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2019 DIGILAW 146 (UTT)

Vijay Kumar Nautiyal v. State of Uttarakhand

2019-02-28

SHARAD KUMAR SHARMA

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JUDGMENT : Sharad Kumar Sharma, J. Before dealing with the intricacies of the matter, few basic facts which has been argued by the learned counsel for the petitioner is that admittedly he was appointed as Assistant Lecturer (Civil Engineering) on ad-hoc basis on 29.11.1982. It is further admitted case of the petitioner is that the services of the petitioner was regularized by the Selection Committee constituted for the purposes of regularization, by an order dated 05.03.1992. As a matter of fact, and also as per the settled legal proposition, he becomes a regular member of service only w.e.f. the date of his regularization, and is made as a regular member of the cadre of service. 2. It is the case of the petitioner that he has completed his AMIE in the year 1988 i.e. during the period when he was discharging his duties as Assistant Lecturer, Civil Engineering on ad-hoc basis and he was yet to acquire the regular status into the service. A writ petition was preferred by the petitioner being Writ Petition (S/S) No. 1542 of 2004, Vijay Kumar Nautiyal v. State of Uttarakhand through Secretary, Technical Education, Uttarakhand Civil Secretariat, Dehradun with a prayer of mandamus commanding the respondents to grant promotion to the petitioner on the post of Lecturer (Civil Engineering) since he having completed his AMIE, he would be eligible to be considered for promotion as per the Rules. 3. The said writ petition as preferred by the petitioner was disposed of by the coordinate Bench of this Court by the judgement dated 20.06.2008 with the direction to complete the process of promotion from the feeding cadre in accordance with law within a period of one month from the date of production of certified copy of the order. “4. In the counter affidavit it has been stated by the respondents in Para 10 that the process for promotion is in progress. This counter affidavit was filed in the month of May 2005. In view of this statement, the respondents are directed to complete the process of promotion from the feeding care in accordance with law within a period of one month from the date of production of certified copy of this order. 5. The petition is disposed of finally.” 4. This counter affidavit was filed in the month of May 2005. In view of this statement, the respondents are directed to complete the process of promotion from the feeding care in accordance with law within a period of one month from the date of production of certified copy of this order. 5. The petition is disposed of finally.” 4. While adhering to the said judgement the respondents considered the claim of the petitioner and his claim for promotion as Lecturer (Civil Engineering) was rejected by the impugned order dated 03.11.2009. By virtue of the impugned order the private persons i.e. respondent Nos. 5 and 6, who were senior to the petitioner and they were the regular members of the service they were recommended by the Committee constituted by the Public Service Commission for conducting the DPC to be promoted. The Public Service Commission/respondent no. 4 while undertaking the exercise of sorting out the eligible candidates to be considered for promotion and before their placing names before the Committee for promotion for its recommendation had excluded the name of the petitioner vide its decision dated 16.09.2009 on the ground that the petitioner was junior as compared to those persons who were promoted by the order dated 03.11.2009. 5. In support of his contention and for the relief claimed in the writ petition, the learned counsel for the petitioner had placed reliance on a Schedule of eligibility for appointment on the post of Lecturer Engineering and Technical branches in the Institution of Government Polytechnic. As per the Schedule of eligibility, out of total post available i.e. 209 posts for Lecturer (Engineering and Technical), 75% are required to be filled through Commission by direct recruitment and 25% post was made available to be filled in by way of promotion through Commission on the basis of seniority subject to rejection of unfit the feeding cadre for promotion was from amongst substantively appointed Diploma Engineer Holders, Assistant Lecturers etc. who have put in at least 15 years of service on the first day of year of recruitment. This qualifying period of service required to be considered for promotion so far it relates to the candidates holding the AMIE qualification has been provided to be 10 years. 6. who have put in at least 15 years of service on the first day of year of recruitment. This qualifying period of service required to be considered for promotion so far it relates to the candidates holding the AMIE qualification has been provided to be 10 years. 6. The provisions governing the two sources were provided by the rules called as “The Uttarakhand Technical Education Gazetted Officers Service Rules of 2009.” The learned counsel for the petitioner has relied on the Appendix to the rules of 2009 governing the eligibility of appointment from the two sources as per the norms given in the schedule which is quoted hereunder :- VII Lecturers Engineering and Technical Branches and Foreman, Auto Pay band-3 Pay scale 1500-39100 Grade Pay Rs. 5400 209 1. 75 percent post by direct recruitment through the Commission 2. 