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2024 DIGILAW 1007 (PNJ)

State of Haryana v. Vijay Goyal

2024-07-05

G.S.SANDHAWALIA, LAPITA BANERJI

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JUDGMENT Ms. Lapita Banerji, J. CM-3627 and 3625-LPA-2023 These are applications for condonation of delay of 70 days in filing and 62 days in re-filing the appeal. In view of the averments made in the applications duly supported by an affidavit, the applications are allowed. Delay stands condoned. LPA-1426-2023 Consideration in the present letters patent appeal is to an order dated March 14, 2023 passed by an Hon'ble Single Judge in CWP No.23356 of 2022 (Vijay Goyal v. State of Haryana and others), whereby the Hon'ble Single Judge had allowed the writ petition by setting-aside the impugned order dated October 06, 2022 (Annexure P-13). The three issues which were framed for adjudication by the Hon'ble Single Judge are as follows:- "1) If the employee clears/passes the special examination held by All India Council of Technical Education (hereinafter referred to as the "AICTE") under the directions of the Hon'ble Supreme Court of India in Orissa Lift Irrigation Corporation Ltd. v. Rabi Sankar Patro and others, reported as (2018) 1 SCC 468 and (2018) 2 SCC 298 , in the first attempt, then, whether the engineering degree obtained by distance education mode would stand validated from the date of the degree or from the date of clearing the test held by AICTE? ii) In case there are two sources of recruitment to the post in the cadre namely direct recruits and promotees, whether it is permissible to count seniority of direct recruits from the date of recommendation made by the State Public Service Commission/Recruiting Agency/Board, particularly when the Service Rules framed in the exercise of powers under Article 309 of the Constitution of India, provide that the seniority shall be determined by the length of continuous service ? iii) Whether it is permissible to determine the inter-se seniority between direct recruits and promotees on the basis of instructions issued on 16.03.1962, particularly when the Service Rules, notified under Article 309 of the Constitution of India, provide for determination of seniority in a different manner ?" 2. iii) Whether it is permissible to determine the inter-se seniority between direct recruits and promotees on the basis of instructions issued on 16.03.1962, particularly when the Service Rules, notified under Article 309 of the Constitution of India, provide for determination of seniority in a different manner ?" 2. As regards Issue No.1, the Hon'ble Single Judge held that the impugned order dated October 06, 2022 of Principal Secretary was patently erroneous in considering the judgment mentioned in Orissa Lift Irrigation (supra), inasmuch as the Supreme Court had only ordered that the engineering degrees of the students who were enrolled during the academic years 2001-2005 be suspended till such time they cleared the special tests held by AICTE and did not declare such degrees to be per se illegal. Furthermore, it was held that those candidates, who passed the special test held by AICTE in the first attempt (i.e in June, 2018) would be entitled to retain all the incidence/benefits of the degrees. Since both the petitioner and respondent No.4/Satish Garg (SG) had cleared the special examination held in June, 2018 in the first attempt, the Hon'ble Single Judge opined that the inter se seniority list between the petitioner and the private respondents was required to be decided afresh by the competent authority. 3. The Hon'ble Single Judge also noted that counsel for private respondent No.4 had drawn the attention of the Court to the orders passed on August 13, 2019 in "Ashok Kumar and others v. Deepinder Singh Dhesi and others" (2019) 8 SCC 280 , to contend that the writ petitioner should be considered to be qualified only from the date on which the result of AICTE was declared, as the intent of Orissa Lift Irrigation (supra) was only to restore the status-quo ante and not confer any additional advantage. Therefore, no ante dated promotion could be granted to the writ petitioner relying on the judgment of Orissa Lift Irrigation (supra). With regard to the aforesaid contention, the Hon'ble Single Judge held that the Supreme Court had only dismissed the contempt petitions in Ashok Kumar's case (supra) and the discussion therein was not relevant for the purpose of deciding Issue No.1. With regard to the aforesaid contention, the Hon'ble Single Judge held that the Supreme Court had only dismissed the contempt petitions in Ashok Kumar's case (supra) and the discussion therein was not relevant for the purpose of deciding Issue No.1. As the shadow or eclipse over the petitioner's degree stood removed on account of clearing the special examination held by AICTE in the first attempt in June, 2018 and the degree became valid from the original date when he had acquired the same, Issue No.1 was decided in favour of the petitioner. 