Amar Nath and Others vs State of Himachal Pradesh and Others

Piar Singh Rana, J—Order Present civil writ petition is filed under Article 226 of the Constitution of India.

Brief facts of case

It is pleaded that in the year 1988 petitioners were appointed as Laboratory Attendants in Baba Balak Nath College Chakmoh. It is further pleaded that Baba Balak Nath Temple Trust was constituted under the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowment Act, 1984. It is further pleaded that college is affiliated to H.P. University. It is further pleaded that services of petitioners were regularized in the year 1993. It is further pleaded that petitioners after completion of five years of regular service became eligible to the post of Junior Laboratory Assistant/Junior Lecturer Assistant. It is further pleaded that petitioners have filed many representations to non-petitioners to give them due promotion but till date representations filed by the petitioners not disposed of by the competent authority. Petitioners sought following reliefs in the present civil writ petition:-- (i) That direction be issued to the non-petitioners to consider the case of the petitioners for promotion to the post of Junior Laboratory Assistant/Junior Lecturer Assistant. (ii) Direct the non-petitioners to revise the pay of the petitioners and give them salary and other emoluments which are applicable to the post of Junior Laboratory Assistant/Junior Lecturer Assistant.

Per contra response filed on behalf of non-petitioners pleaded therein that no aid is provided by the State Government or University Grants Commission or H.P. University for running the college. It is further pleaded that offerings made by the pilgrims/devotees are spent by the non-petitioners for maintenance of Baba Balak Nath Temple and also for running the temple affairs and its institutions. It is further pleaded that the income to the tune of Rs. 8.40 crore per annum is spent on salary of the employees out of the income of the Temple. It is further pleaded that petitioners are not government employee and it is further pleaded that there is no vacant post against which the petitioners could be promoted and it is further pleaded that writ petition is not maintainable. It is admitted that petitioners are serving as Laboratory Attendants in Baba Balak Nath Degree College Chakmoh. It is pleaded that petitioners did not fulfill the requisite qualification for the post of Junior Laboratory Assistant/Junior Lecturer Assistant. It is further pleaded that Amar Nath petitioner No. 1 is not even matriculate with science and Sh. Kuldeep Singh petitioner No. 2 is B.A. but is not 10+2 with science. It is further pleaded that petitioners could not be promoted as Junior Laboratory Assistant/Junior Lecturer Assistant. It is pleaded that minimum qualification for the post of Junior Laboratory Assistant is 10+2 with science subjects. It is further pleaded that Baba Balak Nath Temple Trust has its own service rules 2001 and Government service rules are not applicable to the employees of the Temple trust and its institutions. It is further pleaded that Baba Balak Nath Temple Trust has its own bye-laws/rules and regulations for managing its affair. Prayer for dismissal of writ petition sought.

Per contra separate response filed on behalf of non-petitioner No. 2 pleading therein that present writ petition is not maintainable against non-petitioner No. 2. It is pleaded that non-petitioner No. 2 has no role in the service matter relating to appointment/promotion of staff working in private college. It is further pleaded that petitioners are employees of privately managed trust and it is further pleaded that petitioners are not governed by recruitment & promotion rules notified by the State Government. Prayer for dismissal of writ petition sought.

Petitioners also filed rejoinder and reasserted the allegations mentioned in the writ petition.

Court heard learned counsel for the petitioners and non-petitioners and also perused the record carefully. Following points arises for determination:--

"1) Whether civil writ petition filed under Article 226 of the Constitution of India is liable to be accepted as mentioned in the memorandum of grounds of writ petition?

2) Relief."

Findings upon point No. 1 with reasons.

