Back
2006 Supreme(Cal) 95
High Court Of Calcutta
Before: Girish Chandra Gupta And Indira Banerjee, JJ.
UMANANDA ROY - Appellant
Versus
A AND N ADMINISTRATION - Respondent
C. O. T. 1 Of 2006
Decided On : 02/20/2006
DIPANKAR DUTTA, KRISHNA RAO, Shyamali Ganguly
1. A Diploma issued by an institution not recognized by AICTE may not be considered 'fake' if it was issued by a recognized institution and if the relevant regulations mandating recognition came into force after the issuance of the Diploma. 2. Delay in challenging an appointment or promotion, especially when spanning over 15 years, can bar a person from seeking relief, as per the principle of laches.
Headnote:
WRIT PETITION - APPOINTMENT - PROMOTION - QUALIFICATION - DELAY - LEGALITY - SERVICE RULES - SENIORITY - ALL INDIA COUNCIL OF TECHNICAL EDUCATION ACT, 1987 - UNIVERSITY GRANTS COMMISSION ACT, 1956 - SERVICE JURISPRUDENCE - FRAUD - BURDEN OF PROOF - ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (AICTE) - DIPLOMA - RECOGNITION - AFFILIATION - VALIDITY - JURISDICTION - COURT ANALYSIS - APPOINTMENT OF ASSISTANT ENGINEER (ELECTRICAL AND MECHANICAL) - PROMOTION OF JUNIOR ENGINEERS - REQUIREMENTS - ELIGIBILITY - VALIDITY OF DIPLOMA - DELAY IN CHALLENGING APPOINTMENT - SENIORITY LIST - SERVICE RULES - UNIVERSITY GRANTS COMMISSION ACT, SECTION 22 - ALL INDIA COUNCIL OF TECHNICAL EDUCATION ACT - STATUTORY AUTHORITY - RECOGNITION OF INSTITUTIONS - POWER TO ISSUE DIPLOMAS - CONDITIONS OF APPOINTMENT - BURDEN OF PROOF - COURT'S DISCRETION - DELAY IN APPROACHING COURT - APPOINTMENT IN CONTRAVENTION OF STATUTE - IMPRUDENCE OR BREACH OF CARE IN SELECTION OF CANDIDATES - SERVICE RULES - DETERMINATION OF SENIORITY - AGE - PANEL OF SELECTED CANDIDATES - DELAY IN AGITATING QUESTION OF SENIORITY - APPOINTMENT BEYOND ADVERTISED VACANCIES - LEGALITY - SERVICE JURISPRUDENCE - FRAUD - BURDEN OF PROOF - ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (AICTE) - DIPLOMA - RECOGNITION - AFFILIATION - VALIDITY - JURISDICTION - COURT ANALYSIS - APPOINTMENT OF ASSISTANT ENGINEER (ELECTRICAL AND MECHANICAL) - PROMOTION OF JUNIOR ENGINEERS - REQUIREMENTS - ELIGIBILITY - VALIDITY OF DIPLOMA - DELAY IN CHALLENGING APPOINTMENT - SENIORITY LIST - SERVICE RULES - UNIVERSITY GRANTS COMMISSION ACT, SECTION 22 - ALL INDIA COUNCIL OF TECHNICAL EDUCATION ACT - STATUTORY AUTHORITY - RECOGNITION OF INSTITUTIONS - POWER TO ISSUE DIPLOMAS - CONDITIONS OF APPOINTMENT - BURDEN OF PROOF - COURT'S DISCRETION - DELAY IN APPROACHING COURT - APPOINTMENT IN CONTRAVENTION OF STATUTE - IMPRUDENCE OR BREACH OF CARE IN SELECTION OF CANDIDATES - SERVICE RULES - DETERMINATION OF SENIORITY - AGE - PANEL OF SELECTED CANDIDATES - DELAY IN AGITATING QUESTION OF SENIORITY - APPOINTMENT BEYOND ADVERTISED VACANCIES - LEGALITY - SERVICE JURISPRUDENCE - FRAUD - BURDEN OF PROOF - ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (AICTE) - DIPLOMA - RECOGNITION - AFFILIATION - VALIDITY - JURISDICTION - COURT ANALYSIS - APPOINTMENT OF ASSISTANT ENGINEER (ELECTRICAL AND MECHANICAL) - PROMOTION OF JUNIOR ENGINEERS - REQUIREMENTS - ELIGIBILITY - VALIDITY OF DIPLOMA - DELAY IN CHALLENGING APPOINTMENT - SENIORITY LIST - SERVICE RULES - UNIVERSITY GRANTS COMMISSION ACT, SECTION 22 - ALL INDIA COUNCIL OF TECHNICAL EDUCATION ACT - STATUTORY AUTHORITY - RECOGNITION OF INSTITUTIONS - POWER TO ISSUE DIPLOMAS - CONDITIONS OF APPOINTMENT - BURDEN OF PROOF - COURT'S DISCRETION - DELAY IN APPROACHING COURT - APPOINTMENT IN CONTRAVENTION OF STATUTE - IMPRUDENCE OR BREACH OF CARE IN SELECTION OF CANDIDATES - SERVICE RULES - DETERMINATION OF SENIORITY - AGE - PANEL OF SELECTED CANDIDATES - DELAY IN AGITATING QUESTION OF SENIORITY - APPOINTMENT BEYOND ADVERTISED VACANCIES - LEGALITY
Fact of the Case:
The Appellant, an Assistant Engineer in the Port Blair Municipal Council, challenged the appointment and promotion of the Respondent, also an Assistant Engineer, on grounds of ineligibility and delay in challenging the appointment. The Respondent obtained a Diploma in Automobile Engineering from a college not recognized by the All India Council for Technical Education (AICTE), which the Appellant claimed rendered his appointment invalid. The Appellant also argued that he was senior in age and should have been promoted before the Respondent.
