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Himachal Pradesh High Court · body

2020 DIGILAW 338 (HP)

Ain Singh Thakur v. State of Himachal Pradesh

2020-06-12

VIVEK SINGH THAKUR

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JUDGMENT Vivek Singh Thakur, J. - Petitioner has approached this Court, seeking directions to respondent/State to promote him to the post of Assistant Engineer, as per final seniority list of Junior Engineers (Mechanical) serving in Irrigation and Public Health (IPH) Department, as it stood finalized on 31.12.2017 wherein he is at Sr. No. 15, whereas, person below him in seniority, positioned at Sr. No. 16 namely Umesh Kumar has been given placement as Assistant Engineer (Mechanical) vide notification dated 7th September, 2019 (Annexure P-9) ignoring the seniority of petitioner. 2. Petitioner had not arrayed the aforesaid Umesh Kumar as respondent. However, during pendency of petition, the said Umesh Kumar had approached this Court by filing an application and this Court, by allowing the said application, had arrayed him as party/respondent No.5. 3. The dispute involved in present case is with respect to promotion of incumbent from the post of Junior Engineer (Mechanical) to the post of Assistant Engineer (Mechanical). Latest Recruitment and Promotion Rules (in short 'R&P Rules') dealing with Appointment and Promotion of Assistant Engineer (Mechanical), in the Department concerned, have been placed on record by respondent/State with its reply as Annexure R-1, wherein Rule 10 provides that 30% posts of Assistant Engineer (Mechanical) shall be filled by direct recruitment on regular basis or by recruitment on contract basis, as the case may be, and remaining 70% posts shall be filled in by promotion. 4. Rule 11 provides eligibility criteria for consideration to the post of Assistant Engineer (Mechanical) in case of recruitment by promotion/secondment/transfer, which reads as under:- "11. In case of recruitment by promotion/secondment/transfer, grade(s) from which promotion/secondment/transfer is to be made:- By promotion from amongst the:- i) Junior Engineers (Mechanical) possessing a recognize three years diploma in Mechanical Engineering with seven years regular service or regular combined with continuous adhoc service, if any, in the grade and non-diploma Junior Engineers (Mechanical) with fifteen years regular service or regular combined with continuous adhoc service, if any, in the grade: Provided that the non-diploma holder Junior Engineers (Mechanical) who acquire(s) a recognized three years diploma in Mechanical Engineering during service as Junior Engineer (Mechanical) must have rendered three years regular service or regular combined with continuous adhoc service, if any, in the grade after acquiring such qualification. .....40% ii) Junior Engineers (Mechanical) who acquire recognized BE/AMIE degree in Mechanical Engineering or its equivalent during service as Junior Engineer (Mechanical) with three years regular service or regular combined with continuous adhoc service, if any, in the grade after acquiring such qualification. .....15% iii) Junior Engineers (Mechanical) who possess BE/AMIE degree in Mechanical Engineering or its equivalent at the time of appointment as Junior Engineer (Mechanical) with three years regular service or regular combined, with continuous adhoc service, if any, in the grade. .....15%" 5. There are three categories of Junior Engineers (Mechanical) wherefrom recruitment by promotion to the post of Assistant Engineer (Mechanical) has been provided. 6. First category is of Junior Engineers (Mechanical) possessing a recognized three years 'diploma in Mechanical Engineering' with 7 years service and non-diploma Junior Engineers (Mechanical) who acquire a recognized three years 'diploma in Mechanical Engineering' during service as Junior Engineer (Mechanical) with 3 years service after acquiring diploma have also been included in this category. Further non-diploma holder Junior Engineers (Mechanical) with 15 years length of service have also been made eligible for promotion under this Clause. 7. Second category is of Junior Engineers (Mechanical), who acquire recognized BE/AMIE degree in Mechanical Engineering or its equivalent during service as Junior Engineer (Mechanical). 8. The third category is of Junior Engineers (Mechanical) who possess BE/AMIE degree in Mechanical Engineering or its equivalent at the time of appointment as Junior Engineers (Mechanical). 9. 70% quota available for recruitment by way of promotion to the post of Assistant Engineers (Mechanical) has been further divided in the aforesaid three categories in the ratio of 40:15:15 respectively. 