Narender Kumar vs The State Of Himachal Pradesh & ...
2023 Latest Caselaw 332 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.1118 of 2021 Date of Decision: 6.01.2023

.

_______________________________________________________

Narender Kumar .......Petitioner

Versus

The State of Himachal Pradesh & others ... Respondents _______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 Yes.

For the Petitioner:

For the Respondents:

r to Mr. H.K.S. Thakur, Advocate.

Mr. Rajan Kahol and Mr. B.C.Verma, Additional Advocate Generals.

___________________________________________________________

Sandeep Sharma, Judge(oral):

Petitioner was initially engaged as daily wage Work

Inspector in the respondent-Department, however, after completion of

requisite number of years, his services were regularized as Work

Inspector vide order dated 23.10.2007 in terms of the policy of

regularization dated 9.6.2006 framed by the Government of Himachal

Pradesh, which provides for regularization of daily wage employees

after completion of eight years of service with 240 days in each

calendar year with cutoff date as 31.3.2004. Though, petitioner after

having become regular employee became eligible for promotion to the

post of Junior Engineer (Civil) in terms of Recruitment and Promotion

Whether the reporters of the local papers may be allowed to see the judgment?

Rules for the post of Junior Engineer, but he was not considered on

the ground that he does not possess requisite qualification. Diploma

in Civil Engineering obtained through distance mode by the petitioner

.

was not recognized. Though, petitioner filed representation, but fact

remains that no heed was paid to the request made by the petitioner

and as such, he was compelled to approach this Court in the instant

proceedings filed under Article 226 of the Constitution of India,

praying therein for following relief:-

"That the present writ petition may kindly be allowed and promotion order dated 26.10.2019 (Annexure P-2)

and rejection order dated 28.04.2020 (Annexure P-5)

may kindly be set aside and quashed in the interest of justice. Further direction may kindly be issued to respondent Nos. 1 and 2 to promote the petitioner from the date the respondent Nos. 3 to 7 has been

promoted i.e. 26.10.2019 with all consequential reliefs and also arrears alongwith interest."

2. Pursuant to the notice issued in the instant proceedings,

respondent-State has filed reply, perusal whereof clearly reveals that

facts, as have been noticed hereinabove, are not in dispute rather

stand admitted.

3. Precisely, the case of the respondents, as has been set

up in the reply and has been further canvassed by Mr. Rajan Kahol,

learned Additional Advocate General is that since petitioner was not

having requisite qualification in terms of Recruitment and Promotion

Rules, framed by the Department for promotion for the post of Junior

Engineer(Civil), his case was rightly not considered. It has been

.

claimed on behalf of the respondents that petitioner has passed the

Diploma in Civil Engineering in the year, 2014 from State of

Karnataka Open University through distance education mode, which

is not recognized mode as per the Recruitment and Promotion Rules.

4. With a view to substantiate aforesaid claim set up by the

respondents, learned Additional Advocate General placed heavy

reliance upon the judgment rendered by Hon'ble Apex Court in

SLP(C) No.19851-19852/2020, titled Orissa Lift Irrigation

Corporation Limited versus Rabi Sankar Patro and others,

alongwith other connected SLPs, decided on 3.11.2017 as well as

the advice of the Government conveyed vide letter dated 19.6.2019 in

case Dharmender Kumar and others, wherein it has been held that

the Diploma/Degree obtained from deemed Universities upto the year

2007-2008 can only be considered for promotion and in case through

IGNOU year 2009-2010. Since in the case at hand, respondent Nos.

3 to 7 were promoted despite their having obtained Degree under

distance mode, petitioner claimed parity but respondents attempted

to distinguish the case of petitioner from respondent Nos. 3 to 7 by

stating that respondent Nos. 3 to 7 were enrolled in their degree

program prior to 2007-2008 and 2009-2010 and as such, as per

advice of Government conveyed vide letter dated 19.6.2019 in case

Dharmender Kumar and others, aforesaid respondents were

.

promoted to the post of Junior Engineer(Civil). In reply, respondents

have also claimed that name of petitioner is appearing at Sr. No.1421

in the final seniority list of Work Inspector category circulated vide

letter No.6780-6860, dated 26.8.2019 and he will be considered for

promotion upon his turn, as there are number of eligible incumbent

senior to the petitioner.

5. Having heard learned counsel representing the parties

and perused the material available on record, this Court finds that it is

not in dispute that initially petitioner though was engaged as daily

wage Work Inspector, but his services were regularized from

23.10.2007 in terms of the policy framed by the Government of

Himachal Pradesh dated 9.6.2006, meaning thereby petitioner after

being regularized as Work Inspector had become entitled to be

promoted to the higher post i.e. Junior Engineer, for which

Department framed Recruitment and Promotion Rules. Clause 10 of

Recruitment and Promotion Rules, which provides the method of

recruitment, reads as under:-

" (i) 45% by direct recruitment on regular basis or by recruitment on contract basis as the case may be.

ii) 30% by batch wise basis on regular basis or by recruitment on contract basis at departmental level

from amongst the candidate(s) who possess requisite professional qualification or its equivalent from an Institution University duly recognized by the Central or State Government on the basis of seniority of the batch (batch wise basis).

