Calcutta High Court (Appellete Side)
Anup Purkayastha vs Union Of India & Ors on 29 April, 2025
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IN THE HIGH COURT AT CALCUTTA
(CONSTITUTIONAL WRIT JURISDICTION)
APPELLATE SIDE
Present:
The Hon'ble Justice Partha Sarathi Chatterjee
WPA 2259 of 2024
Anup Purkayastha
-Vs.-
Union of India & Ors.
For the Petitioner : Mr. Partha Sarathi Bhattacharya, Sr. Adv.,
Mr. Raju Bhattacharya.
For the Respondent Nos. 2 to 6 : Mr. Sukanta Chakraborty,
Mr. Anindya Halder.
Heard on : 08.04.2025 Judgment on : 29.04.2025 ParthaSarathiChatterjee, J.:- Prelude:
1. The primary issue for determination in this writ petition is whether the
respondents were justified in denying the petitioner a promotion on the
ground that he obtained his postgraduate degree through distance education.
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2. However, before delving into the contentious issue, it would be
appropriate to first outline the key facts as revealed in the pleadings and the
documents relied upon by the parties.
Petitioner’s case:
3. The petitioner completed his B. Com from the University of Calcutta and
subsequently pursued various certificate and diploma courses in Social Work
(Labour Welfare) from different institutions. He later obtained a Master’s
degree in Business Administration with a specialization in Human Resource
Management from Pondicherry University through the distance education
mode.
4. The petitioner joined Damodar Valley Corporation (in short, DVC) as a
Management Trainee in 1989, and his appointment was regularized in 1990.
He was subsequently promoted through the hierarchy of posts to the positions
of Assistant Director of Personnel (ADP) in 1994, Deputy Director of
Personnel (DDP) in 2000, and Joint Director of Personnel in 2001. On
26.04.2013, he was further promoted to the post of Additional Director of
Personnel/Senior Manager (HR) in the M5 pay scale. At present, he is posted
at DVC, Maithon Dam.
5. The promotional hierarchy from the post of Additional Director of
Personnel/Senior Manager (HR) at DVC is as follows:
(a) Deputy General Manager (Administration) – Pay Scale M-6; (b)
General Manager (HR) – Pay Scale M-7; (c) Senior General
Manager (HR) – Pay Scale M-8; and (d) Chief General Manager
(HR) – Pay Scale M-9.
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6. As per Regulation 14 of the applicable Service Regulations, promotion is
to be based on merit, the relative suitability of the candidate for the particular
post, and seniority. In the case of promotions to Class-I posts, such
promotions are ordinarily to be made on the recommendation of the
Departmental Promotion Committee (in short, DPC).
7. The gradation lists for the Human Resource Cadre, published on
06.03.2012 and 10.07.2015, reflect that the petitioner was placed at serial
numbers 8 and 2, respectively, while Mr. Akhilesh Kumar, respondent no. 7
(an employee of DVC), was placed at serial numbers 32 and 14, respectively.
Despite not holding a degree in Master of Business Management in Human
Resource or Personnel Management and Industrial Relations, and instead
possessing a Master of Arts in Labour and Social Welfare, Mr. Akhilesh Kumar
was promoted to the post of Chief General Manager (HR) in the M-9 pay scale.
8. From paragraph 3.4 of the promotion policy adopted by the DVC under
an Office Memorandum dated 12.01.16, essential qualification for promotion
is as follows:
― it would be essential to clear an examination of Standard
equivalent to Bachelor Degree in Engineering or AMIE, MBA
Degree in HR or Masters Degree/Post Graduate
Degree/Diploma (at least for 2 years full time) in Personnel
Management and Industrial Relations and equivalent, passed
final examination from the Institute of Chartered Accountants
of India or Cost & Works Accountants of India or MBA Degree
in Finance or Cost & Works Accountants of India or MBA
Degree in Finance or PG Diploma/Degree (at least 2 years full
time) in Finance from AICTE approved University/ Institution
for promotion to the post of M-5 and above. Accordingly,
Executives acquiring degree, as mentioned above, through
other distance education will not be considered for promotion to
the post of M-5 and above, except CA, ICWA and AMIE.
