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2013 DIGILAW 206 (PNJ)

Narender Kumar Malik v. State of Haryana

2013-02-18

TEJINDER SINGH DHINDSA

body2013
JUDGMENT Mr. Tejinder Singh Dhindsa, J.: - Challenge in the present writ petition is to the order dated 13.01.2012 (Annexure P-10), whereby the petitioner has been reverted from the post of Assistant Excise & Taxation Officer to the post of Excise Inspector. 2. Brief facts of the case are that the petitioner while serving on the post of Excise Inspector under the Department of Excise & Taxation, State of Haryana was promoted as Assistant Excise & Taxation Officer on adhoc basis vide order dated 20.12.2005. Such promotion of the petitioner on the higher post was regularized on 31.08.2009 but w.e.f. 20.12.2005. It has been pleaded that in the light of the statutory provisions i.e. The Haryana Excise and Taxation (Group-B) Service Rules, 1988 (hereinafter to be referred as the ‘1988 Rules’), it was incumbent upon every member of the service to pass a departmental examination within a period of three years. In terms of Rule 16(3) of the 1988 Rules, it is further stipulated that if any member, unless exempted, fails to pass the departmental examination within the prescribed period he shall be liable to be removed from service or reverted to his former appointment, as the case may be. It is the case of the petitioner himself that in the year 2006, he appeared twice in the departmental examination but he could not pass the same. Thereafter on account of health reasons, he could not appear in the examination. Thereafter, petitioner yet again appeared in the departmental examination held in June, 2010, wherein he passed two out of the six papers. It is further asserted that thereafter the petitioner has not even been permitted to appear in the examination by the respondent/department. A pointed reference has been made to a decision taken at the hands of the Chief Minister on 13.10.2010, wherein it had been decided that in case of such members of service, who already stand promoted but have not yet passed the departmental examination, they are not to be reverted back to their original post. Appended along with the petition, are orders at Annexures P-4 to P-7 to contend that a number of officials similarly situated both senior and junior to the petitioner have been granted exemption from qualifying the departmental examination. 3. Appended along with the petition, are orders at Annexures P-4 to P-7 to contend that a number of officials similarly situated both senior and junior to the petitioner have been granted exemption from qualifying the departmental examination. 3. The petitioner was served with a show cause notice dated 26.07.2011 (Annexure P-8) calling upon him to submit a reply within a period of 15 days’ as to why he be not reverted from the post of Assistant Excise & Taxation Officer on the ground that he has not cleared the departmental examination as per conditions laid down in Rule 16 (1) of the 1988 Rules. The petitioner is stated to have submitted a detailed reply dated 08.08.2011 (Annexure P-9) to the show cause notice. However, in terms of passing of impugned order dated 13.01.2012 (Annexure P-10), the petitioner stands reverted from the post of Assistant Excise & Taxation Officer to the post of Excise Inspector. It is against the aforenoticed factual backdrop that the present writ petition has been filed. 4. Mr. Rajbir Sehrawat, learned counsel for the petitioner has vehemently argued that the action of the respondent-department in passing the impugned order of reversion of the petitioner is arbitrary and is violative of Articles 14 & 16 of the Constitution of India. Counsel would submit that even though the petitioner had been promoted to the post of Assistant Excise & Taxation Officer on 20.12.2005, yet it is only on 31.08.2009 that such promotion was regularized and accordingly, he became a member of the service. Accordingly, it has been argued that the petitioner was vested with a right to clear the departmental examination within a period of three years as per Rule 16 (1) of the 1988 rules within a period of three years starting from 31.08.2009 and such period was not to be reckoned from the original date of promotion on adhoc post i.e. 20.12.2005. Even the plea of discrimination has been raised while adverting to the orders at Annexures P-4 to P-7 to contend that in identical circumstances, other members of the service both senior and junior to the petitioner have been granted exemption from qualifying the departmental examination and such officials continue to enjoy the promoted post while the petitioner has been singled out and has been reverted to the post of Excise Inspector in the light of the impugned order. Still further, strong reliance has been placed upon the decision dated 13.10.2010 taken by the Chief Minister of the State of Haryana, wherein it had been decided not to revert back such members of service only on the basis that the departmental examination has not been qualified. Counsel would argue that there would be no justification with the State Government in not extending the benefit of decision dated 13.10.2010 taken by the Chief Minister insofar as the petitioner is concerned. 