4. As regards Issues No.2 and 3, it was held that the Additional Chief Secretary (for short, "ACS"), erred in relying upon the instructions issued on March 16, 1962 because the said instructions were neither applicable to the petitioner nor governed the inter se seniority especially when the Punjab Municipal Service (Integration, Recruitment and Conditions of Service) Rules (for short, "1982 Rules"), had been implemented to govern the said field. Thus, he was of the opinion that the ACS had erred in making the observation that the direct recruits who joined on August 26, 2009 were senior to the petitioner. For the purpose of deciding the writ petition, the 1982 Rules as well as The Haryana Municipal Service (Integration, Recruitment and Conditions of Service) Rules (for short, "2010 Rules"), had to be considered for determining the seniority inter se the parties, by considering the continuous length of service of the employee. Accordingly, the Hon'ble Single Judge directed that a fresh seniority list be drawn, after considering the case of petitioner, and other direct recruits viz. Vivek Singh, Ankit Lohan, Manjit Singh Dahiya, Mohinder Singh, Yograj etc. 5. The succinct facts leading to the present dispute are culled out hereinafter:- i) The writ petitioner-Vijay Goyal was awarded a Diploma in Civil Engineering in 1997, and he completed his B.Tech (Civil Engineering) from JRN Rajasthan Vidyapeeth in 2007. ii) He was appointed as Junior Engineer on ad-hoc basis on May 01, 1998 with Maharaja Agrasen Institute of Medical Research and Education, Agroha (Hisar). Vide an order dated December 04, 2002, his services were regularized w.e.f. the date of appointment. In June 2005, the petitioner was sent on deputation to the Municipal Committee, Kalka as a Junior Engineer and was ultimately merged into/adjusted in the Municipal service on May 31, 2006. Vide an order dated December 04, 2002, his services were regularized w.e.f. the date of appointment. In June 2005, the petitioner was sent on deputation to the Municipal Committee, Kalka as a Junior Engineer and was ultimately merged into/adjusted in the Municipal service on May 31, 2006. As per the terms of his absorption, he would be entitled to the benefits of seniority from the date of merger and his service would be governed by the 1982 Rules. iii) The petitioner was promoted as Municipal Engineer on August 21, 2009. In June 2018, he cleared the special test conducted by AICTE for validation of his Civil Engineering degree awarded by JRN Rajasthan Vidyapeeth, in the first attempt itself. iv) The petitioner had filed a previous writ petition being CWP- 25096-2017 seeking directions to consider his claim for promotion to the post of Executive Engineer from the date his juniors were promoted i.e. June 29, 2017 as he was aggrieved by his promotion as Executive Engineer with effect from January 22, 2019. Vide order dated October 11, 2018, the writ was disposed of with directions to decide his legal notice within a period of 8 weeks. v) Subsequently, the petitioner moved another representation dated February 12, 2019 (Annexure P-42) before the authorities seeking promotion to the post of Municipal Engineer with effect from January 31, 2007 and to the post of Executive Engineer from September 01, 2014, after giving him relaxation of four months of experience. Vide orders dated April 30, 2019 (Annexure P-7) the Principal Secretary to Government of Haryana, Urban Local Bodies Department found the claim of the petitioner to be justified and accordingly vide order dated May 27, 2019, he was granted ante-dated promotion to the post of Municipal Engineer with effect from January 31, 2007 and to the post of Executive Engineer with effect from September 01, 2014. Thereafter, he was promoted as Superintendent Engineer vide order dated September 17, 2019 (Annexure P-8). vi) On March 02, 2022, the petitioner was issued Show Cause Notice (Annexure P-10) seeking his comments as to why the aforesaid benefit of deemed promotions as Municipal Engineer, Executive Engineer and Superintendent Engineer be not withdrawn. The petitioner submitted detailed replies to the Show Cause Notice on March 21, 2022 and August 16, 2022. vi) On March 02, 2022, the petitioner was issued Show Cause Notice (Annexure P-10) seeking his comments as to why the aforesaid benefit of deemed promotions as Municipal Engineer, Executive Engineer and Superintendent Engineer be not withdrawn. The petitioner submitted detailed replies to the Show Cause Notice on March 21, 2022 and August 16, 2022. vii) Vide impugned order dated 06th October, 2022, the benefit of deemed dates of promotion (as Municipal Engineer from 31st January, 2007, as Executive Engineer from 01st September, 2014 and as Superintendent Engineer vide order dated 17th September 2019) granted to the petitioner were withdrawn. 