IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 06.04.2010 1. C.W.P. No. 16093 of 2009 Members of Association, Haryana State Agriculture Marketing Board Field Staff Welfare Association …Petitioner Versus State of Haryana and others …Respondents 2. CWP No. 18512 of 2009 Narsingh and another …Petitioners Versus State of Haryana and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: M. R.C. Dogra, Senior Advocate, with Mr. D.R. Punia, Advocate (in CWP No. 16093 of 2009) for the petitioner. Mr. Kamal Sehgal, Addl. AG, Haryana, for respondent No. 1. Mr. Girish Agnihotri, Senior Advocate, with Mr. R.B. Garg, Advocate, for respondent No. 2 (in CWP No. 18512 of 2009) and respondent No. 3 (in CWP No. 16093 of 2009) Mr. Narender Hooda, Advocate, for respondent No. 2 (in CWP No. 16093 of 2009) Mr. S.D. Sharma, Senior Advocate, with Mr. Sajjan Malik, Advocate, for respondent No. 4 (in CWP No. 16093 of 2009) and respondent No. 3 (in CWP No. 18512 of 2009) M.M. KUMAR, J. This order shall dispose of CWP Nos. 16093 and 18512 of 2009 as common question of law and facts are involved. The petitioners have challenged notification dated 23.6.2009, issued by the Haryana Government, Agriculture Department, amending the Haryana State Agricultural Marketing Board Service CWP Nos. 16093 & 18512 of 2009 Rules, 2008 (for brevity, ‘the 2008 Rules). The allegation is that the amendment has been brought in at the instance of the Chief Minister of Haryana to accommodate his relation. It is pertinent to notice that CWP No. 16093 of 2009 has been filed by the Haryana State Agricultural Marketing Board Field Staff Employees Welfare Association, Jind, through its General Secretary, espousing the grouse of its various members who are working as District Marketing Enforcement Officer, Zonal Marketing Enforcement Officer, Marketing Development Enforcement Officer and Chief Marketing Enforcement Officer, in the respondent Haryana State Agriculture Marketing Boar (for brevity, ‘the Board’). The other petition, namely, CWP No. 18512 of 2009, has been filed by two officers, namely, Sarvshri Narsingh and Dula Ram, who are working as District Marketing Enforcement Officers in the Board. Facts may first be noticed. On 25.7.2006, one Shri Jagwant Singh Rana (respondent No. 4 in CWP No. 16093 & respondent No. 3 in CWP No. 18512 of 2009), who was working as Assistant Manager Marketing in Krishak Bharati Cooperative Limited (KRIBHCO), made an application for taking him in the Board on the post of Chief Marketing Executive Officer on deputation basis (P-3). It is alleged that the said application was directly submitted by Shri Jagwant Singh Rana in the office of the Chief Minister, Haryana, since is a close relation of the Chief Minister. On 13.11.2006, the Chief Administrator of the Board requisitioned the service record and other details of Shri Rana from KRIBHCO. Thereafter, the request made by Shri Jagwant Singh Rana was considered by the Board in its 177th meeting held on 14.3.2007. The petitioners have placed on record the Agenda Item No. 4 and the decision taken by the Board on 14.3.2007 as Annexure P-5 (in CWP No. 18512 of 2009) from which it is evident that as per the Haryana State Agricultural Marketing Board Service Rules, 1974 (for brevity, ‘the 1974 Rules’), the following is the qualification and mode of recruitment to the post of Chief Marketing Enforcement Officer: 2 CWP Nos. 16093 & 18512 of 2009 “Sr. No. Name of the post By direct recruitment Other than direct recruitment Mode of recruitment 4. Project Officer now re- designated as Chief Marketing Enforcement Officer (i) Graduate of a recognized University; (ii) Has at least ten years experience of development activities. At least seven years experience of development work in the Board at the level of Senior Marketing Inspector (now re- designated as Zonal Marketing Enforcement Officer and above or comparable experience in the Government Department (i) By promotion from Marketing Development Officer, and Senior Marketing Inspector (now re- designated as (ZMEO) in the service; or (ii) By transfer or deputation; or (iii) By direct recruitment.” It has further been noticed that the post of Chief Marketing Enforcement Officer in the Board was lying vacant since 1.10.2001 and direct recruitment has been defined in Rule 2(c) of the 1974 Rules, which prescribes that ‘direct