Allahabad High Court
Ashish Kumar Mishra & Anr. vs State Of U.P.Thru.Prin.Secy.Deptt.Of ... on 15 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2538
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 23.09.2020 Delivered on 15.12.2020 AFR Court No. - 18 Case :- SERVICE SINGLE No. - 8509 of 2020 Petitioner :- Ashish Kumar Mishra & Anr. Respondent :- State Of U.P.Thru.Prin.Secy.Deptt.Of Energy,Lko. & Ors. Counsel for Petitioner :- Laltaprasad Misra, Prafulla Tiwari Counsel for Respondent :- C.S.C., Manish Jauhari, Mohd.Altaf Mansoor, Nitin Kapoor, P.K. Srivastava, Pradip Kumar Srivastava, Renu Mishra Hon'ble Chandra Dhari Singh,J.
1. The petition seeks issuance of a writ in the nature of certiorari for quashing the impugned order dated 20.03.2020 passed by respondent no.4, contained at Annexure 1 to the petition and also to quash the list dated 27.05.2020 issued by respondent no.6 containing names of 30 Junior Engineers.
The petition also seeks to quash the list prepared by respondent no.7 containing names of 30 Junior Engineers who have acquired the B. Tech/AMIE Degree without taking due permission from the appointing authority and command the respondents to consider for promotion and to promote only those Junior Engineers as Assistant Engineers under 8.33% quota as stands prescribed in Regulation 5(1)(d) of the U.P. State Electricity Board Services of Engineers Regulations, 1970 who have acquired B.Tech/AMIE degree after taking permission from the competent authority.
2. The brief facts giving rise to the present petition are stated as under :
i. The petitioners were recruited and appointed as Junior Engineers by direct recruitment through a selection conducted by the Electricity Service Commission of the UPPCL. The petitioners while working as Junior Engineers obtained engineering degree after obtaining due permission from the competent authority.
ii. For making promotion on the post of Assistant Engineers from the post of Junior Engineers under 8.33% quota, a letter dated 07.08.2019 was issued from the office of respondent no.5 calling for applications from the Junior Engineers under the 8.33% quota in the prescribed format accompanied with educational certificates including the diploma/degree, mark-sheet and permission letter/order of the competent authority. A reminder letter dated 06.09.2019 was also issued to this effect. Letter dated 07.08.2019 and 06.09.2019 makes it clear that the names of only those Junior Engineers is to be considered for promotion on the post of Assistant Engineers under the 8.33% quota who have acquired the B.E./AIME Degree after taking due permission from the department for taking admission for pursuing the course of B.E./AIME.
iii. The petitioners submitted their application forms for being considered for promotion on the post of Assistant Engineers to the competent authority, which have been forwarded by the Superintending Engineer to the Chief Engineers vide letter dated 07.09.2019 and 13.09.2019. Total 104 Junior Engineers submitted their application forms on the post of Assistant Engineers under 8.33% quota to the controlling/competent officer. The petitioner no.1 finds place at serial no.53 whereas the name of petitioner no.2 was at Serial No.57.
iv. The Screening Committee scrutinize the application forms as submitted by the Junior Engineers, their character rolls and the personal files of the Junior Engineers and after the said exercise, the committee prepared a list of the suitable candidates for the promotion to the post of Assistant Engineers. The list so prepared was forwarded by the Chairman of Screening Committee to the Board and the Board prepared a final list known as ''select list' containing the names of the candidates from amongst which the promotion is made.
v. The State Government in order to grant relaxation in qualifying service for promotion has framed the Rules known as ''U.P. Government Servants Relaxation in Qualifying Service for Promotion Rules 2006, which was lastly amended on 24.04.2013 vide U.P. Government Servants Relaxation in Qualifying Service for Promotion (First Amendment) Rules, 2013 and the same have been adopted by the Uttar Pradesh Corporation Limited in its 100th Meeting held on 31.07.2013.
vi. Earlier the petitioners have filed a writ petition Service Single No.32367 of 2019 (Ashish Kumar Mishra and another vs. State of U.P. and others) before this Hon'ble Court with the prayer to command to the respondents to consider for promotion and to promote only those Junior Engineers as Assistant Engineers under 8.33% quota as prescribed in Regulation 5(1)(d) of the U.P. State Electricity Board Services of Engineers Regulations, 1970 who have acquired B.Tech/AMIE degree after taking permission from the competent authority. The said writ petition was disposed of vide order dated 25.11.2019 passed by a coordinate Bench of this Court with direction to decide the representation of the petitioners.
vii. In pursuance to order passed by this Court dated 25.11.2019, the petitioners jointly submitted a representation dated 29.11.2019, which has been rejected by the impugned order dated 20.03.2020, contained at Annexure 1 to the writ petition. Therefore, the instant writ petition.
3. Dr. L. P. Mishra, learned counsel for the petitioners has submitted that the petitioners were recruited and appointed as Junior Engineers by direct recruitment through a selection process conducted by the Electricity Service Commission of the U.P.P.C.L. The next promotional post from the Junior Engineer is Assistant Engineer. It is submitted that the said promotion is made in accordance with the U.P. State Electricity Board Services of Engineers Regulations 1970 (for short ''Regulations 1970) which have been framed by the Uttar Pradesh Electricity Board in exercise of Powers conferred under section 79 (c) of the Electricity (Supply) Act, 1948. He has referred the Regulations 5 (1) of the Regulations 1970, which have been amended from time to time. The same reads as under:
5. Source of Recruitment :
(1).As per the rules, the total sanctioned posts of Assistant Engineer for recruitment in the service will be divided into different categories and the proceedings for recruitment/ promotion against vacancies of each category will be done separately every year and the year and the category in which the posts are vacant, the recruitment / promotion shall be made in that category.
(a). for direct recruitment from Trained Engineers - 50.33%
(b).By promotion from amongst members of Junior Engineers in the manner prescribed in Appendix 'C' - 40%
(c). By promotion from amongst the confirmed and qualified computers (Selection Grade) (E/M) in the manner prescribed in Appendix 'C - 1.33%
(d). By promotion from amongst the degree holder Junior Engineers/Computer who have qualified B.E./AIME and have rendered 10 years of qualified service as Junior Engineer/Computer on 1st of July of the selection year.
Provided that the number of posts to be filled against the category (d) shall be divided amongst Junior Engineers and Computers in proportion described above under category (b) and (c).
4. The learned counsel for the petitioners Mr. Mishra has submitted that the petitioners while working as Junior Engineers has obtained B.Tech degree after taking due permission from the appointing authority as for acquiring any degree while remaining in service, the prior permission is required from the appointing/competent authority as per order dated 25.01.1979, issued by the Board which has been followed by another order dated 18.08.1982, providing therein that if, any employee of the Board has taken the admission in any educational institute for acquiring any qualification without the permission of the authority, then disciplinary proceedings will be initiated against such employee and a request be also made to the institute to cancel the admission of such employee.
