Bombay High Court
Union Of India Through The Secretary And ... vs Vishal Kanaskar And Ors on 5 February, 2024
2024:BHC-AS:5536-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.801 OF 2017
WITH
INTERIM APPLICATION (ST) NO.18752 OF 2021
IN
WRIT PETITION NO.801 OF 2017
Digitally
signed by 1 Shri Govind Sakli Epili
BASAVRAJ
BASAVRAJ GURAPPA
GURAPPA PATIL
s/o. Sakli Dahanu Epili
PATIL Date:
2024.02.05
Age - 40 yrs., Chargeman (T), Ordnance
17:57:05
+0530 Factory, Ambarnath, Pin : 421 502
2 Shri Deepak Harichandra Gawale
s/o. Harichandra Babu Gawale
Age - 32 yrs., Working as : Chairgeman
(T), Ordnance Factory, Ambarnath,
r/o. Flat No.02, Rushab Appt, B Wing,
Heramb Coop Society, Gandhar Nagar,
Khadakpada, Kalyan (W)
Dist. Thane, Pin - 421301 ..... Petitioners
Versus
1 Union of India
Through the Secretary,
Ministry of Defence,
South Block, New Delhi - 110001
2 The Director General
Ordnance Factories,
Ordnance Factory Board,
10A, Shahid Khudiram Bose Road,
Kokatta 700 001
3 The General Manager,
Ordnance Factory,
Ambernath,
Dist. Thane, Pin 421502 ..... Respondents
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WITH
WRIT PETITION (ST) NO.1766 OF 2017
WITH
INTERIM APPLICATION (ST) NO.18756 OF 2021
IN
WRIT PETITION (ST) NO.1766 OF 2017
1 Shri Yogesh Patil s/o. Dinkar Patil
Working as Chargeman (Tech) at
Ordnance Factory, Bhandara r/o.
Ordnance Factory, Jawahar Estate,
Bhandara - 441 906
2 Shri Jagdish Narnaware s/o.
Dnyaneshwar Narnaware, Working as
Chargeman (Tech) at Ordnance Factory,
Bhandara r/o. Ordnance Factory,
Jawahar Estate,
Bhandara - 441 906
3 Shri Prafulla Take s/o. Laxmanrao Take
Working as Chargeman (Tech) at
Ordnance Factory, Bhandara r/o.
Ordnance Factory, Jawahar Estate,
Bhandara - 441 906
4 Shri Nitesh Gadge, s/o Suresh Gadge,
Working as Chargeman (Tech) at
Ordnance Factory, Bhandrara r/o.
Ordnance Factory, Jawahar Estate,
Bhandara - 441 906
5 Shri Anil Naranje, s/o Sukhdeo Naranje,
Working as Chargeman (Tech) at
Ordnance Factory, Bhandrara r/o.
Ordnance Factory, Jawahar Estate,
Bhandara - 441 906
6 Shri Nilesh Thote, s/o. Punjaram Thote,
Working as Chargeman (Tech) at
Ordnance Factory, Bhandrara r/o.
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Ordnance Factory, Jawahar Estate,
Bhandara - 441 906
7 Shri Sushilkumar Deshmukh, s/o.
Vasanta Deshmukh,
Working as Chargeman (Tech) at
Ordnance Factory, Bhandara r/o.
Ordnance Factory, Jawahar Estate,
Bhandara - 441 906
8 Shri Dinesh Barai, s/o. Sopan Barai,
Working as Chargeman (Tech) at
Ordnance Factory, Bhandrara r/o.
Ordnance Factory, Jawahar Estate,
Bhandara - 441 906
9 Shri Deoraj Dhurve, s/o. Chandrabhan
Dhurve,
Working as Chargeman (Tech) at
Ordnance Factory, Bhandrara r/o.
