Punjab-Haryana High Court
Anil Sharma vs State Of Punjab And Another on 28 April, 2021232 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-12348-2020 (O&M)
Date of decision: 28.04.2021
Anil Sharma ………..Petitioner
versus
State of Punjab and another …….Respondents
CORAM: HON’BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. G.S. Bal, Senior Advocate with
Ms. Mandeep Kaur Madahar, Advocate
for the petitioner.
Mr. Vikas Mohan Gupta, Addl.A.G., Punjab
for respondent No.1-State.
FATEH DEEP SINGH, J.
Due to outbreak of pandemic COVID-19, the instant case
is being taken up for hearing through video conferencing.
In the instant civil writ petition under Articles 226/227 of
the Constitution of India, the petitioner-Anil Sharma, presently
working as Conservator of Soils with respondent No.1, has sought
writ by way of certiorari seeking quashment of order dated
27.05.2020 (Annexure P-13) laying challenge to extension of tenure
to respondent No.2 on the post of Chief Conservator of Soils, Punjab,
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terming it to be illegal and arbitrary as well as the quashment of
instructions dated 14.12.2016 (Annexure P-19) to the effect that
period of Current Duty Charge (CDC) will not be counted for the
purpose of experience or seniority or any other benefit and similarly,
sought quashment of the orders/reply dated 14.08.2020 (Annexure
P-21) of the respondents and thereby, seeking writ in the nature of
mandamus to consider and promote the petitioner to the post of
Chief Conservator of Soils, Punjab with effect from 24.05.2020, the
day, the petitioner claims to have qualified and fulfills the experience
laid down for the said post and all consequential benefits arising
there from.
What is reflected from the records and remain
undisplaced, the petitioner was appointed as Section Officer (S.O.) in
the Soil Conservation Department, on ad-hoc basis, on 05.09.1989,
by the Departmental Selection Committee (DPC) and was
regularized with effect from the same very date. Subsequently, the
State, re-designated the post of Section Officer (S.O.) as Soil
Conservation Officer (SCO) through notification dated 07.07.2004.
Earlier, the Soil Conservation Department employees were governed
by the Punjab Soil Conservation and Engineering Services (Class-I)
Rules 1978 and Punjab Soil Conservation and Engineering Services
(Class-II) Rules, 1974 and which have been subsequently, repealed
and replaced by the Punjab Soil and Water Conservation (Group-A)
Service Rules, 2014 with effect from 29.08.2014. The post of Soil
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Conservation Officers (SCO), Sub-Divisional Soil Conservation
Officers (SDSCO) and Divisional Soil Conservation Officers (DSCO),
were merged together into a single cadre with entry as Soil
Conservation Officer and their salaries/pay were regulated by
notifications (Annexures P-1 & P-2). By virtue of Statutory Rules of
2014, the post of Soil Conservation Officers, Sub-Divisional Soil
Conservation Officers and Divisional Soil Conservation Officers were
again de-merged and framed as per the cadres which was laid under
the Rules of 2014 that Soil Conservation Officer with 08 years of
experience can be promoted as Sub-Divisional Soil Conservation
Officer and a Sub-Divisional Soil Conservation Officer with 05 years
of experience can be promoted as Divisional Soil Conservation
Officer while the Divisional Soil Conservation Officer with 03 years of
experience could be promoted as Conservator of Soils and the
Conservator of Soils with 02 years of experience could be promoted
as Chief Conservator of Soils, the same is well elicited in the chart
highlighted in the petition. It is during the course of events, on
account of certain vacancies, in the higher echelons, of the
Department of Soil Conservation, additional charge to higher posts
were given to Officers holding lower substantive posts. It is
consequent upon of this policy being adopted by the State; the
petitioner was given temporary/additional charge to the post of Sub-
Divisional Soil Conservation Officer from 19.10.2009 to 06.12.2011
and, thereafter, Current Duty Charge (CDC) of the said post from
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07.12.2011 to 30.10.2014. The petitioner was, subsequently, given
temporary/additional charge to the post of Divisional Soil
Conservation Officer from 03.09.2012 to 21.11.2012 and Current
Duty Charge (CDC) from 22.11.2012 to 13.08.2013 which is well
depicted in Annexure P-5. The proposals sent by the Department for
grant of exemption in experience under Rule 10 of 2014 Rules for
promotion to the next higher post of the Divisional Soil Conservation
Officer was accepted by the Department as per their letter dated
15.04.2015 (Annexure P-6) with the stipulation that those promoted
officers continue to draw their salaries in their present scales till they
fulfill the statutory requirement of experience in the lower post. It is
under these circumstances, the petitioner claims that he was
promoted as Divisional Soil Conservation Officer on 05.09.2015 vide
Annexure P-7. The petitioner claims that as per pay fixation order
dated 04.10.2013 (Annexure P-4), he was already getting salary in
the pay scale of Conservator of Soils in the grade of
Rs.37400-67000+8600 (G.P.) that is higher than the pay scale
admissible to the post of Divisional Soil Conservation Officer. The
petitioner alleges that since the petitioner had completed 03 years of
experience on 16.09.2018, his file was sent for regular promotion to
the post of Conservator of Soils and was also in the meanwhile,
granted additional charge to the said post vide order dated
24.05.2018 (Annexure P-8). At that point of time, the post of Chief
Conservator of Soils was lying vacant and it is claimed that out of
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extraneous reasons, respondent No.2 was appointed as Chief
Conservator of Soils by way of deputation with effect from
08.06.2018 while he was holding substantive post of the Chief
Conservator of Forest in Forest Department in the Punjab
Government being from Indian Forest Services (IFS) cadre regarding
which, formal order Annexure P-9 was issued on 10.12.2018. The
allegations have come about that respondent No.2, out of malice,
malafidely, for motivated cause to continue on the said post even
after deputation period of two years had expired on 07.06.2020,
manipulated the records and carried on such making himself eligible
for promotion as the Chief Conservator of Soils. It is with this claim
the petitioner has invoked the jurisdiction of this Court by way of this
petition which was subsequently, remodelled and amended.