10. During pendency of petition, instructions issued to Deputy Advocate General vide letter No. IPH-A(E)0/129/2019 dated 4th January, 2020 from the Secretary, IPH to the Government of HP, it has been clarified that the Department has completed the process for making promotions to the post of Assistant Engineer (Mechanical) from amongst Diploma holder Junior Engineer (Mechanical) (first category) against 40% quota meant for them under Rule 11 of R&P Rules for the post of Assistant Engineer (Mechanical). Therefore, it is clear that in present case controversy is with respect to promotion to the post of Assistant Engineer (Mechanical) from amongst first category i.e. Diploma Holders/non-Diploma holders Junior Engineer (Mechanical). 11. Therefore, it is clear that in present case controversy is with respect to promotion to the post of Assistant Engineer (Mechanical) from amongst first category i.e. Diploma Holders/non-Diploma holders Junior Engineer (Mechanical). 11. Rule 11, referred supra, in Clause (i) provides that Junior Engineer (Mechanical) possessing a recognized three years 'diploma in Mechanical Engineering' or non-diploma holders Junior Engineer (Mechanical) acquiring a recognized three years 'diploma in Mechanical Engineering' during service as Junior Engineer (Mechanical) shall only be eligible for promotion to the post of Assistant Engineer (Mechanical) under this Clause. Junior Engineer (Mechanical) with 'diploma in Mechanical Engineering' shall be eligible for consideration with seven years regular service or regular combined with continuous adhoc service, if any, in the grade, whereas Junior Engineer (Mechanical) acquiring three years 'diploma in Mechanical Engineering' during service shall be eligible for consideration for having rendered three years regular service or regular combined with continuous adhoc service, if any in the grade after acquiring such qualification. This Clause in no uncertain terms provides that only those Junior Engineers (Mechanical) shall be considered who are having 'diploma in Mechanical Engineering'. In this Clause, for want of such provision, there is no scope for considering any Junior Engineer (Mechanical), if any, for possessing any diploma equivalent to Mechanical Engineering other than it. At the time of legislating these R&P Rules, intention of authority is clear for not to include any Junior Engineer (Mechanical), having any diploma other than diploma in Mechanical Engineering irrespective of equivalence of such other diploma with Mechanical Engineering. 12. On perusal of Clause (ii) of Rule 11, it is clear that not only Junior Engineers (Mechanical) who acquire recognized BE/AMIE degree in Mechanical Engineering but also those who acquire its equivalent degree during service as Junior Engineer (Mechanical) are eligible for promotion to the post of Assistant Engineer (Mechanical) in this category. 13. Similarly in Clause (iii) of Rule 11 also, not only Junior Engineers (Mechanical) possessing BE/AMIE degree in Mechanical Engineering but also those who possess its equivalent degree at the time of appointment as Junior Engineer(Mechanical) are eligible for promotion to the post of Assistant Engineer (Mechanical), but no such provision is available in the category covered under Clause (i). 14. Similarly in Clause (iii) of Rule 11 also, not only Junior Engineers (Mechanical) possessing BE/AMIE degree in Mechanical Engineering but also those who possess its equivalent degree at the time of appointment as Junior Engineer(Mechanical) are eligible for promotion to the post of Assistant Engineer (Mechanical), but no such provision is available in the category covered under Clause (i). 14. Therefore, Junior Engineers (Mechanical) possessing any diploma other than 'diploma in Mechanical Engineering' are to be considered as non-diploma Junior Engineers (Mechanical) and such Junior Engineers (Mechanical) shall be eligible for promotion to Assistant Engineer (Mechanical) with 15 years regular service or regular combined with continuous adhoc service, if any, in the grade. 15. Undisputedly, as evident from R&P Rules for the post of Junior Engineers (Mechanical), placed on record by respondent Umesh as well as State, essential qualification for recruiting Junior Engineers (Mechanical) is matric or higher secondary Part I or its equivalent from recognized University/Board and degree or diploma in the trade of Mechanical/ Automobile/ Production/ Aeronautic/ Marine Engineering or its equivalent from a recognized University or an Institution duly recognized by the Government of India or the State Government. Therefore, for recruitment to the post of Junior Engineer (Mechanical), the person not only with diploma in Mechanical Engineering but also the person having any other diploma in Automobile/production/ aeronautical or Marine Engineering or its equivalent is eligible to be appointed as Junior Engineers (Mechanical). 16. As evident from the R&P Rules for the post of Assistant Engineer (Mechanical), contrary to the R&P Rules to the post of Junior Engineers (Mechanical), under Clause (i) of Rule 11, incumbent with diploma in mechanical engineering shall only be eligible as diploma holder Junior Engineer (Mechanical), whereas others, who are having diploma in other streams, have to be considered as non-diploma holders for want of any provision declaring them eligible on the basis of equivalence with diploma in Mechanical Engineering. 