5. Per contra, learned counsel appearing for the State would refer to the written statement filed on behalf of the respondents to contend that as per Rule 16 of the 1988 Rules, every member of the service is obligated to pass the departmental examination within three years of his appointment and still further, in terms of Rule 16 (3) any member of the service upon failing to pass the departmental examination within the prescribed period, would be liable to be reverted to his former post. As such, the stand of the State Government is that the impugned order of reversion dated 13.01.2012 has been passed strictly in the light of the statutory rules. Reliance has also been placed upon the notification dated 25.02.2010 (Annexure R-1), whereby in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Haryana Excise & Taxation Department (Group ‘B’) Service Rules, 1988 were amended and sub Rule 2 to Rule 16 was omitted. In terms of such notification, even the words “unless exempted” were omitted from sub Rule 3 of Rule 16. Accordingly, it is contended on behalf of the State that the power of exemption that vested with the State Government under Rule 16 (2) to exempt any member of the service from passing the whole or any part of the departmental examination had been done away with. Accordingly, it is argued that the petitioner can not claim any exemption from qualifying the departmental examination and in the light of fact that the petitioner had not factually qualified the departmental examination, the impugned reversion order had been passed in the light of Rule 16 (3). Learned State counsel has argued that even otherwise relaxation as regards qualifying the departmental examination would be in the nature of a concession and not a right. Learned State counsel has argued that even otherwise relaxation as regards qualifying the departmental examination would be in the nature of a concession and not a right. A submission has been raised that even if exemptions had been granted in favour of certain members of the service, still a wrong order would not vest any right in the petitioner to claim exemption and as such to claim parity of treatment. 6. Counsel for the parties have been heard at length and the pleadings on record have been perused. 7. At the very outset, it would be expedient to refer to the relevant statutory provisions. Rule 16, 19 and Appendix ‘E’ of the 1988 Rules read as under: 16. Departmental examination. -(1) Every member of the Service shall within two years of his appointment, pass the departmental examination in accordance with the syllabus and other conditions as specified in Appexdix-E to these rules: Provided that in the case of persons appointed to the service immediately before the issue of Punjab Government Excise and Taxation Department Notification No.7249 E & T-11-64/1080, dated 8th February, 1965, period of passing the departmental examination shall be three years: Provided further that it shall not be necessary for a member to take the departmental examination if he has already qualified in the higher standard in any or in all subjects a similar examination as Excise Sub-Inspector, Excise Inspector or Taxation Inspector or Assistant Excise and Taxation Officer by obtaining not less than 66 per cent marks in individual subject. (2) The Government may exempt any member from passing the whole or any part of the examination after recording reasons for so doing. (3) If any member unless exempted fails to pass the departmental examination within the prescribed period, he shall be liable to be removed from Service or reverted to his former appointment, as the case may be. xxx xxx xxx 19. Power of relaxation. - Where the Government is of the opinion that it is necessary or expedient to do so, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons. xxxx xxxx xxxx Appexdix-E (See Rule 16) Syllabus and other conditions for the departmental examination of Officers of the Haryana Excise and Taxation Department. 1. xxxx xxxx xxxx Appexdix-E (See Rule 16) Syllabus and other conditions for the departmental examination of Officers of the Haryana Excise and Taxation Department. 1. A departmental examination for the Officers of the Excise and Taxation Department will be held thrice a year, in the months of February, June and October or in such other months as may be notified by the Excise and Taxation Commissioner/ Government. The exact dates and place of examination will be notified before hand in the Haryana Government Gazettee. 2. The Deputy Excise & Taxation Commissioner, Excise and Taxation Officers and Chief Commissioner, Delhi, shall forward to the Excise and Taxation Commissioner, Haryana the names of officers who intend to sit for the examination, together with the subjects in which they wish to be examined before the date which shall be communicated to them by the Excise and Taxation Commissioner, Haryana. 3. The examination will be conducted by the Central Committee of Examinations, Haryana. 4. The papers will be set, answers examined and marks awarded by the examiners appointed by the Excise & Taxation Commissioner with the approval of the Haryana Government. 