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Uttarakhand High Court · body

2019 DIGILAW 373 (UTT)

Brijesh Kumar Chaudhary v. Union of India

2019-06-11

ALOK KUMAR VERMA, RAMESH RANGANATHAN

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JUDGMENT : Ramesh Ranganathan, J. The application, to restore the writ petition to file, is not opposed by Mrs. Prabha Naithani, learned Brief Holder for the State of Uttarakhand, and the application for restoration is, therefore, allowed and the writ petition is restored to file. 2. The petitioner has invoked the jurisdiction of this Court seeking a writ of certiorari to quash the order passed by the second respondent dated 11.09.2017; and for a mandamus commanding the second respondent to provide promotion to the petitioner to the post of Assistant Engineer (Civil) under the 7.33 per cent quota of graduate Civil Engineer, along with all consequential benefits, including notional promotion from 2012. 3. Facts, to the limited extent necessary, are that the petitioner sought permission, vide letters dated 28.04.2010 and 18.11.2010, from the department to pursue a B.Tech degree course in Civil Engineering. The seventh respondent granted permission to the petitioner to pursue his B.Tech degree course in Civil Engineering vide letter dated 31.12.2010. The petitioner claims to have pursued his B.Tech degree course from the Institution of Civil Engineers (India) at Ludhiana (Punjab), and to have been awarded Associate Membership [AMICE(I)] which, according to him, is equivalent to a B.Tech degree in Engineering. It is also the petitioner's case that his qualification of AMICE(I) has been duly recognised by the AICTE, as is evident from the letter dated 16.09.2008; and this course is also recognised by the Union of India as per the notification dated 06.11.2007. 4. After the petitioner underwent the course in Civil Engineering, from the Institution of Civil Engineers (India) at Ludhiana (Punjab), he sought appointment to the post of Assistant Engineer under the degree quota by submitting an application dated 18.10.2012. Under the Uttarakhand Service of Engineers (Irrigation Department) (Group "B") Rules, 2003 (for short the "2003 Rules") 7.33 per cent of the posts of Assistant Engineers are reserved for Junior Engineers appointed against substantive vacancies, and having a graduate degree in Civil Engineering. The petitioner's name is said to have been short-listed against the vacant post of Assistant Engineer, against the relevant quota for the selection year 2012-13, against 15 vacant posts. Reliance is placed by the petitioner on the letter dated 25.04.2008, issued by the Distance Education Council, Indira Gandhi National Open University, to submit that the petitioner's qualification is pursuant to a regular course of study, and is not by distance mode. Reliance is placed by the petitioner on the letter dated 25.04.2008, issued by the Distance Education Council, Indira Gandhi National Open University, to submit that the petitioner's qualification is pursuant to a regular course of study, and is not by distance mode. 5. A Committee was constituted by the fifth respondent to ascertain the validity of the qualification held by the petitioner. The Committee, in its report dated 28.05.2013, opined that the qualification obtained by the petitioner was through distance mode. It is the petitioner's case that no opportunity of hearing was provided to him, and the Committee had not considered the letter dated 31.01.2013 issued by the Institution of Civil Engineers (India) at Ludhiana (Punjab). The petitioner's candidature, for promotion to the post of Assistant Engineer, was rejected on the basis of this report dated 28.05.2013. Aggrieved thereby, the petitioner invoked the jurisdiction of this Court by filing Writ Petition (S/S) No. 1482 of 2013, which was disposed of by order dated 08.05.2017 directing the respondents to consider the petitioner's case, in view of the letter dated 29.11.2013, within a period of twelve weeks. After the writ petition was disposed of, the second respondent considered the matter afresh, and passed the impugned order dated 11.09.2017. Aggrieved thereby, the petitioner has again invoked the jurisdiction of this Court by filing the present writ petition. 6. In the counter affidavit filed by the second respondent, it is stated that, with regards the status of a degree in Civil Engineering obtained through distance mode, the State Government had addressed a letter to the University Grants Commission (for short "UGC") which had replied, by its letter dated 07.07.2017, that, in terms of the letter dated 19.03.2013 issued by the IGNOU, the Joint Committee of UGC, AICTE, DEC has not yet accorded any approval to B.Tech/B.E. programme of any University offered through distance mode; therefore the degree obtained by the petitioner was not valid; and he could not be extended the said benefit. 7. 