recruitment means an appointment made otherwise then by promotion from within the service or by transfer deputation of an official already in service of the Government of India or any State Government’. Upon enquiry from KRIBHCO it has been found that it neither possesses the status of Government of India nor State of Haryana. Thus, it was found that the request of Shri Rana was not covered under the provisions of Rule 2(c) of the 1974 Rules and relaxation of the Government was required under Rule 17. The Board taken the following decision: “ It was observed that firstly it should be ensured that there is no eligible candidate for promotion in the Board as per Service Rules of the Board. If no eligible officer is available then the requisition should be circulated to the different related organization for sending panel of suitable officers.” On 10.4.2007, a requisition was sent by the Board to various departments, for sending names of suitable officers for filling up the post of Chief Marketing Enforcement Officer on deputation basis in the Board (P-6 in CWP No. 3 CWP Nos. 16093 & 18512 of 2009 18512 of 2009). In response, the names of following three officers were received by the Board:- 1. Shri Jagwant Singh Rana, Assistant Manager (Marketing), KRIBHCO. 2. Shri Satyabhan Singh, Assistant Manager (Marketing), KRIBHCO. 3. Shri P.S. Sirohi, Senior Marketing Advisor, Agricultural Marketing Advisor to Government of India, Directorate of Marketing and Inspection. On 13.6.2007, the interview for the post of Chief Marketing Enforcement Officer was conducted by the Board, which was attended by Shri Jagwant Singh Rana and Shri P.S. Sirohi only. Shri P.S. Sirohi was not found eligible for interview because he did not bring the permission of his employer. Thus, he was not interviewed. The interview committee found Shri Jagwant Singh Rana as the only eligible candidate. After assessing his profile, the Committee recommended his name for the post of Chief Marketing Enforcement Officer on deputation basis (P-7 with CWP No. 18512 of 2009). On 13.7.2007, 178th meeting of the Board was held wherein the decision taken in the previous meeting against Item No. 4 was approved. Thereafter, the matter was sent to the Government seeking approval under Rule 17 of the 1974 Rules. On 19.7.2007 (P-9 with CWP No. 18512 of 2009), the following approval was granted by the Government:- “ Approval of the Government of Haryana is hereby conveyed under Rule 17 of the Haryana State Agricultural Marketing Board Service Rules, 1974 to treat KRIBHCO as Government of India organization for the purpose of Rule 2(c) of the Rules ibid and to fill up the post of Chief Marketing Enforcement Officer in Haryana State Agricultural Marketing Board on deputation basis.” 4 CWP Nos. 16093 & 18512 of 2009 On 20.7.2007, the order of appointment was issued in favour of Shri Jagwant Singh Rana, appointing him to the post of Chief Marketing Enforcement Officer on deputation for one year at the first instance (P-10 with CWP No. 18512 of 2009). On 25.7.2007, he joined the new assignment and he was assigned the work of Enforcement being handled by Enforcement Branch-I (H.Q.) of the Board. As per the terms and conditions of deputation, the period of deputation could be curtailed / extended / terminated by the mutual consent of the lending and the borrowing departments. On 2.11.2007, the terms and conditions of deputation were accepted by the Board. On 4.1.2008, the 2008 Rules came into force. Rule 7 and 10 as well as relevant extract of Appendix ‘B’ of the 2008 Rules reads thus:- “7. No person shall be appointed to any post in the Service, unless he is in possession of qualifications and experience specified in column 3 of Appendix B to these rules in the case of direct recruitment and those specified in column 4 of the aforesaid Appendix in the case of appointment other than by direct recruitment. Provided that in case of direct recruitment of reserved categories of employees, the condition regarding experience shall be relaxable to the extent of 50% at the direction of the appointing authority in case sufficient number of candidates belonging to Schedule Castes, Backward Classes, Other Backward Classes, Ex- servicemen and Physical Handicapped categories, possessing the requisite experience are not available to fill up the vacancies reserved for