Punjab-Haryana High Court
Gulab Singh Narwal And Another vs State Of Haryana And Others on 2 November, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 21507 of 2012 (O/M)
Date of Decision : 2.11.2012
Gulab Singh Narwal and another ..... Petitioners
Versus
State of Haryana and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. Pankaj Nanhera, Advocate, for the applicants-petitioners.
AUGUSTINE GEORGE MASIH, J.
CM No. 15543 of 2012 Prayer in this application is for placing on record Annexure-P-9. Prayer granted. Annexure-P-9 is taken on record.
Application stands disposed of.
CWP No. 21507 of 2012 Petitioners hold substantive posts of Superintending Engineers in the Public Works Department (Irrigation), Haryana. They were appointed directly to the post of Assistant Executive Engineer (Class-I) in April, 1998. They were promoted to the post of Superintending Engineer and fulfil the requisite qualification for appointment to the post of Chief Engineer. In the cadre of Superintending Engineer, petitioners are senior to respondents No. 3 to 6 and being senior to them, they were entitled to consideration and promotion to the post of Chief Engineer prior to the private respondents. CWP No. 21507 of 2012 (O/M) -2- Official respondents have proceeded to promote respondents No. 3 to 6 to the post of Chief Engineer, vide order dated 26.10.2012, ignoring the petitioners, despite they being senior in the gradation list to the private respondents No. 3 to 6. Petitioners have approached this Court challenging the promotion order of respondents No. 3 to 6 dated 26.10.2012 (Annexure-P-7) and have prayed for issuance of writ of mandamus directing respondents to promote the petitioners to the post of Chief Engineer.
It is the contention of the counsel for the petitioners that the services of the petitioners are governed as per the provisions of the Haryana Service of Engineers Class-I Public Works Department (Irrigation Branch) Act, 1995 (in short '1995 Act'), as amended from time to time. As per the said Act, term 'members of the service' is defined under Section 2(12) of the Act, according to which, an officer appointed substantively to a cadre post includes an officer appointed by way of direct recruitment, transfer or promotion. The 1995 Act stands repealed by the Haryana Service of Engineers, Group-A, Irrigation Department Act, 2010 (in short '2010 Act'). As per the said Act, Section 2(m) defines 'members of the service' to mean an officer appointed substantively to a cadre post and includes an officer appointed by promotion or by transfer. It is contended on this basis that since the petitioners were appointed through direct recruitment as Assistant Executive Engineer (Class- I), they are not governed by the provisions of this Act of 2010 and, therefore, the service conditions of the petitioners are governed mutatis mutandis in accordance with the provisions of the 1995 Act. The petitioners being senior to the private respondents No. 3 to 6 and fulfil the requirements of the statute for promotion to the post of Chief Engineer, they are entitled to consideration and promotion to the post of Chief Engineer. Private respondents No. 3 to 6, CWP No. 21507 of 2012 (O/M) -3- who have been promoted, vide impugned order, to the post of Chief Engineer, do not fulfil the mandatory criteria of three years experience as Superintending Engineer which is required for promotion to the post of Chief Engineer and, therefore, their promotion is not sustainable. Accordingly, prayer has been made for quashing of the impugned order of promotion of private respondents No. 3 to 6, dated 26.10.2012 (Annexure-P-7) and directing the respondents to promote the petitioners to the post of Chief Engineer.
I have considered the submissions made by the counsel for the petitioner and have gone through the records of the case.
It is an admitted position that the 1995 Act stands repealed by the 2010 Act and the said Act was notified on 25.10.2010. The 2010 Act has been appended as Annexure-P-9 with the writ petition. The contention of the counsel for the petitioners that this Act of 2010 will not be applicable to the petitioners, is totally misplaced.
Section 1 of the Act reads as follows :-
"1 (1) This Act may be called the Haryana Service of Engineers, Group A, Irrigation Department Act, 2010.
(2) It shall be deemed to have come into force on the 1st day of November, 1966.
(3) It shall apply to the persons who are members of the service but shall not include the persons who were appointed before the 1st day of November, 1966."
