IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 12679 of 2010 Date of Decision: October 25, 2010 Chandigarh Administration …Petitioner Versus Vipin Gupta and another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present: Mr. Sanjay Kaushal, Sr. Standing Counsel, U.T. Chandigarh, for the petitioner. Mr. D.R. Sharma, Advocate, for respondent No. 1. 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. This petition filed under Article 226 of the Constitution challenges order dated 15.3.2010 (P-8) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’), allowing the Original Application being O.A. No. 19-CH-2010 filed by the applicant- respondent No. 1, determining his eligibility for promotion to the post of Executive Engineer in terms of the provisions of the Punjab Service of Engineers (Civil Wing), Department of Public Works (B and R Branch) Group ‘A’ Service Rules, 2005 (for brevity, ‘the Rules’) and directing the Chandigarh Administration-petitioner to consider his case for promotion to the post of CWP No. 12679 of 2010 Executive Engineer and to pass appropriate orders within a period of three months from the date of receipt of a copy of the order. 2. Brief facts of the case are that on 5.9.1977, the applicant- respondent No. 1 joined as Building Inspector with the Chandigarh Administration. As a result of merger of the post of SDO (Building Branch) with the office of Chief Engineer, Construction Project, U.T. Chandigarh, the applicant-respondent become part of the Engineering Department of Union Territory, Chandigarh and became an Assistant Engineer with effect from 22.10.2000. The past service rendered by him was ordered to be counted towards the seniority along with consequential benefits. The applicant- respondent No. 1 also possessed the Degree of AMIE, which is equivalent to Degree in Civil Engineering. 3. The services of the applicant-respondent No. 1 are concededly governed by ‘the Rules’. Rule 3 provides that the Service would comprise the posts specified in Appendix ‘A’ of the Rules. Rule 6 of the Rules stipulates that appointments to the Service are required to be made in the manner specified in Appendix ‘B’. Sub-rule (2) of Rule 6 prescribes that no person could be appointed to a post in the Service unless he possesses the qualifications and experience as specified against the post in Appendix ‘B’. In terms of sub-rule (3) of Rule 6, appointment to the Service by promotion has to be made on seniority-cum-merit basis, but no person can claim promotion on the basis of seniority alone. As per Appendix-‘B’ the next higher post for promotion from the post of Sub Divisional Engineer is that of Executive Engineer, which is to be filled in by hundred per cent promotion from amongst the Sub-Divisional Engineers, who have an experience of working as such for a minimum period of eight years. 2 CWP No. 12679 of 2010 4. On 6.11.2001, the applicant-respondent No. 1 was given the Current Duty Charge (CDC) of the post of Sub Divisional Engineer (C) and he continued to work as such upto 31.1.2003. On 27.3.2006, he was promoted to the post of Sub Divisional Engineer (Civil) on regular basis with effect from 2.9.2004 i.e. the date when his junior Shri Ram Sarup Walia was promoted to the said post (P-3). The applicant-respondent No. 1 filed a representation seeking regular promotion as Sub Divisional Engineer (Civil) w.e.f. 23.10.2000 (P-4). After consideration, he was given promotion w.e.f. 1.2.2003 when the post of AMIE quota fell vacant, vide order dated 13.9.2007 (P-5). On 30.6.2008, the applicant-respondent No. 1 made another representation seeking financial benefits for the period from 23.10.2000 to 31.1.2003 when he discharged the duties of the post of Sub Divisional Engineer (Civil) on CDC basis. He also requested for counting the said period for further promotion to the post of Executive Engineer (Civil) [P-6]. On 1.10.2008 (A-13), the competent authority granted approval for counting of service rendered by the applicant-respondent No. 1 as Sub Divisional Engineer (Civil) on CDC basis from 6.11.2001 to 31.1.2003 towards qualifying service for the purpose of eligibility for further promotion to the post of Executive Engineer (Civil) in the Building and Roads Wing of the Engineering Department, U.T. Chandigarh, subject to following conditions: “1. It shall not confer any right upon to claim any seniority upon the officers with reference to those officers who are otherwise senior to him in the seniority. 