5. The learned counsel for the petitioners has submitted that the applications were invited for making promotion on the post of Assistant Engineer from the post of Junior Engineer under 8.33% quota vide letter dated 07.08.2019 and the eligible Juniors Engineers who acquired the B.E./AMIE degree submitted their application forms in the prescribed format annexing the copy of the permission. Reminder letter dated 06.09.2019 was also issued to direct the Junior Engineers to submit attested copy of permission letter granted by the department. The petitioners have also submitted their application forms in the prescribed format.
It has also been submitted by the learned counsel for the petitioners that the select list so forwarded to respondent no.6 by respondent no.7 includes the several names of Junior Engineers who have acquired B.E./AMIE degree without taking due permission from the competent authority, which is utter violation of the order dated 07.08.2019 and 06.09.2019. Learned counsel submits that on earlier occasion when the respondents were going the promote those Junior Engineers who have acquired the degree of B.E./A.M.I.E. without taking due permission from the competent authority, the petitioners have filed a Writ Petition Service Single No.32367 of 2019 (Ashish Kumar Mishra and another vs. State of U.P. and others) before this Hon'ble Court, which has been disposed of vide judgment and order dated 25.11.2019. While disposing of the aforesaid writ petition, the Hon'ble Court has been pleased to direct the respondents to decide the representation in accordance with law within a period of three weeks in terms of Circular dated 07.08.2019.
6. Learned counsel for the petitioners Sri Mishra, has submitted that in pursuance to order dated 25.11.2019, the petitioners submitted a joint representation to the U.P. Power Corporation Limited and the same was rejected by the impugned order dated 20.03.2020 in an illegal and arbitrary manner without considering the facts and without application of mind.
7. Learned counsel for the petitioners has submitted that the Managing Director while passing the impugned order has failed to consider the true import and purport of the Circular issued by the Board on 25.01.1979 and 18.08.1982 which inter-alia provides that acquiring educational qualification while in service of UPPCL without its permission is a misconduct. The Managing Director also failed to consider the import and purport of the letter dated 07.08.2019 issued by the opposite party no. 5 wherein it was clearly mentioned that the Junior Engineers who have not submitted the attested copies of educational certificates and the permission letter/order their name shall not be considered for promotion under 8.33% quota. Further, while rejecting the representation of the petitioners, the Managing Director instead of placing reliance on the letter dated 07.08.2019 has placed reliance on the condition No. 17 of proforma attached with the letter dated 07.08.2019 which indeed also supports the case of the petitioners, in as much as, the said condition was mentioned in the proforma only in order to consider those Junior Engineers for promotion to the post of Assistant Engineers under 8.33% quota who have taken due permission from the department for acquiring degree.
8. It has also been submitted by the learned counsel for the petitioners that while passing the impugned order, the Managing Director has failed to consider that the Circulars issued by the Board were supplemental to the Regulations, 1970 as the Regulations, 1970 are silent on the issue of acquiring degree without the permission of the Department. It is more than well settled that if, the Rules of Regulations are silent on some issues then the same can be supplemented and supplanted by the Government orders i.e. Board Circulars in the case in hand. The Managing Director while placing reliance on office circular dated 11.07.1996, whereby the procedure of making promotion was prescribed has recorded that in the procedure nowhere it has been provided that the Junior Engineers who have not taken permission for obtaining Engineering/A.M.I.E. Degree while remaining in service cannot be promoted to the post of Assistant Teacher under 8.33 % quota but while giving the said finding has failed to consider that the competent authority i.e. the Apex Body of the Corporation had already taken a decision that obtaining an Engineering/A.M.I.E. degree while remaining in service of the corporation without obtaining prior permission for undertaking such a course is a misconduct. An act of commission or omission constituting a misconduct cannot at all form the edifice of eligibility for promotion to a higher post.
9. It is submitted that the reason assigned by the Managing Director in the impugned order to the effect that Board Circular dated 18.08.1982 does not puts a bar for making promotion of Junior Engineers who have acquired the degree without the permission of the Department is completely misconceived, in as much as, the admission taken by a Government Servant in an academic course without prior permission of the competent authority constitutes 'misconduct' and any person who has committed 'misconduct' cannot be awarded by promotion to higher post for obtaining degree unauthorisedly.
10. In support of the arguments, learned counsel for the petitioners Dr. L. P. Mishra has relied upon the judgments of Hon'ble the Apex Court in the cases reported at (2013) 16 SCC 147 [Union of India and another vs. Ashok Kumar Aggarwal]; (2008) 4 SCC 171 [Dhananjay Malik and others vs. State of Uttaranchal and others]; (1998) 8 SCC 753 [State of Orrisa and others vs. Mamtarani Sahoo and another]; (1999) 7 SCC 84 [Paper Products Ltd. vs. Commissioner of Central Excise]; and (2007) 2 SCC 326 [Commissioner of Income Tax, Bhopal vs. Ralson Industries Ltd.]
11. Per contra, the learned counsel appearing on behalf of the respondents vehementaly opposed the submissions made by the learned counsel for the petitioner and submitted that all private respondents have obtained AMIE degree (except opposite party no.10 who had already obtained B.E. degree in the year 1993). The learned counsel further submitted that for obtaining the AMIE degree, there are no requirement for prior permission from the higher authorities as per the office order dated 19.12.1985. It is submitted that the present writ petition filed by the petitioners is nothing but sheer abuse of the process of the law as the petitioners have not come with clean hands before this Hon'ble Court as they have not only concealed the material information from this Hon'ble Court but have deliberately tried to mislead this Hon'ble Court by showing incorrect and misleading documents. The private respondents, admittedly, have requisite qualification required for being eligible for the selection on the promotional posts of Assistant Engineer and they all are senior to the petitioners. They have been selected by the Screening/Selection Committee. He has referred the Office Order No.3293-N-IX/FEB/85 dated 19.12.1985 by which no requirement of any permission for departmental employees for joining AMIE Engineering Course. However, it was made obligatory on the employee concerned only to intimate / inform the Board/appointing authority through his/her superior officer about joining in A.M.I.E. Engineering Course.
12. The learned Standing Counsel has also submitted that all private respondents in pursuance of the aforesaid office memo dated 19.12.1985 had already informed/intimated their respective appointing authorities through their superior officers about pursuing A.M.I.E. Engineering Course, which has already been forwarded by the superior authorities to their higher authorities for necessary and further action. The petitioners had done B.E. (Part Time/Evening Classes) while in the services of the respondent department. For doing B.E. (Part-Time/Evening Classes), which is not a correspondence course, therefore, it is required attendance and therefore, permission of the employer is mandatory. For the doing said regular Engineering course, an employee has to obtain permission from the authorities concerned in terms of the Office Order No.1717-N.G.-09 (A)/RA.VI.P./88-62-K-85 dated 27.05.1988, whereby it was made mandatory to obtain requisite permission from the Authorities concerned for doing B.E. (Part-Time/Evening Classes) course but for the AMIE course, where there is no requirement of attending regular classes, it was only obligatory on the part of the employee to intimate/inform their respective appointing authorities through their superiors which in the present case had been done by all the private respondents.
