Punjab-Haryana High Court
Union Of India And Another vs Madan Lal And Others on 1 November, 2010
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 18604 of 2004 (O&M)
Date of Decision: November 1, 2010
Union of India and another
...Petitioner
Versus
Madan Lal and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. Namit Kumar, Addl. Central Govt. Standing Counsel,
for the petitioners.
Mr. G.S. Bal, Advocate,
for respondent No. 1.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the
Digest?
M.M. KUMAR, J.
1. This petition has been preferred by the Union of India, Ministry of Defence, Army Headquarters and its Engineer-in-Chief, New Delhi, challenging judgment dated 18.8.2004 (P-10), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, 'the Tribunal'). The Tribunal in its order has concluded that as per the provisions of Rule 4 read with Item No. 5 of the Schedule of the Military Engineer Services (Surveyor of Works Cadre) Recruitment Rules, 1985 (for brevity, 'the Rules'), a degree holder Assistant Surveyor of Works seeking C.W.P. No. 18604 of 2004 (O&M) 2 promotion to the post of Surveyor of Works does not require to pass the final examination of the Institution of Surveyors (India) or equivalent because the degree itself is an equivalent qualification for the aforesaid examination.
2. Facts are not in dispute. The Original Applicant-respondent No. 1 was appointed as an Assistant Surveyor of Works on 9.9.1991. For promotion to the post of Surveyor of Works aforementioned statutory Rules have been enacted. Apart from the Rules, the petitioners have issued instructions dated 6.4.1998 and 7.9.1994 (P-1 and P-22 respectively) laying down that passing of final examination of the Institution of Surveyors (India) is mandatory. On the basis of communication dated 3.4.1997 sent by the Garrison Engineer, the Original Applicant-respondent No. 1 was given promotion on the post of Surveyor of Works on 25.5.1998. However, a complaint was made with respect to the Original Applicant-respondent No. 1 to point out that he did not actually pass the examination in full and, therefore, according to the case of the department in the absence of passing the examination he could not have been promoted. For further promotion from the post of Surveyor of Works, the persons junior to the Original Applicant-respondent No. 1, namely, respondent Nos. 2 to 6 were promoted as Superintendent Surveyor of Works on 19.2.2004. However, the case of the Original Applicant-respondent No. 1 was not considered on the allegation that he had not passed the examination and it was alleged that he had fabricated letter dated 3.4.1997 purportedly written by Institution of Surveyors (India) showing that he had actually passed the examination. Accordingly, a show cause notice dated 5.5.2004 (P-5) was issued.
3. The Original Applicant-respondent No. 1 filed O.A. No. C.W.P. No. 18604 of 2004 (O&M) 3 214/CH/2004 seeking direction that he is entitled to be considered for promotion on the post of Superintendent Surveyor of Works with effect from the date persons junior to him like respondent Nos. 2 to 6 have been promoted. When show cause notice dated 5.5.2004 (P-5) was issued, the Original Applicant-respondent No. 1 filed M.A. No. 693 of 2004 before the Tribunal to challenge the show cause notice. On 3.6.2004, the Tribunal stayed reversion of the Original Applicant-respondent No. 1 from the post of Surveyor of Works. In the meanwhile, on 28.11.2006, a Memorandum of charge was issued to him proposing to hold an inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The aforesaid charge sheet was challenged by the Original Applicant- respondent No. 1 before the Calcutta Bench of the Tribunal. The matter was transferred to Chandigarh Bench and was registered as O.A. No. 743/PB/2009. Eventually, the said OA was dismissed on 17.8.2010 with a direction to the petitioners to complete the inquiry within a period of three months from the date of receipt of a copy of that order. That order has attained finality and has virtually been accepted by the Original Applicant- respondent No. 1. The aforesaid inquiry is stated to be still pending.
