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Himachal Pradesh High Court · body

2023 DIGILAW 171 (HP)

Mohan Lal v. Chaudhary Sarwan Kumar, Himachal Pradesh Krishi Vishav Vidalaya, Palampur

2023-03-23

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioner has sought a direction to the respondent/University to promote him against the post of Junior Engineer (Civil) upon completion of fifteen years of service against the post of Work Inspector and also on the strength of his having obtained the certificate of three months training programme in Civil Engineering (Grade A). 2. Brief facts necessary for the adjudication of the present petition, as can be culled out both from the petition filed by the petitioner as also the reply filed by the respondent-University, are that the petitioner joined the respondent-University as a Mortar Mate w.e.f. 03.03.1979 and he worked as such on work charge basis up to 23rd of July, 1996. His services were regularized w.e.f. 24.07.1996, as a Junior Technician (Work Inspector). 3. Respondent-University is having Recruitment and Promotion Rules for the post of Junior Engineer (Civil), which have been issued in terms of notification dated 16th January, 2013, appended with the petition as Annexure P-1. As per the said Rules, the post of Junior Engineer (Civil) is to be filled in 75% by way of direct recruitment and 25% by way of promotion. There are seven feeder categories mentioned in Rule 13, from which, an incumbent can be promoted against the post of Junior Engineer (Civil). This Court is concerned with Clause (vii) thereof, which inter alia provides that the post of Junior Engineer (Civil) will be filled by promotion from amongst Work Inspectors, who are matriculates or posses its equivalent recognized qualification, with at least 15 years of regular service on regular combined with continuous adhoc service rendered, if any, in the grade and completed successfully the prescribed Departmental Training Course of six months duration. As mentioned herein above, it is not in dispute that as on the date when the said Rules came into force, the petitioner was having fifteen years of regular service as a Work Inspector and further he was also possessing the qualification of matriculation. The issue is with regard to the prescribed Departmental Training Course of six months duration. There is on record appended with the petition as Annexure P-3, copy of communication dated 11.07.2022, addressed by the Estate Officer of the respondent-University to the Principal of Government Polytechnic, Sundernagar, Himachal Pradesh, on the subject “Training Courses for inservice unqualified Work Inspectors”. The issue is with regard to the prescribed Departmental Training Course of six months duration. There is on record appended with the petition as Annexure P-3, copy of communication dated 11.07.2022, addressed by the Estate Officer of the respondent-University to the Principal of Government Polytechnic, Sundernagar, Himachal Pradesh, on the subject “Training Courses for inservice unqualified Work Inspectors”. Perusal thereof demonstrates that the petitioner was sponsored by the respondent-University to undergo the training course, duration of which was not six months but only three months. 4. At this stage, it is also relevant to refer another communication on record i.e. Annexure P-8 dated 5th April, 2014, addressed by Registrar of the respondent-University to the Engineer-in-Chief, Himachal Pradesh Public Works Department, on the subject “Promotion to the post of Junior Engineer (Civil) from feeder category-clarification regarding”. By way of this communication, clarification was sought by the respondent-University from the Engineer-in-Chief of the Himachal Pradesh Public Works Department as to whether incumbent similarly situated as the petitioner, who had undergone three months Departmental Training Course stood promoted against the post of Junior Engineer (Civil) or not and Annexure P-8A appended with the petition, which is a communication addressed by the Engineer-in-Chief of Himachal Pradesh Public Works Department to the Registrar of the respondent-University dated 19.04.2014, demonstrates that before the promulgation of provision of sixth month Department Training in the R&P Rules, the Junior Engineers, who were having three months Departmental Training, were considered for promotion. 5. The response, which has been filed to the writ petition by the respondents is clear and categoric that the only reason as to why the petitioner was not considered for promotion against the post of Junior Engineer (Civil), when a vacancy to the quota of the petitioner became available that he was not fulfilling the eligibility criteria of having six months Departmental Training. This fact is further evident from the instructions, which have been imparted to the learned counsel for the respondent-University by the Registrar of the respondent-University dated 1st December, 2022, which stand perused and returned back to the learned Counsel. A perusal thereof demonstrates that in the year 2014, the petitioner was not considered for promotion against the post of Junior Engineer (Civil) despite vacancy to the feeder category pertaining to the petitioner being available for the reason that he was not fulfilling the eligibility criteria. A perusal thereof demonstrates that in the year 2014, the petitioner was not considered for promotion against the post of Junior Engineer (Civil) despite vacancy to the feeder category pertaining to the petitioner being available