13. It is also submitted that reliance of the petitioners on circulars dated 07.08.2019 & 06.09.2019 (Annexure No.8 & 9 to the Writ Petition) is also totally unwarranted and misconceived and there is nothing in the said circular that suggest that permission for doing AMIE course is mandatory, whereas the said circulars were issued to seek certain information and do not lay down any mandatory guidelines, thus, will have no impact on the position of the private respondents. Such circulars can not override the Office Order dated 19.12.1985 which were issued particularly for a specific purpose whereby it had been categorically provided that there was no requirement of any permission for departmental employees for joining AMIE Engineering Course. It is further submitted that there is no Rule or Regulation or Order that the permission is required even for appearing in A.M.I.E examinations and that an employee who had not taken prior permission shall not be eligible for consideration for promotion on the Post of Assistant Engineer against 8.33% quota.
14. Learned counsel for the respondents has submitted that letter dated 20.05.2020 was issued only to collect the information of disciplinary proceedings of employees under 8.33% quota. Vide letter dated 07.08.2019, it is evident that it was only the information which the department seeks from the employees. There was no such arrangement made by the department for those employees who have obtained their degree without the permission by the department will be deprived of promotion. It has also been submitted that the eligibility for promotion on the post of Assistant Engineer against 8.33% quota has been provided in the Regulations namely U.P.S.E.B. Service Engineers Regulations 1970 as amended on 28.11.2014. There is no rule or office order that permission was required for appearing in the examination of AMIE and that an employee who had not taken permission shall not be eligible for promotion on the post of Assistant Engineer against 8.33% quota. All the private respondents have granted the certificate of clearing AMIE examination and they appearing after giving prior permission/intimation to their superior officers/ competent authorities.
It is pertinent to mention that the permission is only required for the employees who have obtained the degree from the courses where the attendance were required for obtaining such degree i.e. B.E. (Part Time/Evening Classes) but in the course of AMIE, which is a correspondence course, no attendance is required. Therefore, the petitioner has failed to make out any case for interference and thus, the present petition has no merit and it is liable to be dismissed.
15. Pleadings have been completed by way of counter affidavits and rejoinder affidavits which are already on the record.
16. I have given our anxious consideration to the submissions made by the learned counsel for the parties and also perused the pleadings on record.
17. The moot questions arose for consideration in the present writ petition are that -
i. Whether is it case of the petitioners that private respondents have obtained degree without obtaining the permission of the competent authority as required ?
ii. Whether the Government can, by way of administrative instructions, fill up the gaps and supplement the Rules and issue instructions not in consistent with the Rules already framed, if Rules are silent on any particular point ?
iii. Whether in the case of the private respondents who have been admittedly obtained AMIE Degree, which is a correspondence course and in that case, prior permission is required or not ?
18. For the proper adjudication of the instant writ petition, the Court has to examine the Circulars of the Government issued from time to time. The respondents have relied on the office order No.3293-N-IX/FEB/85 dated 19.12.1985 which provides that prior permission is not required when the employee obtained the engineering degree from the course of AMIE. For ready reference, the office order dated 19.12.1985 is reproduced as under :
UTTAR PRADESH STATE ELECTRICITY BOARD "SHAKTI BHAWAN", 14-ASHOK MARG, LUCKNOW No.3293-N-IX(A)/FEB/85 Date: Dec,19,1985 All General Managers/Chief Engineers/ Chief Zoal Engineers/Addl. Chief Engineers/ Chief Project Managers, U.P.State Electricity Board, SUBJECT: Permission for joining BE/AMIE Engineering Degree course in case of departmental employees.
Sir, Kindly refer Board's letter No. 632-K-IX(A)/SEB/85, dated 14-2-1985 on the subject mentioned above.
On re-consideration Board have decided to withdraw the above order (in part) only to the extent that no restrictions shall be imposed on Field Authorities in granting permission for joining AMIE Engineering Course to the departmental employees.
It will be obligatory on the employee concerned to intimate the Board/appointing authority through his superior officer about his joining AMIE Engineering course.
Orders in R.O.No. 632-K-IX(A)-SEB/85, dt. 14-2-85 in respect of permission for admission to B.E. Degree course shall, however, stand without any change.
I am directed to say that necessary action in the matter may kindly be taken accordingly.
Yours Faithfully, Sd/- illegible ( O.P.Gupta) JOINT SECRETARY No.3293(1)K-IX(A)/SEB/85 of date.
Copy forwarded to all Superintending Engineers, U.P.State Electricity Board, with reference to Board's Letter No. 632-K-IX(A)/SEB/85, dt. 14-2-1985 for information and necessary action.