[Illustration: If an executive, who is holding the post of any
level from M-4 above (i.e. M-4, M-5, M-6 etc.) and does not
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possess the requisite qualification as stated above, will not be
considered for promotion to the next higher post.]”
9. It is, therefore, evident that although Mr. Pandey was consistently junior
to the petitioner, he was promoted in supersession of the petitioner without
any reason being assigned. In contrast, the petitioner, despite holding a
postgraduate degree in Business Administration (MBA) with specialization in
Human Resources, was denied promotion. It is also pertinent to note that one
Rudra Pratap Singh, who was likewise junior to the petitioner and has since
retired, was promoted to the M-7 cadre.
10. Notably, a disciplinary proceeding was initiated against Mr. Singh on
the ground of not possessing the prescribed qualification for promotion. Mr.
Singh sought the intervention of this Hon’ble Court, and the disciplinary
proceeding was subsequently quashed. The Court directed the respondents to
grant him the promotional benefits. Similarly, the petitioner had also obtained
favourable orders from this Hon’ble Court in W.P. No. 3247(W) of 1998, and
subsequently in FMA No. 774 of 2008 and CAN No. 16145 of 2005. However,
despite such directions, the petitioner was denied promotion.
11. The petitioner submitted several representations before the
concerned authorities. Although these were initially left unaddressed, the
Executive Director (HR), by a letter dated 31.05.2021, ultimately informed
the petitioner that his request for promotion was not tenable.
12. Though, by filing a supplementary affidavit, the petitioner attempted
to enlarge the scope of the lis, the specific case projected in this writ
petition is that, as per various circulars and/or Office Orders issued by the
Ministry of Heavy Industries and Public Enterprises, the Department of
Public Enterprises, the Ministry of Human Resource Development, and the
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University Grants Commission (UGC), degrees, diplomas, and certificates
obtained through distance education mode are recognized as being at par
with those obtained through regular courses. Accordingly, the petitioner
cannot be discriminated only for having acquired an MBA degree through
the distance mode. The petitioner satisfies the eligibility criteria laid down
in Paragraph 3.4 of the promotion policy dated 12.01.2016. Therefore,
DVC, which functions under the administrative control of the Ministry of
Power, Government of India, is legally obligated to extend promotional
benefits to the petitioner.
13. The Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training), Government of India, has issued
guidelines pertaining to the framing, amendment, and relaxation of
recruitment rules. According to the petitioner, he is entitled to promotion
as per this guideline also. Paragraph 3.1.3 of these guidelines is reproduced
below:
“where the eligibility service for promotion prescribed in the
existing rules is being enhanced (to be in conformity with the
guidelines issued by this Department) and the change is likely to
affect adversely some persons holding the feeder grade posts on
regular basis, a note to the effect that the eligibility service shall
continue to be the same for persons holding the feeder posts on
regular basis on the date of notification of the revised rules, could
be included in the revised rules.”
14. The promotion policy for non-executive in DVC which came into force
on 6.11.2018 provides that the basic qualification for entry into non-executive
cadre of DVC will be applicable to the new entrants only. The petitioner
pointed out that this provision that new qualification requirement is
applicable to new entrants only, is missing in the promotion policy for Group-
A Executives dated 12.01.2016.
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15. The petitioner submits that, in accordance with Paragraph 3.9 of the
Promotion Policy for Group-A Executives adopted on 04.05.2023, an
Executive who is not promoted due to non-availability of vacancies and has
completed nine (9) years of service in the existing grade is eligible for
upgradation to the next higher scale. Despite having served in the present post
for over ten (10) years, the petitioner has not been granted such upgradation
or promoted to the next higher level, thereby causing him undue hardship and
discrimination.
