Punjab-Haryana High Court
Nirmal Kumari Chatra vs State Of Haryana And Anr on 3 April, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:045271
CM-2218-CWP-2024 in/& -1- 2024:PHHC:045271
CWP-4500-2015
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
102 CM-2218-CWP-2024 in/&
CWP-4500-2015
Date of Decision :03.04.2024
Nirmal Kumari Chatra ...Petitioner
Versus
State of Haryana and others ....Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Jasbir Mor, Advocate for the petitioner.
Mr. Harish Nain, AAG, Haryana.
***
Harsimran Singh Sethi, J. (Oral)
CM-2218-CWP-2024
Present application has been filed for fixing the main petition at
an early actual date of hearing.
Notice of the application to the counsel opposite.
Mr. Harish Nain, AAG, Haryana accepts notice and raises no
objection for the grant of prayer as made in the present petition.
Keeping in view the averments made in the application, present
application is allowed and the main writ petition is taken up for hearing.
CWP-4500-2015
1. In the present petition, claim of the petitioner, who was
working on the post of Superintendent is that she be granted promotion to
the post of Under Secretary by granting her benefit of relaxation under the
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rules governing the service i.e. Haryana Secretariat Service (State Service
Group-A) Rules, 1979 (hereinafter referred to as '1979 Rules').
2. Certain facts need to be noticed for the correct appreciation of
the issue in hand.
3. The petitioner joined as clerk with the respondent-department
on 12.03.1981. She was further promoted to the post of Assistant on
31.12.1987 and, thereafter, on 12.01.2009, the petitioner was further
promoted to the post of Deputy Superintendent and ultimately on
22.07.2009, she was promoted to the post of Superintendent.
4. It may be noticed that for further promotion from the post of
Superintendent is the post of Under Secretary, which is governed by the
1979 rules. An employee should have 05 years experience on the post of
Superintendent in order to become eligible for promotion. The grievance
being raised by the petitioner is that though, the petitioner was given
current duty charge of the post of Under Secretary by the respondents vide
order dated 14.08.2012 but she was not given regular promotion to the said
post of Under Secretary till she attained the age of superannuation and
retired from service on 31.07.2013.
5. Learned counsel for the petitioner argues that prior to the
retirement of the petitioner, the department had not given relaxation qua 05
years experience required for promotion to the post of Under Secretary but
certain employees, who were having three and a half years experience, have
already been promoted to the post of Under Secretary by giving benefit of
relaxation under the 1979 Rules hence, said benefit of relaxation qua the 05
years experience should have also been given to the petitioner before her
retirement so as to grant her regular promotion on the post of Under
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Secretary.
6. Learned counsel for the petitioner submits that even after
retirement, the employees have been given relaxation in required service for
promotion to the post of Under Secretary hence, non-grant of promotion to
the petitioner by giving relaxation qua 05 years experience is discriminatory
and hence, the respondents are under an obligation to promote the petitioner
to the post of Under Secretary before her retirement i.e. 31.07.2013.
7. Learned counsel for the respondents submits that benefit of
relaxation cannot be claimed as a matter of right and the said jurisdiction to
grant relaxation in Rules exists with the department, which can be extended
keeping in view the administrative exigency and even if, the benefit of
relaxation has been given to the employees on an earlier occasion when the
petitioner was in service and even after the retirement of the petitioner, the
same will not give right to the petitioner to claim relaxation as a matter of
right.
8. Learned counsel for the respondents further submits that as per
the reply filed by the respondents, the employees senior to the petitioner
were working as Superintendent at the time when the petitioner retired as
Superintendent on 31.07.2013, they were promoted on the post of Under
Secretary in the year 2014 only and hence, once the employees senior to the
petitioner have been promoted in the year 2014 i.e. after the retirement of
the petitioner from service, the petitioner cannot claim promotion in
preference to her seniors and that too by claiming benefit of relaxation
under 1979 Rules.
9. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
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10. First question, which is to be decided is as to whether an
employee can claim relaxation in service Rules as a matter of right, even if,
the same benefit of relaxation has been accorded by the department to
other employees on an earlier occasion.