for the reason that he was not fulfilling the eligibility criteria. This Court is aware that the eligibility of an incumbent for promotion has to be seen in terms of the Rules which are in vogue as on the date the DPC meets to consider the eligible candidates for such promotions. In the present case, the promotion has been denied to the petitioner on the sole ground that the petitioner as on the date of consideration was not possessing six months Departmental Training. I have already referred hereinabove to the communication, in terms whereof, the petitioner was sent by the respondent-University for Departmental Training. The reason as to why the petitioner underwent three months Departmental Training and not six months Departmental Training was that he was sponsored for training by the respondent-University, duration of which was only three months. This means that it is not on account of the fault of the petitioner or omission on his part that he was not conferred promotion for want of six months Departmental Training. At the cost of repetition, it is stated that the reason as to why he was possessing three months Departmental Training was that he was sent by the respondent-University only for three month Departmental Training and not six month training. 6. In these circumstances, this court is of the considered view, as it is not the case of the respondent- University that after new Rules came into force, the petitioner was called upon to either undergo six months Departmental Training or further departmental training of three months but he refused, the petitioner cannot be made to suffer for the acts of omission of the respondent-University. As already mentioned hereinabove, the petitioner joined the service of the respondent-University as a Mortar Mate and thereafter, he rose to the rank of Junior Technician (Work Inspector) on account of sheer hard work and the number of years of service he rendered with the respondent-University. To give impetus to such employees, there was a provision in the Recruitment and Promotion Rules, for promoting unqualified Work Inspectors, who are at least Matriculate to the post of Junior Engineer (Civil). To give impetus to such employees, there was a provision in the Recruitment and Promotion Rules, for promoting unqualified Work Inspectors, who are at least Matriculate to the post of Junior Engineer (Civil). The condition of Departmental Training of six months as is contained in the R&P Rules, cannot create a hurdle in the path of an incumbent for promotion who has undergone departmental training of lesser duration on the asking of the respondent-University and who subsequently was not called upon to undergo further training of three months so as to become eligible in terms of the R&P Rules. It appears that the reason as to why the petitioner was made to undergo three months Departmental Training was in terms of the Rules, which were in force at the relevant time when the petitioner was sent for training, contemplated three months Departmental Training only, for being eligible for promotion against the post of Junior Engineer(Civil). 7. As already mentioned hereinabove, the case of the petitioner was considered and rejected for promotion against the post of Junior Engineer (Civil) in the year 2014. New Rules had come into force w.e.f. 16.01.2013, in terms of Notification Annexure P-1. It was incumbent upon the respondent–University, after said Rules came into force, to call upon the petitioner to undergo further training of three months or another option available with the respondent- University was to confer promotion to the petitioner against the post of Junior Engineer (Civil) subject to the condition of his undergoing further training of three months. None of the said options having been exercised by the respondent- University, the same could not have debarred the petitioner from being promoted to the post of Junior Engineer (Civil). Incidentally, the Court stands informed that the petitioner has now superannuated in the year 2018. 8. Accordingly, in view of the above discussion, this writ petition is allowed to the extent that the respondent- University is directed to hold a review DPC and consider the case of the petitioner for promotion against the post of Junior Engineer (Civil) as from the date when his name was rejected for want of six months Departmental Training Course. 8. Accordingly, in view of the above discussion, this writ petition is allowed to the extent that the respondent- University is directed to hold a review DPC and consider the case of the petitioner for promotion against the post of Junior Engineer (Civil) as from the date when his name was rejected for want of six months Departmental Training Course. The name of the petitioner will be considered on the strength of the certificate of three months departmental training course which he is possessing and if found eligible for promotion, he will be promoted to the post of Junior Engineer (Civil) without disturbing any other incumbent who stood promoted against said post. Needful be done within a period of two months from today. If found eligible, the petitioner be given notional benefits as from the date he is found fit for promotion by the DPC up to the date of his superannuation, and post superannuation, benefits be granted in actual by determining them as if the petitioner superannuated from the post of Junior Engineer (Civil). The petition stands disposed of in above terms. Pending miscellaneous application(s), if any, also stand disposed of accordingly.