CIVIL WRIT PETITION NO.1611 OF 1987 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 22, 2009 Surinder Kumar Gupta .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Subhash Ahuja, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner has filed this writ petition for issuing of a writ of mandamus or any other writ, seeking quashing of Annexure P- 1, whereby the ratio for promotion to the post of Excise and Taxation Inspector has been prescribed between the persons belonging to head office and field office cadre. The petitioner joined as Clerk in the head office cadre of the respondent-Department on 10.5.1972. He was promoted to ministerial post of Junior Auditor on 16.12.1977. He was further promoted to the post of Assistant, which is again a ministerial post on CIVIL WRIT PETITION NO.1611 OF 1987 :{ 2 }: 8.12.1978. Respondent Nos.4 to 14 (except respondent No.6, who belongs to head office cadre), were promoted/appointed on the posts of Accountants/Assistants/Junior Auditors/Senior Scale Stenographers on different dates as disclosed in para 2 of the writ petition. The respondents, as per the own showing of the petitioners, are governed by different rules known as the Haryana Excise and Taxation Department Subordinate Offices (Ministerial Group C) Service Rules, 1981 (hereinafter called as “1981 Rules”). On the other hand, the petitioner is governed by rules known as Haryana Excise and Taxation Commissioner's Office (Group C) Service Rules, 1980 (for short, “1980 Rules). The respondents were promoted/appointed to the posts like Accountants/Assistants/Junior Auditors/Senior Scale Stenographers on different dates between 13.5.1978 and 13.5.1982. Subsequently, they were appointed as Excise Inspectors on different dates as mentioned in the petition. Respondent Nos.4 and 5 were promoted to this rank on 28/29.6.1985; respondent Nos.6 to 8 were promoted on 17.9.1986; respondent No.9 was so promoted on 24.10.1986; respondent No.10 was promoted on 27.10.1986 and remaining respondent Nos.11 to 14 were promoted on 21.11.1986. The petitioner pleads that he belongs to the cadre, which is known as `head office cadre' whereas the private respondents, except respondent No.6, belong to the cadre known as `District offices cadre'. The grievance of the petitioner is that he as well as the respondents are members of the ministerial staff and are eligible for appointment to the posts of Excise Inspector/Taxation Inspector in accordance with the Rules known as the Haryana Excise and CIVIL WRIT PETITION NO.1611 OF 1987 :{ 3 }: Taxation Inspectorate (State Service Group C) Rules, 1969 (hereinafter referred to as “1969 Rules”). The recruitment for Excise Inspectors and Taxation Inspectors is regulated by Rule 4 of 1969 Rules. As per this Rule, the Commissioner is to maintain a register of accepted candidates separately for the posts of Excise Inspectors and Taxation Inspectors in the form as prescribed. Ordinarily, the candidates on this register shall not exceed 25 in number. The appointment to the post of Excise and Taxation Inspector is through two categories, which are by way of direct appointment and another by way of promotion from the ministerial Government service of Excise and Taxation Department. 66.2/3 percent of the posts are to be filled by direct recruitment whereas remaining 33.1/3 posts are to be filled by promotion from the ministerial staff. The qualifications are also prescribed and so also the procedure for enlistment and appointment of candidates. It is further provided in the Rules that names of the accepted candidates shall be arranged for appointment to the posts of Excise Inspectors and Taxation Inspectors in rotation, which is that first two vacancies to category A i.e. direct appointment and third vacancy to category B, which is by promotion from ministerial staff. Having made reference to these rules, the petitioner would plead in this writ petition that he is member of the ministerial establishment, being from the head office cadre and as such, eligible to be appointed to the post of Excise/Taxation Inspector. In category B, 33.1/3 posts were reserved. It is pleaded that ignoring their better claim, respondent Nos.4 to 14 have been appointed to the posts of Excise Inspectors. This, according to the petitioner, is on the basis of administrative policy contained in Memo No.3804/Establishment 2, CIVIL WRIT PETITION NO.1611 OF 1987 :{ 4 }: dated 1.4.1981, Annexure P-1. Through this memo, respondent- Department has made a provision for fixing a ratio for consideration and appointment to the posts of Excise and Taxation Inspectors from Head Office and District Offices Cadre. The rational behind this is that while fixing 33.1/3% posts to be filled from amongst the employees of the ministerial establishment, ratio was fixed between head office and District office cadre, which was to be 4:6. This ratio was repealed on 22.10.1969, when 1969 Rules were formulated. As per these Rules, Taxation and Excise Inspectors were to be recruited in the ratio of 66.2/3% and 33.1/3% as already stated, noticing that 33.1/3% posts were allocated between employees of head office and District office cadre but it could not be known definitely as to what was the actual basis in fixing this ratio, which was 4:6 as already noticed. It is further noticed that this ratio would have been fixed keeping in view the strength of the employees of the head office and district office cadre at that time. Thereafter mention is made to the present sanctioned strength of these posts of ministerial establishment of the head office and district offices from amongst which promotion to the posts of Taxation Inspectors/Excise Inspectors are to be made. Reference is then made to number of Junior Auditors/ Stenographers/ Assistants/ Accountants/Head Clerks working in both the cadres i.e. head office and district office. From this, it could be noticed that 46 persons were working in different capacity at the head office cadre whereas 91 persons were working at the district offices cadre. In view of this different and varying strength, it was realised that lesser share is given to the employees of District offices in the appointment, whose strength was CIVIL WRIT PETITION NO.1611 OF 1987 :{ 5 }: found to be double the strength of officials posted in the head office. Therefore, in the changed circumstances, it