17. Initially, petitioner was recruited to the Department as Pump Operator and for his performance in sports, his name was recommended by the Department and approved by the Council of Ministers for giving fresh appointment against direct recruitment to the post of Junior Engineer as a special case and in sequel to the said decision, appointment was offered to petitioner as Junior Engineer (Mechanical) and as such, he had joined as Junior Engineer on 25.8.2012. 18. 18. From the documents placed on record by petitioner, it is evident that he passed diploma in Civil Engineering from Karnataka State Open University by appearing in examinations held in the month of July, 2013, as per Annexure P-2 (colly) and thereafter, he pursued his study for degree i.e. B.Tech in Mechanical Engineering from Karnataka State Open University in the year 2014 and thereafter, he migrated from Karnataka State Open University to Desh Bhagat University Mandi Gobindgarh and completed his Bachelor of Technology finally appearing in examinations held in February, 2017. As per record, he was appointed as Pump Operator on 24.3.2007 and Junior Engineer on 25.8.2012. At the time of appointment and as of now also, he does not possess 'diploma in Mechanical Engineering'. 19. Petitioner's claim is that he has acquired degree i.e. Bachelor in Technology in Mechanical Engineering from Desh Bhagat University, whereas respondent Department, as reflected in reply filed on behalf of the Department, is not accepting his Bachelor degree as a valid degree for considering his candidature as a Bachelor degree holder in Mechanical Engineering or its equivalent for the purpose of promotion on various grounds including that this degree has been obtained through correspondence. 20. As evident from the stand taken by respondent department, promotion in question in present case is with respect to category covered under Clause (i) of Rule 11 of R&P Rules wherein Junior Engineers (Mechanical) with or without diploma in Mechanical Engineering are eligible to be considered for promotion to the post of Assistant Engineer but not those who are having or have acquired degree in Mechanical Engineering or its equivalent during service as for such category promotion chances have been provided in Clause (ii) of Rule 11. Therefore, there is no occasion and necessity to adjudicate in this petition, the rival claims of parties with respect to validity of Bachelor degree in Mechanical Engineering acquired by petitioner during service as Junior Engineer (Mechanical). 21. Admittedly, petitioner has also acquired diploma in Civil Engineering during service as Junior Engineer (Mechanical) in July 2013. Therefore, there is no occasion and necessity to adjudicate in this petition, the rival claims of parties with respect to validity of Bachelor degree in Mechanical Engineering acquired by petitioner during service as Junior Engineer (Mechanical). 21. Admittedly, petitioner has also acquired diploma in Civil Engineering during service as Junior Engineer (Mechanical) in July 2013. However, for the discussion here-in-above on the basis of diploma in Civil Engineering, the petitioner is not entitled to be considered as Junior Engineer (Mechanical) with 'diploma in Mechanical Engineering' either in possession at the time of appointment or acquired during service and thus, he, at the most, falls in the category of non-diploma Junior Engineer (Mechanical), who shall be eligible for promotion under Clause (i) of Rule 11 with 15 years regular service or regular combined with continuous adhoc service, if any, in the grade. 22. Respondent No.5 Umesh, at the time of appointment, as Junior Engineer on contract basis on 31.5.2005 (joining on 8.6.2005) was in possession of diploma in automobile. Like petitioner he is also not eligible to be considered under Clause (i) as Junior Engineer (Mechanical) with a recognized three years diploma in Mechanical Engineering either possessing at the time of appointment or having acquired during service and therefore, he is also to be considered as non-diploma Junior Engineer (Mechanical) and for consideration to be promoted as Assistant Engineer (Mechanical), under Clause (i) of Rule 11, he has also to complete 15 years regular service or regular combined with continuous adhoc service, if any, in the grade. 