By Order, Sd/- illegible (O.P.Gupta) JOINT SECRETARY
19. The other important Circular is of dated 27.05.1988, which is quoted as under :
ch0 bZ0 v/;;u gsrq vuqefr dk fu;e fnukad% ebZ 27]1988 la0 1717 ,u- th-&09 ¼v½ @jk- fo- i- @88&62&ds @85 dk;kZy; Kki ifj"kn esa dk;Zjr deZpkfj;ksa dks ch0bZ0 ¼ikVZ Vkbe½ ds v/;;u djus gsrq iwoZ esa fuxZr fd;s x;s lHkh vkns'kksa dk vfrdze.k djrs gq, lE;d fopkjksijkUr ifj"kn lg"kZ vkns'k nsrs gaS fd vc ls vjktif=r deZpkfj;ksa dks ch0bZ0¼ikVZ Vkbe½ ds v/;;u gsrq vuqefr dsoy eq[; vfHk;Urk ¼ty fo|qr½ m0 iz0 jkT; fo|qr ifj"kn] y[kuÅ }kjk v/kksfyf[kr izfrcU/kksa ds lkFk iznku dh tk,xh%& ¼1½ ,d f'k{kk l= esa mi;qZDr vuqefr fdlh dk;kZy; esa dk;Zjr deZpkfj;ksa dh dqy la[;k ds 10 izfr'kr ls vf/kd deZpkfj;ksa dks vuqeU; ugha gksxhA ¼2½ ;fn vuqefr iznku djus ds mijkUr ,slk izrhr gksrk gS fd ftl deZpkjh dks mDr vuqefr iznku dh xbZ gS mlls mlds dk;Z esa f'kfFkyrk vk xbZ gS ;k mlds dk;Z lEiknu esa gkl mRiUu gks x;k gS vFkok mDr vuqefr nsuk ifj"knh; fgr esa ugha gS] rks fdlh Hkh le; fcuk fdlh iwoZ lwpuk ds mldh vuqefr fujLr dh tk ldsxhA ¼3½ dsoy mu deZpkfj;ksa dks v/;;u dh vuqefr iznku fd;s tkus ij fopkj fd;k tk,xk tks izs"[email protected] {ks= ds vUrxZr ,d gh LFkku ij 3 o"kZ ls de rFkk rki@ty fo|qr ifj;kstukvksa ij 5 o"kZ ls de le; ls dk;Zjr gksaA bl vof/k ls vf/kd mDr fo'ks"k LFkku ij dk;Zjr deZpkfj;ksa dks v/;;u dh vuqefr iznku ugha dh tk;sxhA ¼4½ deZpkjh dks v/;;u dh vuqefr dsoy mruh gh vof/k ds fy, nh tk,xh ftruh vof/k ml ikB~;dze fo'ks"k ds fy, fu/kkZfjr gSA vifjgk;Z dkj.kksa ls ¼ftldk iwoZ fooj.k miyC/k djkuk vko';d gksxk½ fo'ks"k ifjfLFkfr esa ek= ,d ikB~;dze rd bls c<+k;k tk ldrk gSA blls vf/kd dh vuqefr ugha nh tk,xhA ¼5½ v/;;u dh vuqefr izkIr djus gsrq deZpkfj;ksa ds izkFkZuk&i= ,oa opu&i= (Undertaking) fu/kkZfjr izi= ij ¼layXud&1½ lEcfU/kr {ks=h; vf/kdjh }kjk viuh laLrqfr ds lkFk vkxkeh dk;Zokgh gsrq eq[; vfHk;Urk ¼ty fo|qr½ dks izsf"kr fd;s tk,axsA ¼6½ fu/kkZfjr izi= ij vuqefr izkIr djus ds izLrko l= vkjEHk gksus dh fnukad ls de ls de 60 fnu iwoZ eq[; vfHk;Urk ¼ty fo|qr½ dks vo'; miyC/k gks tkus pkfg,A ¼7½ deZpkjh dks ,d ikB~;o"kZ ds fy, v/;;u dh vuqefr iznku dj fn;s tkus ds ckn vxys ikB~;o"kZ ds fy, iqu% vuqefr izkIr gks tkus ds mijkUr gh v/;;u tkjh fd;k tk ldrk gSA ¼8½ vuqefr ds uohuhdj.k ds ekeys eq[; vfHk;Urk ¼ty fo|qr½ dks izsf"kr djrs le; deZpkjh dh fiNys l= ds vad&i= (Marks-sheet) dh izekf.kr QksVks&izfrfyfi Hkh miyC/k djkuk vfuok;Z gksxkA ¼9½ ,sls deZpkjh tks oh0bZ0 ¼ikVZ Vkbe½ dh lqfo/kk iznku djus okys laLFkku ds uxj ls fdlh vU; uxj esa rSukr gS] rFkk mUgksaus ifj"kn esa rhu o"kZ dh fu;fer lsok iw.kZ dj yh gS] ;fn mUgsa fdlh laLFkku esa v/;;u gsrq izos'k lqfuf'pr gks tkrk gS rks oSlh fLFkfr esa vU; vkSipkfjdrkvksa ds iw.kZ gksus ij bu deZpkfj;ksa dks ikVZ Vkbe v/;;u dh vuqefr iznku fd;s tkus esa dksbZ vkifRr ugha gsxh fdUrq izfrcU/k ;g gksxk fd v/;;u ds mÌs'; gsrq bu deZpkfj;ksa ds LFkkukUrj.k ij dksbZ fopkj ugha fd;k tk;sxk cfYd mUgsa foRrh; gLr&iqfLrdk Hkkx ¼2½] [k.M 2 ls 4 ds ewy fu;e 84 rFkk lgk;d fu;e 146 ¼,½ ¼layXud&2½ ds vUrxZr fcuk osru ds v/;;u vodk'k dk miHkksx djrs gq, v/;;u iw.kZ djuk gksxkA deZpkjh ls bl vk'k; ds lgefr i= izkIr gks tkus ij gh mUgs vuqefr iznku fd;s tkus ij fopkj fd;k tk ldsxkA ¼10½,sls deZpkjh tks0 ch0bZ0 ¼ikVZ Vkbe½ ds v/;;u dh lqfo/kk iznku djus okys laLFkku ds uxj esa gh rSukr gSa vkSj mUgsa ,d ikB~;l= ds fy, vuqefr iznku dh tk pqdh gS] LFkkukUrfjr gksus ij muds LFkkukUrj.k dks bl vk/kkj ij jksds tkus ij dksbZ fopkj ugha fd;k tk,xk fd os ,d ikB~;&l= iwjk dj pqds gSa vkSj 'ks"k ikB~;&l= mUgs iwjs djus gSA nwljs rFkk vuqorhZ ikB~;&l=ksa dks iwjk djus dh vuqefr mUgsa bl izfrcU/k ds lkFk nh tk ldrh gS fd os mijksDr izLrj ¼9½ esa n'kkZ;h xbZ fLFkfr ds vuqlkj v/;;u vodk'k dks Lohd`r djkdj ikB~;&l= iwjk djsaA 2- iwoZ esa ifj"kn }kjk ftu deZpkfj;ksa dks ch0 bZ0 ¼ikVZ Vkbe½ ds v/;;u gsrq vuqefr iznku dh tk pqd gS] mUgsa vxys ikB~;&l= esa v/;;u gsrq ;fn vuqefr ds uohuhdj.k dh vko';drk gksrh gS rks ,sls ekeys Hkh mijksDr izfrcU/kksa ds lkFk eq[; vfHk;Urk ¼ty fo|qr½ }kjk gh fuLrkfjr fd, tk,axsA lnL; lfpo vuqyXud&1
20. The Circular dated 07.08.2019 of the U.P. Power Corporation Limited is quoted as under :