6. Ms. Shruti Jain Goyal, Senior Deputy Advocate General, Haryana, appearing on behalf of the appellant submitted that the State was only challenging the finding of the Hon'ble Single Judge with regard to Issue No.1. Since the Hon'ble Single Judge gave the State liberty to re-draw the seniority list after considering the claim of the petitioner vis-a-vis other recruits, the State was not challenging the findings on Issues No.2 and 3. She argued that the Hon'ble Single Judge had erred in granting the benefits and advantages to the writ petitioner, which had not accrued to him on the date of the judgment, passed in Orissa Lift Irrigation (supra) i.e on November 03, 2017. 7. Mr. Rajiv Atma Ram, learned Senior Counsel has strenuously argued that undisputedly the writ petitioner/respondent No.1 in the appeal, cleared the special test held by AICTE in the first attempt i.e. in June, 2018 and therefore, his Engineering Degree stood validated from the date the degree was issued in 2007. It was also not in dispute that the petitioner had taken admission for distance learning course in 2003 and therefore, he was admitted during the academic sessions of 2001-2005. It was a case where the petitioner's degree was kept in abeyance till such time he passed the special test held by AICTE and the degree was not per se illegal. All the candidates who passed the special test in the first attempt would have their degrees validated and could retain the advantages/benefits flowing from the same from the date on which the degree was issued and not from the date when they passed the special test. Therefore, the petitioner should be allowed to retain the benefits of ante-dated promotions bestowed on him as he was squarely covered by the judgment passed in Orissa Lift Irrigation (supra). Therefore, the petitioner should be allowed to retain the benefits of ante-dated promotions bestowed on him as he was squarely covered by the judgment passed in Orissa Lift Irrigation (supra). Such benefits could not be granted from the date of clearing of the test held by AICTE and had to be granted from the date when the engineering degrees obtained through distance education mode stood validated. 8. This Court has heard the arguments of the parties and the materials placed on record. To reach a logical conclusion, it would be important to appreciate and understand the directions passed by the Hon'ble Apex Court in judgment dated November 03, 2017 passed in Orissa Lift Irrigation (supra). The relevant extract of the said judgment is reproduced hereinafter:- "57. Having found the entire exercise of grant of ex-post-facto approval to be incorrect and illegal, the logical course in normal circumstances would have been not only to set aside such ex-post-facto approvals but also to pass consequential directions to recall all the degrees granted in pursuance thereof in respect of Courses leading to award of degrees in Engineering. However, since 2004 UGC Guidelines themselves had given liberty to the concerned Deemed to be Universities to apply for ex-post-facto approval, the matter is required to be considered with some sympathy so that interest of those students who were enrolled during the academic sessions 2001-2005 is protected. Though we cannot wish away the fact that the concerned Deemed to be Universities flagrantly violated and entered into areas where they had no experience and started conducting courses through distance education system illegally, the over bearing interest of the concerned students persuades us not to resort to recall of all the degrees in Engineering granted in pursuance of said ex-post-facto approval. However, the fact remains that the facilities available at the concerned Study Centres were never checked nor any inspections were conducted. It is not possible at this length of time to order any inspection. But there must be confidence and assurance about the worthiness of the concerned students. We, therefore, deem it appropriate to grant some chance to the concerned students to have their ability tested by authorities competent in that behalf. It is not possible at this length of time to order any inspection. But there must be confidence and assurance about the worthiness of the concerned students. We, therefore, deem it appropriate to grant some chance to the concerned students to have their ability tested by authorities competent in that behalf. We, therefore, direct that all the degrees in Engineering granted to students who were enrolled during the academic years 2001-2005 shall stand suspended till they pass such examination under the joint supervision of AICTE-UGC in the manner indicated hereinafter. Further, every single advantage on the basis of that degree shall also stand suspended . 