Respondents No.1 and 2, though filed separate sets of
written replies but the primary crux was that the petitioner was given
additional charge to the post of Conservator of Soils and which
cannot be considered as experience for promotion to the post of
Chief Conservator of Soils and placing reliance on the said order
dated 24.05.2018 (Annexure P-8) claimed that it was done keeping in
view the administrative exigency and said posting was by way of
additional charge and not a promotion and, therefore, by additional
charge cannot claim it to be a substantive promotion. It was
contended that the term “Current Duty Charge” has been notified by
the Department of Personnel, Punjab through notification dated
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14.12.2016 clarifying that would not be counted towards experience,
seniority or any other benefits by citing the notification. It is pleaded
that the petitioner was promoted as Divisional Soil Conservation
Officer from the feeder cadre post of Soil Conservation Officer on
16.09.2015 by giving him relaxation of experience as he did not
possess requisite experience of 05 years from the feeder cadre post
and was only a one time measure and relied on order dated
15.04.2015 (Annexure P-6). It is further the stand of the respondents
that promotion from the post of Divisional Soil Conservation Officer to
the post of Conservator of Soils, experience of 03 years is required
on the feeder cadre post which the petitioner attained on 16.09.2018
and the DPC considered and promoted him as Conservator of Soils
vide order dated 15.10.2019 (Annexure P-10). It is claimed that the
petitioner was holding additional charge of Conservator of Soils with
effect from 24.05.2018 in addition to his substantive post of Divisional
Soil Conservation Officer and which period cannot be counted
towards his experience. The respondents have contended that
promotion from the post of Conservator of Soils to the post of Chief
Conservator of Soils requires 02 years of experience to the post of
feeder cadre post and having been promoted on 15.10.2019,
petitioner would fulfill the requirement of promotion only on
14.10.2021 and thus, termed the claim to be false and incorrect and
untrue.
The respondents have taken a plea that petitioner was
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given one time relaxation during his service on promotion to the
higher post of Divisional Soil Conservation Officer on 16.09.2015 and
again could not seek this relaxation for promotion surpassing the
Rules of the service and whereby, terming the allegations to be
figment of lies unsubstantiated and denied the same.
In respect of respondent No.2, it is the plea that the
deputation of respondent No.2 was duly accorded approval by the
Governor of Punjab initially for a period of 02 years or till such time
as the departmental employee becomes eligible for consideration to
the post of Chief Conservator of Soils. It is worthwhile to refer here
that during the course of pendency of the present petition,
respondent No.2 had been taken as Secretary to Government of
Punjab, Department of Agriculture and Farmers Welfare and,
therefore, his contest ceases to be there at the time of arguments
and in his place, one Sh. Rajesh Vashisth has been appointed as
Chief Conservator of Soils, Punjab. The counsel of respondents
cited judgments passed in CWP No.22289 of 2012 titled as ‘Surinder
Mohan Dhir and others versus State of Punjab and another’; CWP
No.9781 of 2013 titled as ‘Darshan Singh versus The State of Punjab
and another’; LPA No.1743 of 2016 titled as ‘Harpal Singh and others
versus State of Haryana and others’ and Supreme Court’s judgment
passed in Civil Appeal No.5573 of 2006 titled as ‘State of
Uttranchal and another versus Dinesh Kumar Sharma’. It is in
light of this scenario, the present petition has come up for adjudication.
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From the stand of the two sides, it is explicitly clear that the
petitioner was recruited initially to the post of Section Officer (S.O.)
on 05.08.1989 which was re-designated subsequently, as Soil
Conservation Officer and was promoted to the rank of Sub-Divisional
Soil Conservation Officer which required experience of 08 years as
Soil Conservator Officer on 31.10.2014.
