-1- Civil Writ Petition No.11577-CAT of 2002. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: May 12, 2008. Gurcharan Singh ... Petitioner VERSUS Union of India and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. Raman B. Garg, Advocate, for the petitioner. Mr.Puneet Jindal, Advocate, for the respondents. -.- MOHINDER PAL, J. In this petition filed under Articles 226 / 227 of the Constitution of India, the petitioners has prayed for issuance of a writ in the nature of certiorari, thereby quashing the order -2- Civil Writ Petition No.11577-CAT of 2002. dated October 18, 2001 (Annexure P-12) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as `the Tribunal') whereby Original Application No.998- PB/1995 filed by him under Section 19 of the Administrative Tribunals Act, 1985 (hereinafter referred to as `the Act'), was dismissed. The facts of the case are as under:- The petitioner, who possesses the educational qualifications of Higher Secondary with Science, was appointed as Laboratory Khalasi, a Class IV post, on August 22, 1970, in the Northern Railways. He was promoted to the post of Junior Chemical & Metallurgical Assistant (for short `J.C.M.A') with effect from June 04, 1977 in relaxation of qualification. The petitioner joined the Railway Coach Factory (for short `R.C.F'), Kapurthala, on August 08, 1986, on deputation as J.C.M.A. He was promoted as Chemical and Metallurgical Assistant (for short `C.M.A') on December 12, 1988 after he cleared the written test. He was further promoted as Laboratory Superintendent Grade-II and regularized as such with effect from October 03, 1991. Then he was promoted as Laboratory Superintendent Grade-I on regular basis vide order dated April 16, 1993. The petitioner was further allowed to participate in the selection process for promotion to the post of Assistant Chemist and Metallurgical. However, certain candidates whose names could not be entertained for the selection of -3- Civil Writ Petition No.11577-CAT of 2002. Assistant Chemist and Metallurgical, represented to the administration that as the petitioner was not a Science Graduate, he was ineligible to appear in the selection for the post of Assistant Chemist and Metallurgical. Clarification in this regard was sought from the Railway Board and thereafter it was decided by the competent authority that the petitioner had been erroneously promoted as Laboratory Superintendent Grade II and Laboratory Superintendent Grade-I. Accordingly, a show cause notice dated January 23, 1995 (Annexure P-9), was issued to the petitioner in which it was clarified that he was promoted as Laboratory Superintendent by an administrative error and against the provisions of the policy in vogue, hence,he was called upon to show cause why he should not be reverted to the post of C.M.A as he was not entitled to the promotion beyond C.M.A in terms of the Railway Board's letter dated November 06, 1985 (Annexure P-4). The petitioner submitted reply dated January 25, 1995 (Annexure P-10) to the show cause notice. Thereafter, General Manager (P), Railway Coach Factory, Kapurthala (respondent No.3), considering the reply filed by the petitioner, passed the order dated September 30, 1995 (Annexure P-11) reverting the petitioner to the post of C.M.A with effect from October 16, 1995. The petitioner challenged the order Annexure P-11 before the Tribunal by way of filing Original Application No. No.998-PB/1995, which was dismissed vide the impugned order. -4- Civil Writ Petition No.11577-CAT of 2002. The case of the petitioner is that similarly situated employees, namely, M. Dharma Rao, V.S. Krishnamurti and Dau Lal Lavania have been promoted to the posts of Laboratory Superintendent Grade-II and Laboratory Superintendent Grade I despite the fact that they are also possessing the same qualifications as the petitioner. In the written statement filed by the respondents, it has been stated that the promotions of the petitioner to the posts of Laboratory Superintendent Grade II and Laboratory Superintendent Grade I were under an administrative error and in violations of the instructions dated November 06, 1985 (Annexure P-4) issued by the Railway Board. As per the instructions (Annexure P-4), non-science Graduates can be promoted upto the post of C.M.A only. It has been further stated that the Laboratory Superintendents have to work on most sophisticated equipments often calling for on the spot decision requiring higher knowledge of science. The duties of the Laboratory Superintendent include the testing of soundness of the material to be used for manufacturing of the coaches and taking decisions which ultimately involve safety of the public in general. Hence, the persons working on such posts must be at least Science Graduates. So far as the plea of discrimination taken by the petitioner that certain persons have been promoted to the posts of Laboratory Superintendents although they are also possessing -5- Civil Writ Petition No.11577-CAT of 2002. the same qualifications as the petitioner is concerned, it has been stated that