4. In the instant petition the order dated 18.8.2004 passed in O.A. No. 214/CH/2004 is subject matter of challenge by the Union of India, Ministry of Defence. The Tribunal has allowed the O.A. filed by the Original Applicant-respondent No. 1 by observing as under:-
"11. After hearing the learned counsel for the parties, we feel that though the operation of the decision of the Full Bench has been stayed by the High Court of Delhi, but the C.W.P. No. 18604 of 2004 (O&M) 4 opinion expressed by various Benches of this Tribunal still holds the field inasmuch as it has not been set aside. The decision of the Full Bench by which it has restrained itself from reviewing the decisions by a Larger Bench in view of decision of High Court of Punjab & Haryana, is still under consideration and is in existence. It cannot be said that Full Bench has taken a definite view on the merits of the issue. The Full Bench gave a decision on technical points only. The stay on decision of the Full Bench of C.A.T. Principal Bench, New Delhi, cannot, therefore, be of any help to the respondents. The plea of Shri K.K. Thakur that there is stay by the Apex Court also is not true. The Department has only challenged the interim orders passed by the High Court of pUnjab & Haryana in CWP No. 20162-CAT-2002, against the decision of this Tribunal, whereby the High Court had declined to stay the orders of this Tribunal. Meaning thereby, there is no stay on the orders passed by this Tribunal in the case of Rajinder Pal Singhal (supra). It is not known as to how much time will be taken by the High Courts to decide the issue. The fact remains that for a degree holder, it is not necessary to pass examination of Institution of Surveyors of India for promotion to the post of Surveyor of Works. Moreover, the High Court of Punjab & Haryana has also observed in the case of Avinash Chander Dutta (supra) that if for promotion to the post of Assistant Surveyor of Works, the lack of qualification of passing final C.W.P. No. 18604 of 2004 (O&M) 5 examination of the Institution of Surveyors (India) was not a handicap, it will be so while considering case for promotion to the post of Surveyor of Works. The applicant admittedly is degree holder having qualified Bachelor of Engineering (Civil).
Further, in our view, the benefit of decision in the case of R.K. Gupta (supra) and Avinash Chander Dutta (supra), cannot be denied to the applicant.
12. In the result this Original Application is allowed. The respondents are directed to extend the benefit of judgments in the case of R.K. Gupta (supra), Avinash Chander Dutta (supra) & Rajinder Pal Singhal (supra), to the applicant, meaning thereby the case of the applicant for promotion to the post of Superintending Surveyor of Works shall be considered by them by constituting a review Departmental Promotion Committee, by treating that the promotion of the applicant to the post of Surveyor of Assistant from the post of Assistant Surveyor of Works was not erroneous on account of his having not passed the examination of Institution of Surveyors. His case for promotion to the post of Superintending Surveyor of Works shall be considered from the same date as has been given to his juniors. ......"
5. Mr. Namit Kumar, learned counsel for the petitioners-Union of India has vehemently argued that the view taken by the Tribunal suffers from a legal infirmity. He has found fault with the direction issued by the Tribunal to consider the case of the Original Applicant-respondent No. 1 to the post of Surveyor of Works with effect from the date persons junior to C.W.P. No. 18604 of 2004 (O&M) 6 him like respondent Nos. 2 to 6 have been promoted. According to the learned counsel such a direction could not have been given because the Original Applicant-respondent No. 1 is facing serious charges of fabrication and forging of letter dated 3.4.1997 purportedly issued by the Institution of Surveyors (India) showing that he has passed the examination in full. He has further submitted that the aforesaid letter constituted a basis for ordering his promotion from the post of Assistant Surveyor of Works to that of Surveyor of Works on 25.5.1998.
6. Another submission made by the learned counsel is that passing of final examination of the Institution of Surveyors (India) was imperative irrespective of the degree in Engineering possessed by the Original Applicant-respondent No. 1. He has maintained that both qualifications are entirely different from each other. He has also pointed out that the view taken by the Tribunal in the case of R.K. Gupta v. Union of India (O.A. No. 1217/JK/1994, decided on 15.11.1996) which has attained finality and the view taken by this Court in the case of Union of India v. Avinash Chander Dutta (CWP No. 1997 of 1999, decided on 18.10.2001, Annexure P-16) have been subject matter of challenge before Hon'ble the Supreme Court. However, he has accepted that contempt proceedings pending before the Tribunal emanating from the direction issued on account of the aforesaid judgment have been stayed by Hon'ble the Supreme Court. Therefore, according to the learned counsel no reliance could be placed on the aforesaid judgments.
7. Mr. G.S. Bal, learned counsel for the Original Applicant- respondent No. 1 has strenuously argued that Rule 4 read with the Schedule C.W.P. No. 18604 of 2004 (O&M) 7 of the Rules has been correctly interpreted by the Tribunal in R.K. Gupta's case (supra), which has attained finality as also a Division Bench judgment of this Court rendered in the case of Avinash Chander Dutta (supra). According to the learned counsel the interpretation given by the Tribunal as well as Division Bench of this Court has clarified that there is no mandate of the Rule that a degree holder is required to pass the final examination of the Institution of Surveyors (India). Learned counsel has maintained that if Item No. 5 of the Schedule dealing with the appointment to the post of Assistant Surveyor of Works is read then it becomes patent that a Surveyor Assistant Grade-I holding degree in Civil Engineering from a recognised University or equivalent or having possessed, Direct Final Examination of the Institution of Surveyors (India) with 5 years regular service in the grade or Surveyor Assistant Grade-I or simply having passed Intermediate Examination of Institution of Surveyors (India) etc., is eligible to be appointed by way of promotion to the post of Assistant Surveyor of Works. He has supported the view taken by the Division Bench in Avinash Chander Dutta's case (supra) and that of the Tribunal in R.K. Gupta's case (supra).