7. It is also stated in the counter-affidavit that the Union of India, Ministry of Human Resource and Development, vide notification dated 06.11.2017, had decided to give recognition to Sections "A" and "B" of Associate Membership course equivalent to Degree, and Part-I and II of Technician Engineers (T) equivalent to Diploma in Civil Engineering and Architecture Engineering courses conducted by the Institution of Civil Engineers (India), Ludhiana (Punjab) as per the syllabus approved by the All India Council for Technical Education (AICTE) w.e.f. the academic session 2007-08 for the purpose of employment to the posts and services under the Central Government in the appropriate field; though permission was given only for the academic session 2007-08, the petitioner had obtained the degree in the year 2011 through distance mode; the diploma in Civil Engineering, obtained by the petitioner, is therefore not valid; it has only been recognized for the purpose of giving employment to posts and services under the Central Government in the appropriate field, and not under the State Government services; for promotion as an Assistant Engineer, the candidate must have a graduate degree in Civil/Mechanical Engineering or must be an Associate Member of the Institute of Engineers (India); he must also have completed three years of service from the first day of the selection year; when it came to the knowledge of the authorities that the petitioner had obtained his degree through distance mode, the department had examined the status of the degree and found that the petitioner was ineligible; a perusal of the Office Memorandum dated 27.04.2016 shows that the competent bodies have not recognized the degree in Civil Engineering obtained through distance mode; the course undertaken by the petitioner was not a regular course, as a degree of B.Tech is awarded by a regular institution; the petitioner had not taken any study leave during the course duration; it is evident from the Office Memorandum dated 27.04.2016 that the UGC does not allow any type of University/Institution to offer education through the distance mode; and the joint committee of the UGC, AICTE and DEC had not given its recognition to B.Tech programmes of any university through distance mode. 8. The qualification prescribed for direct recruitment/promotion to the post of Assistant Engineers is stipulated in Rule 5(a) (iii) and Rule 8 of the 2003 Rules. 8. The qualification prescribed for direct recruitment/promotion to the post of Assistant Engineers is stipulated in Rule 5(a) (iii) and Rule 8 of the 2003 Rules. Rule 5 of the 2003 Rules relates to the source of recruitment and, under Rule 5(a)(iii), 7.33 per cent of the posts shall be filled up from amongst such substantively appointed Junior Engineers (Civil) who possess a Bachelor's Degree in Civil Engineering from a recognized Institution or is an Associate Member of the Institution of Engineers (India) (Civil Engineering Branch), and who have completed three years' service as such on the date of recruitment. Rule 8 stipulates that the candidate for appointment to the post of Assistant Engineer must (1) possess a degree in Civil or Mechanical Engineering as the case may be, from an Institution or a University recognized by the Government; or (2) be a qualified Associate Member of the Institution of Engineers (India) Civil Engineering Branch or Mechanical Engineering Branch, as the case may be. 9. The 2003 Rules were made in the exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. As the constitutional validity of the 2003 Rules has not been subjected to challenge in these writ proceedings, we must necessarily presume that these Rules are constitutionally valid. Consequently, the only question which necessitates examination is whether the petitioner possesses the academic qualifications stipulated in Rule 5(a)(iii) and in Rule 8(1) and (2) of the 2003 Rules. Rule 8(1) requires the candidate to possess a degree in Civil or Mechanical Engineering, from an Institution or University recognized by the Government. The petitioner, admittedly, does not fall within the ambit of Rule 8(1) since he does not possess a degree in Civil or Mechanical Engineering. His claim is based on Rule 8(2), since he obtained a diploma in Civil Engineering from the Institution of Civil Engineers (India) at Ludhiana (Punjab). The certificate, on which the petitioner places reliance upon, is a certificate of Associate Membership [AMICE(I)] issued by the Institution of Civil Engineers (India) at Ludhiana (Punjab) certifying that the petitioner had passed Section B of Associate Membership Examination [AMICE(I)] in Civil Engineering held in summer 2011; section A & B of Associate Membership Examination is recognized by the Ministry of Human Resource Development, Govt. of India, vide Gazette Notification dated 06.11.2007, as equivalent to a degree in Civil Engineering; and the petitioner had undergone practical training/tests and project work in the AICTE approved Engineering Institution, and has obtained A+ grade. 