.

Provided that for the purpose & appointment under this sub-column, the year wise combined seniority list shall be prepared wherein the candidate senior in batch in such recruitment year shall be

reckoned senior to the candidate who has obtained diploma in Civil Engineering in subsequent batch

Provided further that where in a recruitment year more than one candidate of the same batch are eligible to be considered for appointment then their

inter-se-seniority will determined with reference to their date of appointment in that recruitment year, or the time of making selection for recruitment on contract basis, as the case may be.

r Under Clause 11 recruitment by promotion, against

25% quota following provisions have been made for the respective feeder categories:-

(i) By promotion from amongst the surveyor having

Degree in Civil Engineering or its equivalent from an Institution University duly recognized by the Central or State Govt. with 2 years regular service or regular combined with continuous adhoc service rendered, if

any, in the grade failing which the quota will go to Column 11(ii) below :

0.5%

(ii) By Promotion from amongst the Surveyor having three years regular full time Diploma in Civil

Engineering or its equivalent from an Institution University duly recognized by the Central or State Government with 3 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, failing which the quota will go to Column 11(iii) below:

0.5%

(iii) By Promotion from amongst the Surveyor having regular full time ITI Course of two years duration in

the trade of Surveyors Draughtsman/Civil) or its equivalent from an 111/Institution duly recognized by the Central or State Government with 8 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, failing which

.

the quota will go to Column 11(iv) below:

11.5%

(iv) By Promotion from amongst the Work Inspector three years Diploma in Civil Engineering or its equivalent

from an Institution University duly recognized by the Central or State Government with 3 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, failing which the quota will go to Column 11(v)below:

2.5%

(v) By Promotion from amongst the Work Inspector having regular full time Degree in Civil Engineering or r its equivalent from an Institution University duly recognized by the Central or State Government with

2 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, failing which the quota will go to Column 11(vi) below:

0.5%

(vi) By Promotion from amongst the Work Inspector having two years ITI Course in the trade of Surveyors

Draughtsman (Civil) or its equivalent from an IT Institution duly recognized by the Central or State Government with 8 years regular service or regular

combined with continuous adhoc service rendered, if any, in the grade, failing which the quota will go to Column 11(vi) below;

5.5%

(vii) By promotion from amongst the Work Inspector who are matriculates or possess its equivalent qualification with at least 15 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, and completed successfully the prescribed Departmental training course of 06 months duration, failing which the quota will go to Column 11(i) above;

4%

6. Careful perusal of aforesaid Recruitment and Promotion

Rules, clearly reveals that category of 'Work Inspector', to which the

petitioner belong, is one of the feeder category for promotion to the

.

post of Junior Engineer(Civil), case of the petitioner for promotion

is/was to be considered under Clause 11 against 25% quota. Clause

11.4 clearly reveals that Work Inspectors having three years Diploma

in Civil Engineering or its equivalent from an Institution/University duly

recognized by the Central or State Government with three years

regular service or regular combined with continuous adhoc service

rendered, if any, in the grade, are also entitled to be promoted against

2.5% quota out of total quota of 25%. In the instant case, it is not in

dispute that petitioner at the time of consideration of his case for

promotion to the post of Junior Engineer was working as "Work

Inspector" on regular basis and he had service of more than three

years, dispute, if any, is with regard to qualification of Diploma

obtained by the petitioner through distance mode.

7. Mr. Rajan Kahol, learned Additional Advocate General,

while inviting attention of this Court to reply filed respondent-

Department, especially Clause 11.4, vehemently argued that since

Diploma awarded by State of Karnataka Open University through

distance education mode, is not recognized mode as per Recruitment

and Promotion Rules, there was no occasion, if any, for considering

the case of the petitioner. Though, learned Additional Advocate

General was unable to dispute that similar situate persons i.e.

respondent Nos. 3 to 7,who had also obtained Diploma/Degree

.

through distance mode that too from University, which was not

recognized, were granted promotion to the post of Junior Engineer,

however, he attempted to carve out a distinction by stating that

diplomas/degrees obtained from deemed Universities upto the year

2007-2008 could only be considered for promotion. Since respondent

Nos. 3 to 7 had enrolled themselves in degree program prior to 2007-

2008 and 2009-2010, they as per advice given by Government of

Himachal Pradesh were considered for promotion. Apart from above,

learned Additional Advocate General further argued that Hon'ble Apex

Court in Orissa Lift Irrigation Corporation's case (supra),

categorically stated that any Diploma/Degree obtained through

distance mode shall not be taken into consideration for eligibility, if

any, for appointment as well as for promotion and as such, case of

the petitioner, who had obtained Diploma in Civil Engineer from

Karnataka University in the year, 2014, was not considered.