11. As per the settled principle of law, benefit of relaxation cannot
be claimed as a matter of right. Hon'ble Supreme Court of India while
deciding Civil Appeal Nos.2250-2252-2020 titled as Dr. Thingujam
Achouba Singh and others vs. Dr. H. Nabachandra Singh and others
decided on 17.04.2020 has held that nobody can claim relaxation as a
matter of right and the eligibility criteria will be within the domain of
employer and no employee can seek benefit of relaxation as a matter of
right. Relevant paragraph of the judgment is as under:-
"14. The High Court has also noticed that the experience
for eligibility notified in the advertisement dated
16.08.2016 was not in conformity with the Medical
Council of India Regulations. In reply affidavit filed before
the High Court, while denying such allegation, it was
pleaded that the qualifications and experience, as notified
in the advertisement dated 16.08.2016, was in accordance
with the "Minimum Qualifications for Teachers in Medical
Institutions Regulations, 1998" (as amended from time to
time), framed by the Medical Council of India. It was the
specific contention of the respondent authorities that as the
RIMS is affiliated to [email protected].(C)Nos.15093-15095 of
2017 etc. Manipur University, the requirement as
prescribed by Medical Council of India for Director of
affiliated hospital should be applied. Such plea is not
accepted by the High Court on the ground that there is no
proper pleading in this regard. A copy of the Regulations
titled as, "Minimum Qualifications for Teachers in
Medical Institutions Regulations, 1998" (as amended upto
11th March 2017) issued by the Medical Council of India
is placed before us. As notified in the said Regulations, the
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academic qualifications and experience applicable for the
post of Director of medical institutions differ from those
applicable for the post of Director/Medical Superintendent
of affiliated teaching hospital. For the post of Director in a
medical institution, apart from the academic qualifications,
ten years' experience as Professor/Associate
Professor/Reader in a medical college, out of which at
least five years should be as Professor in a department, is
prescribed. However, for the post of Director/Medical
Superintendent of the affiliated teaching hospital the
required experience is ten years only. It is the specific case
of the respondents that the RIMS is an affiliated teaching
hospital. In view of such stand of the respondents it cannot
be said that the experience for eligibility notified in the
advertisement dated 16.08.2016 is contrary to the
Regulations of Medical Council of India. So far as
relaxation of upper age limit, as sought by the petitioners
in one of the writ petitions is concerned, High Court has
directed the competent authority and Executive Council of
the Society to consider for providing such relaxation
clause. We fail to understand as to how such direction can
be [email protected].(C)Nos.15093-15095 of 2017 etc. given by
the High Court for providing a relaxation which is not
notified in the advertisement. While it is open for the
employer to notify such criteria for relaxation when
sufficient candidates are not available, at the same time
nobody can claim such relaxation as a matter of right. The
eligibility criteria will be within the domain of the
employer and no candidate can seek as a matter of right, to
provide relaxation clause."
12. Keeping in view the settled principle of law as stated
hereinbefore, the claim raised in the present petition that the petitioner be
granted benefit of relaxation in the 1979 Rules governing the service for
promotion to the post of Under Secretary by promoting her prior to the
completion of 05 years of service as a Superintendent cannot be allowed.
13. Further question, which arises for determination is whether in
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the facts and circumstances of the present case, petitioner can be granted
promotion by granting her benefit of relaxation or not.
14. It is a conceded position that on the date when the petitioner
retired from service, she was not working as senior most Superintendent in
the department and there were other senior Superintendents and those senior
Superintendents have been promoted to the post of Under Secretary only on
14.05.2014 i.e. after the retirement of the petitioner. That being the factual
position, the petitioner who had already retired in the year 2013 cannot seek
promotion in preference to her seniors.
15. Further, in case, prayer of the petitioner for promotion to the
post of Under Secretary prior to her retirement is accepted, then petitioner
will get promotion prior to her seniors namely, Rajender Kumar Sharma,
Raghvir and Gurdial, who were promoted in the year 2014, which will
create anomaly as the junior employee cannot be promoted in preference to
his/her seniors hence, the said prayer of the petitioner cannot be accepted.
16. At this stage, learned counsel for the petitioner submits that the
petitioner was given current duty charge of the post of Under Secretary on
14.08.2012 and she continued working on the said post till her retirement
hence, the petitioner is entitled for the grant of salary of the said post.
17. Learned counsel for the respondents has not been able to
dispute the said fact.
18. That being so, as per the settled principle of law that in case, an
employee has discharged duty of a particular post, he/she is entitled for the
salary of the said post hence, the petitioner is held entitled for salary of the
post of Under Secretary for the period he has discharged the duties of the
said post on current duty charge basis.
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19. Let the respondents calculate the amount for which, the
petitioner becomes entitled for, qua the period she discharged the duties of
the post of Under Secretary on current duty charge basis and the same be
released to her within a period of 08 weeks from the date of receipt of copy
of this order.
20. Present petition stands disposed of in above terms.
21. Civil Miscellaneous application, if any, if also disposed of.
April 03, 2024 (HARSIMRAN SINGH SETHI)
aarti JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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