Civil Writ Petition v. State of Haryana

Mr. Harish Rathee, Sr. DAG, Haryana for the State. RANJIT SINGH J. The petitioner has filed this writ petition seeking quashing of order dated 14.06.2002 (Annexure P-1) to the extent that the petitioner is being granted pay in the pay scale of Junior Engineer despite he holding the Current Duty Charge of SDO. The petitioner would also pray for quashing order dated 11.12.2006 (Annexure P-9) vide which the claim of the petitioner for grant of pay for the post of SDO is denied. As per the petitioner, the impugned orders are totally illegal and, thus, prays for setting aside the same. The petitioner was working as Junior Engineer and was given a Current Duty Charge for the post of SDO on 14.06.2002. The petitioner claims that he was entitled to regular promotion as SDO but was granted Current Duty Charge in his own pay scale of Rs. 5500-9000 without any extra remuneration, which according to him, is in complete violation of the settled principal of law, which would Civil Writ Petition No. 18689 of 2009 2 govern the grant of Current Duty Charge for the higher post. The petitioner would further aver that one post of SDO fell vacant on

31.01.2006 due to the retirement of Sh. Naurang Lal, SDO, Panchayati Raj and one post fell vacant on 09.08.2006 on account of promotion of one Sh. Rajinder Hooda. Reference is also made to some other posts which fell vacant in the year 2007 and 2008. Accordingly, the petitioner avers that number of posts of SDO for promotion are lying vacant as no Junior Engineer was promoted as SDO. Despite this, as per the petitioner, the respondents are continued to take work of SDO from the petitioner from 14.06.2002 onward by giving him Current Duty Charge and, thus, he is being illegally deprived of benefit of the post on which he is performing his duty. Reference is made to the cases of Selva Raj versus Lt. Governor of Island, Port Blair and others AIR 1999 Supreme Court 838, Jagar Singh and another versus State of Haryana and others 2003 (1) RSJ 795, Municipal Committee, Samalkha versus Shree Bhagwan 2006 (1) SCT 569, Suresh Chand Gupta and another versus State of Haryana and another 2007 (5) SLR 284 and Gurmail Singh versus State of Punjab and others 2006 (2) SLR 757 in support of the claim made in the writ petition. The petitioner, thus, would make reference to the law laid down where a person is held entitled to receive salary to the corresponding post for which he is given Current Duty Charge. Reply has been filed. It is stated that Haryana Development and Panchayat Department Panchayati Raj Engineering (Group B) Service Rules, 1998 were notified on

17.04.1998. Prior to this, the promotions to the post of SDE Civil Writ Petition No. 18689 of 2009 3 Panchayati Raj were governed by the draft rules/rules of the Haryana Public Service Commission. Some SDE/Junior Engineers working in the Department had filed various writ petitions alleging that the degree holders/draftsman were given promotion in excess of their quota. This Court had then given direction on 20.09.2006 when after considering the objections of the employees a seniority list was finalised. This was again challenged by various employees and the seniority list was quashed on 16.12.2008. The seniority list, thus, has not been finalised. Some promotions were made as stop gap arrangement on adhoc basis against the direct quota posts. The petitioner could not be considered as a charge sheet under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 (hereinafter referred to as 'Rules') was issued to the petitioner on 16.03.1998. After inquiry, the petitioner was found guilty and penalty of recovery of Rs. 72,298/- was imposed on him on 12.05.2009. Yet another charge sheet was issued to the petitioner under Rule 7 of the Rules for embezzelment and misappropriation in development works. The petitioner, however, still was given Current Charge Duty on

14.06.2002 but in his own pay scale purely as a stop gap arrangement. It is clearly mentioned in the order that the petitioner would have no right to claim promotion on the basis of this order. The petitioner had filed Civil Writ Petition No. 17077 of 2005 when this Court had granted stay against the withdrawal of Current Duty Charge and, accordingly, the petitioner is still holding the Current Charge Duty for the post since 2002. In the meanwhile, another Civil Writ Petition No. 10557 of 2009 was filed by Sh. Satbir Civil Writ Petition No. 18689 of 2009 4 Singh and Ramesh Chander who were the senior most Junior Engineers in the diploma holder category and this Court passed the following order:-

