Constitutional Writ Jurisdiction v. The Kolkata Municipal Corporation & Ors.

The respondents pray for dismissal of the writ petition. I have heard and considered the rival submissions made on behalf of both the parties. The first reason for rejecting the prayer of the petitioner for promotion is that his qualification was not in consonance with the Recruitment Regulations of KMC. The required qualification was a ‘Diploma in Public Health’ (DPH) from a recognised University/institution. The petitioner acquired the qualification ‘Postgraduate Diploma in Health Sciences in Public Health’ from the Annamalai University through correspondence course. The petitioner asserts that the qualification postgraduate Diploma in Health Sciences in Public Health is equivalent to the qualification mentioned in the circular for promotion i.e., Diploma in Public Health. According to the employer, the two qualifications are not equivalent to each other. As the petitioner seeks to claim the benefit by submitting that the two qualifications are equivalent, as such, it was the obligation of the petitioner to obtain an equivalence certificate from the competent authority prior to seeking such benefit. The petitioner ought not to have shifted the burden upon the employer to obtain the equivalence certificate. He who claims the benefit ought to have produced sufficient documents in his favour so as to refute the allegation of the employer as regards the inequivalence of the two qualifications. There is nothing on 5 record to suggest that the qualification obtained by the petitioner and the qualification required for promotion are equivalent. The equivalence of the two qualifications cannot be judged only from their nomenclature. The duration of the course, syllabus, mode of study- whether regular or correspondence, university/institution from where the qualification was obtained etc. are some of the relevant factors which are required to be verified to come to a conclusion whether the two qualifications are equivalent or not. The court is also not the competent forum to decide the equivalence of the qualification obtained by the petitioner. The second reason for rejection is that the qualification acquired by the petitioner is not recognised by the State of West Bengal. Learned advocate for the petitioner has relied upon the University Grants Commission Act, 1956 and the Annamalai University Act, 1928 in support of the submission that the qualification obtained by him is from a recognised University and accordingly, KMC ought to accept the same and grant benefit of the said qualification. It has also been submitted that as KMC has its independent Recruitment Regulations as such the regulation meant for the State Government employees will not be applicable in his case. Even if the court accepts the submission of the petitioner that he would be guided by the Recruitment Regulations of his employer, but in the absence of a proper certificate of equivalence of the two qualifications, the petitioner cannot seek benefit of the qualification acquired by him. Hence, there is no point in going into the issue whether the qualification obtained by the petitioner is recognised or not or whether the qualification has been obtained from a recognised university or not. The educational qualification of acquiring postgraduate diploma was recorded in his service records as per the order of the Municipal 6 Commissioner dated 21st April, 2017. The petitioner was promoted as per the modified Recruitment Regulations as a non-DPH candidate having ten years of experience on 9th March, 2015. According to the circular of KMC, the eligibility and seniority of an employee is counted from the order of the competent authority under which the actual qualification has been recorded in the service book of the employee and his candidature stands after those eligible candidates already existing in the respective gradation list. The petitioner was already granted the benefit of promotion on completion of ten years of service, and accordingly, the date of recording the higher qualification becomes inconsequential. The next question which arises is whether the petitioner could have been promoted from an earlier date treating him as a non-DPH candidate. The Recruitment Regulations dated 27th March, 1998 clearly mentions that for promotion to the post of Executive Health Officer the candidate should possess the essential qualification of having MBBS degree from a recognised University/institution and a degree in MD or a Diploma in Public Health from a recognised University/institution and having five years of experience. The petitioner obtained the qualification of postgraduate Diploma in Health Sciences in Public Health in October 2011. The petitioner alleges that the private respondents superseded the petitioner on 4th November, 2013, the date they were promoted to the higher post. On 29th December, 2014 the modified Recruitment Regulations for the post of Executive Health Officer was published by the employer where there was a scope for promotion of Medical Officers without a diploma in Public Health on completion of ten years of service. Admittedly, the petitioner joined in service as Medical Officer on 25th February, 1989. So, on the date the modified Recruitment Regulations was published i.e, on 29th December, 7 2014, the petitioner was eligible for promotion to the post of Executive Health Officer. The petitioner was actually promoted vide office order dated 9th March, 2015. The qualification of the petitioner postgraduate Diploma in Health Sciences in Public Health was included in his service records vide office order dated 1st July, 2017. The petitioner argues that as KMC accepted and recorded his qualification as DPH, accordingly, he ought to be given the benefit of promotion on and from the day promotion was given to his juniors i.e, on and from 4th November, 2013. Plainly said, according to the petitioner his promotion ought to have been given from 4th November, 2013 instead of 9th March, 2015. As recorded earlier, the qualification of the petitioner not being in accordance with the Recruitment Regulations pursuant to which his juniors were promoted, the petitioner cannot claim promotion relying on his enhanced educational qualification on and from 4th November, 2013. After the modified Recruitment Regulations was published on 29th December, 2014 the promotional avenue of the petitioner on completion of ten years of service opened and the petitioner appears to have been promoted along with similar non-DPH candidates on 9th March, 2015. It does not appear that there was any error on the part of the employer in not promoting the petitioner on 4th November, 2013. On the contrary, it appears that the petitioner was selected for promotion immediately after the modified Recruitment Regulations was given effect to by the employer. Had there been no modification in the recruitment regulations, the petitioner could not have been selected for promotion as he did not possess the qualification required for promotion. 8 In view of the above, the court is of the opinion that the order impugned herein does not merit interference. No relief can be granted to the petitioner in the instant case. The writ petition fails and is hereby dismissed. No costs. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities. (Amrita Sinha, J.)