Rajasthan High Court - Jaipur
G S Saxena vs State Of Raj & Ors on 30 August, 2016
1
THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR
ORDER
S.B. Civil Writ Petition No. 2965/2002
G.S. Saxena Vs. State of Raj. & Ors.
Date of Order :::: 30th August, 2016
PRESENT
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Mr. Sanjeep Prakash Sharma, Sr. Advocate with
Mr. Abhinav Kasliwal, for the petitioner.
Ms. Sonal Singh, for the respondents.
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BY THE COURT:
The Selection Committee, on a consideration of the case of the petitioner for promotion to the post of Joint Director (Personnel)/Director (Personnel), in compliance of the order made by this Court, declined the claim of the petitioner for promotion on 30 th June, 2001. The decision of the Selection Committee was communicated to the petitioner vide communication dated 24th July, 2001 (Annexure-11); of which the petitioner is aggreived of, and therefore, has instituted the present writ application, praying for the following relief(s):
"It is, therefore, prayed that the Hon'ble Court may call for the entire record conserning the case including the proceedings of DPC & record of DPC prior to passing of order dt. 24.7.2001 and also examine the facts stated in earlier writ petition No.3253/1999 and after considerig the orders passed by the Hon'ble Court in the earlier writ petition, review petition and in contempt petition which have already been placed on record, by issuing writ, order or direction;
(i) quash the order dated 24.7.2001 and further declare the petitioner entitled to be granted 2 further promotion on the post of Joint Director and Director of Personnel from the date the respondent No.4 was so promoted and grant the petitioner all consequential benefits including monetary benefits from the said date and accordingly revise the petitioner's pension and retiral benefits;
(ii) further grant the petitioner compensation for harassment caused to the petitioner by awarding a sum of at least Rs.2 lacs;
(iii) any other order or direction as may be deemed fit and proper in the facts and circumstances of the present case may also be passed in favour of humble petitioner.
(iv) cost of this writ petition may also be awarded in favour of humble petitioner."
2. Shorn off unnecessary details, the essential skeletal materials facts necessary for consideration of the squabble are that the petitioner entered the service of earstwhile Rajasthan State Electricity Board (RSEB) in the year 1962. He was appointed to the post of Assistant Personnel Officer in the year 1973, followed by his appointment as Personnel Officer on 1st January, 1976. In the final seniority list of Personnel Officers as on 1st January, 1985, issued vide order dated 19 th June, 1985, the name of the petitioner was indicated at serial No. 6 and that of respondent No. 4-Shri G.R.Sharma (Shri Ganga Ram Sharma), found place at serial No. 10. It is pleaded case of the petitioner that he was served with a charge sheet under Rule 6 of the Employees (CCA), Regulations, 1962 (for minor penalty) (for short, `Regulations of 1962').
3. On 25th September, 1993, on a consideration of reply and personal hearing; the Disciplinary Authority recorded on 3 the order sheet that no case was made out but this fact was not conveyed to him. On 4th October, 1993, fresh enquiry proceedings were initiated under Regulation 7 of 1962, and a charge sheet was issued afresh on 18 th October, 1993. Shri R. N. Puri was appointed as Presenting Officer on 2 nd December, 1993. Respondent No. 4-Shri G.R. Sharma was appointed as Presenting Officer in place of Shri. R. N. Puri on 29th January, 1994.
4. According to the petitioner, it was respondent No. 4, who did not allow the enquiry proceedings to conclude, rather he ensured that the proceedings were continued for that improved chances of his promotion over the petitioner. The apprehension of the petitioner turned out to be true on 31 st August, 1994, while respondent No. 4-Shri G. R. Sharma, was promoted as Deputy Director while the case of the petitioner was kept in sealed cover owing to pending enquiry. Respondent No. 4, untill 14 th February, 1995, did not present the list of documents. On 8 th December, 1996, the respondent No. 4 got replaced himself as Presenting Officer by Shri B. L. Vashishtha, a much junior employee to the petitioner, who was acted as Presenting Officer.
5. Learned Senior counsel for the petitioner, Mr. Sanjeev Prakash Sharma, reiterating the pleaded facts and grounds of the writ application, vehemently argued that it was none-else but the respondent No. 4 (Shri G. R. Sharma), who was instrumental in delaying in continuing the enquiry proceedings 4 to improve his chances of promotion over the petitioner. The apprehension turned out to be true on 31 st August, 1994, when respondent No. 4 was promoted as Deputy Director while the case of the petitioner was kept in sealed cover in view of the pending enquiry. Further, respondent No. 4 was again promoted, though on ad-hoc basis, as Joint Director (Personnel) on 17 th June, 1997, despite the fact that he did not possess the required experience of 4 years of working as Deputy Director. The story did not end there for the respondent No. 4 was again accorded promotion to the post of Director (Personnel), on ad-hoc basis, on 28 th April, 1998, despite he was not in possession of 4 years experience as Joint Director. These facts are sought to be substantiated by the orders of promotion placed on record as Annexure-9 and Annexure-10.