them, after recording reasons for so doing in writing.” “10. Recruitment to the Service shall be made in the manner as specified in Appendix B to these rules” 5 CWP Nos. 16093 & 18512 of 2009 “APPENDIX B Serial Number Designation of Post Academic qualifications and experience, if any, for direct recruitment Academic qualification and experience, if any, for appointment other than by direct recruitment Method of recruitment 12 General Manager - Two years experience as Additional General Manager By promotion from amongst Additional General Manager” From a plain reading of the above provisions of the 2008 Rules it is evident that the post of General Manager could be filled by promotion only from the post of Additional General Manager, having two years experience as such. It has been claimed by the petitioners that one officer who was working as Additional General Manager/Marketing Development Officer was eligible for the post of General Manager, having the requisite experience. On 11.3.2008, Shri Jagwant Singh Rana made a request for permanent absorption as Chief Marketing Enforcement Officer in the Board. His term of one year of deputation was to expire on 24.7.2008, therefore, he also made a request to extend the period of deputation for a further period of one year, vide application dated 2.7.2008 (P-5 with CWP No. 16093 of 2009). After considering the matter and taking legal opinion from the Legal Remembrancer, the Board decided to extend the deputation period of Shri Rana upto 24.7.2009. In this regard consent of his parent department i.e. KRIBHCO was sought vide letter dated 22.7.2008 (P-12 with CWP No. 18512 of 2009). On 24.7.2008, the KRIBHCO agreed to the request of the Board. It has been alleged by the petitioners that the official respondents firstly appointed Shri Jagwant Singh Rana as Chief Marketing Enforcement Officer and extended his period of deputation illegally and further to help him in the matter 6 CWP Nos. 16093 & 18512 of 2009 of absorption, in the 183rd meeting, which was held on 19.8.2008, it was proposed to modify the qualifications for Group-C and D employees by amending the 2008 Rules (P-14 with CWP No. 18512 of 2009. It has further been alleged that while forwarding the matter to the Government on 18.9.2008 (P-16 with CWP No. 18512 of 2009) the Board sent the amendment in respect of the qualification and mode of recruitment for Group-A. On 25.2.2009, 185th meeting of the Board was held and the following amendment in the Rules was approved for the post of Chief Marketing Enforcement Officer:- S. No. as per Anx. C Name of post Qualification for direct recruitment For promotion Mode of recruitment 12 CMEO Graduate of a recognized university and has atleast 10 years experience of development activities Five years experience as MDO By direct recruitment or by transfer or deputation of an officer already in the service of the Govt. of India or State Government or Board or Corporation or Statutory Body or by promotion from MDO. Eventually the 2008 Rules were amended vide impugned notification dated 23.6.2009 (P-19 with CWP No. 18512 of 2009), whereby in Appendix ‘B’ the following qualifications have been prescribed against the post of Chief Marketing Enforcement Officer: Serial Number Designation of Post Academic qualifications and experience, if any, for direct recruitment Academic qualification and experience, if any, for appointments other than by direct recruitment Method of recruitment 7 CWP Nos. 16093 & 18512 of 2009 4 Chief Marketing Enforcement Officer Graduate of recognized University and has atleast ten years experience of development activities Atleast seven year’s experience of working in the Board as Marketing Development Officer; or seven years experience of working on any equivalent or higher post under Central Government or State Government Board/ Corporations/ Statutory Bodies and registered Co- operative bodies, discharging public functions related to Agricultural activities, where share holding of Central Government/ State Government is not less than 50%. By promotion from amongst Marketing Development Officer or by transfer or deputation of an officer already in the service of Government of India or State Government or Board/ Corporation/ Statutory body registered Co- operative bodies or by direct recruitment. It is relevant to mention here that feeling aggrieved