B. Deshmukh vs The Chairman and Managing Director, Electronic Corporation of India Ltd. and Another

G. Bikshapathy, J.—The Writ Petition is filed seeking directions to the Respondents to re-designate the Petitioner as Technical Officer with proper pay scale instead of continuing as Senior Foreman. The petitioner submits that he was appointed as Scientific Assistant ''C� in the Respondents'' Corporation by orders dated 26-5-1977. He was selected by the duly constituted selection committee for the post of Photographer which was advertised in the press vide notification No. 5/76. He was possessing requisite qualifications as notified by the Corporation at the time of appointment. The post of Scientific Assistant ''C'' was re-designated as Assistant Scientific Officer/Assistant Technical Officer. He was holding such a post till 18-6-1987. However, the petitioner was promoted with retrospective effect as Senior Foreman with effect from 1-4-1986. The grievance of the petitioner is that the channel of promotion from Scientific Assistant Grade ''C'' (re-designated as Assistant Technical Officer) is to the post of Technical Officer and Senior Technical Officer, but there is no channel of promotion to the post of Senior Foreman. The post of Senior Foreman is a promotion channel to the Foreman category, who were appointed as Foreman and for them promotion channel is created to Tradesman A to E and Chargeman, Asst. Foreman. Since the promotion and designation given to the petitioner is not in the line of promotion and by giving such promotion, the petitioner is put to serious prejudice in his service and therefore he had been making representations to the authorities to promote him to the post of Technical Officer instead of Senior Foreman. It is also the case of the Petitioner that he possessed higher qualifications and he acquired much experience in Photography. It is the further case of the petitioner that in fact he became due for promotion in 1980 and for the reasons best known to the Respondents, his promotion has been delayed without disclosing any reasons. Therefore, he seeks direction to the Respondent to re-designate the petitioner as Technical Officer with the necessary pay-scales attached to the said post. It is his further contention that he is fully eligible to the promotion post of Technical Officer and only with a view to avoid the further promotion as Senior Technical Officer, another line of promotion has been chosen for him.

A counter affidavit has been filed on behalf of the Respondents. It is the case of the Respondents that the post of Senior Foreman was introduced in the year 1986-87 for which non-Engineering Diploma holders being considered. Therefore, the petitioner case was considered and he was promoted as Senior Foreman from 1-4-1986. It is also the case of the Respondents that it has prescribed qualifications for promotion to the post of Technical Officer, the said qualification is Diploma in Engineering three years course. The employees who were possessing three years Engineering course are eligible for promotion to the post of Technical Officer from the post of Asst. Technical Officer. As the petitioner being a non-Engineering Diploma holder, his case is required to be considered only for the post of Senior Foreman. Admittedly, he possessed two years Diploma, which is not equivalent to the three years Engineering Diploma course. It is the further contention of the Respondents that even if the petitioner possessed requisite qualifications at the time of initial recruitment as Scientific Assistant ''C'', unless he possess the prescribed qualifications for promotion as Technical Officer, he has no right for claiming the promotion. It is also submitted that some other employees have filed W.P.No. 6967/85 for considering them for the promotion to the post of Technical Officer on par with three years Engineering holders and the said Writ Petition was dismissed. Therefore, the facts of that case are also identical with the facts of the present case. Hence the Writ Petition is liable to be dismissed.

The learned counsel for the petitioner submits that initially the petitioner was appointed as Scientific Assistant ''C'' in pursuance of the notification issued by the Company. The qualifications prescribed for the said post are as follows:

"PHOTOGRAPHER (1 post)

Scale Rs. 600-25-850/-

Qualifications and Experience:

Preferably First Class Diploma in Photography from a recognised University/Institute with minimum5 years experience in case of five year Diploma Course, 7 years experience in case of three years Diploma course and 8 years experience in case of 2 years Diploma Course in Industrial Photography B & W and colour, preferably in an Industrial Undertaking. Experience in the preparation of giant size blow-ups, colour translides and silk screen printing will be preferred.

