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2021 DIGILAW 903 (HP)

Dilvaru Devi, D/O Sh. Hira Lal v. State Of Himachal Pradesh Through Principal Secretary (Jal Shakti Vibhag)

2021-11-29

AJAY MOHAN GOEL

body2021
JUDGMENT : By way of this writ petition, the petitioners have, inter alia, prayed for the following reliefs:- “(i) That a writ in the nature of certiorari may kindly be issued to quash the impugned Annexure P-10, i.e., order dated 19.09.2020, issued by the Law Department, Government of Himachal Pradesh on the basis of which respondents No. 1 & 2 have included the names of respondents No. 3 to 5 for promotion/placements to the post of Assistant Engineer (Civil) under Rule 11(ii) and 11(iii) notified vide Annexure P-8 under 10% and 15% quota prescribed to Junior Engineers (Civil) who are having the qualification of B.E./B. Tech. (Civil) or AMIE degree. (ii) That a writ in the nature of mandamus may kindly be issued restraining respondents No. 1 & 2 to make promotions/placements of respondents No. 3 to 5 for the post of Assistant Engineer (Civil), under Rule11(ii) and 11(iii) notified vide Annexure P-8 and justice be done.” 2. The case of the petitioners is that petitioner No. 1 did her Bachelor of Technology in Civil Engineering in the year, 2012. She was appointed as Junior Engineer (Civil) on contract basis vide Office Order dated 05.10.2013 on the recommendations of the Himachal Pradesh Staff Selection Commission, Hamirpur, H.P. and her services were regularized as such vide Office Order dated 06.05.2017. Petitioner No. 2 did his Bachelor of Technology in Civil Engineering from Jaypee University of Information Technology, Vaknaghat, District Solan, H.P. in the year, 2014. He was appointed on contract basis as Junior Engineer (Civil) vide Office Order dated 01.11.2016 and regularized vide Office Order dated 28.04.2020. 3. Respondent No. 2 issued a provisional list of Junior Engineers (Civil) vide letter dated 18.11.2019, as it stood on 31.12.2018 and in terms thereof, the name of petitioner No. 1 figured at Sr. No. 775 and as the services of petitioner No. 2 were not regularized at that the relevant time, therefore, his name did not find mention in the said seniority list. Further, the case of the petitioners is that the State framed the Recruitment and Promotion Rules for the post of Assistant Engineer (Civil), Class-1 (Gazetted) Technical Services in Irrigation and Public Health Department, which stood notified on 20.03.1997. In terms of these Rules, 30% of the posts were to be filled by way of direct recruitment and 70% by way of promotion from amongst Junior Engineers (Civil). In terms of these Rules, 30% of the posts were to be filled by way of direct recruitment and 70% by way of promotion from amongst Junior Engineers (Civil). From the 70% quota of promotion, 45% is meant for Junior Engineer (Civil), who completed seven years regular service or regular combined with continuous ad hoc in the grade and unqualified Junior Engineers (Civil) with fifteen years regular or regular combined with continuous ad hoc experience in the grade and 10% is meant for Junior Engineer (Civil), who acquired AMIE or its equivalent degree during service and 10% is reserved in favour of those Junior Engineers (Civil), who possess the Degree of Civil Engineering at the time of joining the services as Junior Engineer, having completed three years regular or regular combined with continuous ad hoc services. In addition, 5% posts were reserved for Draughtsman, who have the qualification of Matriculation and also possess two years diploma in Draughtsmanship and have put in ten years regular or regular combined with continuous ad hoc service in the grade. These Rules, which were framed in the year 1997, were amended thereafter in the year 1998 and 2005. According to the petitioners, as they are degree holders, they are concerned with their quota prescribed under Rule11(iii) of the Rules, as they stand amended from time to time. 4. Vide notification dated 5th June, 2020 (Annexure P-7), the earlier Recruitment and Promotion Rules were repealed and The Himachal Pradesh Irrigation & Public Health, Assistant Engineer (Civil) Class-I (Gazetted) Technical Services Recruitment and Promotion Rules, 2010 were brought into force. These Rules were also repealed vide notification dated 6th December, 2019 (Annexure P-8) and thereafter, The Himachal Pradesh, Department of Irrigation & Public Health, Assistant Engineer (Civil), Class-I (Gazetted) Recruitment and Promotion Rules, 2019 have been brought into force. Rules 10 and 11 thereof, which are relevant for the purpose of adjudication of this petition, are quoted herein below:- “10. Method(s) of recruitment, whether by direct recruitment or by promotion/ Secondment/transfer and the percentage of post(s) to be filled in by various methods.- (i) 25% by direct recruitment on regular basis or by recruitment on contract basis, as the case may be. (ii) 75% by promotion. 11. Method(s) of recruitment, whether by direct recruitment or by promotion/ Secondment/transfer and the percentage of post(s) to be filled in by various methods.- (i) 25% by direct recruitment on regular basis or by recruitment on contract basis, as the case may be. (ii) 75% by promotion. 11. In case of recruitment by promotion/secondment/transfer, grade for which promotion/Secondment/transfer is to be made.