Shri Herman Rani vs . State Of Meghalaya & Ors.
2022 Latest Caselaw 583 Meg

 Serial No. 01
 Supplementary List
                      HIGH COURT OF MEGHALAYA
                            AT SHILLONG

WP(C) No. 89 of 2021
                                          Date of Decision: 12.10.2022

Shri Herman Rani                    Vs.     State of Meghalaya & Ors.

Coram:
              Hon'ble Mr. Justice H. S. Thangkhiew, Judge


Appearance:
For the Petitioner(s)       : Mr. Philemon Nongbri, Adv. with
                              Mr. W.S. Gayang, Adv.

For the Respondent(s)       : Mr. K.P. Bhattacharjee, GA (For R 1-6)

Mr. K.C. Gautam, Adv. (For R 7-10)

i) Whether approved for reporting in Yes/No Law journals etc:

ii)   Whether approved for publication                    Yes/No
      in press:


                        JUDGMENT AND ORDER

1. This writ petition is directed against the letter No. PHE.

214/96/320, dated 12.02.2021, whereby it has been indicated that the

petitioner's case does not fulfil the conditions required under the

Meghalaya PHE Rules, 1996, for promotion to the post of Assistant

Engineer/SDO (Electrical) as he does not possess a '3 year Diploma'

from any recognized Government Institution.

2. The petitioner's case is that he possesses a 3-year course

qualification in Electro Mechanics (Wireman) from Don Bosco

Technical School, Shillong, and on 05.11.1987, was temporarily

appointed as Electrician and posted at the office of the Executive

Engineer (PHE) Mawphlang, which continued for 16 years. On

10.06.2004, the Meghalaya Public Service Commission (MPSC)

issued an advertisement for filling up of 10 posts of Junior Engineer

Grade-I (Electrical) under the PHE Department and the petitioner

accordingly applied, and in the selection process, was placed at Sl. No.

1 in the merit list. Thereafter, as per the Gradation list of Junior

Engineers Grade-I (Electrical) dated 10.04.2012, the petitioner stood at

Sl. No. 2 and one Shri Agustine Nengnong, who it is stated had similar

qualifications to the petitioner was placed at Sl. No. 1. Subsequently

the said Augustine Nengnong, was promoted to the post of Assistant

Engineer/SDO (Electrical) as per the PHE Rules, in 2013. The

petitioner it appears due to an active move by other Junior Engineers

for a change in the existing seniority list, wherein the petitioner stood

at No. 2, filed several representations for retention of the said seniority

list which was sought to be altered. In the said representation, reliance

was also placed on a judgment dated 04.03.2010 passed in WP(C) No.

393 (SH) of 2005, wherein the party aggrieved, who possessed similar

qualifications, after being denied promotion to the post of Assistant

Engineer/SDO (Electrical) was subsequently granted promotion.

Thereafter, it appears a provisional Gradation list was published on

25.06.2020, wherein the writ petitioner was shown at Sl. No. 1, but this

was however followed by a letter dated 29.06.2020 issued by the

respondent No. 6, that qualifications of the Junior Engineers be shown

as '3 years Diploma in Electrical Engineering' instead of only

'Diploma in Electrical Engineering' and of the petitioner to be shown

as '2 years ITI Certificate Holder'.

3. Being aggrieved thereby, the petitioner is before this Court

that it is not permissible under law for a person falling in the same

group to be classified differently for the purpose of promotion, and that

there is no basis to consider a 3-year Diploma a higher qualification

than a 2-year Diploma course.

4. Mr. Philemon Nongbri, learned counsel for the petitioner

has strenuously argued that the impugned letter has caused grave

injustice to the petitioner, inasmuch as, it provides for unequal

consideration for promotion to the next higher post, and that the action

of the respondents amounts to favouritism, which is impermissible in

law. The learned counsel also submits that the Schedule to the Rules

prescribing a '3 year Diploma course' as a criteria for promotion to the

post of Assistant Engineer/SDO (Electrical) is unreasonable, inasmuch

as, whether one has a '2 year Diploma' or '3 year Diploma', both

groups are holding the same post of Junior Engineer Grade-I

(Electrical). The learned counsel places heavy reliance on the judgment

of the Gauhati High Court the erstwhile jurisdictional High Court in the

case of Karsing Kurbah vs. Chief Secretary & Ors. [WP(C) No. 393

(SH) of 2005], wherein he submits the situation was similar to the case

of the petitioner and that the Court by order dated 04.03.2010, had

directed the State respondents to reconsider the claim of the writ

petitioner therein for promotion. He submits that the said Karsing

Kurbah, was then on reconsideration promoted. The learned counsel

therefore prays that the same consideration be given to the petitioner in

considering his case for promotion, keeping in view his seniority and

that the distinction should not be drawn between a 2 year Diploma and

3 year Diploma certificate.