those persons are not employed with the answering respondents. It has been further pleaded that a person cannot claim benefit on the ground that the department has already given benefit to others even when law does not permit such benefit. A wrong cannot be made ground of committing another wrong. Otherwise also, the petitioner has neither impleaded the Railways where similarly situated persons have been granted the benefit of promotion beyond the post of C.M.A nor the alleged persons. We have heard Mr. Raman B. Garg, Advocate, appearing for the petitioner and Mr.Puneet Jindal, Advocate, appearing for the respondents and have gone through the records of the case. Learned counsel for the petitioner has argued that for promotion to the post of Laboratory Superintendent Grade II only written as well as viva voce test was required, which the petitioner cleared. He further argued that the petitioner worked for a considerable time on the posts of Laboratory Superintendent Grade II and Laboratory Superintendent Grade I to the entire satisfaction of his superiors. No complaint was ever made against him while he was working on these posts, nor any defect was pointed out. The petitioner, thus, gained sufficient practical experience of handling the functions attached to these posts. Learned counsel relied upon the authority reported as Bhagwanti Prasad v. Delhi State Mineral -6- Civil Writ Petition No.11577-CAT of 2002. Development Corporation, 1990 (1) Recent Services Judgment 255 to contend that practical experience would always aid the person to effectively discharge duties and is a sure guide to assess suitability. On the other hand learned counsel for the respondents has argued that the educational qualifications were relaxed only at the time of promotion of the petitioner to the post of J.C.M.A and not for further promotions. The petitioner cannot take advantage of relaxation for promotions as Laboratory Superintendent Grade I and Laboratory Superintendent Grade II. Learned counsel for the respondents relied upon the case of Smt. Ravinder Sharma and another v. State of Punjab and others, AISR 1995 Supreme Court 277 and contended that when, admittedly, the petitioner did not have the requisite qualifications for promotion to the post of Laboratory Superintendent, no question of estoppel arose at the time of reverting the petitioner. Learned counsel for the respondents also cited the case of State of M.P and another v. Dharam Bir, (1998) 6 Supreme Court Cases 165 and contended that the educational qualification has a direct nexus with the nature of the post. The petitioner having worked on the promoted posts, to which he was not entitled as per his qualification, might have gained some experience, but the same cannot be treated as equivalent to his knowledge in the field of science. The instructions / letter dated November 06, 1985, -7- Civil Writ Petition No.11577-CAT of 2002. issued by the Government of India, Ministry of Transport, Department of Railways (Railway Board), which has a bearing on the issue, reads as under:- “ Subject: Avenue of promotion of Non- Science Graduates J.C.M.As in scale Rs.380- 550 in CMT's Organization of Mechanical Department. As the Railway Administrations etc. are aware the Laboratory Assistants in scale Rs.200-430 in the Chemical and Metallurgical Department have been provided an avenue of promotion to the post of Junior Chemical and Metallurgical Assistants (JCMAs) in scale Rs.300-560 to the extent of 33.3 per cent of vacancies therein vide this Department's letter No.E(NG)1-71-PM1-261 dated 5.6.1972 read with their letter No.PC-III- 73/PS/Scientific staff dated 2.11.77. Further in this Department's letter No.E(NG)1-71- PM1-261 dated 7.11.73 the qualification of graduation with science with 45% marks has been relaxed to Matriculation with Science or its equivalent for promotion of Laboratory Assistants as JCMAs in scale Rs.300-560 with the condition that JCMAs so -8- Civil Writ Petition No.11577-CAT of 2002. promoted will not be eligible for further promotion to the post of CMA in scale Rs.425- 700 unless they acquire the qualification laid down for that post. Pursuant to the demand raised in the Departmental Council of the Department of Railways under the JCM Scheme it has now been decided that non-science Graduates JCMAs in scale Rs.300—560 will now be eligible for being considered for promotion as CMA in scale Rs.425-700 provided thay pass the test prescribed hereunder:- (i)Test for this purpose will normally be held annually. (ii) A common question paper for this test will be set by the RDSO, who will advise all Railway Administrations at least three months in advance of the date of the test. (iii)The answer papers will be evaluated by the individual Railway Administrations and results declared by them. (iv)When vacancies of CMAs are -9- Civil Writ Petition No.11577-CAT of 2002. to be filled in scale Rs.425-700, such of the non-science graduates JCMAs in scale Rs.300-560 as have qualified in the above test at the time the vacancies are to be filled will be