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2017 DIGILAW 482 (UTT)

Santosh Singh v. State of Uttarakhand

2017-09-05

ALOK SINGH, K.M.JOSEPH

body2017
JUDGMENT : K.M. JOSEPH, J. 1. Petitioner has approached this Court seeking the following reliefs: “(I)- Issue a writ, rule or direction in the nature of Certiorari to quash the order dated 20.12.2014 by which the respondent no. 3 rejected the representation of the petitioner for promotion on the post of Assistant Engineer under 8.33% quota of Bachelors of engineering (B.E./B/Tech.)/A.M.I.E. degree holders. (II)- Issue a writ, rule or direction in the nature of Certiorari to quash order dated 19.1.2015 passed by Chief Engineer (Headquarter) Uttarakhand Pey Jal Sansadhan Vekas Evam Nirman Nigam i.e. respondent no. 3 by which the respondent no. 3 scored off/rejected the name of the petitioner from the roll of B.Tech/A.M.I.E. degree holders registration list and seniority list. (III)- Issue a writ, rule or direction in the nature of Mandamus directing the respondents to consider the name of the petitioner for promotion on the post of Assistant Engineer under 8.33% quota of Bachelors of engineering (B.E./B.Tech.)/A.M.I.E degree holders declaring that the petitioner is validly registered under the roll of B.Tech/A.M.I.E. degree holders registration list and restoring his seniority in its own place in the seniority list of B.Tech.A.M.I.E. Degree holders seniority list, keeping in view the education qualification (B.Tech) and experience of the petitioner, against the vacancies of the year 2010. (VI)- Issue a writ, rule, order or direction to quash the order dated 2.9.2015 (Annexure No.14) issued by respondent no. 3 by which the respondents have given promotion to the respondent no.5 on the post of Assistant Engineer.” 2. Briefly put, the case of the petitioner is as follows: The petitioner has diploma in Mechanical Engineering. He was appointed by the respondent-Corporation vide order dated 27.09.2005 as Junior Engineer. He joined on 14.10.2005. Earlier, he enrolled himself for B.Tech in Mechanical Engineering in G.B. Pant University, Pantnagar, Udham Singh Nagar. He joined the said course in the year 2002. The next higher post is the post of Assistant Engineer. In the Regulations, it is provided that 8.33 per cent vacancies are to be filled up from amongst Junior Engineers, who have completed five years of continuous service having AMIE/B.E. degree. The petitioner completed five years’ service in the year 2010, and was enrolled in the category of AMIE/B.Tech in the respondent-Corporation. He became eligible to be considered for promotion in the year 2010. He was promoted as the Additional Assistant Engineer. The petitioner completed five years’ service in the year 2010, and was enrolled in the category of AMIE/B.Tech in the respondent-Corporation. He became eligible to be considered for promotion in the year 2010. He was promoted as the Additional Assistant Engineer. The Government approved a new set of Regulations, known as Uttarakhand Pey Jal Sansadhan Vikas Evam Nirman Nigam Service Regulations, 2011 (hereinafter referred to as the ‘2011 Regulations’). In regard to the 8.33 per cent quota, the translation made available to us reads as follows: “(2) 8.33 percent posts shall be filled up from such substantively appointed Junior/Addl. Assistant Engineer (Civil/Tech) who on the first day of the selection year, have completed 10 years’ regular service, out of which 02 years and 06 months service has been rendered in the remote area defined under the Annual Transfer Act, 2011 and those who within 10 years of services, who have obtained graduate degree in Civil Engineering or Electrical/Mechanical Engineering from any recognized institution, with the prior permission of the corporation or who is the associate member of Institutions of Engineers (India) Civil or Electrical Engineers Branch), shall be made on the basis of seniority subject to rejection of being unfit. If in any selection year, such Junior/Addl. Assistant Engineer is not available, then the remaining posts of the said quota shall be made as per the arrangement of Rule 5(a)(2)(1) by promotion from amongst the Junior/Additional Assistant Engineers. 3. Though, the petitioner was eligible to be considered under the earlier Regulations, who had completed five years of service, he was not considered. When the DPC met in the year 2014, the case of the petitioner was rejected on the basis that he had enrolled himself for the B.Tech course prior to his appointment. The said decision is challenged in the first relief by way of seeking to quash the decision dated 20.12.2014. Further, as already noticed, the petitioner seeks to challenge order dated 19.01.2015 issued by the Chief Engineer (Headquarter), by which respondent no. 3 has scored off the name of the petitioner from the roll of B.Tech/AMIE degree holders. By order dated 02.09.2015 (Annexure No. 14), the party respondent has been promoted as Assistant Engineer. 4. We heard Mr. Rakesh Thapliyal, learned counsel and also Mr. Yogesh Pacholia, learned counsel on behalf of the petitioner, Mr. D.S. Patni, learned counsel on behalf of the Corporation and Mr. By order dated 02.09.2015 (Annexure No. 14), the party respondent has been promoted as Assistant Engineer. 