A perusal of this Act would show that this Act shall be deemed to have come into force on 1st day of November, 1966 and shall apply to the members of service excluding persons who were appointed before 1.11.1966. Section 2 deals with the definition. Sub-section (a) defines appointment to the CWP No. 21507 of 2012 (O/M) -4- service which means an appointment made to cadre post in service and includes an appointment made according to the terms and provisions of this Act, to an officiating vacancy of a cadre post in service. Sub-section (c) defines cadre post which means a permanent post in service. Sub-section (m) gives the definition of member of service which means an officer appointed substantively to a cadre post and includes appointment by promotion or by transfer. Sub-section (o) defines service which means Haryana Service of Engineers, Group A, Irrigation Department, comprising separate cadres of civil, mechanical, computer and electrical. As per Section 3(1), there shall be separate cadres of service, namely, civil, mechanical, computer and electrical, comprising various posts as may be determined separately for each cadre on the 1st day of January each year or as soon thereafter. As per sub-section (2), the officers of civil, mechanical, computer and electrical cadre shall be promoted or appointed only against the respective post in their cadre. Recruitment to the service is provided under Section 5, according to which, recruitment to the service in the respective cadre shall be made by anyone or more of the methods, i.e. promotion from Group B service of the respective cadre or by transfer of an officer already in service of the State Government or the Central Government. Section 7 deals with the procedure for appointment by promotion, according to which, a committee comprising such members, as may be notified by the Government, shall be constituted to prepare list of officers suitable for promotion to the senior scale of service separately for civil, mechanical, computer and electrical cadre. The selection for inclusion in such list shall be based on seniority-cum-merit and the names of the officers included in this list shall be arranged in order of inter-se seniority in Group B service separately for civil, mechanical, computer and electrical cadre. Rule 8 CWP No. 21507 of 2012 (O/M) -5- deals with the promotion within service which would determine the fate of the claim of the petitioners and the same reads as follows :-
"8. (1) Subject to the provisions of sub-sections (2) and (3), members of the Service of the respective cadre shall be eligible for promotion on the basis of degree required for initial appointment to any of the post within their respective cadres:
Provided that a member of Group B service who does not possess one of the degrees of a university or other qualifications as specified in section 6, shall not be eligible for promotion to the post of Executive Engineer till he has acquired the requisite qualifications:
Provided further that promotion to the post of Engineer-in-Chief shall be made from amongst the members of the Civil cadre only.
Provided further that in case of Mechanical, Computer and Electrical cadre, an Executive Engineer having an experience of seven years, may be given the pay scale of the post of Superintending Engineer as personal measure while continuing to discharge the duties of Executive Engineer if an Executive Engineer of Civil cadre having equivalent length of service as Executive Engineer has been promoted as Superintending Engineer:
Provided further that in the case of Mechanical, Computer and Electrical cadre, a Superintending Engineer having an experience of three years, may be given the pay scale of the post of Chief Engineer as a personal measure while continuing to discharge the duties of Superintending Engineer if an Superintending Engineer of Civil cadre having equivalent length of Service as Superintendent Engineer has been promoted as Chief Engineer.CWP No. 21507 of 2012 (O/M) -6-
Explanation.- Once an officer has been appointed as member of the Service, his promotion within the Service from one rank to another shall be regarded as promotion within the same cadre.
(2) Promotion shall be made by selection on the basis of seniority-cum-merit and suitability in all respects and a member of the Service shall not have any claim to such promotion as a matter of right or mere seniority.
(3) A member of the Service shall not be
eligible for promotion to the rank of -
(a) Superintending Engineer, unless he
has rendered seven years service as an
Executive Engineer ;
(b) Chief Engineer, unless he has
rendered three years service as
Superintending Engineer;
(c) Engineer-in-Chief, unless he has
rendered two years service as Chief
Engineer;
Provided that if, it appears to be necessary to
promote an officer who has successfully completed his probation, in public interest, the Government may, for reasons to be recorded in writing, either generally for a specified period or in any individual case, reduce the period specified in clauses (a), (b) or (c) to such an extent, as it may deem proper."
