Civil Writ Petition No. 16579 of 2005 [1] IN THE HIGH COURT OF PUNAJB AND HARYANA AT CHANDIGARH Date of Decision: February 11, 2008 K.L. Bansal ............ Petitioner versus Haryana State Cooperative Supply and Marketing Federation Limited and others ............. Respondents CORAM HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3.Whether the judgment should be reported in the Digest ? -.- Present: Shri I.D. Singla,Advocate for the petitioner Shri Pankaj Jain, Advocate for the respondents HEMANT GUPTA, J. The petitioner has sought quashing of show cause notice dated 10.10.2005, Annexure P-13, on the basis of interpretation of the Haryana State Supply & Marketing Cooperative Service (Common Cadre) Rules, 1988 in Annexure P-11 dated 07.10.2005. The petitioner was appointed on 03.05.1971 as Accountant Grade 'B' on ad hoc basis with the Haryana State Cooperative Supply & Marketing Federation Limited (hereinafter to be referred as “HAFED”). He was appointed on regular basis as Accountant Grade 'A' w.e.f. 5.5.1972. The post of Accountant Grade 'A' is now re-designated as Section Officer. The Civil Writ Petition No. 16579 of 2005 [2] petitioner was promoted as Accounts Officer w.e.f. 2.7.1976. The petitioner being senior-most Deputy Controller (Cash and Banking) in the HAFED and was posted as Chief Accounts Officer in his own pay scale. The petitioner was subsequently posted as Chief Audit Officer vide order dated 02.02.2000. The post of Chief Audit Officer and Chief Accounts Officer is equal in ranking and, therefore, inter se swapping does not affect the status of the petitioner. The petitioner was given additional charge of General Manager (Commercial) by assigning the duty of Commercial Division on 17.07.2001. The assignment of such duty was in addition to the duty of Chief Audit Officer. The Haryana State Supply & Marketing Cooperative Service (Common Cadre) Rules, 1988 ( hereinafter to be referred as “the Rules”) govern the conditions of service and promotion. Such Rules were amended in the year 2004 wherein promotion channel of various categories were reconstructed. As per restructured Rules, the post of Deputy Controller (Cash and Banking) has been designated as Deputy General Manager (Finance and Accounts). The promotion from the post of Deputy General Manager {earlier Deputy Controller (Cash and Banking)} is to the post of Additional General Manager (Finance and Accounts) (earlier Chief Accounts Officer or Chief Audit Officer) though the minimum qualification prescribed for other than direct recruitment is “Deputy General Manager (Finance and Accounts) with CA/ICWA/MBA (Finance) etc” as per Schedule to the Rules. A note was appended to the Schedule amending the Rules to the effect that the qualifications for promotional posts of each category of all Divisions will remain same as contained in the Rules for the employees already in service. Civil Writ Petition No. 16579 of 2005 [3] The rule of promotion, prior to the amendment, to the post of Chief Accounts Officer and Chief Audit Officer was three years experience as Senior Accounts Officer in a Government Department and such posts were required to be filled up either by way of direct recruitment or by transfer on deputation from the Finance Department. It is the case of the petitioner that he was having requisite experience of working as Senior Accounts Officer and, therefore, he was eligible for promotion to the post of Chief Accounts Officer / Chief Audit Officer keeping in view the note appended to the Haryana State Supply and Marketing Cooperative Service (Common Cadre) Second Amendment Rules, 2004 (hereinafter to be referred as “Amended Rules”). The Administrative Committee of HAFED in its meeting held on 12.12.2004 in Agenda Item No.4 resolved to promote the petitioner to the post of Additional General Manager (Finance and Accounts) against the vacant post. Subsequently, on 24.12.2004, the Administrative Committee confirmed the minutes of the earlier meeting of the Administrative Committee but with modification that ex post facto approval for relaxation in qualification for promotion of the petitioner to the post of Additional General Manager (Finance & Accounts) be obtained from the Registrar, Cooperative Societies, Haryana. Before the Administrative Committee could resolve on 24.12.2004, the Registrar Cooperative Societies issued a show cause notice to the Managing Director of the HAFED in respect of the resolution passed by the Administrative Committee in its meeting held on 