Chander Prakash vs Government of Haryana and others

K. Kannan, J.

C.M. No. 2556 of 2012

Application is allowed, as prayed for. Reply filed on behalf of respondent No. 2 is taken on record.

Civil Writ Petition No. 14858 of 1998

The petitioner challenges the order reverting him from the post of Senior Accounts Officer to the Accounts Officer passed by the Board on purported directions given by the Commissioner-cum-Secretary to Government of Haryana stipulating the qualifications necessary for the post of Senior Accounts Officer. It is not denied that at the time when the petitioner was promoted from Senior Auditor to Accounts Officer and from Accounts Officer to Senior Accounts Officer respectively on 20.07.1990 and 16.02.1996, he had the qualification as approved by the Board. To specifically advert to the qualification which the Board had approved for the post of a Senior Accounts Officer, it was 3 years experience as Accounts Officer and the mode of recruitment to the Senior Accounts Officer post was by promotion. Admittedly, the petitioner had more than 5 years experience at the relevant time when he came by the promotion order on 16.02.1996.

The promotion, which was made, was sought to be annulled by a reference to a letter issued to the Chairman, Managing Directors of all the Corporations, Companies and Boards on 04.07.1997 that the Finance Department took a decision that all the ex-cadres of Accounts personnel existing in Companies/Corporations/Boards under the Haryana Government would be treated as SAS cadre posts and "next below rule" would not be applicable. This was followed up by yet another letter issued to the Director of Industries by the Commissioner on 02.02.1998 that the promotion granted to the petitioner and the completion of probation that was to take place would be against the spirit of instructions issued by the Finance Department on 20.11.1996. The Board itself was caught in a bind, as it were and it had communicated to the Commissioner and Secretary to Government on 18.05.1998 about how they had allowed for the appointment on the basis of the decision taken by the Board and a retrospective application of the instructions issued on 20.11.1996 would be unfair. This was rejected by the Commissioner on 11.09.1998 stating that the stand taken by the Board was untenable.

The above exchanges between the Board and the Government would only show that the Board was at some point of time prepared to uphold its own decision to prevail over the Government instructions to operate only in future but they felt fettered by the fact that the Government had stated that the instructions on the subject had been issued on 06.11.1980 itself and that was what was being reiterated by the letter dated 20.11.1996. If there was a policy decision on 06.11.1980 but that had not been given effect to by the Board, while it allowed for the creation of posts and qualifications without necessity of having to possess a SAS qualification, then the State could not have resurrected its own policy of the year 1980 to apply to the disadvantage of an employee. It must be noticed that even the qualification which was stipulated for a Senior Accounts Officer and issued on 14.09.1989 was after a specific approval from the Finance Department of the Government. It only showed that the Government itself was not applying its policy and had allowed the decision of the Board to prevail.

There is another issue as well of whether the Government would be in a position to render invalid a decision of the Board to the disadvantage of an employee after a decision was taken by the Board and had given effect to it. A Board established under law cannot be treated as a department of Government to secure the concurrence of the State on every occasion. The width of power of a State to give direction must be seen through the relevant provision of enactment that has constituted the Board. I have not been shown through any special power reserved to the State to tinker with day-to-day activities of the Board or annul a decision taken by the Board other than when in the perception of the State, the Board was being mismanaged and when the power existed under law to dissolve the Board. The very purpose of constituting of the Board will be lost if it must be treated as a department of the State. This Court has had an occasion to deal with the extent of power that a State can exercise over the administrative decision of an autonomous Board in Dharam Singh and others v. Punjab School Education Board, SAS Nagar, Mohali, District Ropar, Punjab, through its Secretary and others, in C.W.P. No. 16452 of 2008, decided on 01.02.2012. The Bench of this Court has held in Punjab School Education Board Employees'' Association, SAS Nagar, Mohali, District Ropar v. State of Punjab and others. in C.W.P. No. 11546 of 1993, decided on 09.02.2010 that a decision of a Board to give special allowance to its employees cannot be controlled by any decision to the contrary by the Government. This decision in turn relied on a Division Bench ruling in Paramjit Kaur and others v. State of Punjab and others, in C.W.P. No. 11983 of 2001 which recognized the power of the Electricity Board to mind its affairs as regards the conditions of service without in any way being impeded by the directives of the State Government in its administrative functioning. I would hold, therefore that the impugned decision cannot stand judicial scrutiny for more than one reason, that even apart from the fact that a Board decision could not be invalidated by State instructions, it could not have been done also to the disadvantage of an employee after a promotion had been given on the basis of the educational qualification laid down by the Board. This educational qualification itself was stipulated and the promotion given with the approval from the State on 14.09.1989 and it was not competent for the State to issue instructions in violation of the sanction which had been given.

After the impugned order was passed, it appears from the record that the petitioner had approached this Court through the above writ petition and this Court had granted an interim stay against the operation of the impugned order. Consequently, the petitioner has continued in the promotion post and it appears that he has also retired. Even apart from the rejection of the respondents'' proceedings for the reasons enumerated above, it would also be in exigent to allow for a reversion if it were to be even contended that the decision taken by the respondent could be supported by any reason. The petitioner has officiated in the higher post through the Court''s intervention and he has also retired in the promotion post.

The petitioner also claims that he was not paid the scales applicable for the Senior Accounts Officer post from 16.02.1986 till 30.04.2006. The entitlement of the petitioner would be reworked and on such a reckoning, the petitioner would also be entitled to the terminal benefits. If there are any arrears towards any of the retiral dues, the same shall also be calculated and paid within a period of 8 weeks with interest at 6% per annum. The writ petition is allowed on the above terms.