16. These events have prompted the petitioner to file the present writ
petition, praying for a writ of mandamus directing the respondents to promote
him to the post of Chief General Manager (HR) in Pay Scale M-9, with effect
from the date on which his junior, Mr. Pandey, was promoted.
17. The petitioner has filed a supplementary affidavit challenging the legality
of both the promotion policies introduced in 2016 and 2023. The primary
ground for this challenge is that neither of the policies was published in the
Gazette of India, as required under Sections 60(1), 60(2)(a), and 7(b) of the
Damodar Valley Corporation Act, 1948. The petitioner further contends that
paragraph 3.4 of the 2016 promotion policy is in direct contradiction to
paragraph 3.1.3 of the Office Memorandum issued by the Government of
India, Ministry of Personnel, Public Grievances and Pensions, dated
31.12.2010, particularly in relation to the guidelines for preparing schedules
and notifications, as laid down in the DoPT Office Memorandum dated
25.03.1996. Additionally, the petitioner asserts that his basic pay was
unilaterally reduced from ₹1,80,800/- to ₹1,47,000/- with effect from
01.07.2020.
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Case of the respondent nos. 2 to 6:
18. The essence of the defence put forth in the affidavit-in-opposition filed
on behalf of respondent nos. 2 to 6 is that the petitioner was designated as
Labour Welfare Officer (LWO) & equivalent with effect from 07.09.1989,
subsequently redesignated as ADP & equivalent with effect from 13.06.1994,
and further redesignated as DDP & equivalent with effect from 13.06.2006. In
the revised Unified Cadre Policy (UCP) of HR/302 dated 27.02.2014, it was
categorically stated that the seniority position as on 01.01.2001 of the
concerned officers would remain unchanged, in terms of Office Memorandum
(in short, OM) dated 22.04.2013. The petitioner was appointed as Senior
Manager (HR) and posted at the station with pay and allowances as per the
applicable rules, i.e., in Pay Band-4 with Grade Pay of Rs. 8700/-, with effect
from 26.03.2013, by order dated 26.04.2013. However, the said promotion
was made subject to the outcome of W.P. No. 8851(W) of 2012.
19. The Office Memorandum dated 04.05.2023 indicates that respondent
no. 2, vide its Resolution No. 9287, accorded approval to the Promotion Policy
for Group-A Executives, to be effective from the date of issuance of the said
Office Memorandum. However, matters pertaining to the Corporate
Promotion Committee (in short, CPC) were excluded from immediate effect
and were to come into force from the next scheduled CPC. It was further
clarified that the revised Promotion Policy would not affect the existing CPC
panel, which remained valid until 31st July, 2023.
20. The conduct of the Corporate Promotion Committee/Departmental
Promotion Committee (CPC/DPC) for promotions in DVC is governed by the
Promotion Policy adopted by the Corporation. While considering cases for
8promotion, due consideration is given to the Annual Performance Appraisal
Reports (APARs) of the concerned officers for the past one to six years, as
applicable, depending on the eligibility period specified under Paragraph 5.0
of the Policy.
21. For promotions to the grades of M-5 and above, the CPC holds interviews
and assigns marks to each eligible Executive, taking into account certain
factors, namely,- (i) the desirability of giving special recognition to experience
and performance in the field, in alignment with the Corporation’s priorities;
(ii) the need to ensure uniformity, consistency, and equitability; (iii) the
potential and suitability of the candidate for the specific post to which
promotion is being considered;
(iv) general conduct, integrity, personality, and the candidate’s sense of
involvement and commitment to the organization; and
(v) the overall trend–upward or downward–in the candidate’s
appraisal/PMS ratings.
22. The existing Promotion Policy for Executives prescribes, as essential
qualification criteria (QR) for further promotion, not only an MBA degree in
Human Resources but also includes a Master’s Degree/Post Graduate Degree
or Diploma (of at least two years full-time duration) in Personnel
Management & Industrial Relations, Human Resource Management, or an
equivalent field. Shri Akhilesh Kumar Pandey, Chief General Manager (HR),
holds a Master of Arts degree in Labour and Social Welfare, which qualifies as
an equivalent degree for the purpose of meeting the said educational
requirements (as recorded at serial no. 13).
