IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Writ Petition No. 301 of 2008. Reserved on: 22.8.2008. Decided on: 22.9.2008. __________________________________________________ Not Ram and others. … Petitioners. Versus Bharat Sanchar Nigam Limited and others.… Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioners : Mr. Sanjeev Bhushan, Advocate. For the Respondents : Mr. Ashok Sharma, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. The brief facts necessary for the adjudication of this petition are that the petitioners were appointed as Regular Mazdoors in the respondent-Department in the year 1990. The petitioner No.1 was promoted to the post of Telecom Mechanic in the year 1994. The petitioners No. 2 to 4 were promoted to the post of Telecom Mechanic in the year 1999. The post of Telecom Mechanic is in the feeder category for the post of Telecom Technical Assistant (TTA), Senior Telecom Office Assistant (Senior TOA) and Junior Accounts Officer (JAO). These promotions are regulated under the rules called “Telecom Technical Assistants (TTAs) Recruitment Rules, 2001 notified on July 27, 2001. The post of Telecom Technical Assistant is filled up 50% by direct recruitment, 10% by absorption 1 Whether reporters of the local papers may be allowed to see the judgment?Yes. 2 and 40% by promotion through Limited Departmental Competitive Examination from Telecom Mechanics holding 10+2 certificate or equivalent with five years regular service. The respondent- Department held a Limited Departmental Competitive Examination on 28.8.2005 for filling up the vacancies which have occurred in the year 2001. The petitioners were issued roll numbers pursuant to which they sat in the examination held on 28.8.2005. The petitioners could not qualify the examination. The respondent- Department, thereafter, decided to hold supplementary examination on 2.3.2008. The petitioners were issued provisional roll numbers by the respondent-Department to enable them to sit in the examination to be held on 2.3.2008. However, vide communication dated 21.2.2008, the candidature of the petitioners were cancelled, meaning thereby they were not permitted to sit in the examination on the basis of clarification regarding their qualification sought from the H.P. Board of School Education. The petitioners approached this Court assailing the letter dated 21.2.2008 (Annexure P-5). The petitioners were permitted to sit in the examination vide order dated 1.3.2008 with a rider that their result shall not be declared. The principal stand of the petitioners is that they are eligible as per Recruitment & Promotion Rules (Annexure P-1) read in conjunction with clarifications dated 8.10.1993 (Annexure P-6) and 23.12.2004 (Annexure P-7). The sum and substance of the reply filed by the respondent- Department is that the petitioners are not qualified to be considered for promotion to the higher post in view of the communication/clarification received from the Secretary, H.P. Board of School Education dated 22.9.2004 (Annexure R-3). 3 Mr. Sanjeev Bhushan, Advocate has strenuously argued that the respondents while canceling the candidature of the petitioners have not taken into consideration the letters dated 8.10.1993 and 23.12.2004 on the basis of which Intermediate, PUC and old higher secondary/Prep (11 years duration) conducted by the Board of Examinations are to be treated as equivalent to the examination of 10+2. Mr. Ashok Sharma, Advocate has re-iterated the stand taken in the reply filed to the writ petition. I have heard the parties and have perused the documents placed on record. It is not disputed by the parties that the petitioners were permitted to sit in the Limited Departmental Competitive Examination on 28.8.2005. They were permitted to sit in the examination on the basis of their educational qualification i.e. Higher Secondary. The petitioners could not qualify the examination and they were issued roll numbers to sit in the supplementary examination to be held on 2.3.2008. Their candidature was cancelled on 21.2.2008 on the basis of letter dated 22.9.2004 (Annexure R-3). The promotion to the post of Telecom Technical Assistant is governed under the Telecom Technical Assistants (TTAs) Recruitment Rules, 2001, hereinafter referred to as the Rules. The minimum qualification prescribed under these rules is 10+2 or its equivalent. The petitioners have passed their Higher Secondary Examination. It is evident from letter dated 8.10.1993 that the department itself has treated Higher Secondary equivalent to revised pattern of 4 10+2+3 to Higher Secondary Certificate in the academic as well as vocational education (12 years) or equivalent, meaning thereby as per this letter dated 8.10.1993, the petitioners were qualified. It appears that there was some confusion in the Department whether Intermediate, PUC and old Higher Secondary/Prep (11 years duration) could be treated as equivalent to 10+2 qualification or not. This issue was finally decided vide communication dated 23.12.2004. It is clarified vide this letter dated 23.12.2004 that Intermediate, PUC and old Higher Secondary/Prep (11 years duration) is to be treated as equivalent to the examination of 10+2. The text of the letter dated 23.12.2004 reads thus: “Subject: JAO Part-I (Screening Test) and JAO Part-II (Main Exam) in BSNL for internal candidates under modified old syllabus-One time relaxation –Reg. Kindly refer to this office letter of even number dated 12.10.2004 and 22.11.2004 on the above mentioned subject. BSNL Headquarters have been receiving various references from Circles etc. seeking clarification regarding JAO Part I Exam (Screening Test) to be conducted on 7.2.2003. Doubts raised by Circles have been examined in CO, BSNL and in continuation of this office letter dated 22.11.2004 the undersigned has been directed to issue further clarification on the following points: Point raised by the Circles Clarification given by CO, BSNL Whether the intermediate, PUC and old Higher Secondary/Prep (11 years duration) passed can be treated as equivalent to 10+2 qualification. Intermediate, PUC and old Higher Secondary/Prep (11 years duration) conducted by the Board of Examination is to be treated as equivalent to the examination of 10+2.” The petitioners have been declared ineligible as per letter (Annexure P5) on the basis of the clarification received from the 5 H.P. Board of School Education vide communication dated 22.9.2004. Communication dated 23.12.2004 being later in time will govern the eligibility of the petitioners. Once the respondents were in possession of letter dated 23.12.2004, there was no occasion for them to declare the petitioners ineligible on the basis of communication dated 22.9.2004 on 21.2.2008. It is declared that on the basis of Annexures P-6 and P-7, the petitioners were qualified to be considered for promotion for the post of Telecom Technical Assistants. The respondents could not with-hold/cancel their candidature on 21.2.2008. The matter can be viewed from another angle. The petitioners have been permitted to sit in the Limited Departmental Competitive Examination on 28.8.2005 on the basis of their qualification. However, it was only when they were preparing for supplementary examination to be held on 2.3.2008 that their candidature was cancelled on 21.2.2008. Once the petitioners have been permitted to sit in the examination, there was no occasion for the respondent to cancel their candidature for appearing in the examination to be held on 2.3.2008. If the petitioners were eligible for the Limited Departmental Competitive Examination which was held on 28.8.2005, a fortiori were also eligible to be considered for supplementary examination to be held on 2.3.2008. Consequently, in view of the observations made hereinabove, Annexure P-5 dated 21.2.2008 is quashed and set aside. The petitioners are declared eligible for the examination, which was held on 2.3.2008, on the basis of Annexure P-6 dated 8.10.1993 and Annexure P-7 dated 23.12.2004. The respondents 6 are directed to declare the result of the petitioners within two weeks from today and if they had qualified the Supplementary Limited Departmental Examination held on 2.3.2008, they shall be considered for promotion with all consequential benefits. No costs. (Rajiv Sharma), J. September 22, 2008. (cr)