8. Learned counsel has also submitted that on the date when persons juniors of the Original Applicant-respondent No. 1 (respondent Nos. 2 to 6) were considered for promotion on 19.2.2004 for the post of Superintendent Surveyor of Works, then no charge sheet was pending against him. He has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Union of India v. K.V. Jankiraman (1991) 4 SCC 109 and has argued that in the absence of charge sheet on the date of consideration of promotion, no sealed cover procedure could be C.W.P. No. 18604 of 2004 (O&M) 8 followed and promotion of a senior like the Original Applicant-respondent No. 1 could not have been withheld.
9. It has been brought to our notice that the matter is pending before Hon'ble the Supreme Court against the view taken by the Division Bench that there cannot be any insistence on the requirement to pass the final examination from the Institution of Surveyors (India) for promotion to the post of Surveyor of Works if an Assistant Surveyor of Works is a degree holder. We would have deferred the hearing on account of the aforesaid pendency of appeals before Hon'ble the Supreme Court. However, in deference to the order dated 23.4.2010 passed by their Lordships' of Hon'ble the Supreme Court in Special Leave to Appeal (Civil) No. 11234 of 2010 (Madan Lal v. Union of India and another), we have taken up the matter for final disposal. According to the order passed by Hon'ble the Supreme Court the Original Applicant-respondent No. 1 was given liberty to pray for expeditious hearing of the writ petition and accordingly we have taken up the matter for final disposal.
10. We have closely examined the controversy and find that the view earlier taken by a Division Bench of this Court in the case of Avinash Chander Dutta (supra) is binding on us (P-16). In that case a Division Bench of this Court (of which one of us, M.M. Kumar, J. was a member) has in turn approved the view taken by the Central Administrative Tribunal in R.K. Gupta's case (supra). There it was held that holding of a degree qualification or passing of final examination of the Institution of Surveyors (India) for a Assistant Surveyor of Works was sufficient for promotion to the post of Surveyor of Works. The aforesaid conclusion was reached in view of recruitment rules published in SRO 39 of 1985, which clearly C.W.P. No. 18604 of 2004 (O&M) 9 provided that a degree holder Assistant Surveyor of Works did not need to pass the final examination of Institution of Surveyors (India). There are further clarifications issued by the Ministry of Science and Technology, which have been placed on record of this Case, dated 7.9.1994 (P-22). The judgment in R.K. Gupta's case (supra) stood implemented after dismissal of SLP filed by the Union of India in Hon'ble the Supreme Court. It was further observed in R.K. Gupta's case that final examination conducted by the Institution of Surveyors (India) is a special qualification granted to professionals in that field and, in fact, is a supplement to any such degree. In the end it was concluded that promotion to the Grade of Surveyors of Works could not be denied on the ground that Assistant Surveyor of Works did not pass final examination of the Institution of Surveyors (India).
11. The aforesaid view taken in R.K. Gupta's case (supra) has been fully approved where the opinion of the Public Service Commission dated 31.1.1994 has also been quoted. The Division Bench also found that interpretation of Rule 4 read with Entry 5 of the Schedule given in R.K. Gupta's case was based on a correct approach and approved the aforesaid view. The Division Bench sought support from the fact that there promotion of an Assistant Surveyor of Works was ordered on the basis of degree qualification because on the date of promotion he did not possess qualification of having passed the final examination of Institution of Surveyors (India). On that basis also if passing of qualification for promotion to the post of Assistant Surveyor of Works was not considered handicap then there was no reason to believe that it would be so while considering the case of the Original Applicant-respondent No. 1 for promotion to the post of Surveyor of Works. Accordingly, we hold that C.W.P. No. 18604 of 2004 (O&M) 10 there is no requirement of passing of final examination from the Institution of Surveyors (India) for promotion to the post of Surveyor of Works where the Assistant Surveyor of Works is a degree holder. Therefore, the Original Applicant-respondent No. 1 is entitled to be considered for promotion to the post of Surveyor of Works with effect from the date his juniors have been considered. However, the direction issued by the Tribunal shall be subject to the final outcome of the departmental inquiry initiated in pursuance to the charge sheet dated 28.11.2006 (R-5). It is too late in the day to contend that no charge sheet was pending at the time juniors to the Original Applicant- respondent No. 1 were considered for promotion. The fact remains that today not only the charge sheet is pending but the departmental inquiry is at advance stage and is likely to conclude in view of the time bound direction issued by the Tribunal in O.A. No. 743/PB/2009, which was dismissed on 17.8.2010.
12. As a sequel to the above discussion, the writ petition stands disposed of in the above terms.
(M.M. KUMAR)
JUDGE
(RITU BAHRI)
November 1, 2010 JUDGE
Pkapoor