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23. Although the petitioner was placed at a higher position in both the
gradation lists dated 06.03.2012 and 10.07.2015, he was not considered for
promotion to the next higher level on the ground that the qualification he
acquired did not align with the educational requirements prescribed under
Clause 9.1 of the Promotion Policy, 2016, and Clause 10.1 of the Promotion
Policy, 2023. The petitioner had obtained an MBA in Human Resource
Management through distance education, which does not fulfil the criteria of a
regular, full-time course as mandated by both promotion policies. In contrast,
Mr. Akhilesh Kumar Pandey had acquired a degree recognized as equivalent
to an MBA in HR or a Master’s Degree/Post Graduate Degree/Diploma (of at
least two years full-time duration) in Personnel Management and Industrial
Relations/Human Resource Management, as approved by the Competent
Authority.
24. The petitioner’s representations were duly placed before the
Competent Authority, and the decisions taken thereon were communicated to
him at various points in time. It is pertinent to note that the Promotion Policy
adopted in 2016 is no longer in force. A revised Promotion Policy for
Executives has been implemented with effect from 04.05.2023, following the
approval of the DVC Board. Under the current policy, qualifications acquired
through distance education are not recognized for the purpose of further
promotion. Be it noted here that the DVC Board, as reconstituted under the
DVC (Amendment) Act, 2011, comprises four full-time members–Chairman,
Member (Technical), Member (Secretary), and Member (Finance)–along with
representatives from the Central Government, the Government of Jharkhand,
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and the Government of West Bengal, as well as three independent experts in
the fields of water management, irrigation, and transmission & distribution.
25. The rules framed by the Ministry of Personnel Public Grievance and
Pension (Department of Personnel and Training), Govt. of India do not apply
to DVC unless otherwise specifically adopted by the DVC.
26. Clause 13.1 of the Promotion Policy, issued vide Office Memorandum No.
765 dated 04.05.2023, provides that consideration for promotion is subject to
the availability of vacancies. However, in cases where an Executive is not
promoted solely due to non-availability of vacancy and has completed nine (9)
years of service in the existing grade/level (for promotions to the post of M-5
and above), such Executive may be granted an upgradation to the next higher
scale as a Service Linked Upgradation. This upgradation shall be subject to
the fulfilment of all other applicable conditions of promotion.
27. As the petitioner was not eligible for promotion as per Clause 3.4 of the
promotion policy for Group-A Executives/Vol.-IV/40 dated 12.01.2016.
However, both Mr. Singh and Mr. Pandey were eligible for promotion to next
higher grade.
Contents of Affidavit-in-reply:
28. In response to the averments made in the affidavit-in-opposition filed on
behalf of respondent nos. 2 to 6, the petitioner has submitted that, in terms of
Regulation 108(B) and the accompanying explanatory memorandum, the DVC
has adopted the Central Government Service Rules and Regulations by either
framing new regulations or amending existing ones from time to time.
Accordingly, the benefits available to Central Government employees under
the Central Civil Services (Extraordinary Pension) Rules of the Government of
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India, as amended from time to time, are also applicable to DVC employees
belonging to corresponding categories. Furthermore, the said Regulation
stipulates that no employee shall be prejudicially affected by giving
retrospective effect to any amendment to the DVC Service Regulations.
29. In terms of the Department of Personnel and Training (DoPT) Office
Memorandum dated 31.12.2010, it is mandated that the ‘eligibility service’
shall remain unchanged for individuals holding the feeder post on a regular
basis as on the date of notification of the revised rules, and such provision
must be incorporated into the revised rules. Accordingly, the professed policy
of the Central Government is to ensure that employees occupying the feeder
post are not placed at a disadvantage or made to suffer prejudicially due to
subsequent changes in service conditions or promotional policies. However, in
the present case, this guiding principle has not been adhered to in either of the
Promotion Policies adopted in 2016 and 2023.
