Punjab-Haryana High Court
Kashmir Singh vs State Of Punjab And Others on 2 September, 2023
2023:PHHC:115505
In the High Court for the States of Punjab and Haryana
At Chandigarh
CWP-19080-2023 (O&M)
Date of Decision:- 02.09.2023
Kashmir Singh ... Petitioner
Versus
State of Punjab and others ... Respondents
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
Present:- Mr. Harinder Sharma, Advocate, for the petitioner.
Mr. Inderpreet Singh Kang, AAG, Punjab.
*****
GURVINDER SINGH GILL, J.
1. The petitioner assails order dated 30.5.2023 (Annexure P-15) passed by
respondent No.3, vide which his claim for promotion as Sub Divisional
Engineer w.e.f. the year 2007 has been rejected.
2. The petitioner had been appointed as Junior Engineer in Department of PWD
(B&R), Punjab in the year 1986. In the year 2004 he sought permission from
the competent authority for improving his qualification and took admission in
B. Tech (Civil), Degree Course in Institute of Advanced Studies in Education
University (IASE), Gandhi Vidya Mandir Sardarshahr (Rajasthan) through
distant mode of education and ultimately was conferred the B. Tech (Civil)
degree in the year 2007. Upon completion of 16 years of service as Junior
MOHAN SINGH
2023.09.04 19:08
I attest to the accuracy and
authenticity of this
order/judgment
CWP-19080-2023 (O&M) (2) 2023:PHHC:115505
Engineer, he was designated as Assistant Engineer w.e.f. 26.9.2002 vide order
dated 08.06.2012.
3. It is the case of the petitioner that in the revised tentative seniority list of
Junior Engineers, his seniority ranked at Sr. No.90. The relevant extract from
letter dated 19.12.2011 (Annexure P-4) indicating the placement of the
petitioner in the revised seniority list is reproduced hereunder:
Sr. No. Name Father's Date of Date of Qualificati Categor Remarks
Sarv/Sh. Name Birth Joining on y
Sarv/Sh.
1 to 89 xx xx xx xx xx xx xx
90 Kashmir Charn 08.09.1965 26.09.1986 B. Tech. S.C. Case for
Singh Dass Sardarsha promotio
hr n to SDE
Rajasthan post may
06/2007 be
considere
d as and
when
DPC is
held, but
the result
be kept in
sealed
cover till
further
orders.
91 to xx xx xx xx xx xx xx
4. A perusal of the aforesaid extract indicates that the case of promotion of the
petitioner to the post of SDE was to be considered as and when DPC is held
and his result was ordered to be kept in a sealed cover.
5. A question having arisen regarding the validity of the degrees acquired
through distance education learning mode, Hon'ble the Supreme Court while
taking note of certain irregularities, but while ensuring that the employees
who had obtained such degrees are given a fair chance to prove themselves,
MOHAN SINGH
2023.09.04 19:08
I attest to the accuracy and
authenticity of this
order/judgment
CWP-19080-2023 (O&M) (3) 2023:PHHC:115505
issued certain directions in its judgment dated 3.11.2017 rendered in Orissa
Lift Irrigation Corporation Ltd. Vs. Rabi Sankar Patro and others (2018) 1
SCC 468. The relevant extract of which is reproduced hereunder:
"58. AICTE is directed to devise within one month from the date of this
judgment modalities to conduct appropriate test(s) both in written
examination as well as in practicals for the students concerned
admitted during the academic sessions 2001-2005 covering all the
subjects concerned. It is entirely left to the discretion of AICTE to
come out with such modalities as it may think appropriate and the
tests in that behalf shall be conducted in the National Institutes of
Technology in the respective States wherever the students are
located. The choice may be given to the students to appear at the
examination which ideally should be conducted during May-June
2018 or on such dates as AICTE may determine. Not more than
two chances be given to the students concerned and if they do not
pass the test(s) their degrees shall stand recalled and cancelled. If a
particular student does not wish to appear in the test(s), the entire
money deposited by such student towards tuition and other charges
shall be refunded to that student by the deemed to be university
concerned within a month of the exercise of such option. The
students be given time till 15-1-2018 to exercise such option. The
entire expenditure for conducting the test(s) in respect of students
who wish to undergo test(s) shall be recovered from the deemed to
be universities concerned by 31-3-2018. If they clear the test(s)
within the stipulated time, all the advantages or benefits shalt he
restored to the candidates concerned. We make it clear at the cost of
repetition that if the candidates concerned do not clear the tests)
within the time stipulated or choose not to appear at the test(s),
their degrees in Engineering through distance education shall stand
recalled and cancelled. It goes without saying that any promotion
or advancement in career on the basis of such degree shall also
stand withdrawn, however, any monetary benefits or advantages in
that behalf shall not be recovered from them.