6. Be that as it may, the enquiry proceedings which were initiated in the year 1993, for an alleged incident of the year 1980; were concluded on 13 th August, 1998. In January, 1999, the Enquiry Officer submitted his report to the Disciplinary Authority. Though, the petitioner was exonerated but the result of the enquiry was withheld so that his case of promotion, which was kept in sealed cover, may not be opened. On 28 th May, 1999, a fresh charge sheet was drafted against the petitioner relating to an alleged incident of 1977, i.e 22 years old. However, the matter was decided by the Disciplinary Authority after hearing the petitioner. 5
7. It was in the back drop of the aforesaid facts, the petitioner was compelled to institute S. B. Civil Writ Petition No. 3253/1999, with a prayer to quash the departmental proceedings and for a direction to the respondents for grant of all consequential benefits. Response to the writ application was filed by the respondent No. 1 and 2 on 28 th April, 2000.
8. Commissioner Enquiries-I called upon the petitioner to appear again with all relevant documents and witnesses relating to enquiry on 22 nd September, 2000, despite of the fact that the enquiry stood concluded in view of the letters/communications of the Secretary dated 20 th September, 2000, wherein the Commissioner Enquiries was called upon to comment on the enquiry report. The Commissioner Enquiries-I on 6 th December, 2000, held the petitioner 'not gulity' of any of the charges and affirmed the findings arrived at by the Commissioner Enquiries-II/Shri P. C. Bhagat, a retired District & Sessions Judge.
9. The Writ Application No. 3253/1999, instituted by the petitioner, was disposed off by this Court on 18 th December, 2000, with a direction to the respondents to complete entire formalities relating to declaration of the result of the enquiry and opening of the sealed cover etc. before 27 th December, 2000, and to accord consequential benefits, if any, to the petitioner promptly, preferably prior to the date of his superannuation i.e. 31st December, 2000. 6
10. Thus, according to the learned counsel, it was at the intervention of this Court, the order was issued by the Secretary (Administration), exonerating the petitioner of the charges levelled against him on 26 th December, 2000. The petitioner requested the Chairman-Cum-Managing Director (CMD), to accord him all consequential benefits of promotion. On 1st January, 2001, after retirement, the petitioner was accorded the benefit of promotion to the post of Deputy Director (Personnel) from the post of Perosnnel Officer against the vacancy of the year 1994.
11. However, the petitioner specifically indicated that for respondent No. 4-Shri G.R. Sharma, was promoted with effect from 1st March, 1994, and therefore, he must be accorded promotion from the said date as DPC for the year 1993-1994, accorded him promotion to the post of Deputy Director (Personnel). According to learned counsel, the petitioner was entitled to further promotion from the date his junior i.e. respondent No. 4-Shri G.R. Sharma, was accorded promotion in the year 1997, and thereafter to the post of Director (Personnel), with effect from April, 1998. Thus, the petitioner ought to have been accorded the benefits of promotion and he ought to be deemed to have retired from the post of Director (Personnel), with all consequential benefits.
12. Referring to order dated 30 th August, 2001, made on review application (S. B. Civil Review Petition No. 21/2001), 7 learned counsel would submit that as a consequence of the exoneration of the petitioner, entitlement to consequential benefits, was a natural consequence and there was no necessity of any direction by the Court as the matter was left open for decision by the Court dealing with the contempt matters. Therefore, the learned counsel asserted that depriving the petitioner of consequential benefits, as a consequence of his exoneration in the long drawn departmental enquiry proceedings, has resulted into gross injustice to the petitioner. Though, the contempt proceedings initiated were dropped for there was no delibrate disobedience. However, liberty was reserved to the petitioner to approach the appropriate forum for redressal of the grievance with reference to the promotion on the futher post from the day and date on which he claimed to have been entitled for promotion, as reflected from the order dated 13 th December, 2001.