against the appointment of Shri Jagwant Singh Rana as Chief Marketing Enforcement Officer on deputation basis in the Board, one Shri Anil Vir Singh, filed CWP No. 14446 of 2008 in this Court challenging the power of relaxation vide order dated 19.7.2007 and appointment letter dated 20.7.2007. He has also challenged the steps taken for absorption of Shri Jagwant Singh Rana as Chief Marketing Enforcement Officer in the Board, vide ageda dated 17.6.2008. On 12.1.2009, this Court passed an interim order for maintaining status quo and on 19.1.2009 it was further directed that final 8 CWP Nos. 16093 & 18512 of 2009 order of absorption of Shri Jagwant Singh Rana be not passed. The petitioners in CWP No. 18512 of 2009 also filed CWP No. 3929 of 2009 challenging the proceedings of the Board for the post of CMEO. When the 2008 Rules were amended, they filed CWP No. 9633 of 2009, which was withdrawn with liberty to file a fresh one. Be that as it may. At the hearing, Mr. R.C. Dogra, learned senior counsel for the petitioner (in CWP No. 16093 of 2009) confined his prayer to challenge the appointment of Shri Jagwant Singh Rana to the post of Chief Marketing Enforcement Officer in the Board. As noticed above, the allegations are that he is a close relation being brother-in-law of the elder brother of the Chief Minister Haryana and has been brought on deputation without following any procedure enshrined under Articles 14 and 16(1) of the Constitution. The Chief Minister Haryana, who has been arrayed as respondent No. 2 in CWP No. 16093 of 2009 has filed his reply controverting the allegation that Shri Rana is his close relation. In para 3 of the written statement, it has been stated that he has nothing to do with Shri Jagwant Singh Rana. Likewise, the reply filed by Shri Rana shows that there is a distant relationship but he denied the relationship of being brother-in-law of elder brother of the Chief Minister, Haryana. In order to satisfy ourselves about the mode adopted by the Board, the original record was called for. A perusal of the same shows that the process for bringing an Officer on deputation on the post of Chief Marketing Enforcement Officer was initiated on 10.4.2007 and circulars were sent to various departments including the Director of Marketing and Inspection, Government of India, Kendriya Sadan, Sector 9, Chandigarh; Indian Farmer Co-operative, New Delhi, KRIBHCO, National Agriculture Co-op. Marketing of India, New Delhi, HAFED and Haryana Seeds Development Corporation Ltd. The qualifications for a deputationist was also specified being academic from a recognized University and having ten years’ experience of development activities in the field of agriculture marketing. In 9 CWP Nos. 16093 & 18512 of 2009 response thereto, the names of three persons were forwarded. Two of the names were recommended by KRIBHCO, namely, Shri Jagwant Singh Rana and Shri Satyabhan Singh, Assistant Manager (Marketing). The third person, namely, Shri P.S. Sirohi, Senior Marketing Advisor, was also recommended by the Agriculture Marketing Advisor to Government of India, Directorate of Marketing and Inspection. They were to be interviewed on 30.6.2007 by the Committee constituted by the Board. But at the time of interview, only two persons had appeared, as is evident from the proceedings dated 30.6.2007. Eventually, Sarvshri Jagwant Singh Rana and P.S. Sirohi were left for interview. However, Shri Sirohi was not found eligible because he was not armed with any permission of his employer to be sent on deputation. Therefore, the only person left for the interview was Jagwant Singh Rana and he was appointed. A comparative chart of all the officers was prepared showing that ACRs of Shri Rana were better in comparison to the other officers. In view of the aforesaid detailed procedure having been followed, we do not find that there is any trace of influence exerted by the Chief Minister, Haryana in the appointment of Shri Jagwant Singh Rana. Therefore, we do not find any illegality in exercising jurisdiction or issue writ of certiorari with regard to the appointment of Shri Jagwant Singh Rana as Chief Marketing Enforcement Officer in the Board on deputation basis. The writ petition are wholly frivolous and are accordingly dismissed. (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) April 6, 2010 JUDGE Pkapoor 10