Research › Search › Judgment

Himachal Pradesh High Court · body

2022 DIGILAW 726 (HP)

Kanta Bala v. State of Himachal Pradesh

2022-11-21

AJAY MOHAN GOEL

body2022
JUDGMENT : (Ajay Mohan Goel, J.) 1. The controversy involved in the present petition is in a very narrow compass. 2. The petitioner before this Court was engaged as Water Carrier in the year 2001 on temporary/contract basis in the Education Department. After completion of fifteen years of service, she was regularized as a Peon In Government Senior Secondary School, Tal, Hamirpur, District Hamirpur, H.P. w.e.f. 21.11.2016. The next promotional post from the post of Peon is that of Lab Attendant and it is undisputed that a Class-IV Employee is eligible for promotion to the post of Lab Attendant after completion of five years of service as a Class-IV employee, provided the candidate is possessing the requisite qualification of being a matriculate. 3. The grievance of the petitioner is that though, she did her matriculation in terms of Annexure P-2 from Grameen Mukt Vidhyalayi Shiksha Sansthan in the academic session 2018-2019, yet when the contemporaries of the petitioner were promoted against the post of Laboratory Attendant vide Annexure P-7, dated 26.03.2022, the name of the petitioner did not figure therein and when she made inquiries she was informed that she was not considered for promotion to the said post by the Departmental Promotion Committee on the ground that the qualification of matriculation possessed by her was not from a recognized institution. 4. Learned counsel for the petitioner has submitted that denial of promotion to the petitioner on the ground that the qualification of matriculation possessed by the petitioner was not from a recognized institute, is not sustainable in the eyes of law. He submitted that it is apparent from Annexure P-2 that petitioner did her matriculation from Grameen Mukt Vidhyalayi Shiksha Sansthan in the academic session of 2018 and she appeared in the examination which was conducted in the month of December, 2018, whereas the equivalence granted in favour of this institution by H.P. Board of School Education was withdrawn vide Annexure P-3, dated 05.02.2019, i.e. after the petitioner had appeared in the examination. Accordingly, he submitted that present petition be allowed and respondent be directed to promote the petitioner against the post of Laboratory Attendant as from the date when persons junior to her were promoted against said post. 5. Accordingly, he submitted that present petition be allowed and respondent be directed to promote the petitioner against the post of Laboratory Attendant as from the date when persons junior to her were promoted against said post. 5. The petition is resisted by the respondents and in the reply which has been filed by the respondents, it is submitted that though the petitioner was working as Class-IV employee/Peon in the respondent/Department, however, the petitioner had passed her matriculation examination in the year 2018 and the certificate was issued by Grameen Mukt Vidhyalayi Shiksha Sansthan on 11.03.2019, whereas H.P. Board of School Education had already withdrawn/cancelled the equivalence/ recognition granted to Grameen Mukt Vidhyalayi Shiksha Sansthan vide notification dated 11.04.2019. 6. Learned Additional Advocate General on the strength of said reply has argued that as there is nothing illegal in the act of the respondent/Department in not granting promotion to the petitioner, as admittedly she was not possessing her matriculation qualification from a institution which could be stated to be recognized, therefore, the present petition being without any merit was liable to be dismissed. He submitted that in the absence of the petitioner possessing matriculation certificate equivalent to H.P. Board of School Education, the petitioner was not having any indefeasible right of promotion and therefore, denial thereof calls for no interference. 7. Record demonstrates that during the pendency of this petition, H.P. Board of School Education was impleaded as respondent No.4. There are on record the instructions which were imparted by the said Board to the learned counsel and perusal thereof demonstrates that it stands mentioned in Para-5 of said instructions that H.P. Board of School Education had issued a notification on 18.10.2021, wherein it was notified that H.P. Board of School Education in its 117th Meeting, dated 14.09.2021, under item No.11 had taken a decision that admissions before 01.12.2017 and after 05.02.2019 in Grameen Mukt Vidhyalayi Shiksha Sansthan will not be recognized and it was decided to grant equivalence/ recognition to those who had passed matriculation and 10+2 from the said institution in the above mentioned sessions of notification dated 18.10.2021. It was further stated in these instructions that particulars of the petitioner stood verified and the factum of the petitioner having done matriculation from the said institution was found to be correct. It was further stated in these instructions that particulars of the petitioner stood verified and the factum of the petitioner having done matriculation from the said institution was found to be correct. A copy of notification dated 18.10.2021 is also appended with these instructions and perusal thereof demonstrates that H.P. Board of School Education had directed to give recognition to only those candidates who had obtained their certificates in between 01.12.2017 to 05.02.2019. 8. Having heard learned counsel for the parties and after carefully gone through the pleadings as well as the documents on record, this Court is of the considered view that denial of promotion to the petitioner purportedly on the ground that the matriculation certificate of the petitioner was not from a recognized institution or to put it differently, the matriculation certificate issued in favour of the petitioner by the institution from which she did her matriculation was no more recognized by the H.P. Board of School Education is not sustainable in the eyes of law. It is not much in dispute that the petitioner did her matriculation in the Academic Session 2018. The Court is not going into the legality of issuance of notifications dated 05.02.2019 or 18.10.2021, in terms whereof, H.P. Board of School Education took the decision that Class-10 and 10+2 certificates issued by recognition before 01.12.2017 and after 05.02.2019 will not be recognized. The petitioner in hand, had appeared for her matriculation examination in the month of December, 2018 and in terms of notification dated 18.10.2021, it was decided by H.P. Board of School Education that certificates issued in between 01.12.2017 to 05.02.2019 will be recognized by the Board. 9. This Court is of the considered view that as the petitioner had appeared for her matriculation examination after completing her matriculation for the Academic Session 2018 before 05.02.2019, therefore, not considering her matriculation certificate to be good enough for the purpose of promotion is bad in law. It is not the case of the respondents that as upto 05.02.2019, the petitioner had not appeared in the matriculation examination. It is not the case of the respondents that as upto 05.02.2019, the petitioner had not appeared in the matriculation examination. This Court is not oblivious to the fact that Annexure P-2 was issued on 11.03.2019, but fact of the matter remains that as the examinations were conducted in the month of December, 2018, the issuance of a detailed mark sheet was just a ministerial act and the date of issuance thereof will not determine the validity of the qualification possessed by a candidate. Besides this, this Court is further of the considered view that notification dated 05.02.2019 will have prospective effect only and therefore also, until and unless a candidate happens to have acquired matriculation from the institution concerned before 01.12.2017 or after 05.02.2019, neither this notification nor subsequent notification dated 18.10.2021 can take away the vested right of a party. 10. Accordingly, in view of the above discussion, this writ petition is allowed and a mandamus is issued to the respondents to hold a review Departmental Promotion Committee and consider the candidature of the petitioner for the post of Lab Attendant and if found eligible, she be granted promotion as from the date the person junior to her was promoted against said post. The promotion will be with all consequential benefits as from the date when the petitioner is found eligible for the purpose of promotion. Needful be positively done within a period of thirty days from today. No order as to costs. 11. The petition stands disposed of, so also the pending miscellaneous applications, if any.