Finding of the Court:
The Court held that the Diploma obtained by the Respondent could not be considered 'fake' as it was issued by a recognized institution and that the All India Council of Technical Education Act, 1987, which mandated recognition by AICTE, came into force after the Respondent's appointment. The Court further held that the Appellant's delay in challenging the Respondent's appointment and promotion, spanning over 15 years, was excessive and barred him from seeking relief. The Court also declined to interfere with the initial appointment of the Appellant, which was challenged by the Respondent in a cross-objection, on grounds of delay.
Issues: 1. Whether the Diploma obtained by the Respondent from an institution not recognized by AICTE rendered his appointment invalid. 2. Whether the Appellant's delay in challenging the Respondent's appointment and promotion barred him from seeking relief. 3. Whether the initial appointment of the Appellant was liable to be set aside on the ground that two persons could not have been appointed when only one vacancy was declared.
Ratio Decidendi: 1. The term 'fake' implies a deliberate and dishonest creation or alteration of a document, which was not established in the case of the Respondent's Diploma. 2. The All India Council of Technical Education Act, 1987, which mandated recognition by AICTE, came into force after the Respondent's appointment, and thus did not apply retroactively. 3. The Appellant's delay in challenging the Respondent's appointment and promotion, spanning over 15 years, was excessive and barred him from seeking relief, as per the principle of laches. 4. The initial appointment of the Appellant was not liable to be set aside on the ground that two persons were appointed for one vacancy, as the Court declined to adjudicate on the legality of the appointment after such a long delay.
Final Decision: The Court dismissed the Appellant's appeal and the Respondent's cross-objection, upholding the appointment and promotion of the Respondent and declining to interfere with the initial appointment of the Appellant.
( 1 ) THIS appeal is against a Judgment and order dated 25th November, 2005, dismissing Writ Petition No. 126 of 2005 filed by the Appellant, inter alia challenging the appointment and/or promotion of the Respondent No. 6 as Assistant Engineer with effect from 23rd april, 1999.
( 2 ) THE facts giving rise to the Appeal are briefly enumerated hereinafter.
( 3 ) THE appellant and the Respondent No. 6 are both Assistant engineers of the Port Blair Municipal Council (hereinafter referred to as the Respondent Council ).
( 4 ) BY a letter No. 3389 dated 15th September, 1989, the Secretary of the Municipal Board, Port Blair informed the Employment Officer of the Islands of the Board's requirement for a suitable candidate with diploma in Automobile Engineering for appointment as Junior engineer and requested her to forward a list of candidates.
( 5 ) PURSUANT to the requisition of the Municipal Board made vide its aforesaid letter dated 15th September, 1989, the Employment Officer sponsored the names of 11 candidates including the appellant and the respondent No. 6.
( 6 ) OF the eleven candidates, about seven candidates including the appellant and the Respondent No. 6 appeared before the Selection committee for interview on 27th October, 1989.
( 7 ) THE Selection Committee prepared a panel of three candidates. It appears that the Respondent No. 6 secured the first position and the appellant secured the second position in order of merit.
( 8 ) BOTH the Respondent No. 6 and the appellant were appointed junior Engineers on temporary and ad hoc basis. The Respondent No. 6 joined service on 20th November, 1989 and the appellant joined service on 9th November, 1989.
( 9 ) BOTH the Respondent No. 6 and the appellant were appointed regular Junior Engineers with effect from 15th November, 1990 and placed on probation for a period of two years. On expiry of the period of probation both the appellant and the Respondent No. 6 were confirmed in service.
( 10 ) IN April 1999, the Respondent Council with a view to fill up the post of an Assistant Engineer (Electrical and Mechanical) prepared a statement of prospective promotees alongwith their respective qualifications, which was placed before the Departmental Promotion committee (hereinafter referred to as DPC ). A copy of the statement has been annexed to the writ petition as annexure P-4.
( 11 ) THE name of the Respondent No. 6 was the first name in the list of prospective promotees, whereas the name of the appellant was the second name in the said list.
( 12 ) ON 23rd April, 1999, the DPC considered the cases of the candidates for promotion to two posts of Assistant Engineers. e. , assistant Engineer (Eandm) and Assistant Engineer (Civil ). The DPC found both the Respondent No. 6 and the appellant eligible for promotion to the post of Assistant Engineer (Eandm ).
( 13 ) THE Respondent No. 6 was, however, recommended for promotion to the post of Assistant Engineer (Eandm) initially on ad hoc basis for six months and one Ashim Kumar Paul, Junior Engineer (Civil) was recommended for promotion to the post of Assistant Engineer (Civil ).
( 14 ) BY an Office Order No. 1136 dated 23rd April, 1999, the respondent No. 6 was promoted to the post of Assistant Engineer (Eandm) with immediate effect, on ad hoc basis for six months in the scale of pay of Rs. 6,500-10,500. On the same day, the said Ashim Kumar Paul was promoted as Assistant Engineer (Civil), also on ad hoc basis. The ad hoc appointments were duly extended from time to time, till regularization in the post of Assistant Engineer.
( 15 ) ON 11th May, 2000 a provisional seniority list of Assistant. Engineer was circulated by the Administrative Officer and objections thereto were invited. The name of the Respondent No. 6 appeared at sl. No. 3. The appellant apparently did not object to the provisional seniority list.
( 16 ) THE final seniority list was published on or about 19th May, 2000. The position of the Respondent