considered along with the JCMAs who are science graduate. The normal rules for filling posts of CMAs in scale Rs.425-700 will be followed. In other words, for promotion as CMA (scale Rs.425-700) a non- science graduate JCMA (scale Rs.380-560) will be eligible to be considered if he passed the proposed test at the time he is considered for promotion. “ A perusal of the above instructions make it clear that a non-science Graduate can be promoted upto the post of C.M.A only. The petitioner got promoted as J.C.M.A only when the qualification of Graduation with Science with 45% marks was relaxed to Matriculation with Science or its equivalent vide Department's letter No.E(NG)1-71-PM1-261 dated 7.11.73. In -10- Civil Writ Petition No.11577-CAT of 2002. view of the letter dated November 07, 1973, the Laboratory Assistants who got promoted as J.C.M.As in relaxation of qualifications could get further promotion as C.M.A only if they acquired the qualification laid down for that post. However, vide letter dated November 06, 1985, the J.C.M.As having the qualification as per letter dated November 07, 1973, were declared eligible for being considered for promotion as C.M.As provided they pass the requisite test. It is thus clear that petitioner could get promotion upto the post of C.M.A, which he got after clearing the requisite test. In other words, the relaxation granted for promotion of non-Science Graduates to the post of J.C.M.A, was carried forward for promotion to the post of C.M.A subject to the passing of the test. This relaxation was not meant for further promotions to the posts of Laboratory Superintendent Grade II and Laboratory Superintendent Grade I. The Laboratory Superintendents require handling of sophisticated equipments, which require higher knowledge of science. Their decisions involve safety of the public in general. In Dharam Bir's case , (supra) where the dispute was with regard to the post of Principal of the Industrial Training Institute for which the Government had prescribed a Degree or Diploma in Engineering as the essential qualification, it was held by the Hon'ble Supreme Court that no one who did not possess that qualification could be appointed on the post of Principal. The Apex Court had observed thus: -11- Civil Writ Petition No.11577-CAT of 2002. “ The educational qualification has a direct nexus with the nature of the post. The Principal may also have an occasion to take classes and teach the students. A person who does not hold either a Degree or Diploma in Engineering cannot possibly teach the students of the Industrial Training Institute the technicalities of the subject of Engineering and its various branches. “ Further observations of the Apex Court in Dharam Bir's case , (supra) are as under:- “ The respondent having worked in an ad hoc capacity on the post of Principal might have gained some administrative experience but the same cannot be treated as equivalent to his knowledge in the field of Engineering. A Compounder, sitting for a considerably long time with a doctor practicing in modern medicine, may have gained some experience by observing the medicine prescribed by the doctor for various diseases or ailments but that does not mean -12- Civil Writ Petition No.11577-CAT of 2002. that he, by that process, acquires knowledge of the human anatomy or physiology or the principles of pharmacology or the field of action of any particular medicine or its side effects. The Compounder cannot, merely on the basis of experience, claim a post meant exclusively for person having MBBS or other higher degrees in medicine or surgery. The plea of experience, therefore, must fail. Moreover, this would amount to a relaxation of the Rule relating to educational qualification. Power to relax the Rule vests exclusively in the Governor as provided by Rule 21. This power cannot be usurped by the Court or the Tribunal. “ The facts of the instant case, as discussed above, show that it is squarely covered by the ratio of Dharam Bir's case , (supra). In Smt. Ravinder Sharma's case (supra), the appellant was appointed as Clerk and further promoted to the post of Assistant. However, the appellant was not possessing the requisite qualification for appointment. Relaxation in qualification was recommended by the Punjab Public Service Commission, but rejected by the Government. Under these -13- Civil Writ Petition No.11577-CAT of 2002. circumstances, Hon'ble Supreme Court observed thus: “ Admittedly, the appellant did not possess this qualification. That being so, the appointment is bad. The Commission recommended to the Government for relaxation of the qualification under Regulation 17 of the Regulations. The Government rejected that recommendation. Where, therefore, the appointment was clearly against Regulation 7, it was liable to be set aside. That being so, no question of estoppel would ever arise.” As a result of the above discussion, we do not find any merit in this writ petition. The same is, accordingly, dismissed. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE May 12 , 2008. ak