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2013 DIGILAW 247 (PNJ)

L. R. Bahmani v. State of Haryana

2013-02-21

A.K.Sikri, Rakesh Kumar Jain

body2013
JUDGMENT Mr. Rakesh Kumar Jain, J.: - By way of this common order, we shall be disposing of two writ petitions bearing CWP No.242 of 1999 titled as “L.R. Bahmani and others Vs. State of Haryana and others” and CWP No.5479 of 1999 titled as “Zile Singh and others Vs. State of Haryana and others”, however, the facts are being extracted from CWP No.242 of 1999 for convenience. 2. In CWP No.242 of 1999, the challenge is to the Rule 9(1)(b)(ii) of the Haryana Excise and Taxation Department (Group B) Service Rules, 1988 (for short ‘the Rules 1988) which envisages promotion from amongst Assistants and Senior Scale Stenographers (Ministerial Staff) to the rank of Assistant Excise and Taxation Officer being unreasonable, arbitrary and violative of Article 14 of the Constitution of India and also for the issuance of writ in the nature of mandamus directing the respondents to have one common seniority list of Excise and Taxation Inspectors for the purpose of promotion to the post of Assistant Excise and Taxation Officers. 3. As per the pleadings, the service conditions of Excise Inspector and Taxation Inspector is governed by the Haryana Excise and Taxation Inspectors (State Service Class-III) Rules, 1969 (for short ‘the 1969 Rules’). According to Rule 5 of the 1969 Rules originally 66/2/3% of the posts of Taxation Inspectors and Excise Inspectors were to be filled up by way of direct recruitment and 33/1/2% by way of promotion from the Ministerial staff of the Excise and Taxation Department. These Rules have been amended from time to time and by notification issued on 5.6.1988, Rule 5 of the 1969 Rules has been amended which now provides 50% of the posts of Excise and Taxation Inspectors to be filled up by direct recruitment and another 50% by way of transfer of Assistants/Accountants/Senior Scale Stenographers/Junior Auditors/Head Clerks and Statistical Assistants. The condition of service of the posts of Assistant Excise and Taxation Officers (for short ‘AETO’) and that of Excise and Taxation Officers (for short ‘ETO’) are governed by the 1988 Rules. According to Rule 9 of the 1988 Rules, 33/1/3% of the posts of AETO were to be filled by direct recruitment whereas 50% by way of promotion amongst Taxation Inspectors whereas 10% by way of promotion from amongst the Excise Inspectors and 6.2/3% by way of promotion from amongst the Assistants and Senior Scale Stenographers. According to Rule 9 of the 1988 Rules, 33/1/3% of the posts of AETO were to be filled by direct recruitment whereas 50% by way of promotion amongst Taxation Inspectors whereas 10% by way of promotion from amongst the Excise Inspectors and 6.2/3% by way of promotion from amongst the Assistants and Senior Scale Stenographers. Rule 9 of the 1988 Rules is reproduced as under: - “9 Method of Recruitment (1) Recruitment to the Service shall be made; (a) in the case of Excise and Taxation Officer; (i) 66.3/2% by promotion from amongst Assistant Excise and Taxation Officers; and (ii) 33.1/3% by direct recruitment; or (iii) by transfer or deputation of an officer/official already in the service of any State Government or the Government of India; (b) in the case of Assistant Excise & Taxation Officer :- (i) 33-1/3% by direct recruitment; and (ii) 50% by promotion from amongst the Taxation Inspector; 10% by promotion from amongst the Excise Inspectors; and 6.2/3% promotion from amongst the Assistants and Senior Scale Stenographers; or (iii) by transfer of deputation of an officer/official already in the service of any State Government or the Government India, (2) All promotions unless otherwise provided, shall be made on Seniority-cum-merit basis and Seniority alone shall not confer any right to such promotions. (3) The direct recruitment of the members of the Service shall be made through a competitive examination, the syllabus of which shall be the same as in the case of competitive examination conducted by the Commissioner for recruitment to Haryana Civil Services (Executive Branch) and allied Services.” 4. The grievance of the petitioners in this case is only against the quota provided for promotion to the Assistants and Senior Scale Stenographers to the extent of 6.2/3% for promotion to the post of AETO. 5. It is submitted by counsel for the petitioners that the pay scale of the Assistants/Senior Scale Stenographers was of Rs.1400-2600, Taxation Inspector/Excise Inspector was Rs.1640-2900 and AETO/Superintendent was Rs.2000-3500 which was revised w.e.f. 1.1.1996 as per which the Assistant/Senior Scale Stenographers were given pay scale of Rs.5000-7850, Excise/Taxation Inspectors Rs.5500-9000 and AETOs were placed in the pay scale of Rs.6500-10500. It is further argued that by providing quota to the Ministerial Staff for promotion to the post of AETO jumping over the post of Excise and Taxation Inspectors is an un-equitable treatment. 6. It is further argued that by providing quota to the Ministerial Staff for promotion to the post of AETO jumping over the post of Excise and Taxation Inspectors is an un-equitable treatment. 