D.Sammaiah vs State of Telangana

Pulla Karthik, J

1) Seeking to declare the impugned Speaking Orders vide Memo No.CMD/CGM (HRD)/GM(S)/AS(Estt.)/PO-A/143-A3/18-1, dated 16.12.2020, issued by respondent No.2 as illegal, arbitrary and contrary to Service Regulations 6 (a) and Annexure-III under Regulation 14 of APSEB Service Regulations Part-III, the present writ petition is filed.

2) Heard Sri V.Ravi Chandran, learned counsel for the petitioner, and learned Government Pleader for Services-II appearing for respondent No.1 and Sri G.Vidya Sagar, learned senior counsel, representing Smt.K.Udayasri, learned counsel for respondent Nos. 2 and 3.

3) Learned counsel for the petitioner has submitted that initially the petitioner was appointed as Helper in erstwhile Andhra Pradesh State Electricity Board (APSEB) on 21.07.1989 [now Telangana State Northern Power Distribution Company Limited (TSNPDCL)] and later he was promoted as Assistant Lineman and Lineman on 20.08.1994 and 28.06.1997 respectively. While working as Lineman, the petitioner had acquired Diploma in Part I and Part II of the Technician Engineers Examination in December, 1998, and a certificate dated 10.08.1999 was issued from the Institution of Mechanical Engineers (India). The said examination is recognized by the Department of Education in the Ministry of Human Resource Development of the Government of India at par with the Diploma in Mechanical Engineering as awarded by State Polytechnics vide Government Notification No.F.1-5/87/T.7/J.13, dated 11.07.1988, and as such the petitioner is entitled to use the abbreviated designation of Junior Engineer after his name. Based on the above certificate, petitioner was appointed by transfer as Sub-Engineer vide Memo No.SE.OP.KNR.ADM.D.No.17-2-2001 of respondent No.2 office and thereafter he was promoted as Additional Assistant Engineer (Civil) vide Proceedings NOO (CGM/HRD) Ms.No.48, dated 23.05.2005 and the petitioner joined as such on 09.06.2005. As the petitioner has been working for more than 13 years as Additional Assistant Engineer, he is entitled for further promotion to the post of Assistant Executive Engineer, as per seniority. Learned counsel has further submitted that after obtaining No-Objection certificate from the Divisional Electrical Engineer, Operation, Peddapally, vide Memo dated 21.12.2002, to acquire higher qualification through correspondence course, the petitioner has completed Degree in Mechanical Engineering branch, which is a prerequisite qualification to the post of Assistant Executive Engineer, and passed Sections A and B from the Institution of Mechanical Engineers (India) in December, 2004, and a provisional certificate dated 26.08.2005 was also issued to him. Further, while the petitioner was working as Additional Assistant Engineer, Nizamabad, the then Superintending Engineer (Operation), Nizamabad, vide proceedings dated 08.06.2007 has called for the genuineness of petitioner’s Degree certificate from the Controller of Examinations, Institution of Mechanical Engineers (India), Mumbai. In reply, the Council Member of the Institution of Mechanical Engineers (India), has sent letter dated 23.07.2007 declaring that the certificate produced by the petitioner is genuine. Hence, the certificate of the petitioner is valid for consideration for further promotion. Thereafter, in pursuance to the directions of this Court vide order dated 24-04-2008 in W.P. No.16355 of 2007, TRANSCO has issued Comprehensive Orders with regard to recognition of Diplomas/Degrees awarded by Universities/Deemed Universities/Institutions vide T.O.O.(Add.Secy-Per) Ms.No.134, dated 11.09.2008. It is further submitted that the TRANSACO has issued Amendment Orders to Service Regulations and qualifications required for appointment to the post of Assistant Divisional Engineer/Assistant Executive Engineer vide T.O.O.