......................................
MOHAN SINGH
2023.09.04 19:08
I attest to the accuracy and
authenticity of this
order/judgment
CWP-19080-2023 (O&M) (4) 2023:PHHC:115505
66.6. If the students clear the test(s) within the stipulated time, all the
advantages/benefits shall be restored to them and their degrees will
stand revived fully."
6. Subsequently, some clarifications were issued by Hon'ble Supreme Court
vide its order dated 22.1.2018, the relevant extract of which is reproduced
hereunder:
"7. ........................................... 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
MOHAN SINGH
2023.09.04 19:08
I attest to the accuracy and
authenticity of this
order/judgment
CWP-19080-2023 (O&M) (5) 2023:PHHC:115505
terms of the judgment but this exception shall not apply for
such second attempt."
7. Learned counsel for the petitioner has drawn the attention of this Court to the
concluding para of impugned order dated 30.5.2023 (Annexure P-15) which
reads as under:
"As per the aforesaid judgment, the degree of Shri Kashmir Singh
has been considered a valid degree but as he has passed the
examination conducted by the AICTE in the second chance,
therefore, his degree is to be treated valid from the date of passing
this test. As the degree of this employee stands valid from
December 2018, therefore, promotion to this official in the quota of
Degree Holder cannot be granted from the year 2007."
8. Learned counsel for the petitioner submits that by virtue of judgment of
Hon'ble Supreme Court dated 3.11.2017 as well as order dated 22.1.2018
clarifying the same, he was entitled to be granted promotion w.e.f. 2007 when
his result had been kept in sealed cover inasmuch as the judgment clearly
mandates that all such benefits are to be restored to the employees upon
clearing the special examination which had been conducted pursuant to
judgment dated 3.11.2017 (Annexure P-7) and that since the petitioner had
cleared the special examination, it has to be deemed that the degree obtained
by him was valid at all times and the benefits which became due to him have
to be conferred to him from the date when the same actually became due.
9. It has been submitted that the impugned order has been passed by the
respondents by misinterpreting the import of judgment dated 03.11.2017 of
Hon'ble Supreme Court and order dated 22.1.2018. Learned counsel while
referring to the concluding paragraph of the impugned order dated 30.5.2023
(Annexure P-15) has submitted that the authorities have declined promotion
w.e.f. 2007 to him on the premises that the petitioner had passed the test in
MOHAN SINGH
2023.09.04 19:08
I attest to the accuracy and
authenticity of this
order/judgment
CWP-19080-2023 (O&M) (6) 2023:PHHC:115505
the second chance whereas the judgment as well as order do not carve about
any such distinction and that the distinction drawn in the clarificatory order
dated 22.1.2018 only pertains to a relief in the nature of an interim relief
which was extended to the candidates till declaration of the result of the first
test. It has thus been submitted that the impugned order be set aside and the
petitioner be granted promotion w.e.f. 2007 particularly since his case at one
point of time was under consideration, but had been kept in a sealed cover.