23. In the seniority list, respondent Umesh Kumar has been recorded as incumbent holding 'diploma in Mechanical Engineering', whereas, he is in possession of 'diploma in automobile engineering'. During pendency of petition, respondent/State was directed to clarify the reason for that and in compliance of order of this Court, passed on 11th December, 2019, an affidavit dated 16th December, 2019 was filed, wherein it is admitted that respondent Umesh Kumar possesses 'diploma in Automobile Engineering' and he was fulfilling essential qualification for appointment to the post of Junior Engineer (Mechanical), as per R&P Rules for the said post and after appointment as Junior Engineer (Mechanical), he is to be considered as Junior Engineer (Mechanical) for all intends and purposes. It is further stated that inadvertently, it was submitted in reply filed on behalf of respondent/State to the petition that he (respondent Umesh Kumar) possesses 'diploma in Mechanical Engineering'. It is also noticeable that petitioner has also acquired diploma in Civil Engineering and he also claims himself a Bachelor Degree Holder. But nothing has been mentioned against his cause. Respondent/State is expected to rectify its mistake and make all necessary corrections in its record within four weeks from passing of this order. 24. Respondent Umesh Kumar vide notification dated 7th September, 2019 (Annexure P-9) has been given placement as Assistant Engineer (Mechanical) purely as a stopgap arrangement and petitioner has sought direction to include his name in this notification for his placement as Assistant Engineer (Mechanical) as per seniority list. The placement of respondent Umesh Kumar vide this notification has not been assailed. Undoubtedly, placement of respondent Umesh Kumar vide notification dated 7th September, 2019 is in violation of seniority and eligibility condition prescribed in Rule 11 Clause (i) and authority is expected not to make such stopgap arrangement ignoring the seniority as well as rota, quota. However, it is also settled that such placement, as has also been mentioned in notification itself, does not confer any right of regular promotion in future to officer to continue in the post and such officer/official is liable to be reverted to the lower post, if eligible person, entitled to be promoted before him against the post, occupied by the officer/official given placement temporarily, and temporary placement also does not confer any right upon the incumbent to claim seniority of the post i.e. Assistant Engineer (Mechanical) in the present case. Therefore, for these reasons and also for want of challenge laid to notification dated 7th September, 2019, respondent/State is directed to consider the name of petitioner for placement as Assistant Engineer (Mechanical) like respondent No.5 subject to availability of post to the category of petitioner, pending consideration of regular promotion to such post. Therefore, for these reasons and also for want of challenge laid to notification dated 7th September, 2019, respondent/State is directed to consider the name of petitioner for placement as Assistant Engineer (Mechanical) like respondent No.5 subject to availability of post to the category of petitioner, pending consideration of regular promotion to such post. It is made clear that in case for availability of regular post, placement of petitioner is made, it would not confer any right to him to continue on the said post on regular promotion in future and he shall be liable to be reverted to the lower post and such placement shall also not confer any right upon him in seniority as Assistant Engineer (Mechanical) and respondent/authority shall also not linger on regular DPC for promotion to such post as well as post occupied by respondent No.5 for a period not more than three months from the date of availability of post and/or passing of this judgment as the case may be. In case regular DPC is conducted and post(s) is filled according to provisions of R & P Rule as interpreted hereinabove, the petitioner as well as respondent No.4 shall not have any right to claim and continue as ad hoc/temporary placement. 25. As per instructions imparted by Secretary IPH to the office of Deputy Advocate General vide letter dated 4th January, 2020 (referred supra), Department has completed the process for making promotion to the post of Assistant Engineer (Mechanical) against the post available to be filled in from amongst the diploma holder Junior Engineers (Mechanical) against 40% quota meant for them under Rule 11 of R&P Rules, but promotion orders have not been issued in view of interim orders passed by this Court on 25.9.2019 in this petition. 26. The Department is directed to complete the process of promotion to the post concerned within eight weeks from passing of order in the light of observations made herein-above in this petition with respect to eligibility of petitioner and respondent No.4 against category in Clause (i) of Rule 11 in which category post is available and petitioner and respondent No.5 Umesh Kumar are to be considered. In case process completed by the Department is in consonance with aforesaid interpretation of Rule and observations of this Court, the Department may process further and if it is not so, then Department is directed to undertake process again immediately and complete the same within eight weeks from today. 27. Petition is disposed of in aforesaid terms. Interim order stands vacated and pending application, if any, also stands disposed of.