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2017 DIGILAW 989 (JK)

Gourav Sharma v. Comm. Secy. G. A. D.

2017-11-08

BADAR DURREZ AHMED, SANJEEV KUMAR

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JUDGMENT : BADAR DURREZ AHMED, J. 1. The appellant-petitioner is aggrieved by the judgment dated 10.11.2006 delivered by a learned Single Judge of this Court in SWP No. 2355/2015. The appellant-petitioner had filed the said writ petition claiming that he should have been appointed under the category of Outstanding Sports Person in terms of SRO 349 of 1998 to the post of Junior Engineer (Electrical) Grade-II instead of Technician Grade-III, which was a lower non-gazetted post. 2. The case of the appellant-petitioner was rejected by the learned Single Judge on, primarily, two grounds. First of all, the learned Single Judge, after referring to Rule 3 of the said SRO 349 of 1998 and in particular, the first proviso thereof, held that the candidates possessing the qualification of graduation or above only were to be considered for appointment against the higher post in the non-gazetted service. It was further held by the learned Single Judge that the appellant-petitioner did not have a graduation degree and possessed only a 10+2 qualification with a diploma in Electrical Engineering. Therefore, the appellant-petitioner was not eligible for appointment against a higher post in the non-gazetted service. 3. The second ground, on which the learned Single Judge dismissed the writ petition, was that the petitioner-appellant had filed the writ petition almost three years after he had willingly accepted and elected to join against the post offered to him, that is, Technician Grade-III. The learned Single Judge held that, after having accepted the position, the appellant-petitioner could not retract and that too after three years, and claim appointment to the post of Junior Engineer (Electrical) Grade II. 4. Before us, the learned counsel for the appellant submitted that the decision of the learned Single Judge was erroneous because the aspect of parity had not been considered and given due weightage by the learned Single Judge. It was contended on behalf of the appellant-petitioner that in 1999 and 2002, when the same rule was applicable, persons having only 10+2 qualification with a diploma in Electrical Engineering (without being graduates) had been appointed to the posts of Junior Engineer (Electrical) Grade-II. The learned counsel for the appellant claimed parity with those persons. In response to this plea, the learned counsel for the respondents drew our attention to the counter affidavit/objections filed on their behalf before the learned Single Judge. The learned counsel for the appellant claimed parity with those persons. In response to this plea, the learned counsel for the respondents drew our attention to the counter affidavit/objections filed on their behalf before the learned Single Judge. Paragraph No. 4 of the said same is relevant and is set out herein-below: “In reply to facts stated in Para 11, 12, 13, 14, 15, 16, 17 and 18 it is submitted that appointment of various persons by the respondents under the category of outstanding sports persons against different posts including JE-Grade-11 are admitted. However number of persons under the outstanding' sports category have also been appointed against other posts having lesser pay scale. It is not mandatory for the Government to appoint the outstanding sportspersons against any particular pay scale/post. As far as SRO 349 of 1998 is concerned, the relevant provision reads as under:- “3. Appointment by the Government: (1) Notwithstanding anything contained in the rules or orders for the time being in force, regulating the procedure for appointment to any non-gazetted service under the Government; General Administration Department shall, on recommendation of a committee constituted under sub-rule (2) consider the appointment of an outstanding sports person, at its sole discretion, in any department against any vacancy in the non-gazetted cadre as under:- (i) Persons possessing qualification of 10+2 may be considered for appointment against a vacancy in the non-gazetted services. (ii) Persons possessing qualification less than as shown in Clause (1) above, may be considered for appointment against any Class IV posts. Provided, that a person possessing qualification of graduation or above may be considered for appointment against a higher post in the non-gazetted service. Provided further that the candidates are otherwise eligible for the posts under the relevant recruitment rules/regulations governing the said services besides having obtained the certificate of being outstanding sports person from the Secretary of the Sports Council. (2).............” The second proviso of the SRO clearly states that the candidates are otherwise eligible for the posts under the relevant recruitment rules/regulations governing the said services besides having obtained the certificate of being outstanding sports person from the Secretary, Sports Council. As per the rules, not more than 25 posts are identified in the non-gazetted cadre for consideration for appointment of outstanding sports persons every year. As per the rules, not more than 25 posts are identified in the non-gazetted cadre for consideration for appointment of outstanding sports persons every year. The available posts vary from year to year and merely because another candidate gets adjusted against a particular post it does not vest any right in the petitioner to claim the same. Further, the reference to the appointment of sports persons who were Diploma