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(Class-II) Rules, 1974 and which have been subsequently, repealed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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