The service Rules provided that the next promotion was to
the rank of Divisional Soil Conservation Officer after putting in 05
years as Sub-Divisional Soil Conservation Officer which petitioner got
on 16.09.2015. The petitioner became Divisional Soil Conservation
Officer on 24.05.2018 which required 03 years putting in as Divisional
Soil Conservation Officer on 24.05.2018 petitioner was given
additional charge of Conservator of Soils. It is at this juncture, the
post of Chief Conservator of Soils became vacant, the State
appointed respondent No.2 on deputation as the Chief Conservator
of Soils with effect from 08.06.2018 while he was working as the
Chief Conservator of Forests in Forest Department regarding which
orders were made on 10.12.2018 (Annexure P-9). As per these
orders, respondent No.2 was supposed to be on deputation for a
period of 02 years from the date of his joining or till the Departmental
Officer becomes eligible for consideration of the said post. The
primary dispute that has cropped up is that respondent No.2 whose
posting was on deputation initially for a period of 02 years and which
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tenure was supposed to expire on 07.06.2020 managed to carry on
to that post. The claim of the petitioner to the post of the Chief
Conservator of Soils was thus, thwarted and that is how the order
dated 27.05.2020 (Annexure P-13), instructions dated 14.12.2016
(Annexure P-19) and order dated 14.08.2020 (Annexure P-21) have
come to be challenged through this writ petition. The assailment to
the claim of the petitioner by the respondents is that the Current
Duty Charge (CDC) does not vest in its claim of experience and,
therefore, the experience required of 02 years as Conservator of
Soils does not stand fulfilled by the petitioner on the day of his claim
for which much support is sought to be taken by letter No.4/11/04-
3PP14755 dated 19.04.2005 and the same is sought to be refuted
with much force and vehemence on behalf of the petitioner by
Mr. G.S. Bal, Senior Advocate assisted by Ms. Mandeep Kaur
Madahar, Advocate on the claim of that the word experience includes
the period spent as Current Duty Charge (CDC) and has cited
judgments of this Court passed in CWP No.310 of 1984 titled as
‘Roshan Jagdish Lal Duggal and others versus The Punjab State
Electricity Board, Patiala and others’; a Division Bench judgment
passed in CWP No.77 of 2012 titled as ‘Chief Engineer, Union
Territory, Chandigarh versus Ram Sarup Walia and others’; CWP
No.3986 of 2016 titled as ‘Kailash Devi versus State of Punjab and
others’; CWP No.25342 of 2016 titled as ‘Satish Kumar and others
versus Kurukshetra University, Kurukshetra and another’ and
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CWP No.26621 of 2013 titled as ‘Sukhminder Singh and others
versus State of Punjab and others’.
This Court in a Division Bench view, in a similar
proposition in the case bearing CWP No.77 of 2012 titled as ‘Chief
Engineer, Union Territory, Chandigarh versus Ram Sarup Walia and
others’ has clearly held Current Duty Charge (CDC) is to be treated
as a part of experience for promotion to the next higher post as it is
an experience gained on a post and has nothing to do with to the
claim of seniority as the very Rules governing the Department lays
down only requirement of experience and which admittedly, the
petitioner has gained during his tenure on Current Duty Charge
(CDC) from 24.05.2018. It could not be claimed or is the case of the
respondent-State that the petitioner did not gain experience and
when admittedly, he worked on that post for which qualifying need is
of experience, he has certainly gained that. Since, the petitioner has
gained experience while working on Current Duty Charge (CDC) then
to the mind of this Court, he clearly fulfills the requirement of the
Rules and, therefore, qualifies to be considered to the promotion of
post of Chief Conservator of Soils and the claim that he has not
gained experience on the substantive post does not impress the
Court much for which reliance is placed on the ratio laid down by this
Court in the case of ‘Ashok Kumar, Clerk versus state of Haryana’,
2003 (5) SLR 773, thus, it is clearly held that the petitioner has
gained required experience substantive period of 02 years as
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Conservator of Soils entitling him to be considered for promotion to
the post of Chief Conservator of Soils. It needs to be distinguished
between the word “service” and “experience” and it is not by virtue of
seniority he is claiming so, but claiming that he has gained sufficient
experience for being considered to that post. The taking on and
carrying with the deputation of then respondent No.2 as Chief
Conservator of Soils, Punjab and its continuation is more pregnated
with political and bureaucratic convenience than of administrative
needs, especially, when the deputationist was from another field of
“Forests” and the requirement was of in the field of “Soil”. Thus, it
cannot be taken that the deputationist was having better experience
or could be to the advantage of Department and rather when the
Department could have availed of the experience of petitioner in the
field of “Soils” is another distressing feature in the case of
respondents. The instructions cited and relied by the respondents,
thus, pales into insignificance. Since, the petitioner had gained
sufficient experience of 02 years as Conservator of Soils and has
qualified to be considered to the post of Chief Conservator of Soils in
the State. Therefore, any deputationist from other Department would
be malafide illegal and purely to defeat the right of the petitioner that
has crystallized by way of his claim to the said post.
In light of the above discussions, discussed and detailed
above, the instant petition stands allowed and impugned orders/letter
Annexures P-13, P-19 and P-21, are hereby set aside and quashed.
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The claim of the petitioner needs to be decided within a
period of one month, from the date of receipt of certified copy of this
order, by passing a speaking order.
The petition stands disposed off accordingly.
(FATEH DEEP SINGH)
28.04.2021 JUDGE
Neha
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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