13. Learned counsel for the petitioner has assailed the legality, validity and correctness of the action of the respondents in declining promotion to the petitioner by the Selection Committee vide communication dated 24 th July, 2001, firstly, for non consideration of the case of the petitioner for promotion in accordance with the Officers Service (Recruitment, Promotion and Seniority) Regulations, 1974 (for short, `Regulations of 1974'). Secondly, for the petitioner has been declined fair and proper consideration for 8 promotion to the post of Joint Director (Personnel) and Director (Personnel) for malice in law and fact as would be evident from the factual matrix specifically with reference to respondent No. 4, who has been impleaded as a party respondent eo-nominee, to the writ proceedings. And thirdly, though the petitioner is eligible for promotion as per criteria of the Regulations of 1974, yet he has been declined consideration. Thus, the impugned action is contrary to the materials available on record. In support of his submissons, reliance is placed on the opinion of the Supreme Court in the case of Union of India Vs. K.V. Jankiraman: (1991)4 SCC 109, Bhupinder Singh Vs. State of Raj.: 1996(3) WLC 177, Delhi Jal Board Vs. Mahinder Singh: (2000) 7 SCC 210, Badri Nath Vs. Govt. Of Tamil Nadu: (2000) 8 SCC 395, R.P. Bhardwaj Vs. Union of India: (2005) 10 SCC 244, Dev Dutt Vs. Union of India: (2008) 8 SCC 725, Abhijeet Ghosh Dastidar Vs. Union of India: (2009) 16 SCC 146, Union of India Vs. Hemraj Singh Chauhan: (2010) 4 SCC 290, Daljit Singh Grewal Vs. State of Punjab: (2015) 9 SCC 680, Chhaya Bhatnagar Vs. Union of India: 2015 (2) WLC(Raj) 216, Vimal Kumar Jain Vs. State of Rajasthan:
S.B. Civil Writ Petition No. 7215/2010, decided on 22 nd May, 2015; and Shankar Lal Soni Vs. State of Rajasthan: S.B. Civil Writ Petition No. 20234/2013, decided on 3 rd November, 2015.
14. In response to the notice of the writ application, the 9 respondents have filed their counter affidavit while supporting the action in declining promotion to the petitioner for he was not found suitable and the decision of the Selection Committee which met on 30 th June, 2001. And the decision was conveyed to the petitioner vide letter/communication dated 24th July, 2001.
15. Ms. Sonal Singh, learned counsel appearing for respondents, reiterating the stand in the counter affidavit, while supporting the action of the respondents, in declining promotion to the petitioner, vehemently urged that the petitioner was accorded the benefit of promotion to the post of Deputy Director (Personnel), with effect from 1 st March, 1994, as a consequence of his exoneration.
16. According to learned counsel, the matter of promotion of the petitioner to the post of Joint Director (Personnel)/Director (Personnel) was considered by the Selection Committee which met on 30 th June, 2001, but did not find the petitioner suitable for further promotion for he did not gain the requisite experience of 4 years working on the post of Dupty Director (Personnel). According to the learned counsel for the respondents, the requirement of necessary experience on the post of Deputy Director (Personnel) of 4 years, is a condition precedent for promotion to the post of Joint Director (Personnel)/Director (Personnel), as contemplated under the Regulations of 1974.
17. Learned counsel would further submit that even 10 repondent No.4-Shri G.R. Sharma, was not in possession of the required experience of 4 years of service as Deputy Director (Personnel), and therefore, he was accorded promotion by virtue of Regulation 26, which contemplates 'Temporary or Officiating Appointment; to fill a vacancy in the posts temporarily by appointing thereto an employee in an officiating capacity by relaxing the condition of minimum experience required for promotion /appointments to the higher post subject to such conditions and restirctions regarding pay and other allowances as may be directed.
18. It is further asserted that taking into consideration the merit of respondent No.4, he was accorded ad-hoc promotion to the post of Joint Director (Personnel)/Director (Personnel), without prejudice to anybody's claim on the ground of seniority, as would be evident from the orders dated 17 th June, 1997 (Annexure-9) and 28th April, 1998 (Annexure-10).
19. Referring to the Scheme of Regulations of 1974, learned counsel emphasized that the post of Director (Personnel), is a selection post, for the regular incumbent retired in the year 1995, therefore, in the exigency of administration, temporary/ad-hoc promotion, was accorded to respondent No.4, in exercise of powers under Regulation 26 of the Regulations of 1974. It is further contended that for the purpose of promotion, the criteria as contemplated is 5 'outstanding' or 'very good' ACRs, out of 7, prior to the year the employee is considered for promotion. 11
20. Referring to the ACRs of the petitioner since year 1990- 1991 to 1995-1996, it is asserted that the petitioner failed to meet the criteria of 5 'outstanding' or 'very good' out of 7 of the pervious years; and therefore, the action of the respondents cannot be faulted in declining the promotion to the petitioner for he was not found fit by the Selection Committee. Learned counsel made a statement that ACR of the petitioner for the year 1995-1996, is not available. Moreover, for the petitioner did not initiate filling of his APAR, therefore, he cannot blame the respondents for his own wrong.
21. It is pointed out that the Annual Performance Appraisal Reports are to be written every year and the initiation is to be made by the employee himself by submitting the Part-I, which is to be filled by the Officer to be reported upon. Part- II, is the assessment made by the Reporting Officer, and Part-III, contemplates remarks by the Reviewing Officer and Part-IV, indicates the remarkes by the Countersigning Officer whereas Part-V, indicates the remarks by the Final Acceptance Authority.
22. For the petitioner did not complete the period of 4 years working as Deputy Director (Personnel), therefore, his claim for further promotion to the post of Joint Director(Personnel)/Director (Personnel), is absolutely misconceived. The petitioner sufferred enquiry proceedings since year 1993, untill year 2000, and was accorded 12 promotion to the post of Deputy Director (Personnel), after his retirement in view of the sealed cover opened. Hence, the claim of the petitioner cannot be sustained on that count as well. In support of her submissions, reliance is placed on the opinion of the Supreme Court in the case of Orissa Small Industries Corpn. Ltd. and Another Vs. Narasingha Charan Mohanty and Others: 1999 (1) SCC 465.