10. This Court has considered the rival submissions.
11. A perusal of judgment dated 22.1.2018 indeed shows that the candidates who
had taken admissions in degree courses during the year 2001 to 2005 were
afforded a chance to prove themselves and a special test was ordered to be
conducted by AICTE and the candidates were to be given two chances to
clear the same and in case they were able to clear the same during the said
two chances, the advantages/benefits extended to them were to be "restored".
12. The petitioner having cleared the test in the second chance was certainly
entitled to restoration of the benefits which had been extended to him.
However, it is admittedly the case of the petitioner that he had been promoted
as Junior Engineer only in the year 2019 and that previously his case was
kept in sealed cover. Rather in letter 19.12.2011 (Annexure P-4) it is
specifically mentioned that his case will be considered only in the next DPC.
13. Upon advance notice having been issued to State, Mr. Inderpreet Singh Kang,
AAG, Punjab, has put in appearance and has informed that as a matter of fact
it was only in the year 2019 that DPC was held i.e. after passing of the
judgment by Hon'ble Supreme Court.
MOHAN SINGH
2023.09.04 19:08
I attest to the accuracy and
authenticity of this
order/judgment
CWP-19080-2023 (O&M) (7) 2023:PHHC:115505
14. The petitioner having been promoted vide order dated 4.12.2019 (Annexure
P-10) as Sub Divisional Engineer for the first time and not having been
promoted as such prior thereto, there is no question of restoration of any such
benefit from an earlier date since no such benefit had been extended earlier.
It is also apposite to refer to a relevant paragraph from order dated 13.8.2019
(Annexure P-11) passed in Contempt Petition Nos.408-409 of 2019 arising
out of Orissa Lift Irrigation Corporation's case (Supra) which sheds some
light as to what benefit was to be extended to the employees. The relevant
extract from para No.10 of COCP (Annexure P-11) is reproduced hereunder:
"10. It was, therefore, clear that the candidates who, on the strength of
such Degrees awarded through Distance Education Mode, had
attained a particular level in their career or were enjoying certain
benefits as on the date of the Judgment and if they pass the
examination, those benefits would stand restored. If the candidates
could clear the examination in the first attempt itself, there would
not even be any break in continuous enjoyment of those benefits or
facilities. The idea was, candidates should not stand deprived of the
status that they were enjoying as on the day of the Judgment
provided the candidates could prove their worth and ability.
But if, the concerned candidates had not attained any particular
status, as on the date when the Judgment was passed, the width of
the directions was not to confer any additional advantage which was
not even enjoyed as on the date. It was not the idea to hold the
candidates to be entitled to certain additional benefits which the
candidates were, as a matter of fact, not even enjoying on the
date of the judgment. If the degrees stood restored in terms of the
directions in the Judgment and the Order, the candidates would
certainly be eligible to such entitlements as are available in
accordance with law, but "restoration" would only be of those
benefits, which they were enjoying as on the date of the Judgment.
In short, the intent was to restore status quo ante and not to confer
any additional advantage by the Judgment and the Order."
MOHAN SINGH
2023.09.04 19:08
I attest to the accuracy and
authenticity of this
order/judgment
CWP-19080-2023 (O&M) (8) 2023:PHHC:115505
15. The aforesaid extract leaves no manner of doubt that it is only the advantage
or benefit which already stood extended which was to be restored and that
benefit which had not been earlier granted was not to be granted
retrospectively. The factum of the petitioner's case having been kept in
sealed cover cannot be said to be extension of any kind of benefit. It was
only in the year 2019 that the petitioner was promoted as SDE and not before
04.12.2019. As such, this Court does not find any ground for issuance of any
directions as prayed for so as to promote petitioner w.e.f. 2007.
16. The petition is sans merit and the same is hereby dismissed.
02.09.2023 ( GURVINDER SINGH GILL )
mohan JUDGE
Whether speaking /reasoned Yes / No
Whether Reportable Yes / No
MOHAN SINGH
2023.09.04 19:08
I attest to the accuracy and
authenticity of this
order/judgment
