Virender Kumar vs State of Haryana

Rajiv Narain Raina, J.—The Haryana Revenue (Group B) Service Rules, 1988 (for short "the Rules") as amended in 2007 prescribes inter alia revenue training as specified in Appendix ''E'' & ''H'' of the Rules for those Tahsildars and Naib Tahsildars who are appointed by direct recruitment. The syllabus of the departmental examination for Tahsildars and Naib Tahsildars is contained in Appendix ''F'' and ''I'' respectively appended to the rules. The petitioner is a Kanungo. He was promoted to the post on 11.01.2010. Appendix ''B'' of the Rules with reference to Rule 7 thereof prescribes the mode of recruitment to the post of Naib Tahsildar through direct recruitment or by promotion or by transfer. For filling up the post of Naib Tehsildar by promotion, the rule is as follows:-

The rules do not prescribe a departmental examination for promotee Kanungos. The rule prescribes a minimum five years experience as Kanungo for consideration for promotion to the post of Naib Tehsildar. The petitioner has yet not earned such experience. It is the case of the petitioner that the departmental examination is stated to be held from 25.11.2013 to 29.11.2013 and he should be permitted to sit for it to enable him to earn appointment/promotion as Naib Tahsildar.

Mr. Dadwal relies on the memo dated 11.08.1997, Mark ''B'' produced at the time of hearing which reads as follows:-

Subject: Regarding the departmental examination of Naib Tahsildars.

Reference: Your memo No. 5/Examination/97/5857 dated 25.7.1997.

On the aforesaid subject, your attention is drawn to the Department''s memo N0. 3597-E-4-97/3481, dated 25.3.1997 and it is informed that in the above examination apart from the permanent Kanungo, those kanungos, who have regular service of 5 years and more, are also to be allowed to sit in the examination.

The 1997 circular permits Kanungos who have behind them regular service of 5 years or more to appear in the examination, Mr. Dadwal further relies on a Note appended to letter dated 22.10.2013 (P-7) which reads as follows:-

Copy of the same is sending to all the Deputy Commissioners for information. To the instruction of Government permanent Kanungo or the temporary kanungos with regular service of 5 or more years are eligible to appear for the examination. So the eligible Kanungos and the names recommended by DRA kindly be pleased to send on the enclosed proforma before dated 15.11.13 to this. Directorate. At the end of the candidate list, it is also certified that all the candidates shown in the list are eligible to appear in the examination with the instructions issued by the Government.

Kindly the candidates be informed that the exam which are with the help of Books in those kindly bring the original books alongwith them.

He also relies on a decision of the learned Single Judge of this Court rendered in C.W.P. No. 9573 of 1994, Som Nath v. State of Haryana decided on 04.06.1999 to contend that a departmental test is necessary for promotees as well since such right is given on completion of regular 5 years of service on the lower post. A reading of the judgment discloses altogether different fact situation inasmuch as the petitioner Som Nath was serving in the revenue department and was appointed to service prior to reorganization of States i.e. prior to 01.11.1966 and for this reason this Court took the view that Section 82(6) of the Punjab Reorganisation Act, 1966 provides only for protection of service conditions as were available to the serving employees as on 01.11.1966. This right has been conferred and approved only on coming into force of the 1988 Rules and the same was not available to the petitioner therein immediately before the appointed day. In the main, it was held that the State Government can change the terms and conditions of promotion and Section 82(6) has no application to such case. The petitioner was appointed to service in 1984 and therefore will remain subject to the 1988 Rules and as further amended in 2007. The petitioner can derive no mileage from Som Nath case which is clearly distinguishable on facts.

What the petitioner intact intends is to fast track his promotion to the post of Naib Tahsildar through the route of departmental examination which is not prescribed for him under the Rules and is meant for direct recruits. For that matter, even for promotion he is not eligible since he does not have the required experience of five years service as yet. Consequently, reliance placed on the letters aforesaid is misdirected as they have no application in the context of statutory rules of service framed under proviso to Article 309 of the Constitution defining qualifications for direct recruitment and promotion or by transfer. In any case, even if it were, no instructions can be seen to supplant rules and disturb their harmony. The petitioner, therefore, cannot claim as a matter of right a consideration of his case to appear for the departmental examination which is prescribed only for direct recruit Naib Tahsildars and Tahsildars. There is apparently good reason for this because directly recruited Naib Tahsildars and Tahsildars may have no knowledge of the practical application of revenue law in the field which they can learn only through process of training and to be tested by a prescribed departmental revenue examination whereas the petitioner, a promotee Kanungo from the post of Patwari has learnt or ought to have; revenue law through the medium of Patwar School training and through experience gained while serving in the revenue department of the State in order to shoulder the duties and responsibilities of the higher post of Naib Tahsildar earned through promotion, a right conferred by operation of rules. No more. For the aforesaid reasons, there is no merit in this petition which fails and is dismissed in limine since in the view of this Court this is not a fit case for admission as no triable issue arises or for this Court to make any further probe in the matter or to call for a response from the State department on the limited issue raised and pressed at the preliminary hearing that a hybrid and extra legal procedure be allowed to be adopted and enforced by issuance of a mandamized certiorari.