Holders as JE's to stake claim for the same is misplaced. The four persons referred in para No. 12 at S. Nos. 1 and 2 were appointed in 2002 and those at S. Nos. 3 and 4 were appointed in 1999 in light of the recommendations of the Selection Committee, way back, in the pay scale of 4500-7000. Since then, the outstanding sports persons in the subsequent calendar years who possessed Diploma in Electrical Engineering or equivalent have been appointed as Technician-III in FDD in lower non-gazetted category, in light of the recommendations of the Selection Committee. The petitioner belongs to calendar year 2009 and the GAD on the basis of recommendations of the Selection Committee has considered outstanding sports persons against the post of JE in FDD on the grounds that they were possessing higher qualification of BE or B. Tech. in the relevant branch. Though no person in the 2009 in the 2009 batch was appointed as JE Grade-II, Ms. Rachit Gupta was appointed as JE (Electrical) Grade-II from the year 2005, Mr. Charanjeet Singh Oberoi and Mr. Om Parkash from 2006; Mr. Arjun Gandotra and Mr. Jugraaj Singh from 2010 and Mr. Vishal Singh Chib from the year 2011 batch. All these persons possessed B.E/B. Tech. qualification. It is further pertinent to mention here that the post of JE, Grade-II in FDD from 2010 falls in the category of higher non-gazetted posts falling in Fay Band-II i.e. Rs. 9300-34800-Grade Fay Rs. 4200, which was upgraded vide Govt. Order No. 306-F of 2010 dated 21.12.2010. Prior to that the post was falling in the scale of Rs. 5200-20.200 Grade Pay Rs. 2800/-. The qualification possessed by the petitioner, i.e. Diploma in Electrical Engineering cannot be said to be a higher qualification and does not out-rightly entitle for appointment against a higher non-gazetted category. The answering respondents have not discriminated against the petitioner in any manner.” (Underlining added) 5. 5200-20.200 Grade Pay Rs. 2800/-. The qualification possessed by the petitioner, i.e. Diploma in Electrical Engineering cannot be said to be a higher qualification and does not out-rightly entitle for appointment against a higher non-gazetted category. The answering respondents have not discriminated against the petitioner in any manner.” (Underlining added) 5. From the said reply, wherein the relevant rule has also been quoted, it is evident that not more than 25 posts are identified each year in the non-gazetted cadre for consideration for appointment of outstanding sports persons. The actual available posts vary from year to year. It was also pointed out that the four persons who were mentioned in the writ petition were appointed in the years 1999 and 2002 and those persons were not graduates, but were appointed to the posts of Junior Engineer (Electrical) Grade-II. But after that, that is, from 2003 onwards, no person, who did not possess a Graduate Degree in Engineering was appointed under this rule to the post of Junior Engineer Grade II. They were all appointed as Technician Grade-III which was a lower non-gazetted post than the post of Junior Engineer Grade-II. It is also clear from the above extract, that the case of the petitioner pertains to the Calender year 2009. No person from the 2009 batch having only 10+2 qualification with a diploma in engineering was appointed as Junior Engineer Grade II. The appellant-petitioner perhaps could have claimed parity, if any person in 2009 onwards, who did possess a graduate degree in engineering was appointed to the post of Junior Engineer Grade II. But that is not the case here. The affidavit of the respondents referred to above clearly indicates that 2003 onwards, there has been no appointment to the post of Junior Engineer Grade II under the said rule, where a person did not possess a graduate degree in Engineering. Therefore, in our view, the plea of parity raised by the learned counsel for the appellant does not hold good. 6. We also agree with the conclusion arrived at by the learned Single Judge that the proviso to Rule 3(1) of SRO 349 of 1998 would only apply to a person possessing a qualification of graduation or above for appointment against a higher post in the non-gazetted service. It is abundantly clear that Junior Engineer Grade-II is a higher post in the non-gazetted service than Technician Grade-III. 7. It is abundantly clear that Junior Engineer Grade-II is a higher post in the non-gazetted service than Technician Grade-III. 7. The learned counsel for the appellant-petitioner submitted that the post of Junior Engineer Grade-II was upgraded in the year 2010, but prior to that, it was equivalent to the post of Technician Grade-III. We cannot accept this proposition. But, even if we were to accept the same, for the sake of argument, it would not help the appellant, in any way. If the two posts were equivalent, then, in any event, the appellant-petitioner could not lay claim to anyone particular post and the so-called subsequent up-gradation of the post of Junior Engineer Grade II would also not come to the rescue of the appellant-petitioner because that was a subsequent event, in any case. We also agree with the learned Single Judge that the appellant-petitioner cannot turn around and change his position at this stage particularly having accepted the post of Technician Grade-III way back in 2012 when he was offered the said post which was willingly accepted by him. The writ petition was filed in the year 2015, three years later. 8. In view of the foregoing discussion, there is no merit in the present appeal. The same is dismissed. The decision of the learned Single Judge is upheld. There shall be no order as to costs.