23. I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my earnest consideration to the rival submissions at Bar.
24. Indisputably, the petitioner was senior to respondent No. 4-Shri G.R. Sharma, whose name finds place at serial No. 10 in seniority list whereas the petitioner was placed at serial No.6. It is also not in dispute that the petitioner was served with a charge sheet on 29 th March, 1993, under Section 6 of the Regulations of 1962, for the minor penalty. However, fresh enquiry proceedings were initiated under Regulation 7 of Regulations of 1962, for major penalty on 4 th October, 1993, and a charge sheet was issued on 18 th October, 1993. Shri R. N. Puri, who was appointed as Presenting Officer on 2nd December, 1993, was replaced by respondent No.4-Shri G. R. Sharma on 29th January, 1994. While respondent No.4- Shri G.R. Sharma, was accorded promotion on 31 st August, 1994; the case of the petitioner was kept in sealed cover owing to pendency of the enquiry. It is also not in dispute 13 that respondent No.4-Shri G. R. Sharma was replaced by Shri B.L. Vashishtha, a junior to the petitioner, as Presenting Officer, in the year 1996. Respondent No.4 was accorded further promotion to the post of Joint Director (Personnel), though on ad-hoc basis. He was further promoted to the post of Director (Personnel), again on ad-hoc basis according relaxation in view of the Regulation 26 of Regulations of 1974. From the sequence of facts and events it is also reflected that despite conclusion of the enquiry proceedings, the matter was kept pending, and therefore, the petitioner instituted S.B. Civil Writ Petition No. 3253/1999, which was disposed off vide order dated 18th December, 2000. At this juncture, it will be useful to consider the text of order dated 18th December, 2000, which reads thus:
"S.B. Civil Writ Petition No.3253/1999 (B.S. Saxena vs. R.S.E.B. & Ors.) HON'BLE MR. JUSTICE V.S. KOKJE 18.12.2000 Shri Bajrang Lal Sharma, Sr. Advocate wtih Shri S.P. Sharma, for the petitioner. Shri Manish Bhandari, for the respondent No.1 & 2. Shri Virendra Lodha, for the respondent No.3.
The grievance of the petitioner is that though he has been exonerated from the inquiry going against him, a sealed cover in which the result of his selection for promotion has been kept, is not being opened. The petitioner is anxious to get the matter decided before 31.12.2000 as that is the day on which he shall retire on superannuation.Learned counsel for the respondent No.1 & 2
submitted that inquiry report has been received and the matter is being finalised. The sealed cover shall be opened pending on the outcome of the inquiry and consequential orders, if any, shall be passed promptly.14
Having heard the learned counsel, I am of the view that this petition can be disposed of by making a time bound direction. It is, therefore, directed that the entire formalities relating to the declaration of the result of the inquiry and opening of the sealed cover etc. shall be completed before 27th December, 2000 and the consequential benefits if any, shall be granted to the petitioner promptly, preferably prior to the date of his superannuation i.e. 31 st December, 2000.
The petition is disposed of with the said directions."
25. A glance of the order would clearly reflect that this Court directed the respondents to complete entire formalities with reference to the result of the enquiry and open the sealed cover on or before 27 th December, 2000, and to accord consequential benefits, if any, to the petitioner for he was to retire attaining the age of superannuation on 31 st December, 2000. The order dated 26th December, 2000, was made in compliance of the directions issued by this Court on 18 th December, 2000, whereby the petitioner was exonerated of the charges levelled against him with reference to an incident of 1980.
26. The order dated 26th December, 2000, exonerating the petitioner of the charges, would reveal that the Commissioner Enquiry-II, submitted the Inquiry Report on 11 th February, 1999, holding that charge No.1 along with allegations levelled against the petitioner, was not proved. However, in view of the Presenting Officer's objections, the disciplinary authority remanded the case for further enquiry to Shri P.K.B. Kurup, Commissioner Inquiry-I on 22 nd March, 2000. Shri P.K.B. 15 Kurup, returned a finding of not guilty and ultimately the disciplinary authority made the order on 26 th December, 2000, in compliance of the directions issued by this Court on 18th December, 2000, for the petitioner was to retire after attaining the age of superannuation on 31 st December, 2000.
27. Regulations of 1974 under regulation 2 (h) of the definition Clause defines "Selection Committee" which reads thus:
"(h) "Selection Committee" means a Selection Committee consisting of following members constituted for the purpose of selection of suitable persons for appointment by Direct Recruitment/Promotion/Selection, as the case may be, to the vacancies/posts as mentioned in the schedule."