4. We heard Mr. Rakesh Thapliyal, learned counsel and also Mr. Yogesh Pacholia, learned counsel on behalf of the petitioner, Mr. D.S. Patni, learned counsel on behalf of the Corporation and Mr. C.S. Rawat, learned Additional Chief Standing Counsel for the State of Uttarakhand. 5. The facts, which we have already noted, are not in dispute, namely, the petitioner had enrolled himself for the B.Tech course in the year 2002; he secured appointment in September, 2005; and he joined in October, 2005. 6. On the one hand, it is the contention of the petitioner that the impugned action of the respondent-Corporation is unjustified inasmuch as the petitioner, having secured prior permission, had secured the B.Tech degree and that is the only requirement in the Rule. 7. The contention on behalf of the Corporation, which is adopted by the learned Additional Chief Standing Counsel also, is that the Rule in question is intended to cover cases of persons, who are appointed as Junior Engineers and who within ten years of their service, after securing prior permission, undergo the course and secure the degree of B.Tech or AMIE. In the case of the petitioner, there is no dispute that the petitioner had enrolled for the course already in the year 2002 and he joined only in the year 2005. 8. In fact, Mr. Rakesh Thapliyal, learned counsel for the petitioner would point out that the degree secured by the petitioner would become a worthless piece of paper if the argument of the respondent-Corporation is accepted. There is also a case set up in the rejoinder affidavit that there is discrimination inasmuch as Engineers working in the Civil Branch, similarly circumstanced as the petitioner, have been included in the category of degree holders and the matter proceeded on the said basis. There is also an attempt to make out a case of mala fides in that, the case of the petitioner is that he was originally registered as a degree holder, but it was for extraneous reasons that the name of the petitioner was struck off from the list of the degree holders. 9. As far as the question relating to prior permission is concerned, the petitioner appears to lay store by Office Memorandum dated 28.08.2006. 9. As far as the question relating to prior permission is concerned, the petitioner appears to lay store by Office Memorandum dated 28.08.2006. The English translation of the same, provided to us, reads as follows: OFFICE MEMORANDUM In compliance of the Letter dated 23.11.2005 Ref No: 5106/Adhi. Junior Engineer/Dated 23.11.05 issued by Chief Engineer (Head Office), Head Office, Uttaranchal PayJal Nigam, Dehradun regarding completion and participation in the examination of B.Tech Course by the employee of this office Sri. Santosh Singh, this office issued a letter No:3784/Adhi. Ju. Eng/Dated: 23.12.05 regarding extension of leave without pay of above period along with necessary documents has been sent to the Head Office, Uttaranchal PayJal Nigam, Dehradun. The Permission sought by Sri Santosh Singh, Junior Engineer, regarding completion of B.Tech Course and the undertaking given by him in form of notarized affidavit regarding that he shall continue to work with the continous services of Uttaranchal PayJal Nigam for the next 5 Years, on the basis of which Shri. Santosh Singh J.E, has been sanctioned the leave without pay of 59 Days from 18.01.2005 to 15.12.2005 under Rule 85 of Fundamental Rules Part 2 to 4 of the Financial Hand Book. -Sd- S . C Pant” 10. There is reference in the said letter to communication dated 23.11.2005. The same has been produced along with the rejoinder affidavit and from what is translated to us of the said communication, it appears that examinations in the B.Tech course were held and petitioner wished to participate in it and he applied. The Chief Engineer (Head Office) wrote to the Chief Engineer (Garhwal) that he can be permitted to participate in the examination subject to ascertaining about the course, which the petitioner was pursuing and also on securing an affidavit that the petitioner will serve the department for a period of five years. The other communication, which is referred in the Office Memorandum dated 28.08.2006, namely, letter dated 23.12.2005 is not made available to us, but it appears to be regarding the extension of leave. 11. After hearing the contentions of the parties, we are called upon essentially to decide the interpretation to be placed on the Rule providing for 8.33 per cent quota for degree holders. 11. After hearing the contentions of the parties, we are called upon essentially to decide the interpretation to be placed on the Rule providing for 8.33 per cent quota for degree holders. Breaking up the Rule, we would think that the inevitable interpretation that flows from the Rule is as follows: It is applicable to persons, who have completed ten years of regular service as Junior/Additional Assistant Engineer (Civil/Tech.) and must be substantively appointed; two years and six months’ service out of ten years’ service must be rendered in the remote area as defined in the Annual Transfer Act, 2011 and finally the most crucial element as far as this case is concerned is that those who within ten years of service have obtained graduate degree in Civil Engineering or Electrical/Mechanical Engineering from any recognized institution. It is not as if the Rule ends there. It is further conditioned by the requirement that it should be with the prior permission of the Corporation. 