58. The AICTE is directed to devise within one month from the date of this judgment modalities to conduct appropriate test/tests both in written examination as well as in practical for the concerned students admitted during the academic session 2001-2005 covering all the concerned subjects. It is entirely left to the discretion of AICTE to come out with such modalities as it may think appropriate and the tests in that behalf shall be conducted in the National Institutes of Technology in respective states wherever the students are located. The choice may be given to the students to appear at the examination which ideally should be conducted during May-June, 2018 or on such dates as AICTE may determine. Not more than two chances be given to the concerned students and if they do not pass the test/tests their degrees shall stand and recalled cancelled. If a particular student does not wish to appear in the test/tests, the entire money deposited by such student toward tuition and other charges shall be refunded to that student by the concerned Deemed to be University within a month of the exercise of such option. The students be given time till 15th of January, 2018 to exercise such option. The entire expenditure for conducting the test/tests in respect of students who wish to undergo test/tests shall be recovered from the concerned Deemed to be Universities by 31.03.2018. If they clear the test/tests within the stipulated time, all the advantages or benefits shall be restored to the concerned candidates . The entire expenditure for conducting the test/tests in respect of students who wish to undergo test/tests shall be recovered from the concerned Deemed to be Universities by 31.03.2018. If they clear the test/tests within the stipulated time, all the advantages or benefits shall be restored to the concerned candidates . We make it clear at the cost of repetition that if the concerned candidates do not clear the test/tests within the time stipulated or choose not to appear at the test/tests, their degrees in Engineering through distance education shall stand recalled and cancelled. It goes without saying that any promotion or advancement in career on the basis of such degree shall also stand withdrawn, however any monetary benefits or advantages in that behalf shall not be recovered from them. Xxx 66. Accordingly, we direct: 66.1 The 1994 AICTE Regulations, do apply to deemed to be universities and the deemed to be universities in the present matter were not justified in introducing any new courses in technical education without the approval of AICTE. 66.2 Insofar as candidates enrolled during the academic sessions 2001-2005, in the present case the ex post facto approvals granted by UGC and their authorities concerned are set aside. 66.3 Consequent to aforesaid Direction 66.2, all the degrees in Engineering awarded by deemed to be universities concerned stand suspended. 66.4 AICTE shall devise the modalities to conduct an appropriate test(s) as indicated in para 58 above. The option be given to the students concerned whose degrees stand suspended by 15-1-2018 to appear at the test(s) to be conducted in accordance with the directions in para 58 above. Students be given not more than two chances to clear test(s) and if they do not successfully clear the test(s) within the stipulated time, their degrees shall stand cancelled and all the advantages shall stand withdrawn as stated in paras 57 and 58 above. The entire expenditure for conducting the test(s) shall be recovered from the deemed to be universities concerned by 31-3-2018. 66.5 Those students who do not wish to exercise the option, shall be refunded entire money deposited by them towards tuition fee and other charges within one month of the exercise of such option. Needless to say, their degrees shall stand cancelled and all advantages/benefits shall stand withdrawn as mentioned in para 58. 66.5 Those students who do not wish to exercise the option, shall be refunded entire money deposited by them towards tuition fee and other charges within one month of the exercise of such option. Needless to say, their degrees shall stand cancelled and all advantages/benefits shall stand withdrawn as mentioned in para 58. 66.6 If the students clear the test(s) within the stipulated time, all the advantages/benefits shall be restored to them and their degrees will stand revived fully . 66.7 As regards students who were admitted after the academic sessions 2001-2005, their degrees in Engineering awarded by the deemed to be universities concerned through distance education mode stand recalled and be treated as cancelled. All benefits secured by such candidates shall stand withdrawn as indicated in para 59 above. However, the entire amount paid by such students to the deemed to be universities concerned towards tuition fees and other expenditure shall be returned by the deemed to be universities concerned by 31-5- 2018, as indicated in para 59. Xxx'' 9. Subsequently, on various applications being moved seeking clarification and modification of the directions passed by the Hon'ble Apex Court on November 03, 2017, such directions were clarified vide order dated January 22, 2018 reported in (2018) 2 SCC 298 . The relevant extract of the said clarification order is as follows:- "26. We, therefore, as a one-time relaxation in favour of those candidates who were enrolled during the academic years 2001-2005 and who, in terms of the judgment, are eligible to appear at the test to be conducted by AICTE, direct:- 26.1 All such candidates, who wish to appear at the forthcoming test to be conducted by