dk;kZy; eq[; vfHk;Urk ¼gkbfMªy½ m0 iz0 ikoj dkjiksjs'ku fy0 r`rh; ry] 'kfDr Hkou foLrkj 14& v'kksd ekxZ] y[kuÅA nwjHkk"k % 0522&2288656 bZesy% [email protected] QSDl% 0522&2288655 la[;k 564&vuq0&izFke@2019 fnukad 07 vxLr 2019 fo"k;% fu;fer ch0bZ0@,0 ,e0 vkbZ0 bZ0 fMxzh/kkjh voj vfHk;ark ¼fo0 ,oa ;ka0@flfoy½ ls lgk;d vfHk;Urk ¼fo0 ,oa ;ka0@flfoy½ in ij izksUufr ds lEcU/k esa okafNr ch0 bZ0@,0 ,e0 vkbZ0 bZ0 fMxzh miyC/k djkus tkus ds lEcU/k esaA 1- izcU/k funs'kd] iwokZUpy@if'pekapy@e/;kapy@nf{k.kkapy@dsLdks] fo0 fo0 fu0 fy0 okjk.klh@esjB@y[kuÅ@vkxjk@dkuiqjA 2- funs'kd ¼dk0 iz0 ,oa iz'kk0½ m0 iz0 ikoj Vªkalfe'ku] dkjiksjs'ku fy0 y[kuÅA 3- leLr dkjiksjsV dk;kZy; ¼eq[; vfHk;ark&iwtk ,oa ys[kk½] fu;kstu] ih0 ih0 ,0] bZ0 Vh0 vkbZ0] fo|qr lsok vk;ksx] tkWp lfefr lh0 ,e0 ;w0 Mh0] jsLiks lkexzh izcU/k dEI;qVjkbZts'ku ;wfuV] ijh{k.k vfHk;Urk ¼tkuin½ eq[;ky;] la;qDr lfpo iz'kkluA d`i;k mijksDr fo"k;d ds lEcU/k esa voxr djkuk gS fd voj vfHk;Urk ¼oh0 ,oa ;ka0@flfoy½ dk fudV Hkfo"; esa lgk;d vfHk;Urk ¼oh0 ,oa ;ka0@flfoy½ ds in ij izksUufr gsrq fopkfjr fd;k tkuk gSA vr% vuqjks/k gS fd d`i;k ,sls voj vfHk;arkvksa tks 8-33 izfr'kr dksVs ds vUrxZr izksUufr dk fodYi pkgrs gS] muds vkosnu fu/kkZfjr layXu izk:i ¼Nk;kizfr layXu½ esa [email protected],V@fMIyksek@ fMxzh vadi= ,oa vuqefr i=@Kki vkfn dh lR;kfir izfr ds lkFk vius fu;a=d vf/kdkjh@l{ke vf/kdkjh ds ek/;e ls bl dk;kZy; dks miyC/k djk;s tkus gsrq lEcfU/kr vf/kdkjh dks vius Lrj ls funsZf'kr djus dk d"V djasA mDr ds lEcU/k esa lwpuh; gS fd ftu voj vfHk;arkvksa us iwoZ esa 8-33 izfr'kr dksVs dk fodYi ds vUrxZr viuh fMxzh bl dk;kZy; dks miyC/k djk;h gS] os fu/kkZfjr izk:i ij ugh gSA rFkk muds lkFk mDr vfHkys[kksa dh lR;kfir izfr;kW Hkh layXu ugh gS] ftUgsa inksUufr gsrq fopkfjr fd;k tkuk fu;ekuqdwy ugh gksxkA vr% iwoZ esa ftu voj vfHk;arkvksa us 8-33 izfr'kr dksVs dk fodYi ds vUrxZr viuh fMxzh bl dk;kZy; dks miyC/k djk;h gS os fu/kkZfjr izk:i ij leLr layXuksa lfgr iqu% bl dk;kZy; dks miyC/k djk;saA ^^mYys[kuh; gS fd nwjLFk f'k{kk ds ek/;e ls izkIr fMxzh ekU; ugh gSA** mDr ds vfrfjDr ;g Hkh vuqjks/k gS fd d`i;k vius fMLdke esa dk;Zjr ,sls voj vfHk;ark tks fodykax dksVs ds vUrxZr 40% ,oa 8-33% {kSfrt dksVs esa izksUufr gsrq bPNqd gS rFkk 10 o"kZ dh vgZdkjh lsok iw.kZ dj pqds gksA muds fu/kkZfjr fodykaxrk izek.k i= rFkk fMxzh rFkk vad i= dh lR;kfir izfrfyfi ds lkFk lkFk bl ckr dk izek.k i= Hkh miyC/k djkuk lqfuf'pr djsa fd vki ds }kjk lwfpr fodykaxtu ds vykok vkids fMLdke esa vU; dksbZ Hkh voj vfHk;ark fodykaxtu dksVs ds vUrxZr izksUUkfr gsrq bPNqd ugh gSA mYys[kuh; gS fd m0 iz0 ik0 dk0 fy0 ds Kki la[;k&1238&ikdkfy@jkfoi&28@10¼2½ia0,.Mvkj0&28@idkfy@01&Vh0 lh0&01 fnukad 16-05-2012 ds vuqlkj fodykaxtu izek.k i= tkjh djus ds fy, jkT; ljdkj }kjk fof/kor :i ls xfBr esfMdy cksMZ l{ke izkf/kdkjh gSA layXu%& ;Fkk mijksDrA ¼mes'k flag ;kno½ oS;fDrd lgk;d&iape d`rs eq[; vfHk;ark ¼gkbfMªy½ l0 vuq0&izFke@rn~fnukad% vxLr 2019 izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr%& 1- funs'kd ¼dk0 izca0 ,oa iz'kk0½] m0 iz0 ikdkfy] 'kfDr Hkou] y[kuÅA 2- m0 iz0 jkT; fo|qr mRiknu fuxe fy0@m0 iz0 jkT; ty fo|qr fuxe fy0 dks bl vk'k; ls dh vius fuxeksa esa izfrfu;qDr ij rSukr m0 iz0 ikoj dkjiksjs'ku fy0 ds voj vfHk;arkvksa ds laca/k esa okafNr lwpuk rRdky voxr djkus dk d"V djsaA 3- vf/k'kklh vfHk;Urk ¼osc½] m0 iz0 ikoj dkjiksjs'ku fy0 'kfDr Hkou foLrkj] y[kuÅ dks bl vk'k; ds izsf"kr gS fd bls dkjiksjs'ku dh osclkbV ij viyksM djuk lqfuf'pe djasA g0 viBuh;
07-08-19 ¼mes'k flag ;kno½ oS;fDrd lgk;d&iape d`rs eq[; vfHk;ark ¼gkbfMªy½
21. The other circular is of dated 06.09.2019, which on reproduction reads as under :
dk;kZy; eq[; vfHk;Urk ¼gkbfMªy½ m0 iz0 ikoj dkjiksjs'ku fy0 r`rh; ry] 'kfDr Hkou foLrkj 14& v'kksd ekxZ] y[kuÅA nwjHkk"k % 0522&2288656 bZesy% [email protected] QSDl% 0522&2288655 la[;k 717&vuq0&izFke@2019 fnukad 06 flrEcj 2019 fo"k;% fu;fer ch0bZ0@,0,e0vkbZ0bZ0 fMxzh/kkjh voj vfHk;ark ¼fo0 ,oa ;ka0@flfoy½ ls lgk;d vfHk;Urk ¼fo0 ,oa ;ka0@flfoy½ in ij izksUufr ds lEcU/k esa okafNr ch0 bZ0@,0 ,e0 vkbZ0 bZ0 fMxzh miyC/k djkus tkus ds lEcU/k esaA bZ&esy 1- izcU/k funs'kd] iwokZapy@if'pekapy@e/;kapy@nf{k.kkapy@dsLdks] fo0 fo0 fu0 fy0A okjk.klh@esjB@y[kuÅ@vkxjk@dkuiqjA 2- funs'kd ¼dk0 iz0 ,oa iz'kk0½ m0 iz0 ikoj Vªkalfe'ku] dkjiksjs'ku fy0 y[kuÅA 3- leLr dkjiksjsV dk;kZy; ¼eq[; vfHk;ark&iwtk ,oa ys[kk½] fu;kstu] ih0 ih0 ,0] bZ0 Vh0 vkbZ0] fo|qr lsok vk;ksx] tkWp lfefr lh0 ,e0 ;w0 Mh0] jsLiks lkexzh izcU/k dEI;wVjkbZts'ku ;wfuV] v/kh{k.k vfHk;Urk ¼tkuin½ eq[;ky;] la;qDr lfpo iz'kkluA d`i;k mijksDr fo"k; bl dk;kZy; ds i= la[;k&564@vuq0&izFke fnukad 07-08-2019 dk lUnHkZ xzg.k djus dk d"V djs ftlds }kjk ,sls voj vfHk;Urk tks 8-33 izfr'kr dksVs ds vUrxZr izksUufr dk fodYi pkgrs