30. The promotion policies dated 12.01.2016 and 4.5.2023 were not
published in the Gazette of India as required under Sections 60 (1) , 60 (2) (a)
& (b) and 7 (b) of DVC Act, 1948 read with Regulation 6 of DVC Service
Regulations.
31. The MBA (HR) degree obtained by the petitioner from Pondicherry
University through distance education is, in terms of the applicable circulars
issued by the Government of India, considered equivalent to an MBA (HR)
degree awarded by any traditional university. On the other hand, the Master
of Arts in Labour and Social Welfare degree acquired by Mr. Pandey is not
equivalent to an MBA (HR).
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32. The petitioner asserts that he has been serving as Deputy General
Manager since 2022 and has consistently demonstrated outstanding
performance, as would be evident from his performance appraisal reports. As
such, the petitioner cannot be regarded as an unsuccessful candidate. He
further states that he was neither called for an interview nor even called in the
Assessment Centre. The petitioner contends that he has been unjustly
deprived and considers himself a victim of discriminatory treatment.
Submissions :
33. Mr. Bhattacharya, learned senior advocate, advanced his oral
submissions in addition to filing a written note of arguments. His contentions,
as crystallized, are that Mr. Pandey had consistently remained junior to the
petitioner in the official gradation lists dated 06.03.2012 and 10.07.2015.
However, despite this, Mr. Pandey was promoted over the petitioner in the
organizational hierarchy, thereby superseding him. Furthermore, in the
gradation list published on 01.12.2021, both Mr. Pandey and the petitioner
were shown at serial no. 12 and 3, respectively, which, according to him, is a
glaring example of discrimination and arbitrary action on the part of the
respondents.
34. Mr. Bhattacharya, learned senior advocate, submitted that under
Regulation 14 of the DVC Service Regulations, promotion is to be granted
based on merit, the relative suitability of the candidate for the particular post,
and seniority. In the case of promotion to a Class-I post, such promotion must
be made on the recommendation of the Departmental Promotion Committee
(DPC) constituted for that purpose. He contended that the petitioner had
consistently remained senior to Mr. Pandey, no adverse remarks were ever
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communicated to him, and his appraisal reports reflected an outstanding
performance throughout. Despite this, the petitioner was unjustifiably denied
promotion. Mr. Bhattacharya further argued that neither of the promotion
policies recognizes a Master of Arts degree in Labour and Social Welfare,
acquired by Mr. Pandey as being equivalent to the qualification prescribed by
the DVC for the purpose of promotion. He submitted that, since Mr. Singh has
already retired. At this stage, the dispute essentially lies between Mr. Pandey
and the petitioner.
35. Referring to the Regulation 22 and Regulation 2(f) of the UGC Open
and Distance Learning Programme and Online Programme Regulation, 2010,
Mr. Bhattacharya arduously argued that the degree, MBA(HR) obtained by
the petitioner through distance education from Pondichery University, which
was established under Pondichery University Act, 1985, is equivalent to MBA
(HR) obtained by a candidate in regular course and as such, the petitioner
meets the qualification for promotion.
36. Quite apart from that, he contended that the determination of whether
an MBA (HR) degree obtained through distance education is equivalent to an
MBA (HR) or other qualifications referred to in the promotion policies does
not fall within the domain of the Court. He submitted that such a
determination may appropriately be referred to the University Grants
Commission (UGC) for its expert opinion.
37. To bolster his submission, he referred to the decisions, reported at 2002
(2) Cal LJ 34 [West Bengal Central School Service Commission & Ors. vs.
Smt. Gita Guha (Dasgupta)] , (2021) 12 SCC 390 (Anand Yadav & Ors. vs.
State of UP & Ors.), (2001) 8 SCC 546 (Tarik Islam vs. Aligarh Muslim
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University & Ors.), (2021) 14 SCC 134 ( Kaloji Narayan Rao University of
Health Science vs. Srikeerthi Reddi Pingle & Ors.) , (2024) 8 SCC 309
(Shifana P.S. vs. State of Kerala & Ors.).