(Add.Secy-Per) Ms.No.494, dated 01.03.2011. As per the said Rules, ‘A pass in SECTIONS “A” and “B” in Electrical or Civil or Mechanical Group examinations as the case may be from any recognized institutions/Universities and service as Additional Assistant Engineer thereafter for not less than 5 years shall be considered as eligibility qualification for appointment to the post of Assistant Divisional Engineer/Assistant Executive Engineer’. Further, the Ministry of Human Resource Development, Department of Higher Education, vide its Office Memorandum dated 06.12.2012 has withdrawn the recognition granted to all certificates/ qualifications awarded by professional bodies/institutions in the field of Technical Education and stipulated that from 01.06.2013 onwards the courses for equivalence will cease to have effect for employment in Central Government and the decision on the continuation of the certification of equivalence of degree/diploma would be taken by the statutory regulator i.e. All India Council for Technical Education (AICTE) after review. Subsequently, the AICTE had issued a public notice for Professional Bodies/Institutes imparting Technical Education basing on the decision of the Council taken in its 52nd Emergent Meeting held on 03.08.2017 to recognize equivalence for all purposes including higher education and employment to Technical courses conducted by various Professional Bodies/ Institutions which were duly recognized by MHRD with permanent recognition upto 31.05.2013. Thus, all the certificates of those students who were enrolled with these institutions with permanent recognition upto 31.05.2013 stand recognized. Further, as per the seniority list of Additional Assistant Engineers (Civil) prepared by respondent No.2, as on 30.04.2017, the name of the petitioner was shown at Sl.No.4 and ‘09.06.2005’ is shown as date of commencement of probation in the cadre of Additional Assistant Engineer. It is further submitted that the second respondent has issued memo dated 22.05.2018 transferring certain Diploma Sub-Engineers and posted them as Incharge AAEs-appointment by transfer as regular AAEs basing on the orders of the Hon’ble Supreme Court in SLP Nos.3697-3698 of 2018, dated 10.04.2018, wherein it was directed that the degrees and diplomas in question, already granted to candidates admitted up to the academic year 2009-2010, be left undisturbed. As the petitioner has completed his Degree in Mechanical Engineering Branch from the Institution of Mechanical Engineers (India), Bombay, in the year 2005 itself, in view of the decision of the Hon’ble Supreme Court in SLP Nos.3697-3698 of 2018, dated 10.04.2018, and the fact that the genuineness of his certificate was already called for, the petitioner is fully eligible and entitled for further promotion as per his seniority. Therefore, the petitioner has submitted a representation to respondent No.2, through proper channel, on 06.10.2018 requesting to consider his case for promotion to the next category of Assistant Executive Engineer. However, the same was rejected by respondent No.1 vide Memo dated 19.11.2018 duly informing that the qualification acquired from the Institution of Mechanical Engineers (India) Mumbai cannot be considered as valid educational certificate for service benefits in terms of the order dated 12.10.2011 passed by this High Court in W.P.No.19083 of 2011 read with TOO Ms.No.134, dated 11.09.2008 and NOO Ms.No.181, dated 18.09.2008, and that his turn for promotion from AAE (Civil) to AEE (Civil) has not come up as per seniority. Questioning the said rejection memo dated 19.11.2018, petitioner filed W.P.No.2662 of 2019 and vide order dated 11.11.2019 the said writ petition was allowed setting aside the rejection memo dated 19.11.2018 and the respondents were directed to consider the case of the petitioner for promotion to the post of Assistant Executive Engineer. As the said order was not implemented, petitioner was constrained to file C.C. No.917 of 2020. At that stage, only to avoid contempt proceedings, respondent No.2 has passed the impugned order dated 16.12.2020 illegally and arbitrarily rejecting the case of the petitioner. Learned counsel has further contended that the impugned rejection orders were passed ignoring the fact that the services of the petitioner were already converted as Assistant Engineer (Civil) w.e.f.27.08.2005 and that the petitioner has completed 15 years of service as Additional Assistant Engineer (Civil) as on 13.07.2020, on which date respondent No.2 issued orders in terms of provision of Note-II under Regulation (6) of APSEB Service Regulations Part-III as adopted by NPDCL converting the services of the petitioner from Additional Assistant Engineer (Civil) as Assistant Engineer (Civil) on acquiring the degree qualification i.e. w.e.f.27.08.2005. Therefore, the learned counsel has contended that the impugned speaking orders are contrary to the Service Regulations of the respondents and therefore liable to be set aside.