5. Mr. K.P. Bhattacharjee, learned GA on behalf of the State

respondents at the outset, has submitted that the qualification is

prescribed in the Rules and has referred to Rule 7 (5) (a) and to

Schedule-II, which shows that a 3 year Diploma course is mandatory

for promotion to the post of Assistant Engineer/SDO (Electrical) which

he submits, the petitioner does not possess. He further submits that the

petitioner was awarded a Diploma certificate dated 12.05.1982, which

clearly states that he had completed a 2-year Diploma course, and that

there is no further mention about any further qualifications. With

regard to the judgment placed by the petitioner, he submits that the said

case stands on a different footing, as it concerns the interpretation of

whether the certificate possessed by writ petitioner therein fell within

the category of 'Diploma' as per an OM dated 24.07.1995. The

directions given in the said order he contends, was only for

reconsideration and that the petitioner cannot take advantage of the said

order dated 04.03.2010. Further, he submits the earlier case, concerned

only the Office Memorandum referred to in the said judgment, which

no longer has any relevance, after the advent of the PHE Service Rules

1996. He lastly submits that the Gradation list dated 25.06.2020, is still

provisional and yet to be finalized and that the same cannot be

considered to be a final list. He therefore submits that the writ petition

deserves no consideration.

6. Mr. K.C. Gautam, learned counsel on behalf of the private

respondents has endorsed the submission made by the learned

Government Advocate as far as the prescription of the Rules are

concerned, and also maintains that the cited judgment will have no

application to the case of the petitioner, as the judgment is silent on the

Rules. He further submits that the petitioner cannot claim negative

equality and that appointments made by mistake, or in violation of

Rules, does not confer any right on any other person to claim parity. In

support of his contention, the learned counsel has placed the following

judgments :-

i) (2006) 3 SCC State of Uttar Pradesh vs. Rajkumar Sharma & Ors. (Para-15)

ii) (2012) 5 SCC 559 Arup Das & Ors. vs. State of Assam & Ors. (Para-19)

iii) (2010) 2 SCC 422 Union of India & Anr. vs. Kartick Chandra Mondal & Anr. (Para-25)

iv) (2010) 11 SCC 455 Fuljit Kaur vs. State of Punjab (Para 11 &12)

v) (2013) 14 SCC 81, Basawaraj vs. Spl. Land Acquisition Officers & Ors. (Para-8)

vi) (2012) 7 SCC 462 Purbanchal Cables & Conductors (P) Ltd., vs. Assam Electricity Board. (Para 59)

7. On the point of binding precedents, the learned counsel has

relied heavily upon the judgment of Purbanchal Cables & Conductors

(P) Ltd., vs. Assam Electricity Board (supra), wherein he submits the

judgment relied upon by the petitioner being per incuriam, is also hit

by the principles of sub silentio, which are two exceptions to the law of

binding precedents. He finally submits that no case has been made out

by the petitioner and the writ petition is liable to be dismissed.

8. I have heard learned counsel for the parties.

9. The short point for consideration on the arguments

advanced and materials placed is only in respect of the eligibility of the

petitioner, to be considered for promotion to the next higher post of

Assistant Engineer/SDO (Electrical). The PHE Rules, 1996 clearly

indicate in Schedule-II that 3 years Diploma in the respective branch,

with 10 years continuous service as Junior Engineer, is a must. The

Rules have been in place since 1996 and the said provision which the

petitioner finds offensive, has not been challenged till now. As the

position of the Rules is such, this Court at this juncture is not inclined

to accept the contentions of the petitioner as to the validity of the Rules,

inasmuch as, from the time he was selected as Junior Engineer, he was

well aware of the existence of this provision.

10. The judgment placed by the petitioner i.e. Karsing Kurbah

vs. Chief Secretary & Ors. [WP(C) No. 393 (SH) of 2005] though

attractive in its ratio, however, will not come to the aid of the petitioner

in view of the fact that, the petitioner in the cited case was in possession

of a 3-year Diploma and only the nature of the certificate as to whether

it could be considered to come within the meaning of a Diploma as laid

down by a certain OM dated 24.07.1995, was up for consideration. The

Court then, had only directed for reconsideration and had not dwelt or

discussed the PHE Rules, 1996 at all. As such, the judgment so cited,

will have no relevance in the adjudication of the present case, nor can

the petitioner claim negative equality.

11. Undoubtedly, by length of service, the petitioner as per the

provisional gradation list is the senior most and, in this consideration,

thereof, if the same was to be by seniority, he would be the first choice

for promotion. However, by way of the impugned letter, the petitioner

has been deemed to be ineligible for consideration on the basis of

qualification. The Court is therefore to examine as to whether the

classification as provided in the Rules is reasonable and permissible in

law as to not offend Article 14 of the Constitution of India.

12. It is a settled proposition that the requisites for a reasonable

and valid classification must be founded or based on substantial

differences or distinctions. In the instant case, the basis for the

distinction, is the qualifying criteria as prescribed by the PHE Rules,

1996, which the petitioner admittedly does not possess. The

fundamental right of equal protection of the laws is not absolute but

can be subject to reasonable classification. As such, no perceived

injustice can be said to have been caused to the petitioner, more so,

compounded with the fact that the gradation list dated 25.06.2020, is

still provisional and yet to be finalized and no promotion had been

accorded to any of the other contenders, such as the private

respondents. No interference is therefore called for at this stage by this

Court.

13. However, before parting with the records, as the Rules also

provide for relaxation of any Rule in dealing with a peculiar situation

for the interest of justice, the official respondents in consideration of

the seniority of the petitioner, shall be at liberty to reconsider the case

of the petitioner.

14. For the foregoing reasons, this writ petition is accordingly

disposed of, however with no order as to costs.

JUDGE

Meghalaya 12.10.2022 "V. Lyndem-PS"