28. The Constitution of Committee for Head of Department e.g. Financial Adviser and Controller of Accounts, Director (IA), has been detailed out under Clause (A) along with for all other posts under Clause (B), which reads thus:
"(A) For Head of Department e.g. Financial Adviser and Controller of Accounts, Director (IA)
1.Chairman, RSEB Chairman
2.Accounts Member, RSEB Member
3.Power Commissioner Member (B) For all other posts
1. Chairman,RSEB Chairman
2. Accounts Member, RSEB Member
3. Secretary, RSEB Member"
29. Part-III of the Regulations of 1974, provides for "Recruitment" and Regulation 6 contemplates, Method of Recruitment, which reads thus:
16
"6. Method of Recruitment:
Recruitment to the posts mentioned in the Schedule shall, after the commencement of these Regulations, be made by the following method in the proportion indicated in column 3 of the Schedule:-
(a) by direct recruitment in accordance with Part-
IV of these Regulation, and
(b) by promotion in accordance with Part-V of these Regulations, provided (1) That if the Board is satisfied, on the recommendations of the Selection Committee, that suitable person are not available for appointment by either method of recruitment in a particular year, appointment by the other method in relaxation of the prescribed proportion, may be made in the same manner as specified in these Regulations.
(c) If the Board considers expedient in the interest of its function to fill any of the post or posts specified in the schedule, by obtaining on deputation any employee of the Central or State Government or of any public or private undertakings, appointments to the said post or posts may be made of such persons obtained on deputation."
30. Under Regulation 9, Determination of Vacancies, is contemplated, which reads thus:
9.Determination of Vacancies:
(1) Subject to the provisions of these Regulations, the Appointing Authority shall determine preferably at the commencement of each calender year the number of vacancies anticipated during the year and the number of persons likely to be recruited by each method.
(2) Such vacancies as remain unfilled due to non-availability of suitable candidates or otherwise shall be carried forward to the succeding year and if not filled in shall lapse at the end of succeeding year."17
31. Calender year has now been amended by phrase "Financial Year" in the Regulations of 1974. 'Procedure for Direct Recruitment' is provided under Part-IV. Procedure for promotion to Junior, Senior and Other posts encadred in the Service, is contemplated under Regulation 24, which reads thus:
"24. Procedure for promotion to Junior, Senior and Other posts encadred in the Services.
1. Selection for promotion to posts in the Service which are to be filled by selection as per schedule shall be made strictly on the basis of merit.
2. The persons having been selected and appointed by promotion to a post or category of posts on the basis of merit, shall be eligble for promotion to the next higher post or category of posts which is to be filled in by merit, only when they have put in after regular selection, at least 5 year's service unless a higher period of service be prescribed elsewhere in these regulations, on the first day of the month of April of the year of selection on the post or category of post from which selection is to be made.
Provided that the condition of 5 year's service shall not be applicable to a person if any person junior to him is eligible for consideration for promotion on the basis of merit.
Provided further that in the event of non- availability of persons, equal to the number of vacancies to be filled in eligible for promotion in the category of posts next lower from which promotion is made the committee may consider the persons having less than 5 years service if they are found otherwise eligible and suitable for promotion on the basis of merit alone.
3. The zone of consideration of persons eligible for promotion in the Service shall be as under:-
i) Number of vacancies No. of eligible persons to be considered
(a) For one vacancy Five eligible persons.
(b) For two vacancies Eight eligible persons.
(c) For three vacancies Ten eligible persons
(d) For four or more Three times the number of vacancies.
ii) Where the number of eligible persons for promotion to higher post is less than the number 18 specified above, all the persons so eligible shall be considered.
iii) Where adequate number of candidates belonging to the SC/St, as the case may be, are not available within the zone of consideration specified above, the zone of consideration may be extended to five times the number of vacancies and the candidates belonging to the SCs or the STs, as the case may be, (and not any other) coming within the extended zone of consideration shall also be considered against the vacancies reserved for them.
iv) for the highest post in the service :
a) If promotion is from one category of psot, eligible persons upto five in number shall be considered for promotion.
b) If promotion is from different categories of posts in the same pay scales, eligible persons upto two in number from each category of posts in the same pay scales shall be considered for promotion.
c) If promotion is from different categories of posts carrying different pay scales, eligible persons in the higher pay scale shall be considered for promotion first and if no suitable person is available for promotion on the basis of merit in the higher pay scale, then only the eligible persons of other categories of posts in lower pay scales shall be considered for promotion and so on and so forth. The zone of consideration for eligibility in this case shall be limited to five senior most eligible persons in all.
Note: The zone of consideration of person eligible for promotion in the service shall also apply in case of appointments to be made on the basis of seniority - cum - merit and on adhoc or urgent temporary basis.
4. Except as otherwise expressely provided in these regulations, the conditions of eligibility for promotion, constituion of the committee and procedure for selection shall be the same as prescribed elsewhere in these regulations.