A perusal of the above Rule would show that the lowest post to which these Rules apply is that of an Executive Engineer. It also provides that the promotion to the post of Engineer-in-Chief shall be made from amongst the members of civil cadre only. In case of mechanical, computer and electrical cadre, an Executive Engineer who has experience of seven years, may be given the pay scale of the post of Superintending Engineer if an Executive Engineer of civil cadre having equivalent length of service as an CWP No. 21507 of 2012 (O/M) -7- Executive Engineer stands promoted as Superintending Engineer. Similarly, in case the mechanical, computer and electrical cadre, Superintending Engineer having experience of three years, may be given the pay scale of the post of Chief Engineer if a Superintending Engineer of civil cadre having equivalent length of service as Superintending Engineer has been promoted as Chief Engineer. Explanation further clarifies that an officer once appointed as member of the service, his promotion within the service from one rank to another shall be regarded as promotion within the same cadre. Eligibility for promotion to the post of Superintending Engineer, Chief Engineer and Engineer-in-Chief has been provided in sub-section (3) of Section 8 of the Act. Proviso thereto empowers the Government in public interest for reasons to be recorded in writing, either generally for a specified period or in any individual case, reduce the period as provided for the length of service to such an extent as it may deem proper with regard to eligibility for promotion to the post of Superintending Engineer, Chief Engineer and Engineer-in-Chief. Seniority is governed by Section 11 of the Act, according to which, it is determined separately for civil, mechanical, computer and electrical cadre of the members of service. Under Section 2, posts of Chief Engineer, Engineer- in-Chief, Executive Engineer and Superintending Engineer have been defined under sub-section (d) (h) (j) and (p) respectively which throws light on the fact that these Rules deal with and apply to the stage of initiation into service to these posts. Post of Executive Engineer, which is the lowest post governed by this Act, is either by way of promotion or by transfer.
Admittedly, petitioners under the 1995 Act were appointed to the post of Assistant Executive Engineer Class-I in April, 1998 and thereafter, CWP No. 21507 of 2012 (O/M) -8- they were promoted to the post of Executive Engineer and Superintending Engineer. This Act has come into force with effect from 1.11.1966. Promotion to the post of Chief Engineer is governed by this Act. According to the present '2010 Act' service as defined under Section 2(o) of the Act comprises of separate cadres of civil, mechanical, computer and electrical. Section 3 of the Act provides that there shall be separate cadres and officer(s) shall be promoted or appointed only against respective post(s) in their cadre. As per explanation under Rule 8, an officer once appointed as a member of the service, his promotion within the service from one rank to another shall be regarded as promotion within the same cadre. As per Section 11 of the Act, the seniority of member of the service is determined separately for each cadre. There being separate cadre strength provided for each service separately for civil, mechanical, computer and electrical, promotion to the post of Chief Engineer has to be within the cadre. Admittedly, petitioners belong to the mechanical cadre of Superintending Engineer, they would not be entitled to promotion to the post of Chief Engineer which falls in the civil cadre. They, at the most, as per Section 8 of the Act, may be given the pay scale of the post of Chief Engineer as a personal measure while continuing to discharge the duties of Superintending Engineer on promotion of respondents No. 3 to 6 to the post of Chief Engineer.
The contention that the petitioners are not governed by the provisions of 2010 Act, is misplaced and is based on mis-reading of the provisions of the Act. In any case, after the repealing of the 1995 Act, the same having seized to be a valid piece of legislation, the provisions of the 1995 Act cannot be invoked nor pressed into service by the petitioners, except CWP No. 21507 of 2012 (O/M) -9- for and notwithstanding exceptions as mentioned in Section 23 of the 2010 Act.
The contention of the counsel for the petitioners that respondents No. 3 to 6 do not fulfil the requisite experience for promotion to the post of Chief Engineer and, therefore, cannot be promoted, also cannot be accepted in the light of the fact that proviso to Section 8(3) of the Act empowers the Government to relax/reduce the period of service required for promotion to such an extent as it may deem proper in public interest which power has been exercised by the Government while granting promotion to Shri C.B. Sheoran- respondent No. 6, which is in accordance with law.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
(AUGUSTINE GEORGE MASIH) JUDGE 2.11.2012 sjks