Full Judgment
The petitioner has filed the present writ petition seeking for a direction to the respondents to consider his name and post him in any one of the higher posts commensurate with his educational qualifications with effect from 02.08.2006.
2. In this writ petition, notice of motion was ordered on 24.02.2010. Pending the writ petition, no interim order was granted though a direction application was filed in M.P.(MD).No.1 of 2010.
3. On notice from this Court on behalf of the respondents a counter affidavit dated 16.06.2010 was filed together with a typed set of documents in support of the averments made in the counter affidavit. The petitioner has filed a rejoinder affidavit dated 17.06.2011 and also an additional typed set of papers.
4. Though the petitioner initially appointed a counsel to file a writ petition, subsequently a change of vakalat was filed by another counsel on 21.06.2011. Thereafter, when the matter came up on 19.10.2011, the petitioner filed a memo revoking the vakalat of the second counsel and sought permission to appear in person.
5. The case of the petitioner was that he had joined the service as an Overseer on 19.06.1990 in the second respondent organisation, i.e. the Border Roads Organisation. At that time, he was a diploma holder. Thereafter, he was reappointed as Superintendent, Buildings and Roads, Grade-II. He was paid the scale applicable to the post as per IV Central Pay Commission. Subsequently, when the V Central Pay Commission came, no monetary benefits were given to the petitioner. At the VI Central Pay Commission it was informed to the General Reserve Engineers Force (GREF) under which the Border Roads Organisation coming that their interpretation of diploma holders was wrong and upward revision was given. The Assured Career Promotion-1 (ACP-1) was also not given. Though from the post of Superintendent-B/R-II promotions are given to the post of Superintendent-B/R-I by virtue of seniority, the claim of the petitioner was not considered, but his juniors were promoted.
6. In the meanwhile he had passed the examinations for Associate Member Institution of Engineers (A.M.I.E.) in the year 2002, which was equivalent to a degree in engineering. Though he had 20 years experience in construction, he was not promoted. He had also applied for better jobs outside. But, he is holding a post three level lower to that of Assistant Executive Engineer (AEE).
7. The petitioner also appeared for the Graduate Aptitude Test in Engineering (GATE-04) and cleared with 95.32 percentage. He has also got entry into M.Tech course at the IIT Madras. He joined the Course during the year 2004 and completed the course during the year 2006. Despite his higher qualification, he was not promoted. He appeared for different posts advertised by UPSC, Central Soil and Materials Research Station, New Delhi (CSMRS), Indian Engineering Service, North Eastern Regional Institute of Science and Technology-Itanagar, T.R.B, Tamilnadu. Though sometimes his applications were forwarded, he was not allowed to go for any interview. He has been discriminated by the arbitrary action of the respondents. Therefore, he has filed the present writ petition seeking for promotion to an equivalent higher post. Since he had the Post Graduate degree in M.Tech from I.I.T. Madras which is a prestigious institute of national importance, they should consider giving him the higher post.
8. In the counter affidavit filed by the second respondent these allegations were denied. It was stated by the respondents that the petitioner took study leave for doing his M.Tech. He executed a bond to serve the department for three years in terms of Rule 53 of Central Civil Service (Leave) Rules. Therefore, when the petitioner has applied for several posts, it was in clear breach of the bond executed by him. He sent a resignation letter dated 21.04.2006 indicating that he had better offers outside. His resignation was not accepted. The petitioner was directed to deposit the bond amount as per the agreement executed by him.
9. The petitioner had remained absent without leave and did not report for duty even after completion of 24 months study leave. He had also joined a private company which was not proper and contrary to the Rules. Being a member of a Uniform disciplined service, he is aware of the consequences of his action. The petitioner had remained absent from 02.08.2006 to 16.03.2009. Therefore, the Chief Engineer Project (Sewak) decided to hold a departmental enquiry. A charge memo was framed on 25.08.2007. Thereafter, the competent authority passed an order dated 23.10.2009.