5. The Committee shall consider the cases of all the senior most persons who are eligible and 19 qualified for promotion to the class of posts concerned under these Regulations, interviewing such of them as it amy deem necessary and shall prepare a list containing names of the suitable persons equal to the number of existing vacancies and the vacancies anticipated to occur during the next 12 months after the determination of vacancies. The committee shall also prepare a separate list containing names of persons, who may be considered suitable to fill temporary or permanent vacancies, which may occur till the next meeting of the Committee on a temporary or officiating basis and the list so prepared shall be reviewed and revised every year and shall remain inforce untill it is reviewed and revised. The lists so prepared on the basis of merit shall be arranged in the order of seniority on the category of posts from which selection is made such lists shall be placed before the Board together with confidential rolls and personal files of all the condidates included in them as also of those not selected, if any.
EXPLANATION: For the purpose of selection for promotion on the basis of merit, no person shall be selected, if he does not have 'outstanding' or 'very good' record in atleast 5 (five) out of the 7 (seven) years preceding the year for which the meeting of committee is held.
6. The Board shall consider the lists prepared by the Committee alongwith other relevant documents received from Selection Committee and unless any change is considered necessary, shall approve the lists.
7. Appointments shall be made by the Chairman taking persons out of the lists finally approved under the preceding sub regulation (6) in the order in which they have been placed in the lists till such lists are exhausted or reviewed and revised, as the case may be. The provisions of this regulation shall have effect notwithstanding anything to the contrary contained in any provision of these regulations."
32. Appointment, Promotion, Confirmation and Seniority is to be determined as per provisions of Part-VI of the Regulations of 1974. Regulation 25 contemplates procedure 20 for Appointment by Direct Recruitment and Regulation 26 provides procedure for 'Temporary or Officiating Appointment', which reads thus:
"26. Temporary or Officiating Appointment:
(1) Notwithstanding anything contained in Regulation 25, the Chairman may fill a vacancy in the posts mentioned in the schedule appended to these regulations temporarily be appointing thereto in an officiating capacity any person eligible for such appointment by promotion under these regulations for a period not exceeding one year. A report of such appointment shall be made to the Board.
(2) the event of non-availability of suitable persons, fulfilling the requirements of eligibility for promotion, the Wholetime Members may notwithstanding the condition of eligibility for promotion required unde sub-regulation (1) above, fill the vacancies in the exigencies of work, by relaxing the condition of minimum experience required for promotion/appointments to the higher post subject to such conditions and restirctions regarding pay and other allowances an may be directed.
(3) In making all such appointments due regard shall be kept of the seniority of the officer to be so appointed. In special circumstances, appointments can also be made without prejudice to the seniority of others."
33. Under the Schedule appended to the Regulations of 1974, the post of Joint Director (Personnel), is to be filled up on the criteria of Merit-Cum-Seniority from amongst the eligible candidates working as Deputy Director (Personnel) with 4 years service and the Appointing Authority is 'Board'. For the post of Director of Personnel, the method of Recruitment is promotion/selection from amongst the eligible candidates (a) Joint Director (Personnel), (b) Dy. Director (Personnel) with a minimum service of 5 years as Deputy 21 Director (Personnel) and the Appointing Authority is indicated as 'Board'.
34. Vide order dated 1st January, 2001, issued in compliance of the order dated 18 th December, 2000, made on S.B. Civil Writ Petition No. 3253/1999, instituted by the petitioner; the petitioner was accorded promotion after his retirement to the post of Dy. Director (Personnel) from the post of Personnel Officer against the vacancy of year 1994. Therefore, the petitioner became eligible for consideration for the psot of Joint Director (Personnel) in the year 1998. The fact that there was a vacancy available is not in dispute in view of the fact that respondent No.4-Shri G.R. Sharma was accorded promotion on ad-hoc/temporary in an officiating capacity for a period of one year or till the candidate selected by the Board on the recommendations of the Selection Committee became available, whichever is earlier; as is reflected from the order dated 17th June, 1997 (Annexure-9).
35. In the year 1998, respondent No.4-Shri G.R. Sharma was again promoted by virtue of Regulation 26 to the post of Director (Personnel), purely on ad-hoc/temporary in an officiating capacity for a period of one year or till the candidate selected by the Board on the recommendations of the Selection Committee became available, whichever is earlier; as reflected from the order dated 28 th April, 1998 (Annexure-10).
36. The claim of the petitioner for consideration for 22 promotion to the post of Joint Director (Personnel), has been declined for he did not fulfill the condition of 4 years service as Dy. Director (Personnel), as contemplated under the Regulations of 1974 for he was accorded promotion after his retirement on 1st January, 2001, in view of his exoneration from the charges vide order dated 26 th December, 2000, and he retired attaining the age of superannuation on 31 st December, 2000. Similarly, he has been found unfit for promotion to the post of Director (Personnel).