gS] muds vkosnu fu/kkZfjr layXu izk:i ¼Nk;k izfr layXu½ esa [email protected],V@fMIyksek@fMxzh vadi= ,oa vuqefr i=@Kki vkfn dh lR;kfir izfr ds lkFk vius fu;a=d vf/kdkjh@l{ke vf/kdkjh ds ek/;e ls bl dk;kZy; dks miyC/k djk;s tkus gsrq lEcfU/kr vf/kdkjh dks vius Lrj ls funsZf'kr djus gsrq vuqjks/k fd;k x;k FkkA vfHkys[kksa ds ijh{k.kksijkar voxr djkuk gS fd lEcfU/kr voj vfHk;arkvksa ds tks vfHkys[k izsf"kr fd;s tk jgs gS mlesa fMxzh gsrq foHkkx ls izkIr vuqefr&i= layXu ugh gSA vr% vuqjks/k gS fd d`i;k lEcfU/kr voj vfHk;arkvksa ds fMxzh gsrq foHkkx ls izkIr vuqefr&i= dh lR;kfir izfrfyfi bl dk;kZy; dks miyC/k djkus gsrq lEcfU/kr dks funsZf'kr djus dk d"V djasA layXu%& ;Fkk mijksDrA ¼mes'k flag ;kno½ oS;fDrd lgk;d&iape d`rs eq[; vfHk;ark ¼gkbfMªy½ l0&717&vuq0&izFke@rn~ fnukad% 06 flrEcj 2019 izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr%& 1- funs'kd ¼dk0 izca0 ,oa iz'kk0½] m0 iz0 ikdkfy] 'kfDr Hkou] y[kuÅA 2- m0 iz0 jkT; fo|qr fy0@m0 iz0 jkT; ty fo|qr fuxe fy0 dks bl vk'k; ls dh vius fuxeksa esa izfrfu;qDr ij rSukr m0 iz0 ikoj dkjiksjs'ku fy0 ds voj vfHk;arkvksa ds laca/k esa okafNr lwpuk rRdky voxr djkus dk d"V djsaA 3- vf/k'kklh vfHk;Urk ¼osc½] m0 iz0 ikoj dkjiksjs'ku fy0 'kfDr Hkou foLrkj] y[kuÅ dks bl vk'k; ds izsf"kr gS fd bls dkjiksjs'ku dh osclkbV ij viyksM djuk lqfuf'pr djasA g0 viBuh;
06-09-19 ¼mes'k flag ;kno½ oS;fDrd lgk;d&iape d`rs eq[; vfHk;ark ¼gkbfMªy½
22. By means of the present petition, the petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 20.03.2020 passed by the respondent no.4 and also issuance of a direction in the nature of certiorari quashing the list dated 27.05.2020 issued by the opposite party no.6. It is further prayed for a mandamus commanding the respondents to promote the petitioner as per Regulation 5(1)(d) of the ''Regulations 1970' under 8.33% quota in terms of the circular dated 07.08.2019.
23. A specific averments have been made in the writ petition and the learned counsel appearing on behalf of the petitioners has vehemently submitted that the private respondents have acquired the B.Tech./AMIE Degree without taking due permission from the department, thus, forwarding of their names by the Screening Committee, are illegal and contrary to Regulation 5(1)(d) of the ''Regulations 1970'.
24. The petitioners represented their case before the competent authority in pursuance to order dated 21.11.2019 passed by a coordinate Bench of this Court in Writ Petition Service Single No.32367 of 2019. The competent authority, after considering the case of the petitioners has passed the order, which is impugned in this petition. The relevant portion is quoted as under:
"mDr vkns'kksa ds n`f"Vxr] vki }kjk ,d la;qDr izR;kosnu fnukad 29-11-2019 izLrqr fd;k x;k] ftlesa ewy :i ls fuEukafdr fcUnqvksa dk mYys[k djrs gq;s] ;g vuqjks/k fd;k x;k gS fd ,sls voj vfHk;Urkvksa dks ftUgksusa fcuk foHkkx dh vuqefr izkIr fd;s f'k{kk xzg.k dh gS] dks inksUufr izfdz;k ls ckgj fd;k tk,%& eq[; vfHk;Urk ty fo|qr ds dk;kZy; i=kad la[;k 564&vuq0&izFke@2019] fnukad 07-08-2019 }kjk tkjh i= esa 8-33% dksVs ds vUrxZr izksUufr gsrq ekaxs x;s vkosnu esa Li"V :i ls mYys[k fd;k x;k Fkk fd fMxzh /kkjh voj vfHk;Urkvksa dks vius leLr izek.k i=ksa ds lkFk mPp f'k{kk gsrq foHkkx }kjk tkjh vuqefr i= dh lR;kfir izfr layXu djuk vko';d gS ,oa fcuk vuqefr i= ds vkosnu djus okys vkosndksa ds vkosnuksa ij izksUufr gsrq fopkj djuk fu;ekuqdwy ugha gksxkA 4- mDr ds vfrfjDr] foHkkxh; dkfeZdksa dh izksUufr gsrq fu/kkZfjr dh x;h izFke izfdz;k ls lEcfU/kr dk;kZy; Kki la[;k&1327] fnukad 11-07-1996 esa Hkh dgh ;g O;oLFkk ugha gS fd ;fn fdlh lsod }kjk fcuk foHkkxh; vuqefr fy;s mPp f'k{kk izkIr dh tkrh gS rks mls foHkkxh; izksUufr esa bl f'k{kk ls gksus okys fdlh ykHk ls oafpr j[kk tk;sxkA 5- rRdkyhu jkT; fo|qr ifj"kn ds mDr vkns'k fnukad 18-08-1982 esa dgha Hkh ;g mYys[k ugh gS fd ;fn fdlh voj vfHk;Urk }kjk fcuk foHkkxh; vuqefr ds fMxzh izkIr dh x;h gS rks mls lgk;d vfHk;Urk ds in ij izksUur gsrq fu/kkZfjr 8-33 izfr'kr dksVs ds vUrxZr p;u gsrq vgZ ugha ekuk tk;sxk vFkok mls izksUufr ls oafpr j[kk tk;sxkA 6- eq[; vfHk;Urk ¼ty fo|qr½ }kjk fuxZr vkns'k la[;k&564] fnukad 07-08-2019 ,oa rRifjizs{; esa fuxZr vuqLej.k i= la[;k&717] fnukad 06-09-2019 ds lkFk layXu fd;s x;s izk:i ds fcUnq la-&17 esa fuEukafdr mYys[k gS%& "Whether permission from competen authority for joining BE/AMIE course accorded? If yes, indicate reference no. and enclosed a copy thereof."