25 percent by promotion through the Commission on the basis of siniority, subject to rejection of the unfit, from amongst substantively appointed Engineering Diploma holders Assistant lecturers of the concerned branch and diploma holders of computer programmer-cum operator who have put in at least 15 Service on the first day of year of recruitment. For AMIE or TTTI Diploma Holders, the required experience will be ten years. (1) Degree with 55 percent marks in respective discipline of Engineering/Technical or AMIE (India) (2) Knowledge of Hindi. Note:- (1) where basic degree in concerned discipline is not awarded or where candidates having such degree are not available candidates having basic bachelor's degree with respective subject as be effective or special subject shall be considered. (3) Experience of Government Institutions Public Sector, Undertakings or Limited Organizations only will be acceptable and will be counted after the candidate has attained the prescribed academic qualifications Preferential Qualification :- (1) Post graduate degree in the concerned subject. (2) Research work in the concerned subject and knowledge of Hindi. NOTE : Experience of Government Institutions, Public Sector Undertaking or Limited Organizations only will be acceptable. 7. On harmonious reading of this clause VII too which deals with the criteria of promotion where it refers in column 4 the requirement of 10 years of experience it would always have nexus to the substantive appointment as it has been laid down in column 4 relation to the other source of recruitments; for example, the Engineering Diploma Holders, Assistant Lecturers etc. who have completed 15 years of service which refers to experience of 15 year in the feeding cadre after their substantive appointment. So, the basic essentiality for considering the promotion is the “substantive appointment”, and not the date on which the candidate has acquired the qualification required for promotion which in the instant case happens to be of 1988 and substantive appointment in later, which was not completing the required 10 years service on substantive basis. The inference, which the petitioner is drawing to bring himself within the ambit of consideration for promotion is from the date when he has acquired the qualification of AMIE i.e. 1988. It is an admitted fact that in 1988 the petitioner had not completed 10 years of substantive service since was appointed as ad-hoc Assistant Lecturer only on 29.11.1982. His substantive service, if at all is to be computed, it would be computed w.e.f. 05.03.1992 when his services were regularized and for the said purpose, he would be completing his eligibility only in the year 2002 i.e. after 10 years of substantive appointment on 05.03.1992 i.e. from the date of regularization. 8. The argument of the learned counsel for the petitioner is that as per clause (5) as provided in column ‘VII’ of the said Schedule, which provides with the experience of working in Government Institution or Public Sector Undertaking or Limited Organization, it has to be read as an experience which is necessary for the candidates, who are applying for direct recruitment as Lecturers as against 75% direct recruitment posts and are holders of AMIE. Clause (3) of column 5 of the Schedule cannot be extracted and made applicable for the process of promotion provided in clause IV of the Schedule for the purpose of treating it as to be an experience either from the date of ad-hoc appointment; or from the date of acquiring the qualification for promotion i.e. 1988. Hence, if at all, column 3 is to be read, it has to be read only for the purposes of an experience which is required by a new incumbent who is applying for being considered a direct recruitment for appointment as a Lecturer (Engineering and Technical). 9. Hence, if at all, column 3 is to be read, it has to be read only for the purposes of an experience which is required by a new incumbent who is applying for being considered a direct recruitment for appointment as a Lecturer (Engineering and Technical). 9. Admittedly, since the petitioner had not completed the requisite period of service in the year of recruitment defined under Rule 3(k) of the Rules of 2009, required to fill the post by way of promotion, his claim and the prayer of mandamus as sought for with a direction to be considered for appointment by way of promotion against 25% posts by extracting the experience clause which is otherwise attracted for direct recruitment cannot be read against an experience which the petitioner was acquired, while working on ad-hoc basis since it was only in 1988 when he has completed his AMIE, would not be included in the experience contemplated under column IV of the Schedule on which the reliance has been placed by the petitioner. 10. Owing to the above non inclusion or non granting of promotion to the petitioner in the year of recruitment in which respondent Nos. 5 and 6 have been promoted by the impugned order dated 03.11.2009 suffers from no apparent error or mistake, nor it is in contravention to the Rules as applicable, thus if at all the petitioner’s eligibility is to be considered it has to be considered only from the date of his regularization i.e. 05.03.1992 which would be his date of substantive appointment into the service and not for a period prior to it i.e. either 1982 i.e. the date of recruitment as ad-hoc Assistant Lecturer in 1988 when he acquired the qualification of AMIE. 11. In view of the above, this writ petition lacks merit and is accordingly dismissed.