Punjab-Haryana High Court
Sanjeev Batish vs State Of Haryana And Others on 21 November, 2024
Neutral Citation No:=2024:PHHC:153711
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
243+107
CWP-10291-2023 (O&M)
Date of decision : 21.11.2024
Sanjeev Batish ....Petitioner
V/S
State of Haryana and others ....Respondents
CORAM : HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. Shreenath A. Khemka, Advocate and
Mr. Ashish Pundir, Advocate for the petitioner.
Mr. Ravi Dutt Sharma, D.A.G., Haryana.
****
NAMIT KUMAR, J. (ORAL)
1. The instant petition has been filed by the petitioner under
Articles 226/227 of the Constitution of India, seeking a writ of
certiorari, quashing the order dated 22.02.2023 (Annexure P-10), passed
by respondent No.1, whereby the claim of the petitioner for promotion
from the post of Sub Divisional Engineer to the post of Executive
Engineer (Mechanical) has been rejected. Further, a writ of mandamus
has been sought, directing the respondents to consider and promote the
petitioner to the post of Executive Engineer (Mechanical) by counting
his service rendered on Current Duty Charge (CDC) basis on the post of
Sub Divisional Engineer, with all consequential benefits.
2. The brief facts of the case, as have been pleaded in the
petition, are that initially the petitioner joined as Junior Engineer on
23.05.1996 in the Haryana Public Works (Building & Roads)
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Department and thereafter, he was transferred to Haryana Public
Health Engineering Department on 15.07.2004 where he joined on
03.08.2004. Meanwhile, the Government of Haryana notified "The
Haryana Service of Engineers, Group A, Public Health Engineering
Department Act, 2009" (Annexure P-1) (herein after referred to as 'Act
of 2009') which came into force on 20.03.2009 for regulating the
recruitment and conditions of service of Group A Engineers in Public
Health Engineering Department. As per the said Act, the next promotion
from the post of Junior Engineer is to the post of Sub Divisional
Engineer (Mechanical). The petitioner was assigned the Current Duty
Charge of the post of Sub Divisional Engineer (Mechanical) vide order
dated 19.08.2011 (Annexure P-2), having endorsement dated
23.08.2011. Accordingly, the petitioner joined on the said post on
Current Duty Charge basis on 24.08.2011. Thereafter, he was promoted
on regular basis as Sub Divisional Engineer (Mechanical), vide order
dated 05.05.2020 (Annexure P-4). Post of Executive Engineer
(Mechanical) is governed by the Act of 2009 and for promotion, 08
years experience is required as Sub Divisional Engineer and also
passing of the departmental examination of Group B service is
mandatory. It is the case of the petitioner that since he was eligible for
promotion to the post of Executive Engineer (Mechanical) as he had
passed the departmental examination and also completed 08 years
service as Sub Divisional Engineer (Mechanical), therefore, he
submitted representation dated 28.01.2022 (Annexure P-5) for
considering his case for promotion to the post of Executive Engineer
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(Mechanical) by submitting that he was working as Sub Divisional
Engineer (Mechanical) from 24.08.2011, when he was assigned Current
Duty Charge of the said post and thereafter, he was promoted on regular
basis on 05.05.2020. The said representation of the petitioner was
rejected by the respondent-department, vide order dated 01.06.2022
(Annexures P-6) without assigning any reason. Thereafter, father-in-law
of the petitioner submitted a representation dated nil to the respondent-
department with a request to consider the case of the petitioner for
promotion to the post of Executive Engineer (Mechanical),
however, the said representation was filed by the respondent-
department, vide order dated 28.10.2022 (Annexure P-8). Thereafter,
for claiming promotion to the post of Executive Engineer (Mechanical),
the petitioner approached this court by filing CWP No.28258 of 2022
titled as 'Sanjeev Batish Vs. State of Haryana and others' which was
disposed of by this Court vide order dated 08.12.2022 (Annexure P-9)
with a direction to the respondents to look into the pending
representation of the petitioner and pass necessary orders. Pursuant to
the order dated 08.12.2022, passed by this Court, the representation
dated nil filed by father-in-law of the petitioner has been rejected by
respondent No.1, vide order dated 22.02.2023 (Annexure P-10).