AICTE in May-June, 2018 and who exercise option to appear at the test in terms of the judgment, can retain the degrees in question and all the advantages flowing there from till one month after the declaration of the result of such text or till 31.07.2018 whichever is earlier: 26.2 This facility is given as one-time exception so that those who have the ability and can pass the test in the first attempt itself, should not be put to inconvenience. If the candidate pass in such first attempt, they would be entitled to retain all the advantages. If the candidate pass in such first attempt, they would be entitled to retain all the advantages. But if they fail or choose not to appear; the directions in the judgment shall apply, in that the degrees and all the advantages shall stand suspended and withdrawn. At the cost of repetition, it is made clear that no more such chances or exceptions will be given or made. They will undoubtedly be entitled to appear on the second occasion in terms of the judgment but this exception shall not apply for such second attempt." (emphasis supplied) 10. Thereafter, contempt petitions No. 408-409 of 2019 were moved alleging that the judgment and clarification order in Orissa Lift Irrigation (supra) had been willfully and deliberately violated. These contempt petitions though came to be dismissed in Ashok Kumar's case (supra), the Hon'ble Apex Court further clarified the directions passed in Orissa Lift Irrigation (supra) by observing that those candidates who, on the strength of the degrees awarded through distance education mode had attained a particular level in their career or were enjoying certain benefits as on the date of judgment and cleared the examination their benefits would stand restored. In the event the candidates cleared the examination in the first attempt itself, there would not even be any break in their continuous enjoyment of such benefits and facilities. The Supreme Court clarified that the idea was not to deprive any candidate of the status that they were enjoying on the date of judgment, provided they could prove their worth and ability. 11. However, if the candidates concerned had not attained any particular status as on the date when the judgment was passed, the width of directions could not be extended to confer any additional advantage which they had not even enjoyed on that date. The relevant extract is reproduced herein below: "14. It was, therefore, clear that the candidates who, on the strength of such degrees awarded through distance education mode, had attained a particular level in their career or were enjoying certain benefits as on the date of the Judgment and if they pass the examination, those benefits would stand restored. If the candidates could clear the examination in the first attempt itself, there would not even be any break in continuous enjoyment of those benefits or facilities. If the candidates could clear the examination in the first attempt itself, there would not even be any break in continuous enjoyment of those benefits or facilities. The idea was, candidates should not stand deprived of the status that they were enjoying as on the day of the Judgment provided the candidates could prove their worth and ability. 15. But if, the candidates concerned had not attained any particular status, as on the date when the Judgment [Orissa Lift Irrigation Corpn. Ltd. v. Rabi Sankar Patro, (2018) 1 SCC 468 ] was passed, the width of the directions was not to confer any additional advantage which was not even enjoyed as on the date. It was not the idea to hold the candidates to be entitled to certain additional benefits which the candidates were, as a matter of fact, not even enjoying on the date of the judgment . If the degrees stood restored in terms of the directions in the Judgment and the Order, the candidates would certainly be eligible to such entitlements as are available in accordance with law, but "restoration" would only be of those benefits, which they were enjoying as on the date of the Judgment . In short, the intent was to restore status quo ante and not to confer any additional advantage by the Judgment [Orissa Lift Irrigation Corpn. Ltd. v. Rabi Sankar Patro, (2018) 1 SCC 468 ] and the Order [Orissa Lift Irrigation Corpn. Ltd. v. Rabi Sankar Patro, (2018) 2 SCC 298 ]." XXX XXX XXX 12. The issue that falls for consideration is whether the benefits the writ petitioner was seeking to retain, which were conferred to him on April 30, 2019 i.e. after November 03, 2017 [the date of judgment passed in Orissa Lift Irrigation (supra)] could be allowed. Vide order dated April 30, 2019, the Principal Secretary to Government of Haryana, Urban Local Bodies Department not only considered the legal notice dated August 21, 2017 which was the subject matter of consideration in the first writ petition being CWP No.25096 of 2017 but also considered a subsequent representation dated February 12, 2019 (Annexure P-42) which was never the subject matter in consideration in the first writ petition. This Court vide order dated October 11, 2018 in CWP No.25096 of 2017 only directed the respondents/authorities to consider the grievance raised in the legal notice dated August 21, 2017 and decide the same keeping in view the judgment passed in Orissa Lift Irrigation (supra). In the legal notice dated August 21, 2017, the petitioner only prayed for ante-dated promotion to the post of Executive Engineer with effect from June 29, 2017, when his juniors had been promoted. 