- By Promotion amongst:- (i) Junior Engineer (Civil) with seven years’ regular or regular combined with continuous ad hoc service rendered, if any, in the grade and unqualified Junior Engineer (Civil) with atleast 15 years’ regular or regular combined with continuous ad hoc service rendered, if any, in the grade……….45%; (ii) Junior Engineer(Civil), who acquire BE/B.Tech. (Civil) or AMIE degree during service as Junior Engineer (Civil) with three years regular or regular combined with continuous adhoc service rendered, if any, in the grade after acquiring such qualification……..10%; (iii) Junior Engineer (Civil) who possess BE/B. Tech (Civil) or AMIE degree at the time of appointment as Junior Engineer (Civil) with three years’ regular or regular combined with continuous adhoc service rendered, if any, in the grade…...15%; (iv) Planning Officers who have passed Matriculation and possess two years’ Diploma in Draughtsmanship from a recognized Institution and having three years’ regular or regular combined with continuous adhoc service rendered, if any, as Circle Head Draughtsman and Planning Officer combined, out of which one year service rendered as Planning Officer must be essential…...04%; and (v) Planning Officer/Officer(s) of Draughtsman cadre who acquire BE/B/ Tech (Civil) or AMIE degree during service with three years’ regular or regular combined with continuous adhoc service rendered, if any, in the grade after acquiring such qualification……...01%.” 5. It is the case of the petitioners that the Department has now commenced the process of making promotions to the posts of Assistant Engineer in terms of the 2019 Rules. Respondents No. 3 to 5 were appointed as Junior Engineers (Civil) on the strength of diploma qualification possessed by them and they have acquired their degrees of AMICE(I)/degrees equivalent to Civil Engineering from the Institute of Civil Engineering India (ICE India), Carrier House, Binder Complex, Model Town, Ludhiana, Punjab, which degrees as per the petitioners cannot be equated with either B.E./B.Tech.(Civil) or AMIE, for the reason that there is no provision in the Rules, which provides for equating the degrees of AMICE(I) either with B.E./B. Tech. or AMIE. or AMIE. As per the petitioners, in terms of the Rules, which were in force prior to 2019, there was a provision of equating the degree with Civil Engineering at the time of appointment as Junior Engineer (Civil), but now the Rules in force envisage that only those Civil Engineers, who possess B.E./B. Tech. (Civil) or AMIE Degree at the time of appointment as Junior Engineer (Civil) with three years regular or regular combined with continuous ad hoc service can be considered for promotion and degrees acquired by the private respondents cannot be considered for the purpose of promotion. On this count, the prayers have been made for issuance of directions to respondents No. 1 and 2, which already stand quoted hereinabove. 6. The petition is resisted by the Department on the ground that All India Council of Technical Education (AICTE) vide letter dated 14.01.2019 informed that the Council in its 52nd emergent meeting held on 03.08.2017, had recognized the courses conducted by the professional bodies/institutions, such as, Institution of Civil Engineers (India) for equivalence purposes, which were duly recognized by MHRD with permanent recognition up to 31.05.2013. It is further the stand of said respondents that the Institution of Engineers (India) at Kolkatta has certified that Associate Member of Institution of Engineers India (AMIE) is equivalent to B.E./B. Tech. and as per the Ministry of Human Resource Development (MHRD), Government of India, this AMIE qualification is considered equivalent to a degree in Engineering. The Institution of Civil Engineers (India) also conducts Associate Membership Examination and degrees and the degrees of AMICE obtained from Institution of Civil Engineers (India) are considered equivalent to AMIE degrees. It is further the stand of said respondents that once the degrees of AMICE (I) have been held equivalent to AMIE, therefore, as per the Recruitment and Promotion Rules, they are said to be AMIE for all intents and purposes and private respondents No. 3 to 5 are entitled for consideration under Clause (ii) of Rule 11 of the Recruitment and Promotion Rules for promotion to the post of Assistant Engineer. It is further the stand of the Department that petitioner No. 1 has been placed as Assistant Engineer(Civil) vide notification dated 16.01.2021 vide Annexure R-2, whereas, petitioner No. 2 does not fall in the zone of consideration at present and, therefore, he has not been placed as Assistant Engineer as of now. It is further the stand of the Department that petitioner No. 1 has been placed as Assistant Engineer(Civil) vide notification dated 16.01.2021 vide Annexure R-2, whereas, petitioner No. 2 does not fall in the zone of consideration at present and, therefore, he has not been placed as Assistant Engineer as of now. It is also the stand of the respondent- Department that private respondents are entitled for consideration for placement/consideration for the post of Assistant Engineer (Civil) under Clause-(ii) of Rule-11 of the Recruitment and Promotion Rules for the post of Assistant Engineer (Civil). 