Ability to design brochures, technical data sheets, covers for the catalogues will be considered as an additional advantage"

The learned counsel for the petitioner submits that the alternative qualifications have been prescribed for the post namely First Class 5 years Diploma holders in Photography with five years experience. In case of three years Diploma course, seven years experience and in case of two years Diploma course eight years experience. So, therefore, the petitioner submits that he is required to be treated as diploma holder in photography in view of the alternative qualifications prescribed for the post. Therefore, in the post of Technical Officer, even if the qualifications prescribed for the Technical Officer, three years Engineering Diploma is prescribed, yet, he should have been promoted for the said post, since the initial recruitment itself the petitioner was treated as possessing Diploma in photography. When once the three years Engineering Diploma in photography with seven years experience is equated to two years Diploma course with eight years experience it is deemed to have been equated with Engineering Diploma holder and therefore the only requirement that should be considered is whether the petitioner having the requisite experience of three years in the post of Asst. Technical Officer. Admittedly the petitioner is having such an experience and therefore he ought to have been considered for the post of Technical Officer. He also submits that he was lined-up for departmental promotion to the Scientific Officer (now designated as Technical Officer) as early as in August, 1981, wherein a memo was issued on 31-8-1981. The said memo contained that the C.R. of employees are required for consideration by the departmental promotion committee as they are lined-up for promotion likely to be interviewed in the month of September, 1981. Thus he submits that the requirement of possessing three years Engineering Diploma was never insisted upon. Once the petitioner possessed the required qualifications at the induction level, prescribed in the qualifications Diploma in Engineering course should not be insisted upon the case while considering the case of the petitioner for the post of Technical Assistant.

It is his further case that the departmental of Technical Education in Andhra Pradesh was conducting only two years duration of diploma course in photography and there was no three years Engineering Diploma. Therefore, for these reasons to equate the diploma holders on par with the two years certificate holders the balancing factor was brought into force by means of experience. Hence the five years Diploma holder with five years Diploma holders with seven years experience and two years Diploma holders with eight years experience. When the petitioner made representation for promotion as Technical Officer, the same was forwarded by the concerned officer to the General Manager on 8-5-1984 wherein it has been recommended that in view of the consistently good work done by the petitioner, he could be considered for the promotion. It is also the case of the petitioner that he had put in 18 years service, he did not get one time promotion in the channel of his line, but only in 1986 another channel of promotion was given which is prejudicial to the interest of the petitioner. He further submits that the job profile of the petitioner contains the standard of photography, graphics and audio visual communications. The petitioner was also officially sponsored to conduct the programmes in photography in Government and national institutions. He also acquired sufficient experience in academic field. He is a paper setter, Examiner and visiting Lecturer at Jawaharlal Nehru Technological University, Member of Academic Committee appointed by Jawaharlal Nehru Technological University. After prolonged representation, the reply given to the petitioner on 25-1-85, contains that the Ministry of Education and culture, Government of India has clarified that the diploma possessed by the petitioner is not equivalent with the three years diploma in Engineering and therefore he cannot be considered for the promotion. Further the petitioner was recruited to the post of SAC in photography in relaxation of the recruitment rules. Therefore the relaxation once granted cannot be carried forward to the promotion also. On 11-6-1986 a note was circulated by the company to the superior officer seeking appraisal of his recommendation in respect of the petitioner. The officer has commended the work done by the petitioner and in view of the outstanding performance of the petitioner, the Manager, P.R. had strongly recommended for the next promotion from the date of normal eligibility. Again another note was put up by the superior officer in 1987 reiterating the excellent work done by the petitioner and recommended for reviewing the case. It is only then the orders were issued on 18-6-1987 promoting the petitioner as Senior Foreman with effect from 1-4-1986. Even then the petitioner has been making representations to consider his case, and re-designate him as Technical Officer, but final reply was given on 19-11-1990 stating that the two years Diploma course possessed by the petitioner cannot be treated as three years Engineering Diploma. Therefore, it is not possible for the company to promote him to the post of Technical Officer.

The point that falls for consideration in the Writ Petition is whether the petitioner is entitled for promotion to the post of Technical Officer?

It is admitted case of the parties that for promotion to the post of Technical Officer in service Asst. Technical Officer with three years experience is eligible for promotion. He should also possess three years Engineering Diploma in photography. The petitioner possessed the experience part of the qualifications, but however, whether the petitioner is required to possess the three years Engineering Diploma in view of the fact that he was selected for the post of Photographer with the alternative qualification is to be considered in this Writ Petition. At the time of appointment of the petitioner, the alternative qualifications which are prescribed for the post of Scientific Assistant ''C'' Photography are as follows:

"Five years diploma course with five years experience

or Three years diploma with seven years experience

or Two years diploma with eight years experience".