2. It shall not entitle him to the pay scale of SDE (Civil) or any other financial benefit on account of the counting of CDC 3 CWP No. 12679 of 2010 period with effect from 06.11.2001 to 31.01.2003. 3. The counting of CDC period as SDE (Civil) with effect from 06.11.2001 is subject to the outcome of decision on appeals being filed/challenged by the Engineering Department, UT Chandigarh and pending before the Hon’ble Punjab and Haryana High Court, Chandigarh and Hon’ble Supreme Court of India in the case of Shri D.P. Singh, Executive Engineer (Electricity) and Shri Puranjit Singh, C.E. (retired). ” 5. The applicant-respondent No. 1 approached the Tribunal claiming that in the seniority list of Sub Divisional Engineers his name appeared at Sr. No. 2 and Shri Sanjay Arora, senior-most Sub Divisional Engineer has been working as an Executive Engineer in the Municipal Corporation, Chandigarh, on deputation basis on an ex-cadre post. He also claimed that two posts of Executive Engineer were lying vacant, however, no decision was taken by the petitioner for filling up those posts. Thus, he sought directions to consider his case for promotion to the post of Executive Engineer (Civil) in accordance with the statutory rules by counting his service rendered on CDC basis as ‘experience’. 6. In the written statement filed by the petitioner-Chandigarh Administration before the Tribunal, the above mentioned factual matrix was not denied. However, it was asserted that the applicant-respondent No. 1 would become eligible on 31.1.2011 for regular promotion to the post of Executive Engineer (Civil) on completion of 8 years regular service in the cadre of Sub Divisional Engineer (Civil) because he was regularly promoted as Sub Divisional Engineer on 1.2.2003. The period of service from 6.11.2001 to 4 CWP No. 12679 of 2010 31.1.2003 rendered by the applicant-respondent No. 1 on CDC basis could not be counted towards experience. It was also stated that all the ten sanctioned posts have been filled up and no post of Executive Engineer (Civil) is lying vacant. But in the same breath it was pointed out that one post of Superintending Engineer (B&R) was entrusted to one Shri S.K. Chadha on CDC basis, who is at Serial No. 2, and one Shri Mukesh Anand, XEN (Civil), who is at Serial No. 5, has been sent on deputation with the Municipal Corporation, Chandigarh, as Superintending Engineer (B&R), therefore, two temporary posts of Executive Engineer (Civil) are available with the petitioner. Still further it was submitted that meeting of the Departmental Promotion Committee (DPC) for promotion to the post of Executive Engineer (Civil) was held on 28.1.2010 for filling up the post vacated by Shri Mukesh Anand, XEN (Civil), who has been sent on deputation as Superintending Engineer (B & R) with the Municipal Corporation, Chandigarh. It was further brought to the notice of the Tribunal that advice was also sought from the Department of Personnel, Chandigarh Administration, whether the period of CDC from 6.11.2001 to 31.1.2003 rendered by the applicant-respondent No. 1 could be counted towards eligibility for the purpose of next promotion to the post of Executive Engineer. On 23.7.2009, the Department of Personnel, Chandigarh Administration referred the matter to the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi (P-7 Colly). The Tribunal after considering the rival contentions of the parties allowed the Original Application filed by the applicant-respondent No. 1, vide order dated 15.3.2010 by observing as under:- “6. It is not in dispute that the current duty charge period of 5 CWP No. 12679 of 2010 applicant for the period w.e.f. 6.11.2001 to 31.1.2003 already stands counted as qualifying service for the purpose of eligibility vide order dated 1.10.2008, Annexure A-13, subject to certain conditions mentioned therein. In our view no further clarification is warranted in this case. Once the competent authority has given sanction for counting of the said period as “eligibility” that would also include as “experience” towards eligibility. In the face of such a clear cut decision, we are of the considered opinion that the eligibility of the applicant for promotion to the post of Executive Engineer under the Rules of 2005 has to be counted w.e.f. 6.11.2001 onwards. In view of this, this Original application is allowed and disposed of with direction to the respondents to consider the case of the applicant for his promotion to the post of Executive Engineer and pass necessary orders within a period of three months from the date of receipt of copy of this order. The parties are left to bear their own costs.” 