Thereafter, the petitioner again approached this Court by filing CWP
No.9876 of 2023 titled as 'Sanjeev Batish Vs. State of Haryana and
others' claiming promotion to the post of Executive Engineer
(Mechanical) but since the order dated 22.02.2023, passed by
respondent No.1, was not challenged in the said writ petition, therefore,
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the same was withdrawn by the petitioner with liberty to file fresh one
on the same cause vide order dated 08.05.2023 (Annexure P-17). Hence,
the present petition impugning the order dated 22.02.2023 (Annexure P-
10).
3. Written statement on behalf of the respondents has been
filed, wherein it has been stated that the petitioner is not eligible for
promotion to the post of Executive Engineer (Mechanical) as he does
not have experience of 08 years service as Sub Divisional Engineer and
the period for which the petitioner has served as Sub Divisional
Engineer on Current Duty Charge is not countable while considering 08
years required service as Sub Divisional Engineer.
4. Learned counsel for the petitioner submits that the
petitioner is fully eligible to be considered for promotion to the post of
Executive Engineer (Mechanical) and the period spent on Current Duty
Charge is also required to be considered for counting the 08 years
service. He further submits that the Legal Remembrancer and
Administrative Secretary, Law & Legislative Department of the
Government of Haryana has already opined vide their legal advice dated
05.08.2019 that the service rendered on Current Duty Charge basis is
countable for determining the eligibility for promotion to the post of
Executive Engineer. He has further placed reliance upon the Division
Bench judgments of this Court in CWP No.16062 of 2017 titled as
Union Territory, Chandigarh and others Vs. Central Administrative
Tribunal, Chandigarh and others, decided on 16.01.2019 and
Chandigarh Administration Vs. Vipin Gupta and another : 2011(2)
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S.C.T. 560 which has been upheld in Special Leave to Appeal (Civil)
No.2680 of 2011 titled as 'Chandigarh Administration Vs. Vipin
Gupta and another' decided on 06.02.2013.
5. Per contra, learned State counsel submits that the petitioner
is not eligible for promotion to the post of Executive Engineer
(Mechanical) as the service rendered by him as Sub Divisional Engineer
on Current Duty Charge is not countable for assessing eligibility of the
petitioner. Therefore, his claim for promotion has rightly been rejected.
6. I have heard learned counsel for the parties and perused the
relevant documents with their able assistance.
7. The only question which arises in the present petition is as
to whether the service rendered by the petitioner on Current Duty
Charge on the post of Sub Divisional Engineer is countable for
considering the eligibility of the petitioner for promotion to the post of
Executive Engineer (Mechanical).
8. Before proceeding further, it would be necessary to make
reference to the relevant provisions of the Act of 2009 which governs
the service of the petitioner. The relevant portion from the said Act is as
under :-
"6. No personal shall be appointed to the Service on or
after the date of publication of this Act in the Official
Gazette, unless he, -
(a) xx xx xx xx xx
(b) in case of an appointment by promotion from Group
B Service, has, in addition to the qualifications provided in
clause (a), eight years completed service and passed the
departmental examination of Group B Service;
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Provided that the Government may relax the
conditions of eight years service in the case of an officer
who has completed five years service and in such case, the
officer shall earn the first increment as an Executive
Engineer on the completion of nine years service.
xx xx xx xx xx"
9. The said issue is not res integra as the same has already
been considered by a Division Bench of this Court in Vipin Gupta's
case (supra), wherein after considering the similar rule, it has been held
that the period of Current Duty Charge can be treated as experience in
determining the eligibility for promotion.
"11. Having heard learned counsel for the parties and
perusing the record with their able assistance we find that
the discussion can be conveniently divided by framing the
following two substantive questions of law.
(A) Whether the expression 'working experience'
used in Rule 6 read with Appendix 'B' providing for
promotion to the post of Executive Engineer would
include the experience gained while working on
current duty charge on the post of Sub Divisional
Engineer or it is only that experience which is
gained while discharging duties as a substantive
holder of that post on regular basis?
(B) What is the effect of order dated 1.10.2008 (A-
13) passed by Competent Authority granting
approval for reckoning of service rendered on CDC
basis from 6.11.2001 to 30.1.2003 towards
qualifying service for determining eligibility for
promotion to the post of Executive Engineer (Civil)?