vFkkZr Li"V gS fd fu/kkZfjr izk:i ds fcUnq la0 17 ds vUrxZr ek= lwpuk ekaxh tk jgh gS u fd ;g O;oLFkk nh tk jgh gS fd fcuk vuqefr izkIr fd;s fMxzh /kkjdks dks p;u ls oafpr j[kk tk;sxkA 7- mDr ds vfrfjDr izLrqr fd;s x;s vH;kosnu esa ,d ,sls gh izdj.k dk mYys[k djrs gq;s ek- mPp U;k;ky;] bykgkckn esa nkf[ky dh x;h ;kfpdk la[;k&6544@1999 esa fn;s x;s ftl fu.kZ; dks lUnfHkZr fd;k tk jgk gS] mldk iz'uxr izdj.k ls dksbZ lEcU/k ugh gS] D;ksfd ;kfpdk la[;k&6544@1999 esa fn;k x;k fu.kZ; lEcfU/kr ;kfpdk esa mBk;s x;s fcUnqvks ds ifjizs{; esa gSA vr% mDr ds ifjizs{; esa] vki ls izkIr izR;kosnu fnukad 05-12-2019 of.kZr ifjfLFkfr;ksa esa Lohdkj fd;s tkus ;ksX; ugha ik;k tkrk gS ,oa bls rn~uqlkj fuLrkfjr fd;k tkrk gSA"
25. The case of the private respondents is that AMIE course is not a regular course and it is a correspondence course, therefore, the permission is not required and only intimation/information to his superior officers is to be given. The department of energy has also stated that the information was given by the private respondents for pursuing the AMIE degree course.
26. AMIE is a B.Tech level examination in engineering, recognized by all State Governments, Central Governments, AICTE, UPSC etc as equivalent to B.E/B.Tech. AMIE is that, it is a recognized Engineering Degree Course that can be studied in distance education mode. It is admitted fact that all private respondents (except respondent no.10) have obtained engineering degree through AMIE degree course and not from regular classes.
27. From the facts revealed through the instant petition and the affidavits filed by the respective parties, it is clear that the private respondents have obtained the graduation certificate in Engineering from AMIE degree course, which is a B.Tech. level examination in engineering recognized by all State Governments for which regular classes are not required.
28. If any course which is not required for regular classes for obtaining a degree, whether is it 'misconduct' committed by the private respondents?
29. The question is what is misconduct? In normal service parlance the term 'misconduct' implies a wrongful intention and not a mere error of judgment. The word 'misconduct' is to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. In usual parlance, 'misconduct' means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand. 'Misconduct' is a forbidden quality of an act and is necessarily indefinite. 'Misconduct' in office may be defined as unlawful behaviour or neglect by a public officer of his duties i.e. devotion to duty.
30. Hon'ble the Apex Court in the case of Union of India and others vs. Harjeet Singh Sandhu; (2001) 5 SCC 593 ( in para 22) held as under:
"In the context in which the term misconduct has been used in Rule 14, it is to be given a wider meaning and any wrongful act or any act of delinquency which may or may not involve moral turpitude, would be misconduct, and certainly so, if it is subversive of army discipline or high traditions of army and/or if it renders the person unworthy of being retained in service. The language of sub-rule(2) of Rule 14 employing the expression the reports on an officers misconduct uses reports in plural and misconduct in singular. Here plural would include singular and singular would include plural. A single report on an officers misconduct may invite an action under Section 19 read with Rule 14 and there may be cases where there may be more reports than one on a singular misconduct or more misconducts than one in which case it will be the cumulative effect of such reports on misconduct or misconducts, which may lead to the formation of requisite satisfaction and opinion within the meaning of sub-rule (2) of Rule 14.
31. Hon'ble the Apex Court in the case of Baldev Singh Gandhi vs. State of Punjab and others (2002) 3 SCC 667 has held as under:
"Misconduct' has not been defined in the Act. The word 'misconduct' is antithesis of the word 'conduct'. Thus, ordinarily the expression 'misconduct' means wrong or improper conduct, unlawlful behaviour, misfeasance, wrong conduct, misdemeanour etc. There being different meaning of the expression 'misconduct', we, therefore, have to construe the expression 'misconduct' with reference to the subject and the context wherein the said expression occurs. Regard being had to the aims and objects of the statute. The appellant herein is an elected municipal councilor to a democratic institution i.e. local body. The aim and object of the Act is to make better provisions for administration of municipalities. The municipality is a democratic institution of self governance consisting of local people and for the local people and by the local people. The prime object of the local body is to serve the local people and to provide amenities and service to the people residing within the municipality. As a representative of the public it is the duty of an elected representative to see that the public of his constituency are not burdened with excessive and arbitrary levy. No doubt, a municipal commissioner holds a statutory office in a municipal council, but no statutory code of conduct in respect of municipal councilors has been enacted. However, it is a different question whether such a law could be framed as to restrict the freedom of speech and expression of a municipal councilor. However, it must be borne in mind that the appellant was not an employee or a servant of the municipal council and also never held any office of profit in the municipal council. Every citizen, inasmuch as a municipal councilor, has a freedom of speech and expression under Article 19(1)(a) of the Constitution which includes fair criticism of the law or any executive action. Freedom of speech and expression is guaranteed in our democratic republic both in legislature as well as in local bodies and, therefore, a legislator or a municipal councilor legitimately can express his views in regard to what he thinks to be in public interest. A legitimate exercise of right of speech and expression including a fair criticism is not to be throttled"
32. The meaning of the word "misconduct" explained in Harjeet Singh's case (supra), Baldev Singh Gandhi's case (supra) had been considered and followed in M. M. Malhotra Vs Union of India and Ors (2005) SCC 351. In M. M. Malhotra's case (supra) the Hon'ble Apex Court has held as under:f "The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word "misconduct" is not capable of precise definition. But at the same time though incapable of precise definition, the word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve.