8. However, after having carefully perused judgment

rendered by Hon'ble Apex Court in Orissa Lift Irrigation

Corporation's case (supra), this Court is persuaded to agree with Mr.

H.K.S.Thakur, learned counsel representing the petitioner that in

aforesaid judgment Hon'ble Apex Court stated nothing with regard to

Diplomas, rather that judgment specifically deals with the degrees, if

any, awarded by deemed Universities through distance mode. At this

.

stage, learned counsel representing the petitioner vehemently argued

that though in the aforesaid judgment Hon'ble Apex Court dealt with

the case of the degrees, but analogy would remain same, especially

when Hon'ble Apex Court stated that degrees obtained through

distance mode shall not be taken as eligibility for appointment and

promotion. However, this Court is not persuaded to agree with

aforesaid contention of learned Additional Advocate General for the

reason that in para-3 of the afore judgment, Hon'ble Apex Court while

disposing of M.A No.38 of 2018 in C.A No.17907 of 2017, has

clarified that paragraphs No. 34 and 46 of the judgment pertains to

validity of degrees in engineering conferred by the deemed to be

Universities through distance education mode and this Court was not

called upon to consider validity of diplomas conferred by such

deemed to be Universities. In the aforesaid paras, Hon'ble Apex Court

clearly ruled that validity of courses leading to Diplomas was not the

subject matter of the judgment, meaning thereby ruling given by the

Hon'ble Apex Court strictly pertains to degrees awarded by the

deemed Universities through distance education mode and as such,

same could not be made applicable in the cases of Diplomas, if any,

obtained through distance mode. Though, aforesaid judgment taken

into consideration already stands annexed with the petition as

annexure P-6, but it would be apt to take note of following paras of

.

aforesaid judgment hereinbelow:-

1. M.A. No. 38 of 2018 in C.A. No.17907/2017

The applicant, IASE, Deemed to be University seeks clarification that the judgment applied only to courses leading to degrees in Engineering awarded by Deemed to be Universities through distance education mode and

that diploma courses are not covered by the judgment.

Mr. M.L. Verma, learned Senior Advocate invited our attention to the advertisement issued by AICTE. His submissions on the issue in question are on lines

similar to the submissions advanced by Mr. Dhruv Mehta, learned Senior Advocate.

2. We also heard Mr. Maninder Singh, learned Additional Solicitor General who appeared on behalf of AICTE.

3. It is true, as is evident from paragraphs 34 and 46 of the judgment that the controversy in the present case pertained to validity of degrees in Engineering conferred by the Deemed to be Universities through

distance education mode and this Court was not called upon to consider validity of diplomas conferred by such

Deemed to be Universities. However the advertisement issued by AICTE covers diploma courses as well. We therefore accept the submissions advanced by Mr. Dhruv Mehta and Mr. M.L. Verma, learned Senior

Advocates and clarify that validity of such courses leading to diplomas was not the subject matter of the judgment.

4. At the same time, courses leading to award of degrees, whether graduate or post graduate degrees, was certainly the matter in issue. We therefore reject the submission of Mr. Kapil Sibal, learned Senior Advocate and do not find any infirmity in the

understanding of and the advertisement issued by AICTE.

5. Mr. Anupam Lal Das, learned Advocate is right that JRN, AAI and IASE had no expertise in the field or subjects of Engineering and the status of Deemed

.

Universities conferred on them was not because of their

excellence in the field of Engineering. As against these three Deemed to be Universities, the case of VMRF stood on a better footing as its field of activity and excellence also included subjects in Engineering.

However that was not the only basis of the judgment. The facts still remain that conferral of degrees in Engineering through distance education mode was never approved in principle by AICTE and the Study Centres were never inspected or approved. We therefore reject the submission of Mr. Anupam Lal Das,

learned Advocate.

6. If award of degrees in Engineering through distance education mode by Deemed to be Universities, as a concept or principle was not accepted by AICTE, it is immaterial whether the Study Centre in

question was ITM International. Said Institution was not

by itself authorized to award degrees in Engineering on its own nor was it affiliated to any State or Central University at the relevant time. The courses conducted by said institution led to award of degrees of AAI, which had no expertise or excellence in the field of

Engineering and through distance education mode. We therefore reject the submission advanced by Ms. Meenakshi Arora, learned Senior Advocate.