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RE: QUESTION - A
12. The question No. 1 has cropped up for consideration
of this Court earlier also. As long as the expression
'working experience' is used in the statutory Rules, the law
laid down by this Court would continue to apply. In
somewhat similar circumstances the expression 'working
experience' came up for interpretation before a learned
Single Judge of this Court in the case of Dr. Ravinder Pal
Kaur v. State of Punjab and others, 1979 (2) SLR 645. In
the aforesaid case, the statutory rules required teaching
experience as Assistant Professor in the specialty
concerned for five years. The petitioner in that case was
appointed as Assistant Professor Radiology on ad hoc
basis. Her appointment was regularized three years later.
The question before the Court was whether the experience
gained by her while working on ad hoc basis could be
treated as 'experience' in terms of the requirement of the
rules. The learned Single Judge of this Court has taken the
view that there was hardly any difference so far as the
teaching experience is concerned whether it is gained on
ad hoc appointment or on regular appointment. It was held
that the teaching experience envisaged by the statutory
rules was not limited to the one gained while holding
appointment on regular basis under the statutory rules.
Therefore, the teaching experience gained by her in the
Medical Colleges while working on ad hoc basis is valid
for the purpose of counting the requisite experience for
direct appointment as Professor. Such experience could not
be ignored. It is, thus, patent that it was a case of direct
appointment yet the ratio of the judgment is concerning
counting of experience gained while working on ad hoc
basis. The aforesaid view has also been followed and
applied in the cases of promotion by this Court in the case
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of Balbir Singh Yadav and others v. State of Haryana and
others, 1984 (1) SLR 466 and by a Division Bench of this
Court in the case of Dharam Singh v. State of Punjab and
others, 1985 (1) SLR 358. Therefore, the principle which
emerges from the aforesaid case law is that once an
employee has gained experience of working on ad hoc or
regular basis then the requirement of the rule stands
satisfied. As long as a person has earned the experience of
working on teaching post like Lecturer or Senior Lecturer
then such an experience cannot be ignored and on that
basis the petitioner could not have been non-suited from
consideration for promotion to the post of the Head of the
Department. A similar question arose in a matter
concerning promotion before a Division Bench of this
Court, of which one of us (M.M. Kumar, J.) was a member.
In C.W.P. No. 21663 of 2008, decided on 3.7.2009 (Geeta
Devi v. State of Haryana and others) this question has
been answered in favour of that petitioner by reckoning the
period of service rendered on ad hoc basis towards
determining his eligibility condition of experience and the
other argument was rejected.
13. When the aforesaid principles are applied to the
facts of the present case it becomes obvious that the
applicant-respondent in the present case is governed by the
statutory Rules. At this stage it would be pertinent to read
Rule 6 read with Appendix 'B', which reads as under:-
"6. Method of appointment, qualifications and
experience. -
(1) Appointment to the Service shall be made in
the manner specified in Appendix 'B':
Provided that if, no suitable candidate is available
for appointment to the Service by promotion and by
direct appointment, then appointment to the Service
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shall be made by transfer of a person holding a
similar or an identical post under a State
Government or Government of India.
(2) No person shall be appointed to a post in the
Service, unless he possesses the qualifications and
experience as specified against that post in Appendix
'B'.
(3) Appointment to the Service by promotion shall
be made on seniority-cum-merit basis, but no person
shall have any right to claim promotion on the basis
of seniority alone:
Provided that promotion to the post of Chief
Engineer, being Head of the Department, shall be
made on merit-cum-seniority basis."
Appendix 'B'
(See rule 6)
Sr. Designation Percentage for Method, qualifications and
No. of the Post appointment by experience for
appointment by
Promotion Direct Promotion Direct
Appointment Appointment
1& xxx xxx xxx xxx xxx
3 Executive Hundred ... From Who have an
Engineer per cent amongst experience of
the Sub- working as
Divisional such for a
Engineers minimum
period of eight
years."
