NARENDER KUMAR MALIK Vs. STATE OF HARYANA

JUDGEMENT

(1.) CHALLENGE in the present writ petition is to the order dated 13.01.2012 (Annexure P -10), whereby the petitioner has been reverted from the post of Assistant Excise & Taxation Officer to the post of Excise Inspector. Brief facts of the case are that the petitioner while serving on the post of Excise Inspector under the Department of Excise & Taxation, State of Haryana was promoted as Assistant Excise & Taxation Officer on adhoc basis vide order dated 20.12.2005. Such promotion of the petitioner on the higher post was regularised on 31.08.2009 but w.e.f. 20.12.2005. It has been pleaded that in the light of the statutory provisions i.e. The Haryana Excise and Taxation (Group -B) Service Rules, 1988 (hereinafter to be referred as the '1988 Rules'), it was incumbent upon every member of the service to pass a departmental examination within a period of three years. In terms of Rule 16(3) of the 1988 Rules, it is further stipulated that if any member, unless exempted, fails to pass the departmental examination within the prescribed period he shall be liable to be removed from service or reverted to his former appointment, as the case may be. It is the case of the petitioner himself that in the year 2006, he appeared twice in the departmental examination but he could not pass the same. Thereafter on account of health reasons, he could not appear in the examination. Thereafter, petitioner yet again appeared in the departmental examination held in June, 2010, wherein he passed two out of the six papers. It is further asserted that thereafter the petitioner has not even been permitted to appear in the examination by the respondent/department. A pointed reference has been made to a decision taken at the hands of the Chief Minister on 13.10.2010, wherein it had been decided that in case of such members of service, who already stand promoted but have not yet passed the departmental examination, they are not to be reverted back to their original post. Appended along with the petition, are orders at Annexures P -4 to P -7 to contend that a number of officials similarly situated both senior and junior to the petitioner have been granted exemption from qualifying the departmental examination.

(2.) THE petitioner was served with a show cause notice dated 26.07.2011 (Annexure P -8) calling upon him to submit a reply within a period of 15 days' as to why he be not reverted from the post of Assistant Excise & Taxation Officer on the ground that he has not cleared the departmental examination as per conditions laid down in Rule 16(1) of the 1988 Rules. The petitioner is stated to have submitted a detailed reply dated 08.08.2011 (Annexure P -9) to the show cause notice. However, in terms of passing of impugned order dated 13.01.2012 (Annexure P -10), the petitioner stands reverted from the post of Assistant Excise & Taxation Officer to the post of Excise Inspector. It is against the aforenoticed factual backdrop that the present writ petition has been filed.

(3.) PER contra, learned counsel appearing for the State would refer to the written statement filed on behalf of the respondents to contend that as per Rule 16 of the 1988 Rules, every member of the service is obligated to pass the departmental examination within three years of his appointment and still further, in terms of Rule 16 (3) any member of the service upon failing to pass the departmental examination within the prescribed period, would be liable to be reverted to his former post. As such, the stand of the State Government is that the impugned order of reversion dated 13.01.2012 has been passed strictly in the light of the statutory rules. Reliance has also been placed upon the notification dated 25.02.2010 (Annexure R -1), whereby in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Haryana Excise & Taxation Department (Group 'B') Service Rules, 1988 were amended and sub Rule 2 to Rule 16 was omitted. In terms of such notification, even the words "unless exempted" were omitted from sub Rule 3 of Rule 16. Accordingly, it is contended on behalf of the State that the power of exemption that vested with the State Government under Rule 16(2) to exempt any member of the service from passing the whole or any part of the departmental examination had been done away with. Accordingly, it is argued that the petitioner can not claim any exemption from qualifying the departmental examination and in the light of fact that the petitioner had not factually qualified the departmental examination, the impugned reversion order had been passed in the light of Rule 16(3). Learned State counsel has argued that even otherwise relaxation as regards qualifying the departmental examination would be in the nature of a concession and not a right. A submission has been raised that even if exemptions had been granted in favour of certain members of the service, still a wrong order would not vest any right in the petitioner to claim exemption and as such to claim parity of treatment.