was considered correct and justified that the quota for the officials of the ministerial establishment of the head office and the district offices for promotion to Taxation Inspectors/Excise Inspectors be allocated in the ratio of 1:2. Accordingly, through these instructions, Annexure P-1, it was decided that some vacant posts of Inspectors are to be filled up in the recent future and, thus, allocation between the officials of head office and district offices in the ratio of 1:2 was directed to be kept in view. Against these instructions, the petitioner has raised a grievance and has filed the writ petition. Submission is that this fixation of percentage of consideration for promotion from these two different cadres has resulted in hostile discrimination against the petitioner. As per the petitioner, the date of seniority should be the consideration for considering different persons for promotion to the post of Excise and Taxation Inspectors rather than fixing the ratio. Counsel complains that by fixing the ratio, the senior persons working in the head office cadre have suffered the chances of their promotion and junior persons, while working in the district offices cadre have stolen a march over them. This, according to counsel for the petitioner, would be arbitrary and discriminatory and hence, can not be sustained. Counsel would further contend that Annexure P-1 is executive instructions and leads to amendment of 1969 Rules. The counsel accordingly prays that the promotion of the respondents as ordered is required to be interfered with and instead, the petitioner be granted promoted from the date it will be due to him as per his seniority. CIVIL WRIT PETITION NO.1611 OF 1987 :{ 6 }: On having put to notice, the respondents have filed written statement. By way of preliminary objections, the pleas raised in the petition are controverted. It is pointed out that the petitioner had earlier approached this Court by way of Civil Writ Petition No.6102 of 1986 and accordingly stated that the present writ petition filed by him was neither competent nor maintainable. Learned counsel for the petitioner would, however, point out that only reservation policy was under challenge in Civil Writ Petition No.6102 of 1986, which has since been dismissed for non-prosecution but not on merits. While controverting the pleas raised by the petitioner on merits, it is stated that the policy decision contained in instructions, Annexure P-1, can not be faulted on any ground. The plea of the petitioner that he has any superior claim, as compared to his counter parts is denied. It is then pointed out that for the matter of appointment to the posts of Taxation Inspectors/Excise Inspectors, even in the composite Punjab, the ratio of posts of Excise Inspectors/Taxation Inspectors falling in Category B as mentioned in Rule 5(2) of 1969 Rules, was to be shared by the members of the ministerial establishment of the office of Excise and Taxation Commissioner, which is now head office and those working in the subordinate offices of the Excise and Taxation Department in the districts, which are now called District Office Cadre. The ratio laid down at that time disclosed in the rule was 4:6. As per the reply, it is pointed out that this ratio was fixed on the basis of numerical strength of the ministerial establishment in both the cadres. This ratio was reviewed by the respondent-State of Haryana in the year 1981 on the CIVIL WRIT PETITION NO.1611 OF 1987 :{ 7 }: basis of ministerial strength working in the head office and the District offices. Accordingly, it has been re-fixed as 1:2 between the head office and the district offices respectively. This is what has been approved in the communication/instructions Annexure P-1. It is, thus, made out that this, in no way, either amends or takes away any provision, which may have been made in the rules. It is further pointed out that respondent Nos.4,5,7 to 14 were appointed as Excise Inspectors on the basis of their respective seniority in the cadre of district offices. Respondent No.6, who belongs to the head office cadre, is a scheduled caste and was promoted to the post of Excise Inspector in preference to the claim of the petitioner on the basis of reservation police made for scheduled caste. It is accordingly pleaded that Annexure P-1 is not repugnant and merely aimed at for filling the gap, which has remained in 1969 rules and, thus, can not be said to be violative of Article 14 of the Constitution of India in any manner. Mr.Subhash Ahuja, learned counsel for the petitioner, was forthright in conceding before me that by now the petitioner as well as the respondents have retired. He, however, submits that still the lis may require adjudication as in case the right of the petitioner is recognized, then he would be entitled to have promotion with effect from 1986 whereas he had been promoted as Excise Inspector in the year 1990. I have considered the submissions made before me. It is not disputed that the petitioner and the respondents belong to different cadres and they are governed by different rules. There is no material placed on record that the petitioner and the respondents CIVIL WRIT PETITION NO.1611 OF 1987 :{ 8 }: were ever in common cadre or that the cadres have been bifurcated. Even prior to 1969 Rules, the ratio was determined for promotion to the post of Inspector Excise and Taxation Inspector as 4:6. This fixation of ratio was not ever challenged by any one. Subsequently on account of the change in the cadre strength of these two separate cadres, the different ratio has been prescribed through Annexure P- 1. Annexure P-1 aims at doing justice between two different cadres who have different cadre strength. I do not see any infirmity in this action of the respondent-Government, giving fair chance of promotion to both the cadres, depending upon their strength. The act can not be termed as arbitrary. Annexure P-1 does not in any manner violates the statutory rules. The counsel has not made any submission to show that the position in the rules is violated. Rather the action of the respondents in fixing the ratio on the basis of cadre strength appears to be just and fair to give fair chances of promotion to both the cadres as per their respective strength. No case for interference is made out. Dismissed. July 22,2009 ( RANJIT SINGH ) khurmi JUDGE