14. A perusal of Rule 6(1) makes it patent that
appointment to the service must be made as prescribed in
Appendix 'B'. Sub-rule (2) of Rule 6 makes it further clear
that no person could be appointed to a post in the Service
unless he possesses the qualification and experience as
specified against that post in Appendix 'B'. A further
perusal concerning requirement given in Appendix 'B'
shows that for becoming eligible for promotion to the post
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of Executive Engineer, a Sub Divisional Engineer must
have experience of working for minimum period of eight
years. The Rule provides for filling up the post of Executive
Engineer from that of Sub Divisional Engineer by hundred
percent promotion. Therefore, as long as a person has
working experience of eight years a Sub Divisional
Engineer becomes eligible for promotion to the post of
Executive Engineer. The expression 'working experience'
cannot be construed to mean that he must have gained the
experience while working on a permanent substantive post
on which he has been appointed on regular basis. In other
words, long term regular promotion would not be
necessary to gain experience of working because whether a
person works on a post in his capacity as ad hoc/current
duty charge holder/ temporarily his nature of duties
continues to be the same which any regularly promoted
person would require to discharge. Therefore, it follows
that the applicant-respondent No. 1 was entitled to count
his experience for the purposes of eligibility from 6.11.2001
to 30.1.2003 towards qualifying period of eight years for
determining eligibility for promotion to the post of
Executive Engineer.
15. In the present case, it is significant to notice that the
applicant- respondent No. 1 is in any case senior most and
by counting the aforesaid period of about more than 2
years he is not going to overrule any of his senior.
Therefore, the argument raised by Mr. Kaushal that such a
rule could work to the detriment of a senior resulting in his
suppression would not arise. Therefore, we leave the
question concerning application of the principle open,
namely, whether experience gained on ad hoc/CDC basis
could be counted for determining eligibility to the
detriment and suppression of a senior employee in the
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cadre. On the aforesaid interpretation and rationale the
conclusion reached by the Tribunal does not deserve to be
interfered.
RE: QUESTION - B
16. It is also pertinent to notice that order dated
1.10.2008 passed by the Competent Authority (A-13) has
granted approval for counting of service rendered by the
applicant-respondent No. 1 as Sub Divisional Engineer
(Civil) on CDC basis from 6.11.2001 to 30.1.2003 towards
qualifying service for the purpose of eligibility for further
promotion to the post of Executive Engineer subject to
various conditions. This order has not been withdrawn till
today. In any case, the decision passed by the Competent
Authority does not suffer from any legal infirmity and, in
fact, has a substantial support in the precedents of this
Court. Therefore, on that account also the writ petition is
liable to be dismissed.
17. As a sequel to the above discussion and the answer
given to the both the questions we are of the considered
view that the writ petition does not merit admission and is
hereby dismissed. The applicant-respondent No. 1 is held
entitled to reckon service rendered by him on CDC basis
from 6.11.2001 to 30.1.2003 towards qualifying service for
determining eligibility for promotion to the post of
Executive Engineer (Civil). The needful shall now be done
within a period of three months from the date of receipt of a
copy of this order."
The said judgment has been upheld by the Hon'ble
Supreme Court in Special Leave to Appeal (Civil) No.2680 of 2011
titled as 'Chandigarh Administration Vs. Vipin Gupta and another'
decided on 06.02.2013.
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10. The judgment in Vipin Gupta's case (supra) has been
followed by Division Bench of this Court in Chief Engineer, Union
Territory, Chandigarh Vs. Ram Sarup Walia and others : 2012(3)
S.C.T. 157, wherein it has been held as under :-
"8. Undisputedly, the service conditions, including the
right of consideration of promotion of the
applicants/respondents are governed by the Service Rules
of 2005. Rule 6 of the said Rules provides for method of
appointment, qualifications and experience for making
appointment to the service, which reads as under:-
"6. Method of appointment, qualifications and
experience. -
(1) Appointment to the Service shall be made in
the manner specified in Appendix 'B':
Provided that if, no suitable candidate is available
for appointment to the Service by promotion and by
direct appointment, then appointment to the Service
shall be made by transfer of a person holding a
similar or an identical post under a State
Government or Government of India.
(2) No person shall be appointed to a post in the
Service, unless he possesses the qualifications and
experience as specified against that post in Appendix
'B'.
(3) Appointment to the Service by promotion shall
be made on seniority-cum-merit basis, but no person
shall have any right to claim promotion on the basis
of seniority alone:
Provided that promotion to the post of Chief
Engineer, being Head of the Department, shall be
made on merit-cum-seniority basis."
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Appendix 'B'
(See rule 6)
Sr. Designation Percentage for Method, qualifications and
No. of the Post appointment by experience for
appointment by
Promotion Direct Promotion Direct
Appointment Appointment
1& xxx xxx xxx xxx xxx
3 Executive Hundred ... From
Engineer per cent amongst
the Sub-
Divisional
Engineer
who have
an
experience
of working
as such for
a minimum
period of
eight
years."