Ordnance Factory, Jawahar Estate,
Bhandara - 441 906
10 Shri Ashok Kumar Ramteke,
Residing at 5-A, Type-III, Sector 4,
State Area, Ordnance Factory,
Chandrapur - 442 501
11 Shri Amit Tiwari, s/o. Ravishankar
Tiwari,
Residing at 18-A, Type-III, Sector 4,
State Area, Ordnance Factory,
Chandrapur - 442 501 ..... Petitioners
Versus
1 Union of India
Through the Secretary,
Ministry of Defence,
South Block, New Delhi - 110001
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2 The Director General
Ordnance Factories,
Ordnance Factory Board,
10A, Shahid Khudiram Bose Road,
Kokatta 700 001
3 The General Manager,
Ordnance Factory,
Ambernath,
Dist. Thane, Pin 421502
4 The General Manager,
Ordnance Factory,
Chandrapur, Pin - 442 501 ..... Respondents
WITH
WRIT PETITION (ST) NO.1769 OF 2017
WITH
INTERIM APPLICATION (ST) NO.18759 OF 2021
IN
WRIT PETITION (ST) NO.1769 OF 2017
1 Shri Vishal Kanaskar, S/o Vinod
Kanaskar, Working as Chargeman
(Tech.) Ammunition Factory, Khadki,
Pune 411 003, R/o C-803, Pride
Ashiyana, Porwal Road, Lohegaon,
Pune 411 047.
2 Shri Prashant Vamane, S/o Sidharudh
Vamane, Working as Chargeman
(Tech.) Ammunition Factory, Khadki,
Pune 411 003, R/o 15/4, 'H' Type,
Rangehills, Khadki, Pune 411 020.
3 Shri Vijaykumar Gautam, S/o
Satyadhari Gautam, Working as
Chargeman (Tech.) Ammunition
Factory, Khadki, Pune 411 003,
R/o Type 'I' Bldg. No.2/11, ..... Petitioners
Rangehills, Khadki, Pune 411 020
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Versus
1 Union of India
Through the Secretary,
Ministry of Defence,
South Block, New Delhi - 110001
2 The Director General
Ordnance Factories,
Ordnance Factory Board,
10A, Shahid Khudiram Bose Road,
Kokatta 700 001
3 The General Manager,
Ordnance Factory,
Ambernath,
Dist. Thane, Pin 421502 ..... Respondents
Mr. Vishal P. Shirke for the Petitioners in all Petitions.
Mr. Advait Shethna with Ms. Neeta Masurkar, Mr. Ashok Varma
and Poushali Roychoudhary for the Respondent - Union of India
in all Petitions.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE : FEBRUARY 5, 2024
JUDGMENT (PER : CHIEF JUSTICE)
1. Heard Mr. Vishal P. Shirke, learned counsel representing the
Petitioners and Mr. Advait Sethna, learned Counsel representing
the Respondents - Union of India and perused the records
available before us on these petitions.
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2. Since all the three petitions raise common question of facts
and law, the same are being decided by the common judgment
which follows :
CHALLENGE :
3. By instituting these petitions, the Petitioners assail the
judgment and order dated 2nd January 2017 passed by the
Mumbai Bench of Central Administrative Tribunal (hereinafter
referred to as the "Tribunal") whereby the Original Applications
filed by the Petitioners challenging their reversion from the post
of Chargeman (Technical) have been dismissed.
FACTS IN BRIEF :
4. Since the facts as narrated and culled out from the
pleadings available on record are similar in these petitions, Writ
Petition No.801 of 2017 shall be treated to be the leading Writ
Petition and facts of the said case shall be narrated for
convenience.
5. All the Petitioners are working in different Ordnance
Factories under the Ministry of Defence, Government of India.
Recruitment Rules of Group-C Supervisory and Non-Gazetted
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Cadre in the Ordnance Factories are governed by the Recruitment
Rules framed by the Government of India in exercise of powers
conferred upon it under proviso to Article 309 of the Constitution
of India known as the "Indian Ordnance Factories Group-C
Supervisory and Non-Gazetted Cadre (Recruitment and
Conditions of Service) Rules, 1989" (hereinafter referred to as the
"Recruitment Rules, 1989"). Rule 4 of the Recruitment Rules,
1989 provides for method of appointment, age limit, qualification
etc. It also provides that other matters connected therewith shall
be as specified in columns 5 to 14 of the Schedule appended to
the Rules. According to the Schedule, as it existed prior to its
amendment, educational and other qualification required for direct
recruitment to the post of Chargeman (Technical) was, recognized
3 years Diploma or equivalent in Engineering / Technology /
Draftsmanship with 5 years' experience in relevant technical field
or B.Sc. with Physics Chemistry and Maths with 5 years'
experience where diploma for any category cannot be identified
by Ordnance Factory Board (OFB).
