre in question was ITM International. Said Institution was not by itself authorized to award degrees in Engineering on its own nor was it affiliated to any State or Central University at the relevant time. The courses conducted by said institution led to award of degrees of AAI, which had no expertise or excellence in the field of Engineering and through distance education mode. We therefore reject the submission advanced by Ms. Meenakshi Arora, learned Senior Advocate.
7. We now turn to the general submission advanced by all the learned counsel that the candidates after securing the degrees in Engineering through distance education mode, have advanced in career and that their ability was tested at various levels and as such requirement of passing the examination in terms of the judgment be dispensed with in their case. We cannot make any such exception. The infirmity in their degrees is basic and fundamental and cannot be wished away. At the same time, we find some force in their submission that if the suspension of their degrees and all ::: Downloaded on - 17/03/2023 20:33:08 :::CIS 9 advantages were to apply as indicated in the judgment, the concerned candidates may lose their jobs and even if they were to successfully pass the test, restoration of their jobs and present position would pose some difficulty.
.
We, therefore, as a one-time relaxation in favour of those candidates who were enrolled during the academic years 2001-2005 and who, in terms of the judgment, are eligible to appear at the test to be conducted by AICTE, direct:-
a). All such candidates, who wish to appear at the forthcoming test to be conducted by AICTE in May-June 2018 and who exercise option to appear at the test in terms of the judgment, can retain the degrees in question and all the advantages flowing therefrom till one month after the declaration of the result of such test or till 31.07.2018 whichever is earlier.
b) This facility is given as one-time exception so that those who have the ability and can pass the test in the first attempt itself, should not be put to inconvenience. If the candidates pass in such first attempt, they would be entitled to retain all the advantages. But if they fail or choose not to appear, the directions in the judgment shall apply, in that the degrees and all advantages shall stand suspended and withdrawn. At the cost of repetition, it is made clear that no more such chances or exceptions will be given or made. They will undoubtedly be entitled to appear on the second occasion in terms of the judgment but this exception shall not apply for such second attempt.
c). We direct AICTE to conduct the test in May-June 2018 and declare the result well in time, in terms of our directions in the judgment and this Order. AICTE shall however extend the time to exercise the option to appear at the test suitably.
8. Except for the directions given in the preceding paragraph i.e. paragraph 7 and the clarification as regards courses leading to award of diplomas as mentioned hereinabove, we reject all the other submissions."
7. Careful perusal of aforesaid judgment clearly reveals that findings in the aforesaid judgment directly relate to degrees conferred by deemed Universities through distance mode and Diplomas obtained through distance education mode have been specifically excluded by Hon'ble Apex Court while returning findings, as have been taken note hereinabove.
::: Downloaded on - 17/03/2023 20:33:08 :::CIS 108. In view of aforesaid specific clarification rendered on record by Hon'ble Apex Court with regard to Diplomas obtained through .
education mode, ground set up by the respondents to reject the case of the petitioner for promotion is not tenable and as such, deserves outright rejection. Moreover, if the judgment rendered by Hon'ble Apex Court, is read in its entirety, it clearly reveals that Hon'ble Apex Court despite holding that degrees conferred by deemed Universities through distance education mode is not the qualification, granted one time relaxation in that case, so that persons already working are not put to hardship. In the instant case, petitioner has been serving the Department for more than 27 years and till date, despite his being fully eligible, he is not being considered for promotion against the post of Junior Engineer. Since the post of "Work Inspector" falls in the feeder category for promotion to the post of Junior Engineer as per Recruitment and Promotion Rules, rightful claim of the petitioner cannot be permitted to be defeated by respondents at this belated stage on the grounds, as have been setup in the reply. Otherwise also, careful perusal of the reply filed by the respondents reveals that heavy reliance has been placed by the respondent on the judgment rendered by Hon'ble Apex Court in Orissa Lift Irrigation Corporation's case (supra), to reject the case of the petitioner, but as has been clarified hereinabove, that is not applicable in the case of the petitioner being Diploma holder. Moreover, similar situate persons as detailed in the rejoinder filed by the petitioner to the reply filed by the respondents ::: Downloaded on - 17/03/2023 20:33:08 :::CIS 11 have been already granted promotion despite their having obtained diploma through distance education mode, case of the petitioner .
deserves to be considered, especially when they are on same footing.
Since, it is not in dispute that few similarly situate persons having obtained essential qualification through distance mode were considered on the basis that they had enrolled themselves prior to 2007-2008 and 2009-2010, stand setup by the respondent-Department to reject the case of the petitioner that Diploma obtained through distance education mode is not a prescribed qualification as per Recruitment and Promotion Rules, is wholly unjustifiable.
9. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, prayer made in the instant petition deserves to be allowed and accordingly same is allowed and action of the respondents in not promoting the petitioner to the post of Junior Engineer (Civil), is highly deprecated and respondents are directed to promote the petitioner against the post of Junior Engineer (Civil) from the date his juniors have been promoted to the post in question. Since petitioner has not worked against the post of Junior Engineer (Civil), he shall not been entitled for actual benefits, but shall be entitled for notional benefits alongwith seniority. In the aforesaid terms, the present petition is disposed of alongwith pending applications, if any.
March 16, 2023 (Sandeep Sharma),
Judge
manjit
::: Downloaded on - 17/03/2023 20:33:08 :::CIS