9. A perusal of Appendix `B' reveals that promotion to
the post of Executive Engineer is to be made amongst the
Sub Divisional Engineers who have minimum `eight years
working experience' on the post of Sub Divisional
Engineer. In this Appendix, the word "regular" has not
been used, but only it has been provided that a Sub
Divisional Engineer must have experience of working for
minimum eight years. Therefore, as long as a person has
working experience of eight years on the post of Sub
Divisional Engineer, he becomes eligible for promotion to
the post of Executive Engineer (Civil). In our view, `the
working experience' cannot be construed to mean that he
must have gained the regular experience while working on
a permanent substantive post on which he has been
appointed on regular basis. The Supreme Court in State of
Madhya Pradesh and another Vs. Laxmishankar Mishra
(supra), while considering Rule 3(b) enacted under the
Madhya Pradesh Local Authorities School Teachers
(Absorption in Government Service) Act, 1963, which
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provides that for absorption on the post of Head
Master/Principal of a High/Higher Secondary School, the
person concerned should possess the post-graduate degree
and should have worked on the post for a minimum period
of 7 years in the same institution and should have 10 years'
teaching experience in any recognised institution of
Madhya Pradesh, has held that the working experience of
the Head Master/Principal on the post on current duty
charge is to be taken as working experience on the said
post. It has been observed that the person incharge of the
post also works and discharges the duties and functions of
the post of which he has taken charge. Even an officiating
incumbent of the post does discharge the functions and
duties of the post. Therefore, the working experience on the
post of Head Master/Principal on current duty charge has
to be taken into account by the State Government for
computing the period of seven years. In that judgment, the
Supreme Court has relied upon its another decision in S.B.
Patwardhan Vs. State of Maharashtra, (1977) 3 SCC 399,
wherein it has been observed that the officiating Deputy
Engineers discharge identical functions, bear similar
responsibilities and acquire an equal amount of experience
in the respective assignments. A confirmed holder of a
substantive post would be discharging the functions
attached to the post and when some one is placed in that
very post in an officiating capacity or directed to hold
charge of the post, he would be required to perform the
duties and discharge the functions of the post rendering
identical service.
10. Similarly the Division Bench of this Court in D.P.
Mehta (Dr.) Vs. P.G.I. and its Governing Body, (supra),
while considering the issue of promotion from amongst
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Deputy Medical Superintendents to the post of Joint
Medical Superintendent, has observed as under:-
"An extract from the rules has been produced as
Annexure P.3 with the writ petition. In case of
recruitment by promotion, the post of Joint Medical
Superintendent can be filled up "from amongst
Deputy Medical Superintendents having five years
experience". The rule does not postulate that the
incumbent should have worked on the post for five
years on regular basis. It only requires that he
should have an experience as a Deputy Medical
Superintendent. In ordinary parlance, experience
means "an actual living through something and
coming to know it first hand rather than through
hearsay or report". According to Webster 3rd New
International Dictionary, `experience' means "being
engaged in a particular activity; direct observation
of or participation in events, encountering,
undergoing or living through things in general as
take place in the course of time." Since the petitioner
has performed the duties of the post of Deputy
Medical Superintendent, he has directly participated
in the events. He has encountered the pitfalls and
lived through the job requirements. He has
personally acquired the necessary knowledge about
the job. He has experience of the post of Deputy
Medical Superintendent. The plea raised on behalf
of the respondents that he is not eligible, cannot,
thus, be sustained."
11. xx xx xx xx xx
12. Though against this judgment, the SLP has been
filed in which the operation of the impugned order has
been stayed by the Supreme Court, but we are, prima-facie,
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of the view that even if an appeal against the judgment of
the High Court has been admitted and the operation of the
order has been suspended during the pendency of the
appeal, it does not have the effect of rendering the said
judgment non-est till the disposal of the appeal. As
discussed above, there are other several precedents where
it has been held that current duty charge has to be treated
as part of the qualifying experience for promotion to the
next higher post. We are further of the opinion that when
there are sufficient number of eligible Sub Divisional
Engineers (B&R) available in the feeder cadre for
promotion to the post of Executive Engineer (Civil), then
the petitioner should not have initiated the process of
filling up of the available vacancies of Executive Engineer
(Civil) by way of appointing suitable officers on deputation
basis from the States of Punjab and Haryana. In case
suitable officers from other States/Departments are
appointed on deputation basis, there is likelihood of heart
burning to the U.T. employees, who have a prior right to
hold the cadre posts.