6. The said Recruitment Rules, 1989 were amended on 28 th
November 1994, whereby it was provided that 25% posts shall be
filled-in by direct recruitment, 25% by Limited Departmental
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Competitive Examination (hereinafter referred to as the "LDCE")
from amongst the incumbents working as skilled workers with 2
years' experience in the grade and 50% posts are to be filled-in
by way of promotion.
7. The amendment in the Recruitment Rules notified on 28th
November 1994 further provides that for LDCE, educational
qualification prescribed for direct recruitment shall also be one of
the requisites. The Recruitment Rules were again amended by
promulgating Indian Ordnance Factories Group-C Supervisory and
Non-Gazetted Cadre (Recruitment and Conditions of Service)
Amendment Rules, 2003 which were notified by the Ministry of
Defence on 27th May 2003. By this 2003 Amendment, the
Schedule was amended and for the post of Chargeman (Technical)
the educational qualification prescribed for direct recruitment was
altered and thus the candidate for being recruited to the post of
Chargeman (Technical) was required to possess 3 years' Diploma
or equivalent qualification certificate in the respective field duly
affiliated by the All India Council for Technical Education
(hereinafter referred to as the "AICTE"). Though by amending
the Recruitment Rules in the year 2003 the qualification for
diploma duly affiliated by AICTE was prescribed for direct
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recruitment, however, the said qualification is applicable for
recruitment through LDCE as well by virtue of the amendment
introduced in the Recruitment Rules vide Notification dated 28 th
November 1994. Thus, if the Recruitment Rules as amended vide
amendment introduced on 28th November 1994 and 27th May 2003
are read together, the requisite educational qualification for LDCE
is 3 years' diploma in engineering / technology / draftsmanship
which is duly affiliated by AICTE.
8. In tune with the aforementioned requisite educational
qualification, a circular was issued by the General Manager of the
Ordnance Factory on 13th April 2010 inviting applications for filling
of the post of Chargeman (Technical) through LDCE. Clause 1(ii)
of the said Circular dated 13th April 2010 prescribed the eligibility
for recruitment through LDCE to the post of Chargeman
(Technical), according to which, the candidate ought to have
possessed 3 years' Diploma in the respective field duly affiliated
by AICTE.
9. The Petitioners, pursuant to the such circular, appeared in
the LDCE and having been declared successful, were appointed /
promoted to the post of Chargeman (Technical). The appointment
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/ promotion order issued to the Petitioners No.1 and 2 in Writ
Petition No.801 of 2017 are available at Pages 159 and 161,
respectively. Petitioner No.1 was confirmed on the post of
Chargeman (Technical) after successful completion of probation
period on 6th March 2010, whereas, Petitioner No.2 was confirmed
on the said post on 27th November 2013. Some of the Petitioners
have since been promoted even to the next higher post of Junior
Works Manager. Petitioner No.1 was promoted as Junior Works
Manager vide order dated 30th November 2017.
