Sanjay S/O Arvindrao Choudhari ... vs State Of Maharashtra, Through ...
2022 Latest Caselaw 9712 Bom

J-WP-6358-19                                                               1/15


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR.

                       WRIT PETITION NO.6358 OF 2019


1. Sanjay S/o Arvindrao Choudhari
   Aged :- 45 years, Occu. Service,
   R/o Plot No.310, Subhedar Layout,
   Out, Nagpur - 440 024
   Date of Birth : 13.12.1973,
   Mob. No: 9823721599,
   Email: [email protected]
   Pan No.AGPHC3071a
   Aadhar No.: 280634894149

2. Narendra S/o Gopalrao Wankar
   Aged:-50, Occ. Service,
   R/o 50, Pipla Road,
   Bhole Nagar, Nagpur 440034
   Date of Birth 17.01.1968
   Email : [email protected],
   Pan No.AALPW1504 G
   Aadhar No.485895077206

3. Govind S/o Manoharrao Naik
   Aged: 50, Occu: Service,
   R/o Nathkripa, 40, Rani Indirabai,
   Misanevihar, Tulshi Bagh,
   Nagpur 440032
   Date of Birth : 16.11.1968,
   Mob. No.9422127496
   Email [email protected],
   Pan No.ACIPN87574
   Aadhar No.4456626220374

4. Lobhesh S/o Pundlikrao Bobde
   Aged 52, Occu. Service,
   R/o Plot No.45, Ayodhya Nagar,
   New Subhedar Layout Road,
   Nagpur 440024
   Date of Birth 01.03.1967,
   Mob. No.9823721367,
   Email : [email protected] gmail.com,
   Pan No. AFZPB8900 N.
   Aadhar No.728844710798




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5. Subhash S/o Gajanan Pande
   Aged 51, Occ. Service,
   R/o Plot No.03, Gala No.209,
   Narmada Apartment, Milind Society,
   Khamla Nagpur 440025
   Date of Birth 30.05.1968
   Mob. No.9764480008
   Email [email protected]
   Pan No.AEOPP2842R
   Aadhar No.66660439199

6. Atul S/o Rameshrao Mendule
   Aged 48, Occ. Service,
   R/o Shri Ganesh Bhavan,
   Near Khobaragade Hospital,
   Ganeshpeth, Nagpur 440018
   Date of Birth 27.6.1971,
   Mob. No.9823180212,
   Email. [email protected]
   Pan No.ABZOM5488I,
   Aadhar No.322335077673

7. Shrikant s/o Shivajirao Tambekar
   Aged 44 year, Occu. Service,
   R/o Ayodha Nagar Nagpur 440024
   Date of Birth 5.11.1974,
   Mob. No.9822470801,
   Email:[email protected],
   Pan No.AAPT9324N
   Aadhar No.4608 8590 6985                                 ... Petitioners

-vs-

1. State of Maharashtra,
   through its Principal Secretary, U.D. - 1,
   Mantralaya, Mumbai 400 032

2. Nagpur Improvement Trust
   through its Chairman,
   Civil Lines, Nagpur

3. Shrawan S/o Kisanrao Dhone
   Aged : Major, Occu. Service,
   R/o C/o NIT Office,
   Near Liberty Cinema, Sadar,
   Nagpur




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4. Narendra S/o Patiram Malewar
   Aged Major, Occu. Service,
   R/o C/o NIT Office,
   Near Liberty Cinema, Sadar,
   Nagpur

5. Rajesh S/o Suryabhan Mahajan
   Aged Major, Occu. Service,
   R/o C/o NIT Office,
   Near Liberty Cinema, Sadar,
   Nagpur

6. Bhagwant S/o Shankarrao Harne
   Aged Major, Occu. Service,
   R/o C/o NIT Office,
   Near Liberty Cinema, Sadar,
   Nagpur

7. Jagdish S/o Govindrao Nasare
   Aged Major, Occu. Service,
   R/o C/o NIT Office,
   Near Liberty Cinema, Sadar,
   Nagpur

8. Mukesh S/o Mahadv Naikwade
   Aged Major, Occu. Service,
   R/o C/o NIT Office,
   Near Liberty Cinema, Sadar,
   Nagpur

9. Shrawan S/o Kisanrao Dhone,
   Aged Major, Occu. Service,
   R/o C/o NIT Office,
   Near Liberty Cinema, Sadar,
   Nagpur

10. Vinod S/o Bhaurao Khulane
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

11. Chandrakant S/o Dharamdar Nagrale,
    Aged Major, Occu. Service,
   R/o C/o NIT Office,
   Near Liberty Cinema, Sadar,
   Nagpur