6. Counsel for the petitioners has relied upon a decision of the Supreme Court in the case of “Shakuntala Sharma Vs. High Court of HP at Shimla” 1994 (2) SCT 185, in support of his submissions, wherein there were two sets of equivalent hierarchical posts in the High Court namely, Clerks, Translators and Revisors on the one hand and Clerks, Senior Assistants and Deputy Superintendents on the other. Above the posts of Revisors and Deputy Superintendents is the post of Superintendent which is common promotional post to both the sets. In the said case the appellant was appointed as clerk on 24.7.1972 and promoted as Translator on 30.7.1979. She was further promoted to the post of Revisor on 26.2.1992 whereas respondent No.2 was appointed as Clerk on 7.1.1974 and was promoted as Senior Assistant on 14.8.1986. The pay scale of the Translator and Senior Assistant at that time was same i.e. Rs.600-1120. Meaning thereby both were at par. There was also no dispute that post of Revisor was at par with the post of Deputy Superintendent. The appellant was senior to respondent No.2 as she was promoted to the post of Revisor which was equivalent to the post of Deputy Superintendent and respondent No.2 was not promoted to the post of Deputy Superintendent in that time of promotion. There was a combined seniority list in which appellant stood at Sr. No.13 whereas respondent No.2 at Sr.No.17 and the post of Superintendent was the next promotional post available both to Revisors and Deputy Superintendents. However, overlooking the claim of the appellant, respondent No.2 was promoted as Superintendent in terms of Rule 10 of the High Court of Himachal Pradesh Recruitment (Conditions of Service) Rules, 1992 (for short ‘the 1992 Rules’). In this background, the following observations were made by the Apex Court while holding Rule 10 of the 1992 Rules to be violative of the Constitution of India: “In this case, it is not necessary for us to go into the question whether Rule 11 of 1990 Rules which provided for the promotion to the post of the Superintendent was valid or not. Even assuming that the validity of the 1990 Rules was not challenged, that fact by itself would not validate the present Rule 10 if it suffers from an inherent infirmity. The basic weakness in the present Rule 10 is that it places two unequal sets of posts on par with each other and also prescribes qualifying service for the higher post as well. The posts of Deputy Superintendents and Revisors admittedly are posts higher than those of Senior Assistants and Translators respectively. If the incumbents of both the sets of posts are to be made eligible for promotion to the post of Superintendent, no qualifying period of service can be prescribed for the incumbents of the posts of Deputy Superintendents and Revisors. If Senior Assistants and Translators are to be provided with promotional avenue, more posts of Deputy Superintendents and Revisors which are above the posts of Senior Assistants and Translators respectively, should be created, and first the Senior Assistants and Translators have to be promoted to the said posts. In fact, the appellant who was a Translator was first promoted to the post of Revisor. We are informed that no eligible Deputy Superintendent was available for being considered to the post of Superintendent and hence Respondent 2 who was holding the post of Senior Assistant (post below that of Deputy Superintendent) had to be promoted to the said post as he had put in six years’ service as required by the said Rule 10. Rule 10 of the 1992 Rules is thus inequitous and indefensibly unjust. It violates Article 14 of the Constitution since it treats unequals as equals and what is more gives unwarranted advantage to the incumbents of the lower posts over the incumbents of the higher posts.” 7. Counsel for the respondents has failed to justify as to how the Ministerial Staff in the office of Excise and Taxation could be given an avenue for promotion by way of quota to jump over and above their seniors who are working as Excise and Taxation Inspectors. 8. Counsel for the respondents has failed to justify as to how the Ministerial Staff in the office of Excise and Taxation could be given an avenue for promotion by way of quota to jump over and above their seniors who are working as Excise and Taxation Inspectors. 8. In view of the aforesaid discussion, we are in the total agreement with the learned counsel for the petitioners that Rule 9(1)(b)(ii) of the 1988 Rules to the extent of granting quota of 6.2/3% promotion from amongst Assistants and Senior Scale Stenographers to the post of AETO is unreasonable, arbitrary and violative of Article 14 of the Constitution of India and hence the same is hereby struck down. 9. In so far as the second prayer is concerned, direction is also issued to the respondents/State to prepare one common seniority list of Excise and Taxation Inspectors for the purpose of promotion to the posts of AETOs. 10. In the second writ petition bearing CWP No.5479 of 1999, which was ordered to be heard along with CWP No.242 of 1999, prayer has been made for issuance of direction to the respondents/State to recast the Rule 9(1)(b((ii) of the 1988 Rules by bifurcating the posts of AETOs amongst Excise and Taxation Inspectors on the one side and Ministerial staff on the other side keeping in view their respective cadre strength. 11. In this case the grievance has been raised that Ministerial staff has been given only 6.2/3% quota for the purpose of promotion which is a small share keeping in view the large extent of Ministerial cadre. 12. Since, we have held that even this quota of 6.2/3% given to the Ministerial cadre for the purpose of promotion to the post of AETO is violation of Article 14 of the Constitution of India, therefore, we find the present writ petition to be devoid of any merit and hence the same is hereby dismissed. ---------0.B.S.0------------