10. It appears that some complaint was received regarding
certain irregularities said to have occurred in the appointment /
promotion of the Petitioners and other like employees on the post
of Chargeman (Technical) to the effect that these Petitioners were
possessed of Diploma qualification which was not approved by the
AICTE and hence they did not fulfil the minimum requisite
qualification for being recruited to the post of Chargeman
(Technical). On the said complaint, some vigilance investigation
is said to have been conducted, whereupon, the Director General
of Ordnance Factories issued an order on 10 th October 2014
directing all the Ordnance Factories to take immediate necessary
action for identifying all appointments made on the post of
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Chargeman (Technical) from amongst the personnel having
Diploma qualification to their credit which was not approved by
the AICTE. The said Circular dated 10th October 2014 issued by
the Director General of Ordnance Factories also required that such
incumbents appointed / promoted to the post of Chargeman
(Technical) may be reverted to their parent post. Circular dated
10th October 2014 was reiterated by issuing another circular dated
21st/24th October 2014. Pursuant to the said Circular dated 10th
October 2014 as reiterated vide circular dated 21st / 24th October
2014 in some cases, the orders were issued reverting the
Petitioners to their parent post.
11. Taking exception to the Circular dated 10 th October 2014
issued by the Director General of Ordnance Factories and their
respective reversion orders, Original Applications were instituted
before the Tribunal which have been dismissed by the impugned
order dated 2nd January 2017. It is this order passed by the
Tribunal, which is under challenge in these petitions.
SUBMISSIONS ON BEHALF OF THE PETITIONERS:
12. It has been argued on behalf of the Petitioners that
insistence of the Respondents on Diploma qualification approved
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by AICTE is unreasonable, as under law, a University or an
Institution deemed to be University within the meaning of Section
3 of the University Grants Commission Act, 1956 (hereinafter
referred to as the "UGC Act") is empowered to confer degree /
Diploma in engineering without seeking approval from the AICTE.
It has been stated further that the Petitioners were duly conferred
with Diploma in engineering in the requisite field by Rajasthan
Vidyapeeth, Udaipur (later known as Janardan Rai Nagar
Rajasthan Vidyapeeth, Udaypur, Rajasthan (hereinafter referred
to as the "University") which is a deemed University within the
meaning of the said phrase appearing in Section 3 of the UGC Act
and as such their reversion on the sole ground that the
qualification of Diploma was not approved by AICTE, is not
sustainable. It is the submission of the Petitioners that the
University was declared as an institution to be a Deemed
University by the Department of Education, Ministry of Human
Resource Development vide Notification dated 12th January 1987
published in the gazette of India and under law such University is
empowered to confer Diploma qualification and accordingly, the
Petitioners were holding legally recognized Diploma to their credit.
13. Drawing our attention to a Notification dated 7 th April 2006
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issued by the Ministry of Human Resource Development,
Government of India, it has been argued that as per the said
Notification, it is not a pre-requisite for an Institution notified as a
"Deemed to be University" to obtain the approval of AICTE to
commence any programme in technical education leading to an
award, including degrees in disciplines covered under the AICTE
Act 1987. The relevant extract of the said Notification is extracted
hereunder:
"It is not a pre-requisite for an institution notified as a
'Deemed to be University' to obtain the approval of the
AICTE, to start any programme in technical or management
education leading to an award, including degrees in
disciplines covered under the AICTE Act, 1987. However,
institutions notified as 'Deemed to be University' are
required to ensure the maintenance of the minimum
standards prescribed by the AICTE for various courses that
come under the jurisdiction of the said Council. It is
expected that the institutions notified as "Deemed to be
University' maintain their standards of education higher than
the minimum prescribed by the AICTE."
14. Further submission is that the Ministry of Human Resource
Development, Department of Secondary and Higher Education
had earlier written a letter dated 7th February 2004 to the Vice
Chancellor of the University stating therein that all the degrees /
Diplomas awarded by the Universities established by an Act of
Parliament or State Legislature, Institutions deemed to be
Universities under Section 3 of the UGC Act and the Institutions
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of National importance declared as such under an Act of
Parliament, stand automatically recognized for the purposes of
employment under the Central Government and no formal orders
recognizing such degrees / Diplomas are necessary to be issued.
The said letter dated 7th February 2004 is also extracted
hereunder:
"No.F-23-1/2003-TS.III
Government of India
Ministry of Human Resource Development
Department of Secondary and Higher Education
New Delhi, the 7th February 2004
To,
The Vice-Chancellor,
Janardan Rai Nagar,
Rajasthan Vidyapeeth (Deemed) University,
Pratapnagar, Udaipur - 313001 (Rajasthan)
Subject : Recognition of courses conducted by University
through Academic Centres / study centers / Off Campus
Centres - Regarding.