Submission of learned Advocate appearing on behalf of the petitioners that petitioners are entitled for promotion to the post of Junior Laboratory Assistant/Junior Lecturer Assistant is rejected being devoid of any force for the reasons hereinafter mentioned. Minimum qualification for the post of Junior Laboratory Assistant/Junior Lecturer Assistant is 10+2 with science subjects. Sh. Amar Nath petitioner No. 1 did not possess minimum educational qualification for the post as he is not 10+2 with science subjects. Even co-petitioner No. 2 Sh. Kuldeep Singh also did not possess minimum qualification for the post. Sh. Kuldeep Singh has qualified B.A. but not 10+2 with science subjects. It is well settled law that employees who did not possess basic minimum qualification for the post is not legally entitled for promotion as per law. See State of Punjab and Another Vs. Kuldip Singh and Another, AIR 2002 SC 2492 : (2002) 94 FLR 871 : (2002) 5 JT 205 : (2002) LabIC 2621 : (2002) 5 SCALE 124 : (2002) 5 SCC 756 : (2002) 1 SCR 39 Supp : (2002) 3 SCT 672 : (2002) 3 SLJ 202 : (2002) AIRSCW 2800 : (2002) 4 Supreme 542 . Following principle should be considered in case of promotion. (i) Under Article 16 of the Constitution right to be considered for promotion is a fundamental right. (ii) Consideration for promotion must be fair according to established principles governing service jurisprudence. (iii) Court will not interfere with assessment made by DPCs unless employee establishes that non promotion was bad according to Wednesbury principles or it was malafides. See Lattu Mahto and Another Vs. The State of Bihar (Now Jharkhand), (2008) 8 SCALE 715 : (2008) 8 SCC 395 : (2008) AIRSCW 5203 : (2008) 5 Supreme 562 . Also see Ajit Singh and Others Vs. The State of Punjab and Others, AIR 1999 SC 3471 : (1999) 7 JT 153 : (1999) 5 SCALE 556 : (1999) 7 SCC 209 : (1999) 2 SCR 521 Supp : (1999) AIRSCW 3460 : (1999) 8 Supreme 211 . Also see State of Jharkhand Vs. Bhadey Munda, (2014) 10 SCALE 473 . See Chandra Gupta, I.F.S. Vs. The Secretary, Govt. of India, Ministry of Environment and Forests and others, AIR 1995 SC 44 : (1995) 70 FLR 90 : (1994) 6 JT 132 : (1994) 4 SCALE 82 : (1995) 1 SCC 23 : (1994) 3 SCR 370 Supp : (1994) 3 SLJ 69 . See R. Prabha Devi and Others Vs. Government of India, through Secretary, Ministry of Personnel and Training, Administrative Reforms and Others, AIR 1988 SC 902 : (1988) 1 JT 488 : (1988) 2 LLJ 56 : (1988) 1 SCALE 453 : (1988) 2 SCC 233 : (1988) 3 SCR 147 : (1988) 3 SLJ 140 : (1988) 1 UJ 602 . See Union Public Service Commission Vs. Sukanta Kar and Another, (2007) 113 FLR 1180 : (2007) 6 JT 566 : (2007) 6 SCALE 673 : (2007) 9 SCC 555 : (2007) 7 SCR 128 . See State of H.P. and Others Vs. Surinder Kumar Mohindra and Others, (1996) 8 AD 525 : AIR 1997 SC 2449 : (1996) 10 JT 342 : (1996) 8 SCALE 267 : (1996) 11 SCC 650 : (1997) SCC(L&S) 495 : (1996) 8 SCR 564 Supp : (1997) 1 SLJ 137 : (1997) 1 UJ 409 : (1997) AIRSCW 2365 . See S.B. Bhattacharjee Vs. S.D. Majumdar and Others, (2007) 7 JT 381 : (2007) 7 SCALE 190 : (2007) 10 SCC 513 : (2008) 1 SCC(L&S) 21 : (2007) 6 SCR 743 : (2008) 1 SLJ 139 . See State Bank of India and others Vs. Mohd. Mynuddin, AIR 1987 SC 1889 : (1987) 3 JT 89 : (1987) LabIC 1627 : (1988) 1 LLJ 142 : (1987) 2 SCALE 53 : (1987) 4 SCC 486 : (1987) 3 SCR 532 : (1987) 2 UJ 339 . See S. L. Soni Vs. State of M.P. and another, AIR 1996 SC 665 : AIR 1995 SC 665 : (1996) LabIC 594 : (1995) 3 SCALE 603 : (1995) 3 SCC 156 Supp : (1995) 1 SCR 41 Supp : (1995) 3 SLJ 159 : (1995) 2 UJ 391 . See Indian Airlines Corporation Vs. Capt. K.C. Shukla and Others, (1992) 65 FLR 934 : (1992) 5 JT 565 : (1993) 1 LLJ 215 : (1992) 2 SCALE 587 : (1993) 1 SCC 17 : (1992) 1 SCR 811 Supp : (1993) 2 SLJ 2 : (1992) 2 UJ 796 .

Submission of learned Advocate appearing on behalf of the petitioners that non-petitioners be directed to revise pay of the petitioners and give them salary and other emoluments which are applicable to the Junior Laboratory Assistant/junior Lecturer Assistant is rejected for the reasons hereinafter mentioned. In view of the fact that the petitioners did not possess basic minimum educational qualification for the post of Junior Laboratory Assistant/Junior Lecturer Assistant it is held that the petitioners are not legally entitled for the salary and emoluments which are applicable for Junior Laboratory Assistant/Junior Lecturer Assistant. Point No. 1 is decided against petitioners.

Relief (Point No. 2):

In view of the findings upon point No. 1 writ petition filed under Article 226 of the Constitution of India is dismissed. No order as to costs. Writ petition is disposed of. Pending applications if any also disposed of.