7. Feeling aggrieved against the aforementioned direction issued by the Tribunal the petitioner-Chandigarh Administration has filed the instant petition. While issuing notice of motion, a Division Bench of this Court also issued an interlocutory direction that the meeting of DPC, if any, may be held but consideration with regard to the applicant-respondent No. 1 be kept in a sealed cover. 8. On 6.9.2010, we permitted the respondents to place on record by way of reply the complete pleadings and annexures which were filed before the Tribunal. Accordingly, the applicant-respondent No. 1 filed his written statement along with complete pleadings filed before the Tribunal. It has been 6 CWP No. 12679 of 2010 alleged that the petitioner is guilty of concealment of facts and that one more vacancy fell vacant because of repatriation of Shri Balwan Singh Dhanda, XEN, to his parent department of Haryana, who was holding the charge of Executive Engineer, Capital Project Division No. 6 and Executive Engineer of Horticulture. He was to be relieved from duty on 30.9.2010. Two other vacancies of the post of Executive Engineer are also available because Shri P.K. Rikhi, Executive Engineer, is holding dual charge of Division Nos. 4 and 5, whereas Shri N.P. Sharma, Executive Engineer is holding the dual charge of the posts of Executive Engineer (W&E) and Executive Engineer, Capital Project No. 2. Thus, the stand taken by the petitioner that no post is lying vacant is self-contradictory. It has been further submitted that as per the Rules ‘working experience’ for a minimum period of 8 years is required on the post of Sub Divisional Engineer for promotion to the post of Executive Engineer and not 8 years ‘regular service’ as sought to be projected by the petitioner. It has been reiterated that the applicant-respondent No. 1 answers the eligibility condition of 8 years experience while working as Sub Divisional Engineer (Civil) as on 5.11.2009 by counting the period from 6.11.2001 to 31.1.2003 when he discharged duties on CDC basis. 9. The petitioner-Chandigarh Administration has filed replication to the written statement filed by respondent No. 1 and submitted that the Home Department, Chandigarh Administration, vide their letter dated 27.8.2010 (P-9) has informed about the policy instructions issued by the Chandigarh Administration on 14.6.2010 and 27.6.1994 on the subject of grant of Current Duty Charge to Government Servants (P-10 & P-11 respectively). The said instructions provide that under no circumstances CDC could be entrusted to any officer/official by the Administrative Departments. Instead the Administrative 7 CWP No. 12679 of 2010 Departments should take time bound steps to fill up the post on regular basis as per recruitment rules. However, additional charge of such vacant posts can be given to other officers in addition to their substantive charge in exceptional cases where the work is really suffering. Regarding vacant/resultant posts of Executive Engineers (Civil) it has been stated that as on 1.10.2010, the following posts of Executive Engineer (Civil) were available: “(i) Two temporary posts of Executive Engineers (Civil) (on entrusting CDC to Shri S.K. Chadha as SE (B&R) and by sending Shri Sanjay Arora, XEN on deputation to Municipal Corporation); (ii) One regular post of XEN (Civil) on the repatriation of Shri Balwan Singh Dhanda, XEN (Haryana Cadre) w.e.f. 30.09.2010; and (iii) One resultant post of Executive Engineer (Civil) on the retirement of Shri P.K. Rekhi, XEN (with effect from 31.01.2011). 10. For filling up three posts of Executive Engineers on deputation basis out of above four posts, the petitioner called for panel on 1.9.2010 from the States of Punjab and Haryana (P-12 & P-13). However, one post has been kept reserved for the application-respondent No. 1, who is senior most in the cadre for promotion to the post of Executive Engineer (Civil) and he shall be considered and promoted in case the issue with regard to the experience of counting CDC is decided in his favour. 