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12. Nitin S/o Vasantrao Rahate,
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

13. Dilip S/o Narsingrao Kene
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

14. Ramrao S/o Raghobaji Patil
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

15. Bhimrao S/o Bajirao Magare,
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

16. Kailash S/o Babarao Pohare
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

17. Rajpal S/o Jiwalaji Tupe
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

18. Shirish S/o Shivaji Deshmukh
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

19. Manohar S/o Bhaskar Patil
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur



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20. Kiran S/o Sahdev Rau
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

21. Narendra S/o Gulab Porkute
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

22. Devrao S/o Ramkrishna Barapatre
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

23. Sanjay S/o Ramchandra Mathanikar
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

24. Deepak S/o Sudhakar Dhakate
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur

25. Mahesh S/o Devraoji Chaudhary
    Aged Major, Occu. Service,
    R/o C/o NIT Office,
    Near Liberty Cinema, Sadar,
    Nagpur                                                  ... Respondents

Shri T. D. Mandlekar, Advocate for petitioners.
Ms Tajwar Khan, Advocate for respondent No.1-State.
Shri Sudhir M. Puranik, Advocate for respondent No.2-NIT.
Shri Anand Parchure, Advocate for respondent Nos.3 to 11 and 13 to 24.
Shri D. U. Thakare, Advanced for respondent No.25.




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 J-WP-6358-19                                                                   6/15


CORAM : A. S. CHANDURKAR AND URMILA JOSHI-PHALKE, JJ.

ARGUMENTS WERE HERD ON : September 09, 2022.

JUDGMENT IS PRONOUNCED ON : September 23, 2022

Oral Judgment : ( Per : A. S. Chandurkar, J.)

In view of notice for final disposal issued earlier the learned

counsel for the parties have been heard by issuing Rule and making the

same returnable forthwith.

The petitioners are Civil Engineering Assistants working

with the Nagpur Improvement Trust (hereinafter 'NIT') since last more

than twenty years. On the basis of their qualification they claimed to

be entitled to be promoted to the post of Junior Engineer (Civil). In

the meeting of the Departmental Promotion Committee held on

28/08/2019 promotions were sought to be effected on the basis of the

Nagpur Improvement Trust Services (Recruitment and Service) Rules,

2019 (for short, the Rules of 2019). While doing so eight posts of

Junior Engineer (Civil)-Degree were available from the 'Open'

category. Since the NIT did not receive appropriate instructions from

the State Government in the matter of requisite eligibility and

qualification for effecting promotions, only five posts were filled in and

three posts were kept open for that reason. Similarly, for the post of

Junior Engineer (Civil)-Diploma, five posts from the 'Open' category

were to be filled but no promotions therein were effected. The

petitioners claimed entitlement to such promotion and therefore made

J-WP-6358-19 7/15

a representation to the NIT on 12/09/2019. Since the relief claimed

by the petitioners in the said representation has not been considered by

the NIT the present writ petition has been filed.

2. When the writ petition was filed the petitioners had sought

a declaration that respondent Nos.3 to 25 are not qualified to be

considered for being promoted to the post of Junior Engineer in view

of the fact that the degree qualification obtained by them has been

held to be invalid by the Honourable Supreme Court in its decision in

Orissa Lift Irrigation Corporation vs. Rabi Sankar Patro & Ors. (2018)

1 SCC 546 dated 03/11/2017. The learned counsel for the petitioners

however submitted that the relief sought by prayer clause-(i) now does

not survive and the same is not being pressed. Yet another prayer as

made in prayer Clause-(iii) was to restrain the State Government from

passing any Ordinance/Notification/Officer Order under Section 121 of

the Nagpur Improvement Trust Act, 1936 (for short, the Act of 1936)

during pendency of the writ petition so as to dissolve the Trust. The

learned counsel for the petitioners submitted that the relief sought by

prayer clause-(iii) also does not now survive.

3. Prayer clause-(ii) which has been now pursued in the writ

petition reads as under :

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                 " (ii)    Direct the respondent No.2 to give promotion to the

petitioners w.e.f. 28.8.2019 to the post of Junior Engineer by altering and upgrading the seniority list dated 1.1.2019 after considering the judgment passed by the Honourable Supreme Court in Civil Appeal No.17869-17870/2017 dated 3.11.2017."