7. The private respondents have also resisted the petition on the ground that as they are eligible for being considered for promotion to the post of Assistant Engineer (Civil) on the basis of certificates, which have been obtained by them from the recognized Institutes, therefore, the petition be dismissed. 8. I have heard learned counsel for the parties and have also gone through the pleadings on record carefully. 9. The relevant Rules, which render the parties eligible for promotion to the post of Assistant Engineer (Civil), have already been quoted hereinabove. In terms thereof, the petitioners have a right of consideration for being promoted against the post of Assistant Engineer (Civil) upon completion of three years service as such, whereas, the private respondents have been treated as eligible candidates by the Department on the strength of the certificates obtained by them from the Institution of Civil Engineers (India). The challenge which has been laid by the petitioners to the qualifications of private respondents, is that as the qualification referred to in the 2019 Rules is BE/B.Tech. (Civil) or AMIE degree and the qualification possessed by the private respondents is AMICE(I) degree, therefore, the same cannot be treated as AMIE degree. 10. This Court is of the considered view that there is no merit in the said contention of the petitioners. The full form of AMIE degree is Associate Membership Examination Engineering degree and the full form of AMICE degree is Associate Membership Examination in Civil Engineering. Thus, the additional word, which is there in the degree of the private respondents connotes to the word ‘Civil’. This is the trade in which the private respondents have done their AMIE degree from the concerned Institution and this is the trade, in which, they are appointed as Junior Engineers and have to be considered for promotion as Assistant Engineers. Thus, the additional word, which is there in the degree of the private respondents connotes to the word ‘Civil’. This is the trade in which the private respondents have done their AMIE degree from the concerned Institution and this is the trade, in which, they are appointed as Junior Engineers and have to be considered for promotion as Assistant Engineers. The above clearly demonstrates that the degree of AMICE, which has been obtained by the private respondents, having been obtained from the Institution of Civil Engineers (India), is given under the nomenclature of AMICE, full form of which is Associate Membership Examination in Civil Engineering. A perusal of the photo copies of the certificates of qualification of the private respondents which are on record, demonstrate that the Institution from which these certificates have been obtained by the private respondents, is duly recognized by the Government of India. In fact the Institution is a duly recognized Degree Level Institution. During the course of arguments, there was no serious dispute with regard to this aspect of the matter. 11. Another thing, which is pertinent to be mentioned is that whereas the petitioners were appointed as Junior Engineers initially on contract basis in the year 2012 and 2016, respectively, they were regularized as such vide orders dated 06.05.2017 and 28.04.2020. The private respondents, on the other hand, joined the services as Junior Engineers much before the petitioners. Respondent No. 3 joined the services of the respondent-Department as a Civil Engineer on 13.11.2009 on regular basis and passed AMICE in the year, 2012. Respondent No. 4 joined the Department as a Junior Engineer (Civil) on 29.05.2009, initially on contract basis. He completed his AMICE in November, 2012 and he was regularized in the month of March, 2015. Respondent No. 5 was appointed as a Junior Engineer (Civil) on 22.09.2012 and he passed his AMICE in the year, 2015. His services were regularized in the year, 2017. Besides this, this Court is of the considered view that the best entity to take a call as to whether the qualifications possessed by the private respondents were good enough to render them eligible for promotion or not is the Department. In the present case, it is not the stand of the Department that the private respondents are not eligible for promotion. In the present case, it is not the stand of the Department that the private respondents are not eligible for promotion. The documents, which have been appended with the reply by respondents No. 1 and 2, especially Annexure R-1, prove beyond doubt that the qualification possessed by the private respondents is a duly recognized qualification. 12. Therefore, in the background what has been discussed hereinabove, this Court is of the considered view that the contention of the petitioners that the private respondents are not eligible for being considered for promotion to the post of Assistant Engineer (Civil) is totally misconceived. The qualification which has been acquired by the petitioners while in service renders them eligible for promotion to the post of Assistant Engineer (Civil) and this is also the stand of the Department concerned. Accordingly, as this Court finds no merit in the present petition, the same is dismissed. Interim orders, if any, stand vacated. Miscellaneous applications, if an, also stand disposed of.