5. The answer books of the candidates will be forwarded by the Secretary, Central Committee of examinations, Haryana to the examiners appointed under conditions. The examiners will submit in a sealed cover their awards of marks, along with the answer books in original to the Secretary, Central Committee of Examinations, Haryana within two weeks from the date on which the examination closes. The Secretary will fill in the names of the examiners in the award Statements and forward them to the Excise and Taxation Commissioner, who will complete the results. 6. After each examination the names of successful candidates will be published in the Haryana in Gazette Part I. 7. The following officers will be required to pass the examination:- (a) Excise and Taxation Officers; (b) Assistant Excise and Taxation Officer; 8. To pass the examination it will be necessary for a candidate to secure 66% marks in each subject. Note: If a candidate, obtains 75 per cent marks in any subject he shall be deemed to have passed in that subject with credit. 9. A paper of three hours carrying 100 marks shall be set on each of the following subject for the departmental examination.” 8. Note: If a candidate, obtains 75 per cent marks in any subject he shall be deemed to have passed in that subject with credit. 9. A paper of three hours carrying 100 marks shall be set on each of the following subject for the departmental examination.” 8. In terms of notification dated 25.02.2010 amendment in Rule 16 of the 1988 Rules was carried out in the following terms: “NOTIFICATION The 25th February, 2010 No.G.S.R.5/Const./Art. 309/2010.---- In exercise of the powers conferred by the proviso to article 309 of the Constitution of India, the Governor of Haryana hereby makes the following rules further to amend the Haryana Excise and Taxation Department (Group-B) Service Rules, 1988, Namely:-- 1. These rules may be called the Haryana Excise and Taxation Department (Group-B) Service (Amendment) Rules, 2010. 2. In the Haryana Excise & Taxation Department (Group- B) Service Rules, 1988, in rule 16,-- (a) in sub-rule (1)-- (i)for the words “two years”, the word “three years” shall be substituted; (ii)first proviso shall be omitted’ (b) sub-rule (2) shall be omitted; and (c) in sub rule (3), the words “unless exempted” shall be omitted. RAMENDRA JAKHU, Financial Commissioner and Principal Secretary to Government, Haryana, Excise and Taxation Department.” 9. A perusal of the statutory provisions reproduced hereinabove would make it apparent that it is incumbent for every member of the service to qualify the departmental examination within a period of three years of his appointment in accordance with the syllabus and other conditions as specified in Appendix ‘E’ to the Rules. As per the un-amended Rule 16, Government had the power to exempt any member from passing the whole or any part of the examination and furthermore any member unless exempted, upon failing to pass the departmental examination within the prescribed period was liable to be reverted to his former appointment. In the light of the amendment to Rule 16 vide notification dated 25.02.2010, the power of exemption vested with the Government in favour of any individual member of the service under Rule 16 has been done away with. However, there is no amendment carried out to Rule 19, where the Government is vested with the power to relax any of the provisions of the 1988 Rules with respect to any class or category of persons. However, there is no amendment carried out to Rule 19, where the Government is vested with the power to relax any of the provisions of the 1988 Rules with respect to any class or category of persons. Under Appendix ‘E’, the departmental examination of the officers of the Excise & Taxation Department are required to be held thrice a year in the months of February, June and October or in such other months, as may be notified by the Excise & Taxation Commissioner. 10. Admittedly, the petitioner has not cleared the departmental examination as obligated under Rule 16 (1) of the 1988 Rules. It is also the admitted fact that in terms of orders dated 01.06.2010, 09.02.2010 and 24.05.2010 at Annexures P-4 to P-6 respectively, certain other members of the service having been promoted to the post of Assistant Excise & Taxation Officers have been granted the exemption from passing the departmental examination. Even though, the stand of the State Government in passing the impugned reversion order and denying to the petitioner the benefit of exemption is based on account of the notification dated 25.02.2010, thereby taking away the powers of exemption under Rule 16 (2), yet it would require notice that the orders at Annexures P-4 to P-6 granting exemption to certain other members of the service the power of relaxation has been exercised under Rule 19 of the 1988 Rules. No reasons have been set forth in the impugned order as regards such differential treatment and the petitioner having been denied the benefit of relaxation and consequential exemption from passing the departmental examination under Rule 19 of the 1988 Rules. 