4. The learned counsel for the petitioners submitted that the

Honourable Supreme Court in its decision in Orissa Lift Irrigation

Corporation (supra) had held that the All India Council of Technical

Education Regulations, 1994 were applicable to the Deemed to be

Universities and such Deemed to be Universities were not justified in

introducing any new courses in technical education without the

approval of the All India Council of Technical Education (for short

AICTE). As a result, Degree in Engineering awarded by the concerned

Deemed to be Universities were held to stand suspended. The Urban

Development Department through its Secretary on 12/11/2020 issued

a communication to the Chairman, NIT in which it was stated that the

aforesaid decision of the Honourable Supreme Court did not refer to

Diplomas obtained from such Deemed to be Universities and hence

such Diplomas were valid. It is submitted that pursuant to the

aforesaid decision, the AICTE issued a Circular on 30/12/2020. By

that Circular it was stated by the AICTE that it has not given an

approval for conducting Diploma courses in Engineering through

J-WP-6358-19 9/15

distance education mode to any technical institution. As a result

AICTE could not validate Diplomas awarded by such institutions.

Reference in that Circular was made to the Deemed to be Universities

which were :

                 i)    JRN Rajasthan Vidyapeeth, Rajasthan.
                 ii)    Institute of Advanced Studies Education, Rajasthan
                 (IASE)

iii) Allahabad Agricultural Institute (AAI) and

iv) Vinayak Mission's Research Foundation, Tamil Nadu (VMRF)

5. In view of the Circular issued by the AICTE on 30/12/2020

the Urban Development Department on 27/12/2021 issued another

communication to the Chairman, NIT and stated that since the AICTE

had issued the Circular dated 30/12/2020 the words " the Honourable

Supreme Court had not passed any order with regard to Diploma

holders and hence such Diplomas were valid" were being deleted from

the earlier communication dated 12/11/2020. It is on this basis that

the petitioners urge that the qualifications obtained by them are legal

and valid which makes them eligible for being promoted to the post of

Junior Engineer (Civil). However, the Departmental Promotion

Committee wrongfully excluded them from consideration and instead

proceeded to keep some posts vacant till appropriate guidance was

J-WP-6358-19 10/15

received by the NIT. Inviting attention to the qualification as

prescribed for being eligible for promotion, it is submitted that insofar

as the qualification of graduation or Diploma was concerned, the

matter stood clarified. Insofar as the aspect of obtaining an equivalent

qualification was concerned, it was submitted that under the

Recruitment and Promotion Rules of 2005, passing of examination

conducted by Engineering Staff College, Nashik was held to be an

equivalent qualification. This position continued till the Rules of 2019

came into force. In response to the communication dated 07/09/2019

issued on behalf of the NIT to the Public Works Department (PWD), it

was clarified by the said department vide communication dated

09/09/2019 that Diplomas obtained from Engineering Staff College,

Nashik were considered as a requisite qualification for promotion on

the post of Junior Engineer. Since petitioner Nos.2 and 3 had obtained

such Diploma which was considered as equivalent by the PWD, same

should also be so considered by the NIT. Reference was also made to

the Notification dated 01/01/1998 which was issued by the PWD

treating the candidates who had passed the qualifying examination for

the post of Junior Engineer conducted by the Engineering Staff College,

Nashik as eligible. It was submitted that on 24/04/2021 and

27/12/2021 the position had been clarified by the State Government

and hence there was no impediment in granting promotion to the

J-WP-6358-19 11/15

petitioners. The NIT through its Departmental Promotion Committee

was not justified in denying promotion to the petitioners and hence the

prayer made in that regard vide prayer clause-(ii) ought to be granted.

6. The learned counsel appearing for the NIT referred to the

Circular issued by the AICTE on 30/12/2020 and submitted that

Diploma in Engineering obtained from the deemed to be Universities

was not within the purview of the decision in Orissa Lift Corporation

Ltd. (supra) and AICTE had not validated such Diplomas. In view of

the fact that the Rules of 2019 were now in force, the promotions

were liable to be effected in accordance therewith. He referred to the

additional affidavit filed on behalf of NIT as well as the

communications dated 12/04/2021 and 27/12/2021 issued by the

Urban Development Department in the matter. Since the Diplomas

obtained from the Engineering Staff College, Nashik would not held to

be equivalent and the examination conducted was only a qualifying

examination, such Diplomas could not be considered to be equivalent.

As and when the next meeting of the Departmental Promotion

Committee would be held, the matter would be considered. It was

also submitted that the writ petition as filed was premature and prayer

clause-(ii) could not be granted.

