Unnikrishnan And Ors vs Union Of India And Ors
2013 Latest Caselaw 178 Del

 $~12
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                 DECIDED ON: 11.01.2013
+                            W.P. (C) 167/2013


       UNNIKRISHNAN AND ORS                          ..... Petitioners
                   Through: Mr. Vinod K. Tewari with
                   Mr. Pankaj Singh, Advocates.

                    versus


       UNION OF INDIA AND ORS                       ..... Respondents

Through: Mr. Amrit Pal Singh, CGSC with Mrs. Gurjinder Kaur, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

% Issue notice. Mr. Amrit Pal Singh, Advocate accepts notice.

2. The writ petitioners in these proceedings under Article 226 seeks two reliefs, i.e., a direction that they ought to be considered for promotion to the post of Superintendent Gr.I since they claimed to be qualified to hold that position and a direction to the respondents to grant them pay scale of ` 5000-8000 w.e.f. 1.1.1996, in accordance with the recommendations of the Sixth Central Pay Commission.

3. The brief facts of the case are that the petitioners are employees of the

WP (C) 167/2013 Page 1 Border Roads Organization and were sent for the course of diploma in the College of Military Engineering, Pune, sometimes in 1984-85. They successfully completed such two years diploma course. It is stated that thereafter they were promoted to the post of Superintendent Gr.II. Learned counsel for the petitioners relies upon a Circular/Notification by the All India Council of Technical Education (AICTE) dated 20.11.2000; the same in its material part provides that the diploma issued by the College of Military Engineering, is recognized;

"for recruitment to post for which a diploma in these field is prescribed as qualification".

According to the counsel for the petitioner himself, for the post of "Superintendent, Building and Roads, Gr.I" the essential qualification reads as follows: -

Educational and other qualification required for direct recruits

Essential: Recognized degree in Civil Engineering or equivalent.

At the same time, learned counsel relies upon an order of the Division Bench of this Court dated 3.8.2005 in WP (C) 1364/1998. In that case, the petitioner had a two year diploma in Civil Engineering and was enrolled in the General Reserve Engineering Force (GREF) on 17.11.1966. His complaint was that he was wrongly denied promotion to the post of Superintendent Gr.I (on the ground that) even though his juniors were promoted. Under these circumstances, the Court was constrained to hold as follows: -

WP (C) 167/2013 Page 2 "A perusal of the provisions of Column 11 nowhere indicates or suggests that petitioner was required to hold a 3 years diploma in Civil Engineering for being eligible for promotion to the post of Superintendent B/R Grade-I. The eligibility prescribed in this only requires that the contender must be Superintendent B/R Grade-II with a recognised diploma in Civil Engineering and with 5 years regular service in a grade in General Reserve Engineering Force. Therefore, on a plain reading of the provisions of eligibility conditions, petitioner was not required to hold a 3 years diploma course in Civil Engineering and respondents by adding this condition could not have denied him promotion to the post on a wrong premise.

Learned counsel for respondents Mr.Bhardwaj made a last minute effort to support respondents' action by falling back upon the eligibility prescribed for promotion to the post of Superintendent B/R Grade-I which admittedly provides for a 3 years diploma course or promotion to the post of Superintendent B/R Grade-II. The submissions made by him becomes irrelevant as petitioner was already holding the post of Superintendent B/R Grade-II and was working on that post and that at no stage respondents had questioned his eligibility for that post. They had on the contrary allowed and promoted him on that post along with a two years diploma in Civil Engineering on which he had worked and also retired from service. They can by no logic invoke the qualification for Superintendent Grade-II now to deny him promotion for Superintendent B/R Grade-I. Justification offered is fallacious and deserves outright rejection.