13. Even though there was no direction by this Court to consider any subsequent representation still the Principal Secretary erroneously proceeded to decide the subsequent representation of the petitioner dated February 12, 2019. Vide the 2019 representation, the writ petitioner expanded the scope of his claim and sought promotion to the post of Executive Engineer with effect from September 01, 2014, (instead of June 29, 2017) after giving him relaxation of four months. The petitioner also claimed promotion to the post of Municipal Engineer from January 31, 2007 (the date of passing of his degree) at par with some other candidates who were junior to him by contending that he had joined as a Junior Engineer on May 01, 1998 and after acquiring B.Tech degree on January 31, 2007, he should have been considered for promotion to the post of Municipal Engineer on and from January 31, 2007. After acquiring seven years of experience, a Municipal Engineer who had an Engineering degree would become eligible for the post of Executive Engineer and therefore, the petitioner should have been granted promotion with effect from September 01, 2014. 14. To the mind of this Court such prayer was erroneously accepted by the Principal Secretary on April 30, 2019 since the intention in the judgment and order in Orissa Lift Irrigation (supra) was only to restore status-quo ante and not to confer any additional advantage. This Court has perused the contents of legal notice dated August 21, 2017 which had not been placed on record by the petitioner but was Annexure P-13 of CWP No.25096 of 2017 and finds that the prayer was only to grant him promotion to the post of Executive Engineer with effect from June 29, 2017 the date his junior was promoted and not from September 01, 2014 and there was no prayer for ante-dated promotion to the post of Municipal Engineer with effect from January 31, 2007. Even if the said prayers were made in the representation of 2019, they could not have been acceded to in view of the judgment passed in Orissa Lift Irrigation (supra). 15. A Co-ordinate Bench of this Court in RA-CW-101-2022 in CWP-525-2017 "Jagdish Rai Singla v. State of Haryana and others" decided on March 17, 2023, also clarified the position that the Apex Court had restricted the right in Ashok Kumar's case (supra) and the test was to be applied very strictly. Merely because some persons have been wrongly granted a benefit, no person could be allowed to claim the said benefit as a matter of right. It is a settled principle that Article 14 does apply in the form of negative equality. Therefore, this Court is of the firm view that even if some juniors to the petitioner were wrongly given the benefits after the date of judgment passed in Orissa Lift Irrigation (supra), the same could not be extended to the petitioner, as on November 03, 2017 he had not been granted the benefits which he subsequently wanted to be protected. However, factually it appears that the petitioner was claiming promotion at par with his juniors with effect from June 29, 2017, vide his legal notice. Therefore, since the purported promotions to the juniors were given prior to November 03, 2017, even the case for negative equality also could not be made out by the petitioner, especially in view of Orissa Lift Irrigation (supra). 16. In view of the aforesaid discussion, the judgment and order passed by the Hon'ble Single Judge is set-aside to the extent that it holds that the opinion of the Principal Secretary vide order dated October 06, 2022 is patently erroneous while discussing Issue No.1. Even after noting Ashok Kumar's case (supra), the Hon'ble Single Judge did not rely on the findings made therein and erred in holding that merely the contempt petition was dismissed and the said judgment is not relevant for the purpose of deciding the present writ petition. 17. Under Article 141 of the Constitution of India the law declared by the Hon'ble Supreme Court is binding on all the Courts within the territory of India, including the High Courts even if the observations have been made in a contempt petition. Therefore, the findings made by the Hon'ble Supreme Court in Ashok Kumar's case (supra) are also binding on this Court. Therefore, the findings made by the Hon'ble Supreme Court in Ashok Kumar's case (supra) are also binding on this Court. Accordingly, the present letters patent appeal is allowed with the aforesaid observations and the judgment passed by Hon'ble Single Judge dated March 14, 2023 is set-aside and the writ petition is dismissed to that extent. Connected applications, if any, also stand disposed of.