Sir,
I am directed to refer to your letter No.RVU/VC/2003-
2004/7972 dated 10.2.2004 on the subject mentioned above
and to say that all degrees/Diplomas awarded by the
Universities established by an Act of Parliament for State
Legislature, Institutions deemed to be Universities under
Section 3 of the U.G.C. Act 1956 and Institutions of National
Importance declared under an Act of Parliament, stand
automatically recognized for purposes of employment under
the Central Government. No formal orders recognizing such
degrees/Diplomas are necessary to be issued.
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A copy of this Department's OM No.F.18-27/70-T-2
dated 20.11.1970 along with its enclosures is enclosed for
reference.
Yours faithfully,
Sd/-
(B.K.Ray)
Desk Officer
Tel:23070177"
15. Learned Counsel for the Petitioners has also drawn our
attention to yet another letter dated 4th November 2004 issued by
the AICTE to JNTU College of Engineering, Kukatpally, Hyderabad,
whereby it was informed to the said College of Engineering that
no 3 years Diploma course through distance education mode is
approved by the AICTE. The letter further informs that it is not
mandatory for the Universities and Deemed Universities to take
prior approval from the AICTE to start any technical education
programme (regular / distance education).
16. Further submission on behalf of the Petitioners is that in
terms of the provisions contained in Section 22 of the UGC Act
right of conferring or granting degrees can be exercised only by
the Universities established or incorporated by or under a Central
Act or a State Enactment or an Institution deemed to be University
under Section 3 or an Institution which is specially empowered by
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an Act of Parliament to confer or grant degrees. In the light of
the provision of Section 22 of the UGC Act, learned Counsel for
the Petitioners submits that since indisputably, the University
which had conferred the Diploma qualification to the Petitioners,
is a deemed University within the meaning of Section 3 of the UGC
Act, as such, legally it is empowered to confer the Diploma
qualification in terms of Section 22 of the UGC Act and hence the
legality and the validity of the Diploma awarded by this University
cannot be doubted. The submission, thus, is that once the
Petitioners are possessed of a validly awarded Diploma in
engineering in the requisite branch, denial of their right to be
considered for appointment / promotion to the post of Chargeman
(Technical) through LDCE is absolutely arbitrary and hence the
sole reason for reversion of the Petitioners from the post of
Chargeman (Technical) given by the Respondents is untenable.
17. He has also argued that some of the Petitioners are not only
still working on the post of Chargeman (Technical) but have also
been promoted to the further higher post of Junior Works Manager
and thus, reverting them at this point of time will be wholly
iniquitous.
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18. In the light of these submissions, it has been argued that the
Tribunal, by passing the impugned judgment and order, has
completely ignored these aspects of the matter, which renders the
impugned judgment liable to be set aside. The prayer, thus, is
that the Writ Petitions be allowed and apart from quashing the
impugned judgment and order passed by the Tribunal, the
reversion order as also the circular letter dated 21st/24th October
2014 be quashed.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
19. Per contra, Mr. Advait Sethna, learned Counsel representing
the Respondents has vehemently argued that the grounds taken
by the Petitioners in these petitions are not tenable for the reason
that any deviation from the provisions contained in the
Recruitment Rules will be impermissible. He has further stated
that even if the Diploma awarded to the Petitioners by the
University in these cases are legal and valid and even if it is
presumed that the University which has granted Diploma to the
Petitioners was lawfully competent to do so, requirement of the
requisite educational qualification of Diploma in engineering duly
approved by the AICTE, as prescribed by the Recruitment Rules,
cannot be dispensed with. It has been argued further that the
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Petitioners, in fact, admittedly do not have to their credit the
Diploma qualification duly approved by the AICTE, which as per
the Recruitment Rules framed under Article 309 of the
Constitution of India, is the requirement and hence the
Petitioners, at the time of their appointment / promotion to the
post of Chargeman (Technical) were not having the requisite
qualification and therefore no fault can be found in the circular /
letter dated 21st/24th October 2014 and consequential reversion
of the Petitioners to their parent post.