In this backdrop, we feel convinced that petitioner has been denied promotion on a wrong premise and his juniors have been allowed to steal march over him. The only way out to undo this wrong is to direct respondents to promote him to the post of Superintendent B/R Grade-I from the date his immediate junior was promoted and then to consider him for promotion to the post of Assistant Engineer also if any of his juniors was promoted to that post while he was in service in accordance with the rules.

Respondents are directed to pass appropriate orders in the matter for promoting petitioner to Superintendent B/R Grade-I and any ancillary

WP (C) 167/2013 Page 3 order including giving him the benefit of the promotion and retirement benefits within three months from the receipt of this order.

It is noticed at this stage that petitioner had been dragged to litigation which he has been fighting after retirement for the last about 7 years or so. This litigation must naturally have consumed his post retirement money and energy. He would need to be compensated for this. Respondents are accordingly directed to pay him Rs.20,000/- to cover up his litigation expenses incurred all these years.

Petition is accordingly disposed of."

4. In the present case, the petitioners' claim for promotion to the post of Superintendent Gr.I is premised on two grounds, i.e., firstly the so called equivalence declared by the AICTE in November, 2000, and secondly, the order of the Division Bench. As far as the first contention is concerned, the aforesaid Court is of the opinion that all that the AICTE in the Notification did was to recognize the diploma course of the College of Military Engineering as diploma in the respective field, no more no less. That Notification in terms nowhere recognizes that the diploma accorded by the College of Military Engineering is equivalent to a degree, which is the essential qualification for holding the post of Superintendent Gr.I.

5. As far as the second contention goes, the extracted portion of the judgment of this Court of 2005 would reveal that the grievance of the writ petitioner is that though he held a two year diploma - which was deemed sufficient by the respondents qua others similarly placed, he was denied promotion. Be that as it may, now it all stands on entirely different footing because today, the relevant qualification which an aspirant to the post of Superintendent Gr.I is to possess is a degree. The order of the Division Bench would reveal that the Court considered the rule to be one which

WP (C) 167/2013 Page 4 prescribes incumbent ought to have a three year diploma, a fact situation which is entirely different from the present case. These apart, the petitioners in the present case themselves seem to be suggesting that the syllabus of the diploma and draftsman, though broadly similar, varies to some extent from the syllabus prescribed in degree course, i.e., that in the civil engineering subjects certain other papers are required to be cleared. In any event, that is a matter of detail. Basic qualification for holding the post, i.e., the degree in the present case has concededly not been fulfilled. The Notification relied upon by the petitioners only suggests that diploma accorded by the College of Military Engineering is accepted as a diploma by the AICTE and not that it is declared to be equivalent to a degree. In the result, the first claim in the writ petition is meritless; it is accordingly rejected.

6. As far as the second aspect is concerned, the writ petitioners have relied upon the recommendations of the Sixth Central Pay Commission which had stated that persons holding the post of Superintendent Gr.II should be granted the pay scale of ` 5000-8000. Counsel also relies upon two judgments of the Gauhati High Court dated 10.09.2010 and 18.03.2011 in WP (C) 51/2009 and WA No.19/2010 where identical claims have been upheld and the respondents were directed to grant the concerned scales to others identically situated. The respondents' appeal by special leave - SLP No. CC 14236/2011 was dismissed by the Supreme Court on 1.11.2011. It also appears that another Bench of this Court in WP (C) 2972/2012 decided on 30.10.2012 (Penubolu Jagdish & Ors. v. UOI & Ors) directed similar relief. Having regard to these facts, which have not been denied by counsel for the respondents, a direction is issued to the respondents to consider the petitioners' case and pass appropriate orders fixing the revised pay scales, if

WP (C) 167/2013 Page 5 they are so eligible within a period of six weeks from today. The said order shall be directly communicated to the petitioners.

7. The Writ Petition is partly allowed to the above extent.

S. RAVINDRA BHAT (JUDGE)

SUDERSHAN KUMAR MISRA (JUDGE)

JANUARY 11, 2013 /vks/

WP (C) 167/2013 Page 6