The learned counsel appearing for respondent Nos.3 to 11

J-WP-6358-19 12/15

and 13 to 24 opposed the grant of prayer clause-(ii) by submitting that

such relief cannot be granted under Article 226 of the Constitution of

India. At the highest only a direction to consider grant of promotion

to an eligible candidate could be issued and the NIT could not be

directed to promote the petitioners.

The learned counsel for respondent No.25 submitted that

said respondent was duly eligible for grant of promotion to the post of

Junior Engineer and he could not be deprived of the same at the behest

of the petitioners. He referred to the affidavit in reply filed on behalf

of the NIT dated 14/07/2020 in that regard.

7. We have heard the learned counsel for the parties at length

and with their assistance we have perused the material on record. It

is seen that the Departmental Promotion Committee in its meeting held

on 28/08/2019 considered the matter with regard to grant of

promotion on the post of Junior Engineer (Civil). The claim of

promotion of Degree holders as well as Diploma holders were

considered. Thereafter three posts of Junior Engineer from the cadre

of Degree holder were kept vacant while five posts from the cadre of

Junior Engineer with Diploma were kept vacant. The reason assigned

was that clarification sought by the NIT from the State Government

pursuant to the judgment of the Honourable Supreme Court in Orissa

J-WP-6358-19 13/15

Lift Irrigation Corporation Ltd. (supra) as well as the Circular dated

30/12/2020 issued by the AICTE was awaited. Since the claim of the

petitioners for promotion was not considered, they had moved a

representation dated 12/09/2019 addressed to the Chairman of NIT.

After this representation was made, the Urban Development

Department on 12/04/2021 has issued a communication to the

Chairman, NIT in response to the query made on 18/12/2020 in the

matter of equivalence of qualification. In that communication dated

12/04/2021 it has been stated that the examination conducted by the

Engineering Staff College, Nashik was in the nature of a qualifying

examination and that examination could not be treated to be

equivalent to Engineering Diploma. Thereafter on 27/12/2021 there is

another communication issued by the Urban Development Department

to the Chairman of NIT which is in response to the communication

dated 03/12/2020. Therein after referring to the Circular issued by

the AICTE on 30/12/2020 it has been stated that the Degree/Diploma/

Post Graduate Degree obtained from (1) JRN Rajasthan Vidyapeeth,

Rajasthan, (2) Institute of Advanced Studies in Education, Rajasthan,

(3) Allahabad Agricultural Institute, Allahabad and (4) Vinayaka

Mission Research Foundation, Tamil Nadu were not approved by the

AICTE. There is yet another communication issued by the Public

Works Department of the State Government to the NIT on 09/09/2019

J-WP-6358-19 14/15

in which it has been stated that promotions in the Public Works

Department are granted after passing requisite qualifying examination

conducted by the Engineering Staff College, Nashik. It is also been

noted that the Rules of 2019 in the matter of recruitment and other

service aspects have come into force after publication in the Gazette

on 03/06/2019. The stand of the NIT in its additional affidavit dated

31/03/2022 also makes it clear that as and when appropriate

clarification would be received from the State Government, the matter

with regard to promotions of Junior Engineers would be considered.

8. In these facts we find that the interests of justice would be

met by directing the Chairman, NIT to take a decision on the

petitioners' representation dated 12/09/2019 especially in view of the

fact that now the State Government has clarified the matter as

indicated in the communications dated 12/04/2021 and 27/12/2021.

It cannot be disputed that in exercise of jurisdiction under Article 226

of the Constitution of India, the writ Court would only direct the

concerned Authority to consider the claim for promotion as made in

accordance with the prevailing Rules and no directions at the first

instance would normally be issued to promote a claimant. The

promotions on some posts were not effected since the Departmental

Promotion Committee was awaiting response from the State

J-WP-6358-19 15/15

Government. As such response has now been received, the matter can

be well considered by the NIT.

9. In the light of aforesaid directions and in consideration of

prayer clause (ii) in the writ petition, it is directed that the respondent

No.2 shall consider the petitioners' representation dated 12/09/2019

in accordance with law and after giving due opportunity to the

petitioners to put forth their say in support thereof. Consequent upon

such decision, the NIT would be free to proceed further in the matter

of considering the grant of promotions to be made on the post of

Junior Engineer from amongst Degree holders as well as Diploma

holders. The necessary decision on the aforesaid representation be

taken within a period of six weeks from receipt of copy of this

judgment.

It is clarified that this Court has not examined the

entitlement of the petitioners to be promoted and the said matter shall

be considered on its own merits and in accordance with law.

Rule is disposed of in aforesaid terms with no order as to

costs.

(Urmila Joshi-Phalke, J.) (A. S. Chandurkar, J.)

Asmita