20. At this juncture, we may note that the circular / letter dated
10th October 2014 was subsequently withdrawn by means of letter
dated 21st October 2014 issued by the Director General Ordnance
Factories, however, the circular / letter dated 10 th October 2014
was reiterated by the Director General Ordnance Factories by
means of another circular dated 21st / 24th October 2014.
Contents of both these letters viz. letter dated 10 th October 2014
and 21st / 24th October 2014 are verbatim the same with the only
change that the letter dated 10th October 2014 does not mention
the name of the University, whereas, in the subsequent letter
dated 21st / 24th October 2014 appears the name of the University.
It is in this light that a prayer for quashing the letter dated 21 st /
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24th October 2014 is also sought by the Petitioners.
21. The submission further by Mr.Sethna is that the letter dated
21st / 24th October 2014 only reiterates the contents of the letter
dated 10th October 2014, wherein it is rightly stated that the
Diploma qualification not approved by the AICTE was not the
requisite qualification for appointment / promotion through LDCE.
22. The emphasis of arguments advanced by Mr. Sethna is that
the letters cited by the learned Counsel for the Petitioners dated
7th April 2006, 7th February 2004 and 4th November 2004 issued
by the Ministry of Human Resource Development and AICTE,
respectively, do not amount to changing the qualification as
prescribed in the Recruitment Rules; rather the said letters only
state that for a valid Diploma to be conferred by a Deemed
University, approval of AICTE is not required. His submission,
however, as noted above, is that even if the Diploma granted by
a Deemed University is legal and valid, unless there is a
corresponding change in the Recruitment Rules dispensing with a
requirement of such Diploma having been approved by AICTE, it
cannot be said that the Petitioners were possessing requisite
educational qualification. In this view, the submission is that in
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absence of the Petitioners fulfilling the educational qualification in
terms of the Recruitment Rules, their appointment / promotion to
the post of Chargeman (Technical) was wholly illegal and the same
cannot be sustained. On the basis of these arguments, it has been
urged by Mr. Sethna that there is no irregularity, much less any
illegality, in the circular / letters dated 10th October 2014 and 21st
/ 24th October 2014 and the consequential reversion of the
Petitioners so as to call for any interference by this Court in these
petitions.
DISCUSSION:
23. Admittedly, the Petitioners, though are possessed of
qualification of Diploma, however, such Diploma is not approved
/ recognized by the AICTE. As to whether the University in this
case was competent to award Diploma in engineering under law
is not the issue which needs consideration in these petitions. The
issue which has emerged for consideration of the Court is as to
whether the Petitioners fulfill the requirement of minimum
educational qualification as prescribed in the Recruitment Rules.
24. The prescription in the Recruitment Rules as amended vide
Notifications dated 28th November 1994 and 27th May 2003
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(published in the Official Gazette on 14th June 2003) provide the
educational qualification for appointment / promotion to the post
of Chargeman (Technical) through LDCE which is 3 years Diploma
in respective field duly approved by AICTE. It is not the case of
the Respondents that the Diploma granted to the Petitioners by
the University is unlawful or that the University was not competent
or empowered to confer the Diploma qualification. The case of the
Respondents is that unless there was a change in the Recruitment
Rules framed under Article 309 of the Constitution of India,
dispensing with the requirement of Diploma qualification approved
by the AICTE, the Petitioners cannot be said to be possessed of
the requisite educational qualification.
25. We find substance in the submission made by the learned
Counsel representing the Respondents. It is one thing that a
deemed University or any other University within the meaning of
Section 2(f) of the UGC Act is legally empowered to run a course
and accordingly confer Diploma qualification on the candidates
attending such course, however, it is another issue, as to what
exactly is the requirement under the Recruitment Rules. As to
what qualification and experience etc. is required to be possessed
by a candidate for seeking employment with the Government is
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the sole prerogative and domain of the employer (in this case the
Government of India). The proviso appended to Article 309 of the
Constitution of India vests the authority with the President of
India, in case of services under the Central Government, to frame
rules regulating recruitment and conditions of services of persons
appointed to such services and posts until provision in that behalf
is made by or under an Act of the appropriate Legislature.