11. Having heard learned counsel for the parties and perusing the record with their able assistance we find that the discussion can be conveniently 8 CWP No. 12679 of 2010 divided by framing the following two substantive questions of law. (A) Whether the expression ‘working experience’ used in Rule 6 read with Appendix ‘B’ providing for promotion to the post of Executive Engineer would include the experience gained while working on current duty charge on the post of Sub Divisional Engineer or it is only that experience which is gained while discharging duties as a substantive holder of that post on regular basis? (B) What is the effect of order dated 1.10.2008 (A-13) passed by Competent Authority granting approval for reckoning of service rendered on CDC basis from 6.11.2001 to 30.1.2003 towards qualifying service for determining eligibility for promotion to the post of Executive Engineer (Civil)? RE: QUESTION - A 12. The question No. 1 has cropped up for consideration of this Court earlier also. As long as the expression ‘working experience’ is used in the statutory Rules, the law laid down by this Court would continue to apply. In somewhat similar circumstances the expression ‘working experience’ came up for interpretation before a learned Single Judge of this Court in the case of Dr. Ravinder Pal Kaur v. State of Punjab and others, 1979 (2) SLR 645. In the aforesaid case, the statutory rules required teaching experience as Assistant Professor in the specialty concerned for five years. The petitioner in that case was appointed as Assistant Professor Radiology on ad hoc basis. Her appointment was regularized three years later. The question before the Court was whether the experience gained by her while working on ad hoc basis could 9 CWP No. 12679 of 2010 be treated as ‘experience’ in terms of the requirement of the rules. The learned Single Judge of this Court has taken the view that there was hardly any difference so far as the teaching experience is concerned whether it is gained on ad hoc appointment or on regular appointment. It was held that the teaching experience envisaged by the statutory rules was not limited to the one gained while holding appointment on regular basis under the statutory rules. Therefore, the teaching experience gained by her in the Medical Colleges while working on ad hoc basis is valid for the purpose of counting the requisite experience for direct appointment as Professor. Such experience could not be ignored. It is, thus, patent that it was a case of direct appointment yet the ratio of the judgment is concerning counting of experience gained while working on ad hoc basis. The aforesaid view has also been followed and applied in the cases of promotion by this Court in the case of Balbir Singh Yadav and others v. State of Haryana and others, 1984 (1) SLR 466 and by a Division Bench of this Court in the case of Dharam Singh v. State of Punjab and others, 1985 (1) SLR 358. Therefore, the principle which emerges from the aforesaid case law is that once an employee has gained experience of working on ad hoc or regular basis then the requirement of the rule stands satisfied. As long as a person has earned the experience of working on teaching post like Lecturer or Senior Lecturer then such an experience cannot be ignored and on that basis the petitioner could not have been non-suited from consideration for promotion to the post of the Head of the Department. A similar question arose in a matter concerning promotion before a Division Bench of this Court, of which one of us (M.M. Kumar, J.) was a member. In C.W.P. No. 21663 of 2008, decided on 3.7.2009 (Geeta Devi v. State of Haryana and others) this question has been 10 CWP No. 12679 of 2010 answered in favour of that petitioner by reckoning the period of service rendered on ad hoc basis towards determining his eligibility condition of experience and the other argument was rejected. 13. When the aforesaid principles are applied to the facts of the present case it becomes obvious that the applicant-respondent in the present case is governed by the statutory Rules. At this stage it would be pertinent to read Rule 6 read with Appendix ‘B’, which reads as under:- “6. Method of appointment, qualifications and experience. – (1) Appointment to the Service shall be made in the manner specified in Appendix ‘B’: Provided that if, no suitable candidate is available for appointment to the Service by promotion and by direct appointment, then appointment to the Service shall be made by transfer of a person holding a similar or an identical post under a State Government or Government of India. (2) No person shall be appointed to a post in the Service, unless he possesses the qualifications and experience as specified against that post in Appendix ‘B’. (3) Appointment to the Service by promotion shall be made on seniority-cum-merit basis, but no person shall have any right to claim promotion on the basis of seniority alone: Provided that promotion to the post of Chief Engineer, being Head of the Department, shall be made on merit-cum-seniority basis.” “Appendix ‘B’ (See rules 6) 11 CWP No. 12679 of 2010 Serial No. Designatio n of the Post Percentage for appointment by Method, qualifications and experience for appointment by Promotion Direct Appointmen t Promotion Direct Appointmen t 1 & 2 xxx xxx xxx xxx xxx 3 Executive Engineer Hundred per cent --- From amongst the Sub- Divisional Engineers, who have an experience of working as such for a minimum period of eight years.” --- 14. A perusal of Rule 6(1) makes it patent that appointment to the service must be made as prescribed in Appendix ‘B’. Sub-rule (2) of Rule 6 makes it further clear that no person could be appointed to a post in the Service unless he possesses the qualification and experience as specified against that post in Appendix ‘B’. A further perusal concerning requirement given in Appendix ‘B’ shows that for becoming eligible for promotion to the post of Executive Engineer, a Sub Divisional Engineer must have experience of working for minimum period of eight years. The Rule provides for filling up the post of Executive Engineer from that of Sub Divisional Engineer by hundred percent promotion. Therefore, as long as a person has working experience of eight years a Sub Divisional Engineer becomes eligible for promotion to the post of Executive Engineer. The expression ‘working experience’ cannot be construed to mean that he must have gained the 12 CWP No. 12679 of 2010 experience while working on a permanent substantive post on which he has been appointed on regular basis. In other words, long term regular promotion would not be necessary to gain experience of working because whether a person works on a post in his capacity as ad hoc/current duty charge holder/ temporarily his nature of duties continues to be the same which any regularly promoted person would require to discharge. Therefore, it follows that the applicant-respondent No. 1 was entitled to count his experience for the purposes of eligibility from 6.11.2001 to 30.1.2003 towards qualifying period of eight years for determining eligibility for promotion to the post of Executive Engineer. 15. In the present case, it is significant to notice that the applicant- respondent No. 1 is in any case senior most and by counting the aforesaid period of about more than 2 years he is not going to overrule any of his senior. Therefore, the argument raised by Mr. Kaushal that such a rule could work to the detriment of a senior resulting in his suppression would not arise. Therefore, we leave the question concerning application of the principle open, namely, whether experience gained on ad hoc/CDC basis could be counted for determining eligibility to the detriment and suppression of a senior employee in the cadre. On the aforesaid interpretation and rationale the conclusion reached by the Tribunal does not deserve to be interfered. RE: QUESTION - B 16. It is also pertinent to notice that order dated 1.10.2008 passed by the Competent Authority (A-13) has granted approval for counting of service rendered by the applicant-respondent No. 1 as Sub Divisional Engineer (Civil) on CDC basis from 6.11.2001 to 30.1.2003 towards qualifying service for the purpose of eligibility for further promotion to the post of Executive Engineer 13 CWP No. 12679 of 2010 subject to various conditions. This order has not been withdrawn till today. In any case, the decision passed by the Competent Authority does not suffer from any legal infirmity and, in fact, has a substantial support in the precedents of this Court. Therefore, on that account also the writ petition is liable to be dismissed. 17. As a sequel to the above discussion and the answer given to the both the questions we are of the considered view that the writ petition does not merit admission and is hereby dismissed. The applicant-respondent No. 1 is held entitled to reckon service rendered by him on CDC basis from 6.11.2001 to 30.1.2003 towards qualifying service for determining eligibility for promotion to the post of Executive Engineer (Civil). The needful shall now be done within a period of three months from the date of receipt of a copy of this order. (M.M. KUMAR) JUDGE (RITU BAHRI) October 25, 2010 JUDGE Pkapoor 14