38. In rebuttal, Mr. Chakraborty, learned Advocate for the DVC, submitted
that as per UCP of HR/302 dated 27.02.2014, the seniority of the concerned
officers as on 01.01.2001 remained unchanged until 31.07.2023. He
elaborated on this issue, stating that the revised promotion policy, approved
by the competent authority in 2023, is effective from the date of issuance of
the Office Memorandum, except for matters related to CPC, which would
apply from the forthcoming CPC. He clarified that the revised policy does not
affect the validity of the existing CPC panel, which remained in force until
31.07.2023.
39. Referring to the three promotion policies adopted by the DVC in 2012,
2016, and 2023, Mr. Chakraborty argued that all these policies consistently
stipulate that, for promotion to the level of M-5 and above, an employee must
possess a degree obtained through a two-year regular course. He asserted that
Mr. Akhilesh Kumar holds a Master of Arts degree in Labour and Social
Welfare, which is equivalent to the degrees specified in the said policies.
40. He asserted that the conduct of CPC/DPC is governed by the
promotion policies approved by the DVC Board, and that, in considering cases
for promotion, several factors are taken into account in addition to the Annual
Performance Appraisal Reports. Although the petitioner was senior to Mr.
Kumar, the CPC/DPC did not find him eligible for promotion to the next
higher level, and accordingly, his promotion was denied. He further
contended that the rules and regulations of the Central Government are
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applicable to the DVC only if they are expressly adopted by the Board through
appropriate amendments to the existing rules and regulations.
41. Heard the learned advocates representing the respective parties.
Perused the materials on record placed before me.
Analysis :
42. Section 59 of the DVC Act, 1948 empowers the Central Government to
make rules for any or all of the matters specified therein, whereas Section 60
empowers the Corporation (DVC), with the prior sanction of the Central
Government and by notification in the Gazette of India, to make regulations
for carrying out its functions under the Act. This includes, in particular and
without prejudice to the generality of the foregoing powers, provisions relating
to the appointment and promotion of its officers and employees. Therefore,
the Act mandates that any regulations made by the DVC regarding
appointments and promotions of its officers and employees must be published
in the Gazette of India. However, the petitioner has failed to establish that the
promotional policies in question constitute regulations requiring such
publication.
43. In the absence of any statutory rules or regulations, matters related to
promotion may be governed by executive instructions, policies, or established
norms. Unless such instructions, policies, or norms are found to be unjust,
unfair, unreasonable, or discriminatory, they cannot be considered violative of
Articles 14 and 16 of the Constitution of India. It is entirely permissible for an
employer to formulate policies that define eligibility criteria based on realistic
considerations and to establish a system aimed at selecting the most suitable
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candidates to fill critical positions. It is admitted position that an employee
cannot demand that rules, regulations, or policies be amended that suits him.
44. Needless to state that an employee does not possess an inherent right to
promotion. Instead, the right is limited to being duly considered for
promotion in accordance with the applicable rules. When promotions are
determined based on factors such as seniority, merit, and the relative
suitability of candidates for a particular position, no employee can claim
promotion as a matter of right solely on the basis of seniority or performance
appraisals. The right to promotion is contingent upon the fulfilment of
prescribed eligibility criteria.
45. Regulation 108B of the DVC Service Regulations clearly states that the
benefits of the Central Civil Services (Extraordinary Pension) Rules, 1937, as
framed by the Government of India, shall be applicable to DVC employees.
However, the petitioner has failed to identify any provision within these Rules,
or any part of Regulation 108B, that prohibits DVC from prescribing
qualifications for promotion to the position at the level of M-5 and above.