4) Per contra, the learned senior counsel has submitted that the petitioner was appointed as Helper on 21.03.1989, later appointed by transfer as Sub-Engineer on 17.02.2001 on the basis of his Diploma qualification acquired from the Institution of Mechanical Engineers (India) Mumbai, and subsequently appointed by transfer as Additional Assistant Engineer. Further, in pursuance of the orders dated 11.11.2019 passed in W.P.No.2662 of 2019, his services were converted as Assistant Engineer (Civil) vide orders dated 13.07.2020. Learned senior counsel has contended that the request of the petitioner for promotion to the post of Assistant Executive Engineer (Civil) could not be considered in terms of the Service Regulations as the post of Assistant Executive Engineer (Civil) is a class-II category-I post and the petitioner is working as Assistant Engineer (Civil). Learned senior counsel has further contended that for promotion to the post of Assistant Divisional Engineer/Assistant Executive Engineer (Civil), one must possess B.E. Degree Electrical or Civil or Mechanical or Telecommunication, as the case may be, and have served as Assistant Engineer for a period of not less than five years. However, in the instant case, the petitioner has acquired Degree in Mechanical Engineering from Institution of Mechanical Engineers (India), Mumbai and his services were converted as Assistant Engineer (Civil) only in 2020 vide order dated 13.07.2020. Therefore, he is not eligible for promotion to the post of Assistant Executive Engineer (Civil). Learned senior counsel has further contended that the qualification acquired by the petitioner i.e. passing Section A & B of Institution of Mechanical Engineers (India), Mumbai, is a requisite qualification for the post of Assistant Executive Engineer (Mechanical) only. Further, as per the Regulations issued in TOO Ms.No.134, dated 11.09.2008, the Degree qualification acquired through Distance Education Mode is not valid for recruitment/promotion or incremental benefits. The said provision was amended vide TOO Ms.No.400, dated 06.07.2019 and later vide TOO Ms.No.740, dated 26.03.2020 and TOO Ms.No.923, dated 14.12.2020. Therefore, the Degrees acquired through Distance Education Mode were treated as valid only w.e.f.06.07.2019 in terms of TOO Ms.No.923, dated 14.12.2020 adopted by TSNPDCL vide NOO Ms.No.343, dated 31.12.2020. Learned senior counsel has also contended that as per the orders of the Hon’ble Supreme Court in Civil Appeal No.17922 of 2017 dated 13.08.2019, the certificates obtained from IME, Mumbai, are valid and equivalent degrees in Mechanical Engineer stream in respect of the candidates enrolled up to 31.05.2013. Further, as per the orders of the Hon’ble Supreme Court, the qualification of ‘a pass in Sections A & B of Institution of Mechanical Engineers (India) Mumbai’ acquired by the petitioner herein is treated as a Degree in Mechanical Engineering branch only. Further, as per the orders of this Court in W.P. No.2662 of 2019, dated 11.11.2019, the services of the petitioner were converted as Assistant Engineer (Civil) w.e.f. 27.08.2005 vide Memo dated 13.07.2020. Therefore, the respondents are justified in rejecting the claim of the petitioner for promotion to the post of Assistant Executive Engineer (Civil) as he has not completed five years of service in the post of Assistant Engineer (Civil). Further, the Degree qualification acquired by the petitioner from the Institution of Mechanical Engineers (India) Mumbai is not a relevant qualification for promotion to the post of Assistant Executive Engineer (Civil) and there are no sanctioned posts of Assistant Executive Engineer (Mechanical) in the Corporation. Learned senior counsel has asserted that the petitioner is eligible for promotion as Assistant Executive Engineer (Civil) only subject to possessing relevant qualification and the qualification acquired by the petitioner is treated as an equivalent qualification in Degree in Mechanical Engineering Stream only. As the petitioner does not possess the eligible/requisite qualification for promotion to the post of Assistant Executive Engineer (Civil), the respondents have rightly rejected his claim for promotion. Hence, there are no merits in the writ petition and it was therefore prayed to dismiss the same.

5) This Court has taken note of the submissions/contentions urged by respective counsel and perused the material on record.