11. It is settled legal proposition that Article 14 is not meant to perpetuate illegality. It does not envisage negative equality. As such, even if some other similarly situated employees have been granted the same benefit inadvertently or by mistake, such order would not confer any legal right on the petitioner to get the same relief. However, the facts of the present case are glaring in nature. It does not envisage negative equality. As such, even if some other similarly situated employees have been granted the same benefit inadvertently or by mistake, such order would not confer any legal right on the petitioner to get the same relief. However, the facts of the present case are glaring in nature. The categoric averments in the petition are to the effect that as per Rules of Business of the Government of Haryana, the matter of promotion of Class I and Class II Officers are referred to the Chief Minister of the State and he is the final authority as regards promotion of such officers as well as in the matter of interpretation or clarification of the service rules. The categoric pleadings are also to the effect that the Chief Minister has taken a decision on 13.10.2010 to the following effect: “Subject: Promotion of AETOs to the post of ETOs. On re-consideration of the matter C.M. has modified his orders to the extent that in future no relaxation from passing the departmental examination should be given and those officers, who have not yet passed the departmental examination, not to be reverted back to their original posts. However, he has approved the proposal of the office for promotion of AETOs to the post of ETOs except of Sh. Jagdish Chand and Sh. Surat Singh, who have been given relaxation from passing, the departmental examination, as it would be discriminatory, as other officers, who have not yet passed the departmental examinations, are not being promoted. CM has further directed that, in future “select list” be prepared for the year. So that, an employee can be promoted immediately, as soon as the post of promotion quota becomes available.” 12. In the reply filed on behalf of the State, such averments as also the factum of the decision having been taken at the hands of the Chief Minister of the State on 13.10.2010 stand specifically admitted. 13. Clearly, in terms thereof, it shall be construed that a decision was taken on 13.10.2010 pertaining to a category of persons i.e. such members of the service, who stand promoted to the higher post and have not yet passed the departmental examination and such employees were not to be reverted for not having qualified the departmental examination. It is not the case of the State that such decision dated 13.10.2010 has thereafter been recalled, reviewed or rescinded. It is not the case of the State that such decision dated 13.10.2010 has thereafter been recalled, reviewed or rescinded. 14. As such, it is not a case, whereby this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India is calling upon the State Government to exercise the power of relaxation in a particular manner, but on the contrary, is taking cognizance of the fact that the decision taken on 13.10.2010 by a Competent Authority is not being applied across the board and in respect of the entire category of the persons who stood promoted but had not cleared the departmental examination. The petitioner in the light of decision dated 13.10.2010 was clearly covered as he stood promoted to the post of Assistant Excise and Taxation Officer and as such, was not liable to be reverted merely on the basis that he had not passed the departmental examination. Neither in the pleadings nor at the stage of arguments, the State Government has been able to bring forth any justifiable basis for denying benefit of the decision dated 13.10.2010 taken by the Chief Minister insofar as the petitioner is concerned. So much so that inspite of specifically taking such ground in the reply dated 08.08.2011 submitted by the petitioner in response to the show cause notice, the same has not even been adverted to, while passing the impugned order. 15. The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the State should not only be fair & legitimate but it should be without any tinge of discrimination and should not even give out an impression of bias, favoritism and nepotism. Viewed on the whole, the action of the respondent-department in the facts of the present case in terms of proceeding to revert the petitioner to the lower post while citing the amendment to Rule 16 (2) of the 1988 Rules and on the other hand, insisting on protecting the other members of the service identically situated and permitting such members of the service to continue enjoying the higher post would certainly fail the test of fairness and equality on the touchstone of Article 14 of the Constitution of India. 16. There is yet another aspect of the matter which reflects the arbitrariness which is writ large on the part of the respondent- Department. 