7. We now turn to the general submission advanced by all the learned counsel that the candidates after securing the degrees in Engineering through distance

education mode, have advanced in career and that their ability was tested at various levels and as such requirement of passing the examination in terms of the

judgment be dispensed with in their case. We cannot make any such exception. The infirmity in their degrees is basic and fundamental and cannot be wished away. At the same time, we find some force in their submission that if the suspension of their degrees and all advantages were to apply as indicated in the judgment, the concerned candidates may lose their jobs and even if they were to successfully pass the test, restoration of their jobs and present position would pose some difficulty.

We, therefore, as a one-time relaxation in favour of those candidates who were enrolled during the academic years 2001-2005 and who, in terms of the judgment, are eligible to appear at the test to be conducted by AICTE, direct:-

.

a). All such candidates, who wish to appear at the forthcoming test to be conducted by AICTE in May- June 2018 and who exercise option to appear at the test in terms of the judgment, can retain the degrees

in question and all the advantages flowing therefrom till one month after the declaration of the result of such test or till 31.07.2018 whichever is earlier.

b) This facility is given as one-time exception so that those who have the ability and can pass the test in the

first attempt itself, should not be put to inconvenience. If the candidates pass in such first attempt, they would be entitled to retain all the advantages. But if they fail or choose not to appear, the directions in the judgment shall apply, in that the degrees and all advantages shall

stand suspended and withdrawn. At the cost of

repetition, it is made clear that no more such chances or exceptions will be given or made. They will undoubtedly be entitled to appear on the second occasion in terms of the judgment but this exception shall not apply for such second attempt.

c). We direct AICTE to conduct the test in May-June 2018 and declare the result well in time, in terms of our directions in the judgment and this Order. AICTE shall

however extend the time to exercise the option to appear at the test suitably.

8. Except for the directions given in the preceding paragraph i.e. paragraph 7 and the clarification as regards courses leading to award of diplomas as

mentioned hereinabove, we reject all the other submissions."

9. Careful perusal of aforesaid judgment clearly reveals that

findings in the aforesaid judgment directly relates to degrees

conferred by deemed Universities through distance mode and

Diplomas obtained through distance education mode have been

specifically excluded by Hon'ble Apex Court while returning findings,

as have been taken note hereinabove.

10. In view of aforesaid specific clarification rendered on

.

record by Hon'ble Apex Court in the aforesaid judgment with regard to

Diplomas obtained through education mode, ground set up by the

respondents to reject the case of the petitioner for promotion is not

tenable and as such, deserves outright rejection. Moreover, if the

judgment rendered by Hon'ble Apex Court, is read in its entirety, it

clearly reveals that Hon'ble Apex Court despite holding that degrees

conferred by deemed Universities through distance education mode is

not the qualification, granted one time relaxation in that case, so that

persons already working are not put to hardship. In the instant case,

petitioner has been serving the Department for more than 26 years

and till date, despite his being fully eligible, he is not being considered

for promotion against the post of Junior Engineer. Since Work

Inspector falls in the feeder category for promotion to the post of

Junior Engineer as per Recruitment and Promotion Rules, rightful

claim of the petitioner cannot be permitted to be defeated by

respondents at this belated stage on the grounds, as have been setup

in the reply. Otherwise also, careful perusal of the reply filed by the

respondents reveals that heavy reliance has been placed by the

respondent on the judgment rendered by Hon'ble Apex Court in

Orissa Lift Irrigation Corporation's case (supra), to reject the case

of the petitioner, but as has been clarified hereinabove, that is not

applicable in the case of the petitioner being Diploma holder.

.

Moreover, similar situate persons i.e.. respondent No.3 to 7 have

been already granted promotion. Since, it is not in dispute that

respondent Nos. 3 to 7 had also obtained essential qualification

through distance mode and their cases have been simply considered

on the basis that they had enrolled themselves prior to 2007-2008 and

2009-2010, stand proposed to be setup by the respondent-

Department to reject the case of the petitioner that Diploma obtained

through distance education mode is not a prescribed qualification as

per Recruitment and Promotion Rules is wholly unjustifiable.

11. Consequently, in view of the detailed discussion made

hereinabove as well as law taken into consideration, this Court finds

merit in the present petition and accordingly same is allowed and

action of the respondents in not promoting the petitioner to the post of

Junior Engineer (Civil), is highly deprecated and respondents are

directed to promote the petitioner against the post of Junior Engineer

(Civil) from the date his juniors have been promoted to the post in

question. Since petitioner has not worked against the post of Junior

Engineer (Civil), he shall not been entitled for actual benefits, but shall

be entitled for notional benefits alongwith seniority.

In the aforesaid terms, the present petition is disposed of

alongwith pending applications, if any.

.

                                                            (Sandeep Sharma),
                                                                 Judge





    January 06,2023
       (shankar)





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