LPA No.800 of 2012 (O&M)                                               [1]
                                  *****

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                                     LPA No.800 of 2012 (O&M)
                                     Date of Decision: .04.2013


Haryana State Pollution Control Board                           ...Appellant

                                  Versus

P.K.Sharma and others                                       ...Respondents


CORAM:      HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE
            HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
                                    *****
Present:    Mr.Vinod S. Bhardwaj, Advocate,
            for the appellant.

            Mr.Sanjeev Bansal, Advocate,
            for respondent No.1.

            Mr.R.K. Malik, Sr. Advocate, with
            Mr.Vijay Dahiya, Advocate, for respondent No.2 to 9.
                                     *****

RAKESH KUMAR JAIN, J.

The appellant/board has challenged the validity of order dated 10.1.2012 passed by the learned Single Judge by which order dated 6.7.2010 declining the prayer of the petitioner for promotion to the post of Environmental Engineer has been quashed.

The facts of the case are that the petitioner/respondents No.1 herein is a diploma in Mechanical Engineering and was appointed as Junior Environmental Engineer (for short 'JEE') on 7.5.1986 and promoted as Assistant Environmental Engineer (for short 'AEE) on 12.10.1993. The appellant framed draft service rules under Section 12 of the Water (Prevention and Control of Pollution) Act, 1974 (for short 'the Act') in the LPA No.800 of 2012 (O&M) [2] ***** year 1990 which was approved by the State Government. However, the Government vide its letter dated 15.3.1996 sent its draft service regulations to the appellant/Board for getting the same approved from the Members of the Board by circulation but those service regulations of 1996 which were approved by the Board in its 105th meeting held on 13.9.1996 were not approved by the State Government under Section 12 of the Act. The appellant has been applying the draft Rules which have been approved by the State Government which prescribes qualification of Environmental Engineering should be at least 2nd Class in Environmental Engineering or in Civil / Environmental / Mechanical Engineering with at least 8 years experience as AEE. The appellant/board promoted S.P. Rathi as Environmental Engineer on 11.5.2000, who was degree-holder and one Chand Saini was also promoted on 3.10.2002, who too was degree-holder. On 5.10.2004, the Statutory Service Regulations framed under the Act were enforced after due approval by the State Government in terms of which AEE Sumit Amrohi was promoted as Environmental Engineer as he was also a degree-holder. The petitioner/respondents No.1 herein along with other submitted a detailed representation on 29.7.2004 in which it was claimed that the diploma holders be also included for promotion as Environmental Engineer but since no decision was taken on this representation, he filed CWP No.5914 of 2010 which was disposed of by this Court on 1.4.2010 with direction to the Government to take decision. It was in compliance of the said order, the representation of the petitioner/respondent No.1 herein was considered and declined by a speaking order on 6.7.2010 in which it was also mentioned that there were LPA No.800 of 2012 (O&M) [3] ***** two past precedents of promoting R.K. Sharma and Bhagwan Singh in 1996 who were also diploma-holders but their promotions were approved by the Board and recommended to the Government, which accepted the proposals after giving the required relaxation in qualification. In the impugned order dated 6.7.2010, it is also mentioned that the Board had recommended for relaxation vide its letter dated 1.2.2008 but the Government had not found any exceptional circumstance for giving the relaxation in qualification to the petitioner/respondent No.1 herein because his service record was not of meritorious performance. It was also one of the reasons that they cannot claim any legal right on the basis of draft service regulations which have never been notified.

Counsel for the appellant/Board has submitted that the learned Single Judge has erred in taking note of the fact that the draft service rules wherein diploma-holder was also sought to be made eligible for promotion was sent to the Government and in the notified Rules dated 5.10.2004 it was specifically provided that the possession of degree was mandatory requirement along with eight years of service for being promoted to the post of Environmental Engineer. The promotions made prior to the finalization of the rules were not under the draft rules rather the same were approved by the Government and all the persons so promoted after 1996 till 2006 possessed the qualification prescribed under the notified regulations, no relaxation whatsoever with respect to any qualification or eligibility as per the notified rules has been granted.

On the other hand, learned counsel for respondent No.1 has submitted that the Draft Service Rules were applied in all cases of LPA No.800 of 2012 (O&M) [4] ***** promotion. Although respondent No.1 was having requisite experience for the promotional post but he was not a Degree holder which was not a condition in the Draft Service Rules. He further submitted that the Board was applying Draft Service Rules till it was finalized in the later part of the year 2004 and at the time when his case was considered in January 2004, as per the Draft Service Rules even a person with a diploma was entitled to be considered for promotion provided he had 10 years of service. He has also referred to the instances of R.K.Sharma and Bhagwan Singh who were similarly placed and were promoted by virtue of the Draft Service Rules. He further relied upon a decision of the Supreme Court in the case of Chandigarh Administration through The Director Public Instructions (Colleges), Chandigarh v. Usha Kheterpal Waie and others, (2011) 9 Supreme Court Cases 645 to contend that the service condition of the employees can be regulated in terms of draft rules provided there is clear intention to enforce those rules in near future.

We have heard learned counsel for the parties, perused the record and are of the considered opinion that there is no error in the order of the learned Single Judge who has quashed the impugned order and held respondent No.1 entitled to be considered for promotion. It is not denied by the appellant that the case of the respondent No.1 was taken up for consideration in January 2004, whereas the Draft Service Rules were finalized in the later part of the year 2004, meaning thereby when the case of respondent No.1 was considered, only the Draft Service Rules were applicable which provided for 10 years' experience with Diploma and the qualification of Degree came with the finalization of the Draft Service Rules LPA No.800 of 2012 (O&M) [5] ***** in the later part of the year 2004. It is also not denied by the appellant that the similarly situated other two employees, namely, R.K.Sharma and Bhagwan Singh, were promoted in terms of the Draft Service Rules which means that the Draft Service Rules were regulating the service conditions of the employees of the Board who had a clear intention to enforce the same in near future. In this regard, the decision of the Supreme Court in Chandigarh Administration's case (supra) is fully applicable in favour of the respondent No.1.

In view of the aforesaid discussion, finding no merit in the present appeal, the same is hereby dismissed.

                  (A.K. SIKRI)            (RAKESH KUMAR JAIN)
                  CHIEF JUSTICE                   JUDGE


APRIL 09, 2013
vinod*