14.12.2004. While issuing show cause notice, learned Registrar has passed an order of suspension of resolution as well. However, on 22.08.2005, the show cause Civil Writ Petition No. 16579 of 2005 [4] notice was withdrawn by the Registrar, Cooperative Societies vide communication, Annexure P-10, except in respect of Agenda Item No.7. It may be noticed that it was the Item No. 4 which dealt with promotion of the petitioner as Additional General Manager in the meeting of the Administrative Committee on 14.12.2004. Thus, by withdrawal of show cause notice, the decision of the Administrative Committee taken on 14.12.2004 promoting the petitioner to the post of Additional General Manager (Finance & Accounts) stands approved. It appears that thereafter some clarifications were given by the Registrar, Cooperative Societies consequent to the amendment in the Rules on 07.10.2005 vide Annexure P-11. On the basis of such clarification, a show cause notice was issued to the petitioner on 10.10.2005, Annexure P- 13 as taking the promotion of the petitioner from the post of Deputy General Manager (Finance & Accounts) to the post of Additional General Manager (Finance & Accounts) be not withdrawn. At that stage, the petitioner invoked the jurisdiction of this Court. In reply, it is asserted that the promotion of the petitioner to the post of Additional General Manager (Finance & Accounts) was not in accordance with the Rules, hence, the petitioner cannot be promoted as he was not even eligible. However, it is admitted that the Administrative Committee in its meeting held on 24.12.2004 decided to obtain ex post facto approval from respondent No.3 i.e. Registrar, for relaxation in qualification. In respect of the decision of the Registrar, Cooperative Societies, withdrawing show cause notice dated 22.08.2005, it was pleaded that there is no issue regarding interpretation of Rule in the said communication. Reference is also made to Rule 24 of the Rules which contemplates that if Civil Writ Petition No. 16579 of 2005 [5] any doubt arises at any time as to the interpretation of any rule or its application, the decision of the Registrar shall deemed to be final. It was also pointed out that the Board of Directors in its meeting held on 10.10.2005 considered the clarification dated 07.10.2005 given by the Registrar, Cooperative Societies, wherein the Board found that the promotion of the petitioner to the post of Additional General Manager (Finance & Accounts) was not covered under the Rules. Thus, the show cause notice has been rightly issued to the petitioner. A perusal of the events mentioned above would show that the Administrative Committee has resolved to promote the petitioner as Additional General Manager (Finance & Accounts) on 14.12.2004. In the subsequent meeting held on 24.12.2004, it was resolved to seek ex post facto approval for relaxation in Rule for promotion of the petitioner to the aforesaid post. The show cause notice issued to the Registrar, Cooperative Societies, on 22.12.2004 has been withdrawn on 22.08.2005 after granting an opportunity of hearing to the Managing Director, HAFED. Once the show cause notice in respect of the resolution passed on 14.12.2004 is withdrawn, that has the implied effect of relaxation in Rule in the matter of qualification of the petitioner to the post of Additional General Manager (Finance & Accounts). Rule 23 of the Rules confer jurisdiction on the Managing Director to relax any of the provisions of the Rules with respect to any class or category of persons with the prior approval of the Board of Directors and the Registrar. The Administrative Committee is delegatee of the Board of Directors in terms of Rule 4 (a) of the Rules. The decision of the Administrative Committee for relaxation of the Rule has been approved by the Registrar as well with the withdrawal of show cause notice. Civil Writ Petition No. 16579 of 2005 [6] Therefore, qualifications for promotion to the post of Additional General Manager are relaxed in respect of the petitioner. Thus, the promotion of the petitioner effected on 14.12.2004 read with 24.12.2004 could not be tinkered with by any subsequent clarification given by the Registrar. Therefore, the show cause notice issued to the petitioner to withdraw his promotion is without jurisdiction and, thus, cannot be sustained. Consequently, we quash show cause notice dated 10.10.2005, Annexure P-13. The writ petition stands disposed of accordingly. (HEMANT GUPTA) JUDGE February 11, 2008 (MOHINDER PAL) ks JUDGE