12. There is no dispute that the petitioner secured B.Tech degree. According to the petitioner, he completed ten years as per the 2011 Regulations on 14.10.2015 and he also has a case that he was given relaxation in the matter of ten years by one year and three months and, therefore, we can proceed on the basis that if the other conditions are fulfilled, he would become qualified to be considered in the year 2014. 13. Let us look at the other aspect, namely, as to when the petitioner completed the course. From the documents, which are made available, there can be no dispute that the petitioner completed the course of B.Tech in the month of June, 2006. There is also no dispute that the petitioner got the provisional degree in the month of June, 2006. No doubt, the petitioner would point out that the final degree was obtained in the year 2007. The case set up by the petitioner, specifically, before us is that the prior permission within the Rule must be treated as granted by communication dated 28.08.2006. There is also a case, in fact, for the petitioner that since the petitioner had applied earlier, the respondent-Corporation should have acted on the same at any rate; the petitioner has been permitted to sit in the examination and for the same, the necessary leave is also granted. There is also a case, in fact, for the petitioner that since the petitioner had applied earlier, the respondent-Corporation should have acted on the same at any rate; the petitioner has been permitted to sit in the examination and for the same, the necessary leave is also granted. In fact, the Rule does not expressly say that the prior permission is required for the course before joining the course as the Rule only refers to those who have obtained the degree in Engineering on the basis of prior permission. We can hypothetically contemplate different situations arising. There can be a case where, for instance, a person joins for a course and he secure appointment may be within a few days of joining the course (which, of course, is not a case here as the petitioner had almost completed three years of the course when he secured appointment in the year 2005). The other example which could be taken into consideration is a case where a person enrolls in the B.Tech or AMIE course and he either completes the course or has completed the lion share of the course and then secures the appointment and what remained is only the examination. Could it be said, in such circumstances, that the requirement of the Rule that the degree must be obtained with prior permission is satisfied. We would think that the stand taken by the department cannot be said to be untenable. The operation of the Rule appears to be premised on a person securing appointment as Junior Engineer and, thereafter, within a period of ten years, he undergoes the course after securing prior permission from the department. Once this principle is accepted, the difficulty that would arise in different extreme examples, which we have given, will naturally not arise as this Rule is limited to those persons, who are in service at the time the prior permission is sought and given. 14. Coming back to the facts of this case, we may notice that there can be no dispute that the petitioner, insofar as he lays store by the Office Memorandum dated 28.08.2006 to contend that it is the prior permission, it may not be warranted. This is for the reason that the petitioner has already undergone the course and he has also been favoured with the provisional degree certificate. This is for the reason that the petitioner has already undergone the course and he has also been favoured with the provisional degree certificate. Virtually nothing remained to be done by him in regard to the course. So, this certainly cannot be treated as the prior permission, even according to the case set up by the petitioner. The fact that he may have been given leave cannot detract from the crucial fact that it cannot be treated as a prior permission within the Rule and the employee has been given leave to complete what remained of the course and also to participate in the examination. It need not necessarily be traced to the provisions of the Rule in question. 15. We have already expressed the purport of the Rule to be that it is intended to apply to those persons, who secure appointment and after getting prior permission, undertake the course. 16. In the light of the above discussion, we are constrained to find that no relief can be granted to the petitioner. The case set up on the basis of differential treatment meted out to the members of the civil branch, taken up in the rejoinder affidavit without any details, does not call for any consideration by us. At the end of the arguments, Mr. Yogesh Pacholia, learned counsel for the petitioner purported to handover some documents, which are not part of the record, in an attempt to establish a case of discrimination. We do not think that the petitioner should be allowed to do that when the documents are not even part of the record, and we refuse to rely on such documents. 17. In such circumstances, we do not see merit in the writ petition. The writ petition will stand dismissed without any order as to cost.