It is also the case of the petitioner that three years diploma course has not been introduced in the State of Andhra Pradesh by the Technical Education. The diploma i.e. only conducted is two years diploma course in Photography. When the alternative qualifications are prescribed for the post of Scientific Assistant ''C'' and when the employee possessed any one of the alternative qualifications he should be treated on par with the persons possessing the first or second alternative qualifications prescribed for the post.

The contention of the learned Standing Counsel for the Respondent company is that the petitioner did not possess the diploma. That the diploma certificate in photography possessed by the petitioner is not equivalent to three years diploma in Engineering course and the same was also confirmed by the Government of India, Ministry of Education. Further, the petitioner was appointed as Scientific Assistant ''C'' in Photographic by relaxation of norms of recruitment and therefore the relaxation cannot be carried on to the next promotion post. The Respondent appears to have taken into consideration the clarification given by the Government of India. It is not in dispute that the Government of India has clarified that the three years Engineering Diploma course is not equivalent to two years diploma in photography. Bu t, that is not the dispute which is involved in the present Writ Petition. The management having prescribed alternative qualification for the post of Photographer Scientific Assistant ''C�, thereby equated two years diploma with higher experience on par with the three years or five years diploma holders with the lesser experience. It has thus to be construed that though the diplomas awarded by the various institutions in various States stand on different levels, but since the equiliser (experience) has been tagged on to the diploma, thereby the five years diploma and three years diploma and two years diploma have been put on the same par for the purpose of appointment as Scientific Assistant "C". Thus, having appointed the persons possessing alternative qualifications, it shall be held that all the qualifications are treated as equivalent. The persons so appointed to the said post formed only one homogenous class though they possessed diploma qualification of different duration. When once the two years diploma with eight years experience is equated with three years diploma with seven years experience, the employee when being considered for higher promotion cannot be insisted that he should possess only one of the there alternative qualifications. Such a condition is arbitrary and offends Article 16 of the Constitution of India. I, therefore, hold that the qualification which is treated as equivalent to another qualification at the time of initial recruitment that equivalence would ensure for the entire service and not for initial recruitment only.

It is also the case of the Respondents that the petitioner was recruited as Scientific Assistant ''C'' in the relaxation of the norms of recruitment rules. But in what way the petitioner was possessing the less qualifications have not been mentioned. It is admitted case of the petitioner that he possessed the third alternative qualification i.e. two years diploma with eight years experience and therefore the allegation that the petitioner was recruited in relaxation of the rules cannot be accepted. Even the appointment orders of the petitioner did not contain the rules were relaxed and no material has been placed before this Court to establish that the petitioner was appointed in relaxation of the rules. That is the reason in the counter the Respondents contended that even assuming that the petitioner was having requisite qualifications for the post of Scientific Assistant ''C yet prescribed qualifications for promotion to the post of Technical Officer is the three years Engineering Diploma and therefore he is not eligible to be considered. Hence the contention of the respondent is liable to be rejected.

For the foregoing reasons the Writ Petition is to be allowed and the action in refusing to consider the case of the petitioner for promotion to the post of Technical Officer on the basis that he did not possess three years Engineering Diploma in photography is to be declared as illegal and invalid.

It is the last contention of the learned counsel for the respondents that the petitioner cannot claim promotion as of right and he has only a right to be considered for the promotion. There is absolutely no dispute about the said propositions. It is now well settled by the Supreme Court in catena of decisions that the employee has a right to be considered for the promotion and he has no vested right of promotion. The learned counsel for the petitioner submits that the petitioner has excellent track record and his case was strongly recommended by the immediate superior officers on more than one occasion. He submits that a positive direction be issued in this regard. In the normal course I could have rejected the contention and directed the authorities to consider the case of the petitioner for promotion in accordance with rules. The only ground that the petitioner was denied the promotion as Technical Officer was that he did not possess the three years Engineering Diploma in photography. The said impediment has since been cleared by this decision. Hence no purpose would be served by directing the respondents to consider his case for promotion. Instead this Court can declare that the petitioner shall be deemed to have been promoted as Technical Officer with effect from 1-4-1986 instead of Senior Foreman.

The Writ Petition is accordingly allowed. The petitioner shall be deemed to have been promoted as Technical Officer with retrospective effect from 1-4-1986 on which date he was promoted as Senior Foreman. It need not be emphasised that the petitioner shall be entitled for the attendant benefits such as difference of pay of the post of Technical Officer and Senior Foreman and seniority etc.

There shall be no order as to costs.