CWP No. 14803 of 2011                                              -1-

        IN THE PUNJAB AND HARYANA HIGH COURT AT
                      CHANDIGARH

                               CWP No. 14803 of 2011
                                Date of Decision: August 17, 2011
Sandeep Sharma                                               ...Petitioner

                                Versus

State of Haryana and another                            ...Respondents

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
       HON'BLE MR. JUSTICE GURDEV SINGH

Present:    Mr. Sapan Dhir, Advocate
            for the petitioner


1.    To be referred to the Reporters or not?
2.    Whether the judgment should be reported
      in the Digest?


M.M. KUMAR, J.

1. The instant petition under Article 226 of the Constitution prays for declaring notification dated 05.08.2011 issued by Haryana State Pollution Control Board-respondent No.2 (for brevity 'Board'), which is based on impugned letter dated 16.05.2011 (P-14) as ultra vires of the Constitution. The grievance made by the petitioner is that the category of Computer Operator, which was earlier eligible for consideration for promotion to the post of Deputy Superintendent has been deleted blocking the avenues of promotion for them.

2. Brief facts of this case which has led to filing of the instant petition are that the petitioner was promoted as Computer Operator on 23.03.1997 in the Board. He has been assigned duties CWP No. 14803 of 2011 -2- with the Member Secretary of Board-respondent vide order dated 22.02.2008 and also he worked as PA to President, Appellate Authority of the Board-respondent in addition to his own duties. On 15.03.2004 (P-7), the Board decided to create new posts which were duly sanctioned by respondent No.1. It is clarified in the Annexure-B appended to the sanction letter that the cadre of Deputy Superintendent would be considered as the diminishing cadre. The new Regulations known as Haryana State Pollution Control Board (Group A, B, C and D) Service Regulations, 2004 (for brevity 'the 2004 Regulations') were enforced on 05.10.2004 (P-8). According to the 2004 Regulations, for promotion to the post of Superintendent, the feeder cadre of Deputy Superintendent with two years' service in the Board has been made eligible. The feeder cadre for promotion to the post of Deputy Superintendent was Assistants/ Accountant/ Computer Operators (provided Computer Operators have undertaken 1/3rd ministerial work) with seven years' service in the Board.

3. On 02.05.2006, the Board decided to amend the Service Regulations by providing promotional avenues for Assistants/ Accountants/ Computer Operators (subject to the condition that the Computer Operators have undertaken 1/3rd ministerial work) with nine years' experience for promotion to the post of Superintendent. This was required to be done on account of the fact that the cadre of Deputy Superintendent has been diminishing cadre and had almost vanished. The Board forwarded these recommendations for approval of the State of Haryana on 02.05.2006 (P-9). On account of the fact CWP No. 14803 of 2011 -3- that the proposal sent by the Board was not being considered by the State Government, CWP No. 20254 of 2010 was filed, which was disposed of on 15.11.2010 with a direction to take decision on the proposal sent on 02.05.2006 (P-12). On 16.05.2011 (P-14), the State of Haryana accorded partial approval to the proposal sent by the Board. The category of Computer Operator was deleted from the feeder cadre for promotion to the post of Superintendent. The petitioner along with another Computer Operator represented the respondent-State for providing promotional avenues to the Computer Operator like the petitioner to the post of Superintendent. The respondent-State sought recommendation from the Board- respondent, which again recommended vide letter dated 30.05.2011 (P-17) that the Computer Operator should be clubbed with the cadre of Assistant/ Accountant for promotion to the post of Superintendent. Eventually the amendment in the 2004 Regulations was published in the gazette on 05.08.2011 (P-19), which excluded the cadre of Computer Operator.

4. We have heard Mr. Sapan Dhir, learned counsel for the petitioner at some length. Learned counsel has argued that once the category of Computer Operator was a feeder cadre for promotion to the post of Deputy Superintendent then it is unjustified and unfair for respondent No.1 to exclude this category for promotion to the post of Superintendent. According to learned counsel, if experience of seven years can be increased to nine years for cadre of Assistant/ Accountant from 7 years to 9 years then for a computer operator CWP No. 14803 of 2011 -4- also similar conditions could be imposed. Learned counsel has emphasised that the avenues of promotion cannot be blocked completely for computer operator.

5. Having heard learned counsel for the petitioner, we are of the considered view that the action of the respondent does not suffer from any legal infirmity warranting interference of this Court. It is the case of the petitioner that he had earlier worked as Steno Typist from March 1993 to 16.08.1996 when his services were regularized. He Joined the Board on his transfer on 16.08.1996 (P-1, P-2 & P-3). He was promoted on 26.03.1997 as Computer Operator and has been working as such. It is true that a Computer Operator who have undertaken 1/3rd ministerial work with seven years' experience used to be eligible for promotion to the post of Deputy Superintendent. The cadre of Deputy Superintendent was diminishing cadre and eventually Regulations 7 and 9 read with appendix B were amended. The Board in its recommendation suggested to include the post of Computer Operator with nine years' experience for promotion to the post of Superintendent. However, those recommendations were not accepted by the respondent-State and the post of Computer Operator has been deleted as a feeder cadre. One of the reasons, which is apparent from the 2004 Regulations is that there are two posts of Computer Operator and the same are also declared to be the diminishing cadre, as is evident from appendix A, Item No. 22. Moreover, the amendments need the approval of the State Government under Sub Sections (3) and CWP No. 14803 of 2011 -5- (3-A) of Section 12 of the Water (Prevention and Control of Pollution) Act, 1974. Accordingly, we find no element of arbitrariness in deleting the cadre of the Computer Operator as feeder cadre for promotion to the post of Superintendent. There is no element of arbitrariness which may lead to an inference that the Articles 14 and 16(1) of the Constitution have been violated. The petitioner has already earned promotion from Steno typist. If the petitioner is stagnated in the cadre of computer operator then he is apparently entitled to Assured Career Progression Scheme (for brevity 'ACP Scheme'), which would ensure that he gets step up in his pay. In the wake of the aforesaid ACP Scheme available to the petitioner, the ratio of the judgment rendered in O.Z. Hussain v. Union of India ALR 1990 SC 310 and Council of Scientific and Industrial, Research and another v. K.G.S. Bhatt (1989) 4 SCC 635, would not be applicable to the facts of the present case. The writ petition is wholly without merit and does not warrant admission.

6. Accordingly, the instant petition fails and the same is dismissed.

(M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE August 17, 2011 Atul