1. Seniority of Junior Engineers shall be finalised within a period of four months;

2. On finalization of the seniority, promotions shall be made for all available vacant posts of Sub Divisional Engineer for promotional quota in the Panchayati Raj Department within a period of two months thereafter by according consideration to all the eligible candidates, in accordance with the rules. On expiry of six months, all Current Duty Charge shall cease to exist irrespective of the fact whether the promotions are made or not. As per the quota prescribed in the Service Rules, 32% posts of Sub Divisional Engineers (Panchayati Raj) in the Cadre were filled up amongst the diploma holder Junior Engineers and during the year 1998-2004 some Junior Engineers were promoted against the direct quota posts purely on adhoc basis. Recommendation was received for promotion of Junior Engineer direct quota from Haryana Public Service Commission but the Junior Engineers who were promoted purely on adhoc basis approached this Court and got a stay against their reversion. Thus, the diploma holders are in excess of their quota of 32%. The vacancies occupying are for direct quota against which the petitioner has no claim. In view of the directions given by this Court, seniority list of SDEs and Xens was prepared to be finalised. Some orders were passed to maintain status quo with regard to the seniority list of SDEs and Xens. It is thus stated that Civil Writ Petition No. 18689 of 2009 5 claim of the petitioner for promotion cannot be considered. Heard, counsel for the parties. Mr. Rathee makes a pointed reference to Annexure P-9 which is impugned through the present writ petition. It is disclosed in this writ petition that the name of the petitioner does not find mention in the seniority list of SDOs. However, he is still continuing to hold the Current Duty Charge for the post of SDO, despite the fact that there is no requirement. This is primarily because of the interim order passed by this Court. It is also stated that all the posts of SDOs are filled up and no posts of SDOs are lying vacant. Only the petitioner is holding the Current Duty Charge, in terms of the order passed by this Court. In view of the detailed facts as noticed above, neither the right of the petitioner to continue to holding the charge of Current Duty for the post of SDO is made out nor any financial benefit in this regard can be allowed to the petitioner. While giving Current Duty Charge to the petitioner, it was made clear to him in the order that he would not be entitled to any additional benefits either of promotion or of financial nature. Being fully aware of this position, the petitioner accepted and has been performing the current duty charge. The fact is that this Current Duty Charge given to the petitioner has continued on account of the interim order passed by this Court. It is not disclosed in the reply if any efforts were made to get this order vacated in view of the position explained above. Judgments referred to and relied upon by the counsel for the petitioner would not apply to the facts of this case as in none of these judgments it is pointed out that there was a condition imposed while granting the Current Duty Charge. Civil Writ Petition No. 18689 of 2009 6 In Selva Raj's case (supra) employee was ordered to look after duties of higher post but it was held that it shall not amount to promotion. In Jagtar Singh's case (supra) facts were different. The petitioner in the said case was entitled to promotion but was given current duty charges. It was under those circumstances held that the petitioner was deprived of higher salary. Here in this case, the petitioner is not entitled to promotion but is continuing to hold the current duty charge under the orders of this Court. Asking some one to work on higher post may entitle one to claim higher pay but not in those cases where he is given charge with clear condition that he would not be entitled to such a claim. In addition, the petitioner has faced two inquiries and has been awarded penalty. Whether under such circumstances he can be allowed to continue promoted post would be another question, which requires consideration. At this stage, the counsel wished to point out that the petitioner has been exonerated of the enquiries held against him but there is no material on record to support this stand of the counsel. Taking all these aspects into view, I find that no case for interference is made out. The writ petition is, accordingly, dismissed. November 02, 2010 ( RANJIT SINGH ) JUDGE