13. Keeping in view the above discussion, we do not find
any merit in the writ petition and the same is hereby
dismissed."
11. A similar view has been taken by another Division Bench
of this Court in Union Territory, Chandigarh and others case (supra),
wherein it has been held as under :-
"The next channel of promotion from the post of Sub
Divisional Engineer is to the post of Executive Engineer.
This promotion is governed by the Punjab Water Supply
and Sanitation (Engineering Wing) Group-A Service Rules,
2007, which prescribe the following requirement for
promotion to the post of Executive Engineer:-
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"From amongst the Sub Divisional Engineers, who
have an experience of working as such for a
minimum period of eight years."
Respondent No.2 represented to the Authorities on
14.7.2016 to consider and promote him to the post of
Executive Engineer (Public Health) by including and
considering as experience the period from 4.8.2008 to
26.12.2011 when he held the additional charge of the post
of Sub Divisional Engineer. The said representation having
been rejected on 15.9.2016, he filed the Original
Application.
The sole question before the Tribunal was, whether
the period when respondent No.2 held additional charge of
the post of Sub Divisional Engineer from 4.8.2008 to
26.12.2011 could be considered as experience of working
as Sub Divisional Engineer for the purpose of promotion to
the post of Executive Engineer.
The learned Tribunal noted that the additional
charge was given to respondent No.2 on account of his
seniority and efficiency. It was not the case of the
Administration that while discharging the additional
responsibility of Sub Divisional Engineer, his functioning
as such was curtailed in any manner in terms of authority
and powers of Sub Divisional Engineer. In other words, his
working on the additional charge was as good as regular
charge. The Tribunal further noted that the applicable Rule
does not rule out an interpretation that an additional
charge or current duty charge could not be taken as
experience for promotion. Reliance was placed on
D.P.Mehta (Dr.) vs. PGI and its Governing Body RSJ
1997(1) 503, wherein, this Court directed that the
experience gained by the petitioner therein who was given
additional charge of Deputy Medical Superintendent be
taken into consideration for promotion to the post of Joint
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Medical Superintendent. It was held that where the rule
does not specifically postulate the requirement of
experience of having worked on regular basis
consideration could not be denied only on the ground that
the incumbent only had additional charge of the post.
Accordingly, the Original Application was allowed.
Apart from the decision referred to by the Tribunal,
learned counsel for respondent No.2 has referred to
various other decisions i.e. Chandigarh Administration vs.
Vipin Gupta and another 2011(2) SCT 560 and Chief
Engineer, Union Territory Chandigarh vs. Ram Sarup
Walia and others 2012(3) SCT 157, etc. wherein it has
been held that in the absence of a specific rule limiting the
experience to that gained while holding appointment on
regular basis, the experience gained by working on the
post whether on adhoc/current duty charge basis would
necessarily have to be included. It has been emphasised
that it is the performance of duties and discharging of
functions assigned to the post, which is relevant and not the
capacity in which the post is held.
Accordingly, there is no merit in this petition and the
same is dismissed."
12. All the above judgments have further been followed by a
Coordinate Bench of this Court in Anil Sharma Vs. State of Punjab
and another : 2021(3) S.C.T. 661, wherein it has been held as under :-
"9. 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
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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 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
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Neutral Citation No:=2024:PHHC:153711
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.
10. 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."
13. Coming back to the facts of the present case, it may be
noticed that Clause 6 of the Act of 2009 provides that 08 years of
completed service as Sub Divisional Engineer and passing of departmental
examination is required for promotion to the next post. However, it does
not provide that regular 08 years service is required for promotion.
14. In view of the foregoing discussion and abovesaid
authoritative enunciation of law by this Court, the present petition is
allowed and impugned order dated 22.02.2023 (Annexure P-10) is set
aside. The respondents are directed to consider the case of the petitioner
for promotion to the post of Executive Engineer (Mechanical) by counting
the service rendered by him as Sub Divisional Engineer on Current Duty
Charge basis, within a period of 03 months from the date of receipt of
certified copy of this judgment, with all consequential benefits.
21.11.2024 (NAMIT KUMAR)
kothiyal JUDGE
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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