10. Rule 5(a)(iii) and Rule 8(2) of the 2003 Rules, as noted hereinabove, requires the candidate to be a qualified Associate Member of the Institution of Engineers (India) Civil Engineering Branch or Mechanical Engineering Branch, as the case may be. Rule 5(a)(iii) and Rule 8(2) require a candidate to be a qualified Associate Member of the Institution of Engineers (India), and not the Institution of Civil Engineers (India). 11. Mrs. Prabha Naithani, learned Brief Holder appearing on behalf of the State Government, would submit that the Institution of Engineers (India) is located at New Delhi, whereas the Associate Membership obtained by the petitioner is of the Institution of Civil Engineers (India), which is located at Ludhiana (Punjab). It is evident, therefore, that the petitioner does not satisfy the requirement of Rule 5(a)(iii) or Rule 8(2) of the 2003 Rules of being a qualified Associate Member of the Institution of Engineers (India) either in Civil Engineering Branch or Mechanical Engineering Branch, as the case may be. 12. While great emphasis is placed by Mr. Ajay Veer Pundir, learned counsel for the petitioner, on the fact that the Institution of Civil Engineers (India) at Ludhiana (Punjab) is also recognised by the AICTE, the State Government has chosen not to treat such a qualification as an eligible academic qualification either under Rule 5(a)(iii) or under Rule 8(1) and (2) of the 2003 Rules for appointment as an Assistant Engineer. 13. As the petitioner's diploma is not from the Institution of Engineers (India), but from the Institution of Civil Engineers (India) at Ludhiana (Punjab) which is admittedly not a qualification prescribed under Rule 5(a)(iii) and Rule 8(2) of the 2003 Rules, it hardly matters whether the diploma offered by the Institution of Civil Engineers (India) at Ludhiana (Punjab) has been recognised by the AICTE. It is also unnecessary for us, therefore, to dwell on the submission of Mrs. Prabha Naithani, learned Brief Holder, that it is only candidates, who undergo a course through a regular process of learning, and not by distance mode, who are alone eligible for appointment as Assistant Engineers. 14. The power to prescribe qualifications vests with the Executive or the Rule making authority. Prabha Naithani, learned Brief Holder, that it is only candidates, who undergo a course through a regular process of learning, and not by distance mode, who are alone eligible for appointment as Assistant Engineers. 14. The power to prescribe qualifications vests with the Executive or the Rule making authority. In the present case the Rule making authority has, under Rule 5(a)(iii) and Rule 8 (1) and (2) of the 2003 Rules, prescribed the academic qualifications for being considered for appointment to the post of Assistant Engineer. It is not for the High Court, in proceedings under Article 226 of the Constitution of India, to either stipulate itself, or to direct the Rule making authority to prescribe, any other qualification as an eligible qualification for being considered for appointment as an Assistant Engineer, for it is well settled that no court can either issue a mandamus to the legislature to enact a particular law or direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. (Supreme Court Employees Welfare Association Vs. Union of India, (1990) AIR SC 334; State of J & K Vs. A.R. Zakki,1992 1 SCC 548; State of Andhra Pradesh Vs. T. Gopalakrishna Murthi and Ors., (1976) 1 SCR 1008 ; Mangalam Organics Ltd. Vs. Union of India, (2017) 7 SCC 221 and Narinder Chand Hem Raj Vs. Lt. Governor, Administrator, Union Territory Himachal Pradesh, (1972) 1 SCR 940 ). While it has the power to strike down a law on the ground of want of authority, this Court would not sit in appeal over the policy of Parliament or the State Legislature in enacting a law. (Rusom Cavasiee Cooper Vs. Union of India, (1970) 1 SCC 248 ). Just as it cannot direct a legislature to enact a particular law, (Supreme Court Employees Welfare Association Vs. Union of India, (1990) AIR SC 334), the High Court, under Article 226 of the Constitution of India, cannot direct the Executive to exercise power by way of subordinate Legislation, pursuant to the power delegated by the Legislature to enact a law, in a particular manner. (Indian Soaps and Toiletries Makers Association Vs. Ozair Husain and Ors., (2013) 3 SCC 641 ). 15. (Indian Soaps and Toiletries Makers Association Vs. Ozair Husain and Ors., (2013) 3 SCC 641 ). 15. We see no reason, therefore, to interfere with the order impugned in this writ petition whereby it was held that the petitioner does not possess the required academic qualifications for being considered for appointment to the post of Assistant Engineer. 16. The writ petition fails and is, accordingly, dismissed. No costs.