6) As culled out from the record, admittedly, the petitioner was appointed as Helper in the year 1989, subsequently promoted as Assistant Lineman and thereafter Lineman in the years 1994 and 1997 respectively. While working as Lineman, the petitioner has acquired a Diploma in Part-I and Part-II of the Technician Engineers Examination in December 1998 and obtained the certificate on 10.08.1999 from the Institution of Mechanical Engineers (India), Mumbai. Based on the above certificate/qualification, petitioner was appointed by transfer as Sub-Engineer on 17.02.2001 by the Superintending Engineer (Operation), Karimnagar, and was posted as Sub-Engineer (Mechanical), Sub-Division Rural, Jagityal. At this stage of service, after obtaining No-Objection from competent authority for prosecuting higher education, petitioner has completed Degree in Mechanical Engineering branch and passed Sections A & B from the Institution of Mechanical Engineers (India), Mumbai, which is a requisite qualification for the post of Assistant Executive Engineer, in December, 2004 (got the provisional certificate on 26.08.2005). Thereafter, he was appointed by transfer as Additional Assistant Engineer (Civil) vide proceedings dated 23.05.2005 subject to following conditions:

i) He is not entitled for any service weightage.

ii) He has to take the last rank as on the date of appointment below the junior most Additional Assistant Engineer (Civil) as on date of his joining duty.

iii) The appointment ordered above is purely temporary and do not confer any right to regular appointment as Additional Assistant Engineer in APNPDCL.

iv) The temporary appointment ordered above is liable for termination at any time without notice and without assigning any reason therefore.

v) The appointment ordered above is subject to the production of physical fitness certificate issued by a Medical Officer of the rank not less than that of Civil Surgeon, at the time of joining as Additional Assistant Engineer (Mechanical).

vi) The candidate should produce Original certificates in respect of Qualification and age to the concerned controlling Officer at the time of joining as Additional Assistant Engineer (Civil) for verification.

vii) The candidate shall have to pass the prescribed tests as per APSEB Service Regulations as Adopted by APTRANSCO and subsequently by APNPDCL/Warangal.

Accordingly, the petitioner has joined duty as Additional Assistant Engineer (Civil) on 09.06.2005 and completed 13 years of service and now seeking promotion to the post of Assistant Executive Engineer (Civil) based on his seniority.

7) Now, the issues that require adjudication in the present writ petition are as under:

1) Whether the petitioner has completed 5 years of service as Assistant Engineer (Civil)?

2) Whether the petitioner is eligible for the post of Assistant Executive Engineer (Civil) in terms of APSEB Service Regulations?

8) To adjudicate the above issues, it is necessary to refer Annexure-I under Regulation 6 (a) and Annexure-III under Regulation 14 of APSEB Service Regulations Part III, which read as under:

I. Methods of appointment to the post of ADE/AEE as per Annexure-I under REgulation6 (a) of APSEB Service Regulations Part-III.

(i) By Limited recruitment.

(ii) By promotion from among the full members or approved probationers in the categories of

(a) Assistant Engineers and Addl. Assistant Engineers.

(b) Draughtsman Grade-I.

II. Qualification for promotion to the post of ADE/AEE required as per Annexure-III of APSEB Service Regulations Part-III.

i) Must possess B.E. Degree electrical or Civil or Mechanical or Telecommunication as the case may be of a University in India established or incorporated by or under Central Act, Provincial Act or a State Act or any qualification recognized as equivalent thereto and have served as Assistant Engineer for a period of not less than 5 years

(OR)

ii) A pass in Sections “A” and “B” of the Institution of Engineers in Elecl. Or Civil or Mechanical Group examinations as the case may be and service as Additional Assistant Engineer thereafter for not less than 5 years;

(OR)

iii) Must hold LEE, LCE or LME Diploma the case may be or any other qualification recognized as equivalent thereto and must have put in a minimum service of 10 years as Additional Assistant Engineers;

(OR)

iv) Must possess the LEE, LCE or LME Diploma as the case may be or any other qualification recognized as equivalent thereto and must have put in total service of not less than 15 years if promoted as Additional Assistant Engineer from the category of Overseers.

