CWP No. 2222 of 2011(O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 2222 of 2011(O&M) Date of Decision: August 25, 2011 Suman Gupta …Appellant Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. I.D. Singla, Advocate for the petitioner. 1. To be referred to the Reporters or not? yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant petition filed under Article 226 of the Constitution challenges the constitutional validity of Rule 9(b)(ii) of the Haryana Excise and Taxation Department (Group B) Service Rules, 1988 (for brevity 'the 1988 Rules'), alleging that there is inherent fallacy in the rule which creates discrimination by giving chance of promotion to junior member of the ministerial staff as Assistant Excise and Taxation Officer, ignoring the claim of the senior members who might have been promoted as Inspector. A further direction to respondents has been sought to consider the case of the petitioner for promotion as Assistant Excise and Taxation Officer. 2. In order to appreciate the controversy, it would be relevant to extract the alleged offending part of Rule 9 of the 1988 Rules, which reads thus: CWP No. 2222 of 2011(O&M) -2- “Rule 9. Method of recruit (1) Recruitment to the Service shall be made: (a) xx xx xx xx (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 of 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 petitioner was appointed as Clerk on ad hoc basis 13.02.1975 and her services were regularised on 01.01.1980. She was promoted as Assistant in September, 1986 in the pay scale of Rs. 1400-2600 and her services were regularised w.e.f. 29.01.1987 as such. There is 33.1/3% quota for promotion of ministerial staff as Excise Inspector/ Taxation Inspector under the Haryana Excise and Taxation Inspectorate (State Service Class-III) Rules, 1969. Accordingly, she was first promoted as Excise Inspector on 27.03.1991 against the vacant post on ad hoc basis. Thereafter, on the finalisation of the seniority of the ministerial staff, her service CWP No. 2222 of 2011(O&M) -3- were regularised as Excise Inspector w.e.f. 16.08.1996 in the pay scale of ` 1640-2900 (P-2). Under the 1988 Rules, further channel of promotion to the post of Assistant Excise Taxation Officer on the basis of 6.2/3% quota amongst the Assistant Senior Scale Stenographer has been provided whereas an Excise Inspector is entitled to be considered for promotion under Rule 7 of the 1988 Rules, if he has three years' experience as Taxation Inspector/ Excise Inspector, in addition to the requirement that he should be graduate of a recognized University with ten years' experience as Assistant/ Senior Scale Stenographer. There is 10% quota prescribed for the Excise Inspector with 3 years' experience and 6.2/3% quota for Assistant/ Senior Scale Stenographer with ten years' experience. The promotions are required to be on the basis of seniority-cum-merit and seniority alone is not to confer any right for such promotions. On the ground that the petitioner despite being senior and promoted as Excise Inspector on 27.03.1991/ 16.08.1996 could be promoted as Assistant Excise and Taxation Officer under 10% quota and her juniors with ten years' service as Assistant/ Senior Scale Stenographer in the ministerial cadre have been promoted as Assistant Excise and Taxation Officer under the 6.2/3% quota carved out for them. The petitioner has challenged the constitutional validity of the Rule providing for 6.2/3% promotional quota for the Assistant/ Senior Scale Stenographer provided by Rule 9(b)(ii). It is admitted fact that the petitioner has been promoted as Excise Inspector on 27.03.1991 and regularized as such on 16.08.1996. CWP No. 2222 of 2011(O&M) -4- She had no lien on any post in the ministerial cadre. Her erstwhile colleagues, namely, Smt. Sunita Kumari, who has worked for long years has been given promotion on 30.11.2009 (P-3). Likewise, Ms. Saroj Bala, who was working as Assistant has been given promotion on 27.10.2010 on the post of Assistant Excise and Taxation Officer. 4. Having heard learned counsel, we are of the considered view that the question of comparison between the petitioner who is in the cadre of Excise Inspector since 27.03.1991/ 16.08.1996 with an erstwhile colleagues working in the ministerial cadre, is unrealistic and unwarranted. We cannot consider that the petitioner belonged to the ministerial cadre and conclude that she is senior to private respondents. The birthmark of her erstwhile service cannot be carried to her promotional post of Excise Inspector. On that basis the Rule cannot be challenged, we find no violation of Article 14 and 16 (1) of the Constitution. The writ petition is wholly without merit and does not warrant admission. 5. Accordingly, the writ petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE August 25, 2011 Atul