Admittedly, the Central Legislature has not framed any
Recruitment Rules for regulating the service conditions, which will
include the recruitment and appointment as well, for the post of
Chargeman (Technical) in Ordnance Factories. Thus, so far as
regulating the recruitment and conditions of services in the instant
case is concerned, the field is fully covered by the Recruitment
Rules, 1989 as amended from time to time. The Hon'ble Supreme
Court in the case of R. Prabha Devi and Ors. Vs. Government
of India 1 has clearly laid down that the rule making authority is
competent to frame rules laying down eligibility condition for
promotion to higher post. The said judgment further states that
when qualifications for appointment to a post in a particular cadre
are prescribed, the same have to be satisfied, if a person can be
1 1988(2) SCC 233
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considered for appointment. The said principle finds its
enunciation in paragraph 15 of the judgment in the case of R.
Prabha Devi and Ors. (supra), the relevant portion of which is
extracted hereinbelow:
"15. The rule-making authority is competent to frame rules
laying down eligibility condition for promotion to a higher
post. When such an eligibility condition has been laid down
by service rules, it cannot be said that a direct recruit who is
senior to the promotees is not required to comply with the
eligibility condition and he is entitled to be considered for
promotion to the higher post merely on the basis of his
seniority................"
26. As far as the reliance placed by learned Counsel for the
Petitioners on the letter dated 7th April 2006 issued by the Ministry
of Human Resource Development, Government of India is
concerned, we may only observe that the said letter / notification
only states that it is not a pre-requisite for an institution notified
as a 'Deemed to be University' to obtain the approval of the AICTE
to start any programme of technical or management education
leading to an award, including degrees in disciplines covered
under the AICTE Act, 1987. According to the said Notification, in
our considered opinion, if an Institution which is "deemed to be
University" confers Diploma which is not approved by AICTE, such
Diploma will be valid, however, unless the Recruitment Rules
framed under Article 309 of the Constitution of India specifically
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spell out qualification of Diploma without approval of AICTE, any
person possessing Diploma without approval of the AICTE cannot
be held to be eligible for participation in recruitment / appointment
process.
27. Reliance placed by the learned Counsel for the Petitioners on
the circular dated 7th February 2004 issued by the Ministry of
Human Resource Development is also of no avail to the Petitioners
for the reason that even if in the said letter the Central
Government declares that a degree / Diploma awarded by an
Institution which is a "Deemed University" under Section 3 of the
UGC Act, stands automatically recognized for the purpose of
employment in the Central Government, unless such declaration
is given effect to or translated or drafted into the Recruitment
Rules framed under Article 309 of the Constitution of India, such
Diploma holders cannot be said to be possessing requisite
qualification for appointment / recruitment to the post of
Chargeman (Technical) in the Ordnance Factories.
28. A reference by the learned Counsel for the Petitioners has
also been made to the letter dated 4th November 2004 issued by
the AICTE which only depicts that it is not mandatory for the
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deemed Universities to take prior approval from AICTE to start
any technical programme (regular / distance education). Under
law, the said requirement of seeking approval from AICTE for a
University or an Institution which is deemed to be University, to
start any educational programme may not be there, however,
such non-requirement of approval from AICTE will only mean that
Diploma or degree awarded by a University or Institution which is
"Deemed to be University" may be valid. However, such
empowerment of a University of "Deemed University" will not
mean that Diploma holders, without approval from AICTE shall be
eligible for seeking their appointment / promotion to the post of
Chargeman (Technical) unless Recruitment Rules so provide.
29. Thus, so far as the validity of the Diploma being possessed
by the Petitioners is concerned, there may not be any dispute
(however, as observed above, such issue does not arise for our
consideration in these cases) but the fact remains that if any
candidate possesses such Diploma not approved by the AICTE, is
permitted to be held eligible for appointment / promotion to the
post of Chargeman (Technical), it will be contrary to the
prescription available in the Recruitment Rules, which in our
considered opinion, will be wholly impermissible.