9) The claim of the petitioner is that his case squarely falls under clause II (ii) referred supra. Further, on an earlier occasion, the claim of the petitioner was rejected vide memo dated

19.11.2018 on the ground that the qualification acquired from the Institution of Mechanical Engineers (India) Mumbai was not a valid Educational Certificate for service benefits, in terms of the order dated 12.10.2011 passed by this Court in W.P.No.19083 of 2011 read with TOO Ms.No.134, dated 11.09.2008 and NOO Ms.No.181, dated 18.09.2008. Petitioner has challenged the said memo dated 19.11.2018 before this Court in W.P.No.2662 of 2019. This Court, by placing reliance on the decision of the Hon’ble Supreme Court in Miscellaneous Application No.2367 of 2018 in Civil Appeal No.17922 of 2017 wherein it has been held that the Degree Certificates awarded by the IME upto 31.05.2013 are valid, has allowed the said writ petition vide order dated 11.11.2019 holding as under:

“Having considered the rival submissions made by the learned counsel on either side, the impugned memo dated 19.11.2018 is liable to be set aside and is accordingly set aside only on the ground that the degree certificates awarded by I.M.E. to such students enrolled up to 31.05.2013 are declared to be valid by the Hon’ble Supreme Court in the judgment referred to supra. Admittedly, in the instant case, the petitioner has acquired he said Degree certificate from the I.M.E prior to 31.05.2013 i.e. on 26.08.2005. Therefore, the certificate of the petitioner is held to be valid in view of the judgment of the Supreme Court. The respondents are directed to consider the petitioner’s case for promotion to the post of Assistant Executive Engineer.”

The said order holds good as the respondents have not chosen to challenge the same. Thereafter, the respondents have passed the present impugned order dated 13.07.2020 rejecting the claim of the petitioner for further promotion to the post of Assistant Executive Engineer (Civil) mainly on two grounds viz., i) the petitioner has not completed 5 years service as Assistant Engineer (Civil) from the date of conversion orders dated 13.07.2020; and ii) the petitioner does not possess the Degree qualification in relevant discipline.

10) As regards ground No.1, here, it pertinent to note that as per Note-II under Regulation 6 (a) of APSEB Service Regulations, the Additional Assistant Engineers, who acquire, while in service, the qualification of BE/ B.Tech/AMIE (India) shall be entitled to be reckoned as Assistant Engineers from the date of acquisition of the requisite qualification and count 50% of their regular service rendered as Additional Assistant Engineer prior to the date of conversion as Assistant Engineer, subject to a maximum limit of four years.

11) In the instant case, admittedly, the petitioner was appointed by transfer as Additional Assistant Engineer on 23.05.2005 and obtained B.Tech Degree from the Institution of Mechanical Engineers (India), Mumbai, in December, 2004 and his services were converted from Additional Assistant Engineer (Civil) to Assistant Engineer (Civil) on acquiring Degree in Mechanical Engineering vide proceedings dated 13.07.2020 w.e.f. 27.08.2005. Therefore, as per Regulation 6 (a) of APSEB Service Regulations, the petitioner is entitled for counting 50% of his regular service rendered as Additional Assistant Engineer, however, the counting is limited to the maximum of 4 years.

12) From the above, it is thus clear that the petitioner is deemed to have completed 15 years of service by the date of conversion as Assistant Engineer (Civil) i.e. by 13.07.2020. Therefore, as per Regulation 6 (a) the petitioner is entitled for counting of four years of service as Assistant Engineer and as on today he has completed 9 years of service (4 years + 5 years) as Assistant Engineer (Civil) from the date of his conversion. Therefore, the petitioner has fulfilled the minimum requisite qualifying service of 5 years by 2021 itself.

13) As regards ground No.2, undisputedly, the services of the petitioner were already converted as Additional Assistant Engineer (Civil) vide proceedings dated 23.05.2005 and thereafter as Assistant Engineer (Civil) vide proceedings dated 13.07.2020 w.e.f.27.08.2005. Further, as per the qualification prescribed in APSEB Service Regulations, candidates with B.E. degree in Electrical/Civil/ Mechanical/Tele-communication are eligible for promotion to the post of Assistant Executive Engineer. Here, admittedly, the petitioner has completed B.E. Mechanical degree, which is the prescribed qualification for promotion to the post of Assistant Executive Engineer. The Services Regulations do not indicate/specify passing of B.E. degree only in concerned stream/discipline. Therefore, the ground taken by the respondents in this regard also cannot be countenanced and liable to be set aside.

14) For the aforementioned reasons, this Court holds that the petitioner is eligible and entitled for promotion to the post of Assistant Executive Engineer (Civil) with all consequential benefits.

15) Accordingly, the Writ Petition is allowed and the impugned rejection order dated 16.12.2020 is set aside. Miscellaneous petitions pending, if any, shall stand closed.

There shall be no order as to costs.