46. Clause 13 of the Promotion Policy, 2023, which deals with Service
Linked Promotion/Upgradation (SLP), provides that where promotions are
subject to availability of vacancies, and an executive is not promoted solely
due to the non-availability of a vacancy, such an executive may be considered
for upgradation to the next higher scale upon completion of nine (09) years of
service in the existing grade/level, specifically for promotion to the post of M-
5 and above. This upgradation is treated as a Service Linked Upgradation.
However, all other conditions applicable to promotion must also be fulfilled.
Therefore, mere completion of nine years in the feeder grade/level is not
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sufficient; the executive must also satisfy all other prescribed eligibility
criteria for promotion.
47. Promotion-related rules, norms, or policies often mandate that an
aspirant must possess certain qualifications to be eligible for consideration.
However, if a classification is made between employees who have obtained
their degrees through distance education and those who have acquired that
degree through regular courses, such classification must bear a rational nexus
with the efficiency and requirements of the particular post.
48. Therefore, an employer is permitted to draw a distinction between
employees who have obtained a degree through a two-year full-time regular
course and those who have earned the same degree through distance or online
education, only if the employer can justify that the promotional post demands
a level of expertise or training that can reasonably be acquired only through a
full-time regular course, and not through distance or online modes of
education.
49. Regulation no. 22 of the University Grants Commission (Open and
Distance Learning Programmes and Online Programmes) Regulations, 2020
specifies that the degrees at undergraduate and postgraduate level in
conformity with UGC notification on specification of Degrees, 2014 and post
graduate diplomas awarded through open and distance learning mode and/or
online mode by Higher Educational Institutions, recognised by the
Commission. The petitioner claimed that Pondicherry University is a UGC-
recognised institution, and Mr. Chakraborty did not dispute this claim.
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50. Mr. Chakraborty defended the classification by arguing that, in matters of
promotion, where all employees have been treated uniformly over a
considerable period and there is no apparent instance of discrimination.
51. Therefore, DVC has two-fold justification for such classification:
(i) as an employer, DVC has the authority to prescribe eligibility criteria for
any promotional post or position; and
(ii) the classification in question has been consistently applied to all
employees over a significant period.
52. However, no evidence has been presented to establish that the expertise
required for the promotional grade or level can only be attained by a candidate
who has completed a two-year full-time regular course, and that such
expertise cannot be acquired through a degree obtained via distance
education. No materials have also been placed to show that whether the MBA
(HR) course involve any technical or practical training component that can
only be attended in regular course.
53. There cannot be any scintilla of doubt regarding binding effect of the
decisions cited by Mr. Chakraborty. However, those are distinguishable on
facts.
54. In view of the above circumstances, I find it appropriate to remit the
matter to Respondent No. 3 for reconsideration and decision. The Chairman
shall examine whether, in light of Regulation 22 of the University Grants
Commission (Open and Distance Learning Programmes and Online
Programmes) Regulations, 2020, the classification in question can be
considered justified. He shall also assess whether the expertise required for
the promotional grade or level can genuinely be acquired only through a two-
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year full-time regular course, and not through a degree obtained via distance
education.
55. It is imperative that, if it is found that there is no reasonable
justification or intelligible differentia for maintaining such a classification,
appropriate follow-up action shall be taken. This may include granting
promotion to the petitioner with effect from the date his junior was promoted,
provided the petitioner is otherwise eligible. However, if it is found that there
justification or intelligible differentia behind such classification and that the
petitioner’s claim for promotion lacks merit, he shall issue a reasoned and
speaking order, which must be duly communicated to the petitioner. If he
considers it appropriate, he may seek the intervention of the DVC Board. The
entire exercise shall be completed within a period of twelve (12) weeks from
the date of receipt of a copy of this order.
56. As the petitioner has not produced any material from a competent
authority to establish that the degree of Master of Arts in Labour & Social
Welfare is not equivalent to the qualification prescribed for promotion, I am
not inclined to pass any order with respect to the promotion of Mr. Akhilesh
Kumar.
57. With these observations and order, the writ petition is, thus, disposed of.
However, there shall be no order as to the costs.
(Partha Sarathi Chatterjee, J.)
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