37. A glance of the minutes of the meeting of the Selection Committee would reveal that the case of the petitioner for consideration for promotion to the post of Joint Director (Personnel) and Director (Personnel), has been declined for he did not fulfill the requirement of 4 years experiance as Dy. Director (Personnel) as contemplated under Regulations of 1974. The original record of the minutes of the meeting was produced for perusal of the Court. From the minutes of the meeting of the Selection Committee, it is reflected that the Committee, at the very outset, relied upon the opinion of the Supreme Court in the case of Narasingha Charan Mohanty (supra). Further, taking note of the fact that promotion to the post of Joint Director (Personnel) and Director of Personnel, were purely adhoc and on temporary basis and no DPC was convened and the earstwhile RSEB unbundled into five State owned Companies and the petitioner challenged the promotion of Shri G.R. Sharma who after unbundling became 23 an employee of Jaipur Discom; but the High Court did not pass any orders in this regard although the issue was strongly raised, therefore, presuming its denial so also keeping in view the opinion of the counsel for the answering respondents, adjudged the petitioner as "not found suitable" for further promotion to the post of JDP/DOP. For the petitioner had not gained requisite experience of four years working on the post of Dy. Director Personnel since the promotion accorded to the Dy. Director Personnel was a notional promotion with retrospective effect. Hence, the petitioner has been declined further promotion on the post of Joint Director (Personnel)/Director (Personnel).
38. In the case of Narasingha Charan Mohanty (supra), the Supreme Court examined the controversy in the backdrop of Rule 24 of the Employees Service Rules, 1979, which contemplated for promotion to the post of Manager being merit and suitability but the employee therein (Narasingha Charan Mohanty) was promoted to the post of Joint Manager with effect from 1987 in view of the earlier judgment of the High Court but the Committee was of the view that he did not have sufficient experiance on the post of Joint Manager so as to be promoted to the post of Manager. The Supreme Court repelled the arguments of deemed experiance gained even if one had not actually served as Joint Manager.
39. In the instant case at hand, the Regulations of 1974, contemplate four years service as Deputy Director 24 (Personnel) and not experiance. Moreover, once the petitioner was accorded promotion to the post of Dy. Director (Personnel), on the criteria of selection as is evident from the promotion accorded to the petitioner, which was kept in sealed cover owing to pendency of enquiry proceedings; he ought to have been considered for further promotion to the post of Joint Director (Personnel)/Director (Personnel).
40. It is an admitted case that respondent No.4-Shri G.R. Sharma, who was accorded promotion to the post of Joint Director (Personnel), vide orders dated 17 th June, 1997 (Annexure-9) and 28 th April, 1998 (Annexure-10), did not fulfull the requirement of four years service as Deputy Director (Personnel), and therefore, promotion was made on adhoc/temporary basis invoking Regulation 26 without prejudice to anybody's claim on the ground of seniority. The petitioner was admittedly senior to respondent No.4-Shri G.R. Sharma, therefore, declining consideration of the case of the petitioner in the factual matrix and attendant facts and circumstances of the case at hand cannot be justified.
41. Learned counsel for the respondents, during the course of arguments, indicated in a tabular form, the details of the ACRs of the petitioner since the year 1989 to 1996, which reads thus:
S. Year Grading by Reporing Grading by Reviewing Grading by Counter- No officer & name of officer & name of signing officer & name . Reporting Officer Reviewing Officer of Countersingning officer 1 1995- N/A 96 2 1994- OUT- SE OUT- Dy. CE GOOD Secretary, 95 STANDING (JPDC) STANDING (O&M) RSEB 25 3 1993- OUT- SE OUT- Dy. CE GOOD Secretary, 94 STANDING (JPDC) STANDING (O&M) RSEB 4 1992- VERY GOOD SE VERY GOOD C.E. (O&M- VERY Director of 93 (JPDC) II) GOOD Personnel 5 1991- OUT- SE VERY GOOD C.E. (O&M- OUT- Director of 92 STANDING (JPDC) II) STANDING Personnel 6 1990- OUT- SE OUT- CE OUT- Director of 91 STANDING (JPDC) STANDING (Training) STANDING Personnel 7 (I) VERY GOOD Director VERY GOOD Director of VERY Director of 1989- of Personnel GOOD Personnel 90 Personne (Aug.89 l to Jan.90) OUT_STAND OUT- CE (Status Secretary, ING STANDING Member) OUT- RSEB (II) CE Commerci STANDING 1989- (Status al 90 Member) (April.8 Commerc 9 to ial Aug.89) NOTE:-
1. Final Assessment at the time of promotion is made on grading of countersigning authority.
2. None of ACR's of Shri G.S. Saxena was filled up by Sh. G.R. Sharma, neither as Reporting/Reviewing nor as countersigning authority for the above period.
3. The APAR for the year 1992-93 is also fill up by the then Secretary, RSEB as good. As such as per provisions final assessment at the time of promotion was made on ground of grading of Secretary, RSEB."
42. Referring to the Grading by Countersigning Officer, learned counsel for the respondents, asserted that none of the ACRs of the petitioner was filled up by the respondent No.4-Shri G.R. Sharma, in the capacity of Reporting/Reviewing nor as countersigning authority.