10. By the aforesaid order, the petitioner's pay scale was reduced by two lower stages for a period of 3 years without cumulative effect and this will not affect the pension. It is claimed that the said order though served was not challenged by way of an appeal.
11. On the question of promotion to an higher post, it was stated that it was based upon seniority cum merit. In respect of the a post for Assistant Executive Engineer (Civil), it is filled up only by UPSC through direct recruitment and not by acquisition of higher qualification. When the UPSC advertised for the post of Assistant Executive Engineer (civil) during 2009 especially for the Border Road Organisation, the department encouraged its employees to apply so that a maximum number of personnel will benefit from the offer. The petitioner has no right for demanding any higher post.
12. It was also brought to the notice of this Court that by a communication dated 22.03.2010, the petitioner was informed regarding his promotion request in the following lines:-
First financial upgradation under ACP scheme has already been granted to the applicant vide Ser No.27 of Annexure 'W' of record officer letter No.2056/ACP/54/FA2, dated 20 APr 2006.
4. The name of the applicant was considered for promotion during DPC 2007 alongwith his batch mates. But his name was not recommended by the board due to desertion of individual wef 02 Aug 2006. Also DPC for the trade of BR-I was not approved/held during the year 2008 and 2009 due to cadre review and merger of trade as per instruction of Dte.
13. Form-07 bond executed by the petitioner as per Rule 53 of Central Civil Service (Leave) Rules was also produced in the typed set found in pages 8 and 9 produced by the respondents. The relevant portion reads as follow;- WHEREAS C.CHANDRAKUMAR as granted study leave by Government AND WHEREAS for the better protection of the Government, I have agreed to execute this bond with such conditions as her under is written.
NOW THE CONDITION OF THE ABOVE WRITTEN OBLIGATION IS THAT (In the event of my failing to resume duty or resigning or retiring from service or otherwise quitting service) without returning to duty after the expiry of termination of the period of study leave (or failing to complete the course of study) or at any time within a period of three years after my return to duty. I shall forthwith pay to the Government or as may be directed by the Government on demand the said of sum of Rs.2,86,032/- (Rupees Two lakhs, eighty six thousand and thirty two only) together with interest thereon from the date of demand at the Government rates for the time being in force on Government loans.
AND upon my making such payment the above written obligations shall be void and of no effect, otherwise it shall be and remain in full force and virtue.”
14. On the question of breach of the bond in not joining the posts after completion of study leave, the petitioner in its reply affidavit has stated as follows:-
“The reason for not resuming duty after M.Tech study was due to unit's inaction and negative acts on may my service matters including non payment of due arrears, which frustrated me. The study leave agreement was not breached by me, but breached by GREF by not paying full study leave salary and denying may entitlements including yearly increments, HRA, CCA etc during the study leave. Because of non payment of my due money by GREF and due to the prevailed circumstances then, I was compelled to take-up a NMC job to feed my family.”
As against the penalty given to him, the petitioner has filed a writ petition before the High Court of Jammu and Kashmir.
15. It is not clear as to how the facts set out by the petitioner will help his case for getting promotion in the absence of any relevant service rules providing for avenues for promotion and that the petitioner come within the zone of consideration for getting such promotion.
16. The petitioner had not made out any case for entertaining the writ petition. First of all, he did not join his duty after the expiry of study leave and he was giving one excuse or other. He had not fulfilled the bond conditions. The punishment given by the respondents for the said misconduct is under challenge before the Jammu and Kashmir High Court.