16. There is yet another aspect of the matter which reflects the arbitrariness which is writ large on the part of the respondent- Department. On 25.04.2012, an order was passed by this Court directing the respondents to file a specific affidavit as to when departmental test as prescribed under Rule 16 Appendix ‘E’ was held after the promotion of the petitioner. In deference to such order, an affidavit dated 04.07.2012 of the Deputy Secretary to Government of Haryana, Excise & Taxation Department was filed, the relevant averments in the affidavit are contained in para and are to the following effect: 4. That in compliance of the orders dated 25.04.2012 of this Hon’ble Court, it is submitted that the petitioner was promoted to the post of Assistant Excise & Taxation Officer on 20.12.2005 and after that, the departmental examination was held on the following dates: i) 02.01.2006 to 06.01.2006 ii) 24.07.2006 to 28.07.2006 iii) 08.01.2007 to 12.01.2007 iv) 10.07.2007 to 12.07.2007 v) 24.12.2007 to 28.12.2007 vi) 28.07.2008 to 01.08.2008 vii) 02.02.2009 to 10.02.2009 viii) 09.11.2009 to 13.11.2009 ix) 21.06.2010 to 25.06.2010 x) 13.12.2010 to 15.12.2010 (Paper of Sales Tax Law was held in January, 2011) xi) 06.07.2011 to 08.07.2011 17. It is apparent that after the promotion of the petitioner to the post of Assistant Excise and Taxation Officer on 20.12.2005, the departmental examination was held twice in the year 2006, thrice in 2007, once in 2008 and two times in 2009. On the one hand, the respondent-department itself is not following the mandate of Rule 16 read with Appendix ‘E’, wherein it was obligatory to hold the departmental examination thrice a year and on the other hand, has chosen to justify the order of reversion on the basis that the petitioner has not qualified the departmental examination within the stipulated time frame of three years from the date of promotion. 18. It would apposite to even take notice that in the impugned order dated 13.01.2012 (Annexure P-10), a specific reference has been made to the dismissal of CWP No.3646 of 2010 filed by one Sh. Brahm Dev Sharma, wherein a prayer had been raised seeking exemption from clearing the departmental examinations. Against the order dated 02.02.2011 passed by the learned Single Judge dismissing the writ petition, Sh. Brahm Dev Sharma had preferred LPA No.549 of 2011, which was also dismissed by the Letters Patent Bench vide judgment dated 22.03.2011. Brahm Dev Sharma, wherein a prayer had been raised seeking exemption from clearing the departmental examinations. Against the order dated 02.02.2011 passed by the learned Single Judge dismissing the writ petition, Sh. Brahm Dev Sharma had preferred LPA No.549 of 2011, which was also dismissed by the Letters Patent Bench vide judgment dated 22.03.2011. Braham Dev Sharma filed SLP No.15586 of 2011 against the judgment dated 23.03.2011 in LPA No.549 of 2011 in CWP No.3646 of 2010 and such Special Leave Petition was disposed of by the Hon’ble Supreme Court on 30.05.2011 in the following terms: “This is a petition for setting aside order dated 22.03.2011 passed by the Division bench of the Punjab & Haryana High Court whereby the letters patent appeal filed by the petitioner against the order of the learned Single Judge, who declined the petitioner’s prayer for issue of a mandamus to the respondents to grant exemption from clearing the departmental examination in terms of rule 16 of the Haryana Excise and Taxation Department (Group B) Service Rules, 1988 was dismissed. After arguing the case for some time, Mr. R.K. Kapoor, learned counsel for the petitioner made a request that his client be permitted to withdraw the writ petition as also the letters patent appeal with liberty to file fresh petition to challenge show cause notice dated 03.03.2011 issued by the Financial Commissioner and Principal Secretary to the Government of Haryana (Excise & Taxation Department) proposing his reversion from the post of Assistant Excise and Taxation Officer to that of Senior Scale Stenographer and raise all available points including the one that he was entitled to three chances for passing the departmental examination from the date of regularization as Assistant Excise & Taxation Officer. In the peculiar facts of the case, we accept the request of the learned counsel. The special leave petition is disposed of by giving liberty to the petitioner to withdraw the LPA as well as the writ petition and file a fresh petition. It is needless to say that the fresh writ petition, which may filed by the petitioner shall be decided by the High Court without being influenced by dismissal of the earlier writ petition and the letters patent appeal.” 19. It is needless to say that the fresh writ petition, which may filed by the petitioner shall be decided by the High Court without being influenced by dismissal of the earlier writ petition and the letters patent appeal.” 19. As such, in the light of the order passed by the Hon’ble Supreme Court of India, it would not be open for the respondent/department to draw any mileage from the dismissal of CWP no.3646 of 2010 20. For the reasons recorded above, the present writ petition is allowed and the order of reversion of the petitioner dated 13.01.2012 (Annexure P-10) is set aside. The petitioner is also held entitled to all consequential benefits. 21. Writ petition allowed.