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30. We may also notice that the prescription of having
qualification of Diploma approved by the AICTE in the Recruitment
Rules has not been challenged by the Petitioners. In absence of
any such challenge, the Petitioners cannot be permitted to insist
for any deviation from the statutory prescriptions regarding
requisite qualification as available in the Recruitment Rules.
31. Mr. Sethna, though, has additionally placed reliance on the
judgment of the Hon'ble Supreme Court in the case of Orissa Lift
Irrigation Corporation Limited Vs. Rabi Sankar Patro and
Ors.2, and also the subsequent order3 in the said case where legal
position regarding Degrees granted by University was clarified by
the Hon'ble Supreme Court, however, since the question as to
whether the Diploma granted by the University to the Petitioners
of these cases was valid or not, does not arise in these matters,
we refrain from making any observation on the said submission
made by Mr. Sethna in this regard.
2018 (1) SCC 468
2018 (2) SCC 298
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CONCLUSION:
32. For the discussion made and the reasons given above, we
are of the opinion that the Petitioners do not fulfil requisite
educational qualification of having Diploma to their credit
approved by AICTE in terms of the requirement of the Recruitment
Rules as amended from time to time. We are also of the opinion
that without there being any corresponding change in the
Recruitment Rules in consonance with the Notification dated 7 th
April 2006 and the letter dated 7th February 2004 of the Ministry
of Human Resource Development, Government of India, the
prescription in the Recruitment Rules has to be strictly followed as
the Recruitment Rules have statutory force having been framed
under the proviso to Article 309 of the Constitution of India which
are binding on all concerned. We may only reiterate the well
established legal principle that no dilution or alteration by the
Court is legally permissible in the Recruitment Rules framed by
the Government of India under Article 309 of the Constitution of
India and accordingly, insistence of the Petitioners that they
having possessed with Diploma awarded to them by the
University, are having requisite educational qualification, is not
sustainable in the eyes of law. In our view, the impugned
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judgment and order passed by the Tribunal does not suffer from
any illegality; neither is there any illegality in the circular dated
21st / 24th October 2014 and the consequential orders reverting
the Petitioners to their parent post.
ORDER:
33. The Writ Petitions are, thus, dismissed
34. While dismissing the Writ Petitions, we are conscious of the
fact that the Petitioners have been allowed to work and perform
their duties of the post of Chargeman (Technical) and some of
them have been promoted to the next higher post of Junior Works
Manager, however, such continuance and promotion to the next
higher post has been allowed on the basis of the interim orders
passed, initially by the Tribunal and later by this Court in these
Petitions. It is also noticed that the promotion of some of the
Petitioners to the next higher post was made subject to final
outcome of these Writ Petitions. Hence, in these facts,
continuance of the Petitioners or their promotion to the next
higher post will not confer any right of continuing on the post of
Chargeman (Technical) or on the next higher post of Junior Works
Manager, however, since they have discharged their duties and
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functions on these posts, it will be highly iniquitous to make
recovery of the difference of salary which the Petitioners might
have drawn during pendency of the Original Applications before
the Tribunal and these Writ Petitions before this Court. Thus, no
recovery of difference of salary from the Petitioners shall be made
by the Respondents.
35. Having been appointed / promoted through the mode of
LDCE, the Petitioners may not have been considered for promotion
under the 50% quota for promotees and hence we also direct that
they shall be considered for promotion to the post of Chargeman
(Technical) within 50% quota for promotees, in accordance with
the Rules and their eligibility and in case they are found fit and
suitable for promotion under the promotee quota, they shall be
entitled to be given promotion from the date an incumbent junior
to the Petitioners was promoted.
36. Further promotion(s) of the Petitioners shall follow on the
basis of their eligibility and suitability.
37. There will be no order as to costs.
38. All pending Interim Applications are disposed of.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
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