17. It is necessary to refer to a Judgement of the Supreme Court dealing with the persons, who failed to return to duty after expiry of study leave. The Supreme Court while upholding the penalty also reminded the duty cast upon a Government Servant under Article 51-A of the Constitution vide its decision in Government of India v. George Philip, (2006) 13 SCC 1. It is necessary to refer the following paragraphs:-
“9.....There can be no manner of doubt that he violated the undertaking given by him that he would not register for a PhD degree and would not request for extension of leave. Though as many as 8 notices and telegrams were sent to the respondent refusing his request for extension of leave and asking him to report for duty, but he chose to overstay the leave by over two years. In the enquiry the charges were found to have been proved and this finding was affirmed by the Tribunal in its first order dated 6-1-1994. It is indeed surprising that when the respondent challenged the order of compulsory retirement passed thereafter, the Tribunal went into the question as to whether the charges are proved or not and after examining the evidence again which it was not entitled to do, directed for reinstatement with full back wages and issued a further direction that the period of his absence shall be counted as period on duty for all purposes. This is clearly illegal as the order dated 6-1-1994 passed by the Tribunal affirming the findings recorded in the enquiry had not been challenged by the respondent and the only issue before the Tribunal was the quantum of punishment which had been imposed upon the respondent as a consequence of the direction issued in the first order of the Tribunal dated 6-1-1994. The High Court has observed that the benefit granted by the Tribunal cannot be denied to the respondent since it did not find any illegality in its approach excepting the direction regarding the wholesale back wages. With respect, the High Court failed to notice that the findings in enquiry having been affirmed by the Tribunal at the first stage, it was not open to the Tribunal while hearing the OA challenging the award of punishment of compulsory retirement, to go into the question regarding establishment of charge against the respondent. Thus, the second order of the Tribunal dated 17-9-1999 and the order passed by the High Court dated 10-8-2005 in that regard are clearly illegal.
16.....The fact that while sanctioning leave a specific undertaking was sought from the respondent that he would not register for a PhD degree and that he would not ask for extension of leave, clearly shows that BARC was guarding against such a contingency, as for completing PhD in the field of atomic energy and related subjects requires considerable amount of practical work, which cannot normally be completed in two years. At any rate, the respondent being fully aware of the conditions under which he was sanctioned leave viz. that he was not to register for PhD degree and was not to make a request for extension of leave beyond two years, it was not open to him to enrol himself for PhD and then seek extension of leave on the ground that he had not been able to complete the research work for award of the degree and should not be compelled to leave his work midway.
17. We are, therefore, of the opinion that in the facts and circumstances of the case, the punishment of compulsory retirement imposed upon the respondent cannot be held to be disproportionate, much less shockingly disproportionate, and there was absolutely no ground on which the Tribunal or the High Court could interfere with the order passed by the appellants.
18....... In a case involving overstay of leave and absence from duty, granting six months' time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organisation. Article 51- A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the same.
18. With reference to the claim for promotion on account of the fact that he had possessed M.Tech post graduate degree is concerned, in the absence of any avenues of promotion, the petitioner cannot claim the posts of Assistant Executive Engineer, which is a three level jump as per the service rules, only because that he was in possession of an higher degree. Promotions are based upon relevant service rules and one must come within the zone of consideration.
19. In this context it is necessary to refer to the judgment of the Supreme Court in Mangi Lal v. State of Rajasthan, (2007) 9 SCC 189, wherein in paragraphs 7 to 10 it was observed as follows:
7.Indisputably, in terms of the Rules, 50% of the posts of Assistant Mining Engineer are to be filled up by direct recruitment; 30% by promotion from amongst the diploma-holders and 20% from amongst the degree-holders. The qualification necessary for being appointed as Assistant Mining Engineer is as under:
“Degree in Mining Engineering from university established by law in India. OR
AMIE (Mining Engineering), Parts A & B of Institution of Engineers. OR
Diploma in Mining Engineering from the Indian School of Mines and Applied Geology, Dhanbad.”
8.The appellant was admittedly not holding the post of Mines Foreman, Grade I at the relevant time.
9.Column 6 of the said Rules whereupon reliance has been placed by Mr Kaushik speaks about experience required for filling up of the said post. Whereas three years' experience would satisfy the requirement in case the candidate is a holder of degree in Mining Engineering or equivalent, seven years' experience was necessary in case of the diploma-holders in Mining Engineering from a recognised institution on any post, but the same should not be lower than the Mines Foreman, Grade II.
10.”Eligibility” and “experience” stand on different footings. For filling up the post by way of promotion, there must exist a channel. In absence of any channel, promotion cannot be effected.
20. Hence, there is no case made out. The writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition is closed.