In Union of India V Harjeet Singh Sandhu: (2001) 5 SCC 593, in the background of Rule 14 of the Army Rules, it was held that any wrongful act or any act of delinquency which may or may not involve moral turpitude would be "misconduct" under Rule 14.
In Baldev Singh Gandhi Vs State of Punjab: (2002) 3 SCC 667 it was held that the expression "misconduct" means unlawful behaviour, misfeasance, wrong conduct, mis-demeanour, etc. Similarly, in State of Punjab Vs Ram Singh Ex Constable: (1992) 4 SCC 54 it was held that the term "misconduct" may involve moral turpitude. It must be improper or wrong bahaviour, unlawful behaviour, willful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character.
"misconduct: as stated in Batt's Law of Master and Servant (4th Edn at p. 63) "comprised positive acts and not mere neglect or failures". The definition of the word as given in Ballentine's Law Dictionary (148th Edn.) is: "a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness. "
It may be generally stated that the conduct rules of the government and public sector corporations constitute a code of permissible acts and behaviour of their servants."
33. The contentions of the learned counsel for the petitioners that taking admission for obtaining a degree course without the permission is a ''misconduct' but it is admitted fact, as per the record available, that all the private respondents (except respondent no.10) have not taken admission in regular courses for obtaining the degree of engineering but they have obtained the degree through AMIE course which is a correspondence course where attending of classes are not required. Hence, it is clear that where regular attendance is necessary and time of classes clashes with the working hours of the official duty, prior permission is necessary from the competent authority. If any candidate is attending the classes during office hours, shall certainly be a misconduct and the said person who committed this type of mistake cannot be awarded promotion to the next higher post as he has obtained the certificate unauthorizedly.
34. In the instant case, Regulation 5(1)(d) of the ''Regulations 1970' provides that by promotion from amongst the degree holder Junior Engineers/Computer who have qualified B.E./AMIE and have rendered ten years of qualified service as Junior Engineer/Computer on 1st of July of the selection year. Therefore, there is no mention about any prior permission from the competent authority for obtaining the B.E./AMIE course. The aforesaid regulation only provides that ten years of qualified service is required as Junior Engineer possessing B.E./AMIE degree courses.
35. Learned counsel for the petitioners has also relied upon the Circular dated 25.01.1979 issued by the Board in which it is stated that for acquiring any degree while remaining in service, the prior permission is required from the appointing/competent authority. He has also relied on the order dated 18.08.1982, which was issued in furtherance of the circular dated 25.01.1979 wherein it is mentioned that if any employee of the Board has taken admission in any educational institute for acquiring any qualification without the permission of the competent authority then disciplinary proceedings will be initiated against such employee.
36. Since the petitioners have relied upon the aforesaid two circulars/orders dated 25.01.1979 and 18.08.1982, then I have to examine both the orders in terms of the degree which was obtained by the private respondents through AMIE course. I have also to examine that for obtaining the degree from AMIE, whether the employee has taken the admission in any institute for attending the classes during office hours.
37. AMIE is a recognized engineering degree course that can be studied in distance education mode. This course does not demand any classroom attendance and anyone who meets the specified eligibility criteria can become a graduate engineer in the least possible time and expense. Since AMIE course arrange Postal Classes, therefore, this course is not required any attendance in classrooms and it is especially suitable for employed person, as they can study this course without being interfering with their job. Only enrollment for the course is required and all enrolled students can appear in the examination in any centre convenient to them in all major cities in India.
38. In the present case, the petitioners have done B.E. (Part Time/Evening Classes) while in the services of the respondents department. For doing the B.E., attending of regular classes are required which are in during office hours. Therefore, as per the Circular/Order dated 25.01.1979, prior permission from the department is required. But in the case of the private respondents, they have enrolled themselves in AMIE degree course which is a correspondence course and not the regular course for which no attendance is required.
39. The U.P. State Electricity Board vide its Circular/order dated 19.12.1985 withdraw the earlier order (in part) only to the extent that no restrictions shall be imposed on authorities in granting permission for joining AMIE Engineering Course to the departmental employees and it will be obligatory on the employee concerned to intimate the Board/appointing authority through his superior officer about his joining AMIE Engineering Course.
40. A bare perusal of the Board's Circular dated 19.12.1985, it is crystal clear that in the case of the private respondents, who has obtained the engineering degree from AMIE course, it was mandatory to inform the appointing authority through his superior officers regarding their enrollment in the AMIE course but no prior permission was required. Thus, in these circumstances, I am of the opinion that private respondents have obtained the engineering degree from AMIE course as per the Board's Circular by giving information/intimation to the competent authority and they have not committed any ''misconduct'. ''Regulations 1970' is also silent regarding permission or intimation for any engineering degree course. Regulations 5(1)(d) only relates to the eligibility criteria for the promotion.
41. In the case of Sant Ram Sharma vs. Sate of Rajasthan and others reported at AIR 1967 SC 1910 Hon'ble the Apex Court has held that till statutory rules are framed, the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officials concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
42. In the present case, the Rules provide interalia for consideration of the promotion on the next higher post from amongst the degree holder who have qualified B.E./AMIE and have rendered ten years of qualified service but there are no provisions in the Rules for obtaining any engineering degree to the departmental employees while in service. The said Rule is silent on this point, whether the prior permission can be required for getting the B.E./AMIE degree while in service, this gap was fulfilled by the department in the circular dated 19.12.1985.
43. In view of the aforesaid discussions made hereinabove, the answer to the question no.1 & 3 as framed in para 17 of the judgment is that no prior permission is required for obtaining the AMIE degree which is a distance mode education and only intimation is required as per the Board's Circular dated 19.12.1985.
The answer of question no.2 as framed in para 17 of the judgment is that the Government cannot amend or supersede the statutory rules by administrative instructions but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Since the rules are silent on the point that whether prior permission or only intimation is required for obtaining any degree, the Board has issued circular dated 19.12.1985 in this regard. The Circular is not contrary to the statutory Rules.
44. Therefore, I do not find any illegality or error in reasoning given by the Managing Director, U.P. Power Corporation Limited while rejecting the representations of the petitioners vide the impugned order dated 20.03.2020 (Annexure 1).
45. Having regard to the aforesaid factual and legal position, I am of the opinion that no case for interference in the present writ petition is made out. The writ petition is found to be devoid of any merit and is accordingly dismissed. No costs.
Pending applications, if any, stands disposed of.
Order dated: 15th December, 2020 VNP/-