43. The contentions raised to the effect that it was the duty of the petitioner while writing of the APARs for the year 1995- 96 by filling up Part-I and it is for want of initiation of the ACR for the year 1995-96 was not available; cannot be sustained in the face of contemplation under the instructions regarding Annual Performance Appraisal Reports, 1976, which contemplated that it is in the interest of Government not less than that of the employees, that value of a proper system of 26 Performance Appraisal is recognised by all concered. Therefore, vide circular of 1985, in order to ensure timely holding of DPCs and in the interest of proper personnel management, necessary instructions were issued, including that in case the Officer to be reported upon does not fill up Part-I of the Report within 60 days; the Reporting Officer need not wait and record the entires in Part-II stating in Part- I that the Officer to be reported upon had failed to submit Part-I in time. The Reviewing Officers, should ensure, that Reporting Officers record entries and submit APA Reports in time. Besides, disciplinary action should be initiated against defaulters.
44. Therefore, the fault, as pointed out by the State- respondents attributable to the petitioner, is without any substance and is hereby rejected.
45. Learned counsel for the petitioner specifically pleaded that respondent No.4-Shri G.R. Sharma was not only instrumental in delaying enquiry proceedings but also entered remarks in the capacity of countersigning authority in Part-IV of his ACRs for the year 1998-99. The statement made is fortified from the original record that was produced for perusal of the Court by the counsel for the respondents, which clearly indicates that respondent No.4-Shri G.R. Sharma made remarks under Part-IV on the ACRs of the year 1998-99, in the capacity of countersigning authority down- grading the assessment of the petitioner as 'good' from that 27 of 'outstanding', as assessed by the Reporting Officer in Part- II of the ACR for the year 1998-99. Thus, the allegations of bias and malice, as attributed and pleaded by the petitioner against respondent No.4-Shri G.R. Sharma, have some substance.
46. From the glance of the order dated 17 th June, 1997 (Annexure-9), it is evident that respondent No.4-Shri G.R. Sharma was accorded promotion purely on termporary and in an officiating capacity to the post of Joint Director (Personnel), and within one year by another order dated 28 th April, 1998 (Annexure-10), he was further promoted to the post of Director (Personnel), in exercise of powers conferred under Regulation 26 of the Regulations of 1974. The fact that respondent No.4-Shri G.R. Sharma, was retained in the substantive capacity of Joint Director (Personnel) and Director (Personnel), has not been disputed by the respondents.
47. The facts and materials aforesaid clearly demonstrate that respondent No.4, was accorded promotion to the post of Joint Director (Personnel) without any insistance of 4 years service as Dy. Director (Personnel), in exercise of powers conferred under Regulation 26, granting relaxation for he was not in possession of the requisite period of 4 years service as Dy. Director (Personnel). Subsequently, respondent No.4, has been accorded benefits of substantive appointment and there is no explanation for such a course of action and grant of benefits in favour of respondent No.4. The petitioner, thus, 28 has been able to lay a factual foundation to sustain the allegations of malice in law and fact.
48. For the petitioner was not accorded consequential benefits as his case was not considered for promotion to the post of Joint Director (Personnel)/Director (Personnel), despite his exoneration of the charges in the departmental enquiry though he was accorded promotion to the post of Dy. Director (Personnel), as a consequence of direction issued by this Court vide order dated 18 th December, 2000, for his matter was kept in sealed cover owing to the enquiry proceedings. Moreover, even the promotion to the post of Dy. Director (Personnel), was accorded to the petitioner after his retirement attaining the age of superannuation on 31 st December, 2000, as would be evident from the order dated 1st January, 2001 (Annexure-7). The petitioner, therefore instituted a review application (S. B. Civil Review Petition No. 21/2001), which was disposed off on 30 th August, 2001, holding thus:
"List this case alongwith contempt petition No. 219/2001 as the learned counsel submits that after the exoneration of the petitioner, consequential benefits are not being given to him on the ground that there is no order passed for removal of the bane incumbent of that office. Clearly it was not necessary for this Court to pass an order for specific removal of someone from the office he was holding that, if as a consequence of exoneration of the petitioner, he becomes entitle to the post he was contending for, the order of removal of other person will be a consequential order for which ....... direction has been given. The Court dealing with the Contempt matters will be free to decide the case in this light."29
49. Thus, from a conjoint reading of the orders dated 8 th December, 2000, on the writ petition [S. B. Civil Writ Petition No. 3253/1999], and the order dated 30 th August, 2001, on the review petition leaves; the respondents were obliged to proceed in accordance with the Regulations of 1974, and ought to have considered the case of the petitioner for promotion to higher post(s), as a consequence of exoneration of the petitioner of the charges in the enquiry proceedings vide order dated 26th December, 2000.
50. In the case of K.V. Jankiraman (supra), the Supreme Court while considering somewhat similar situation as to the question of benefits from the date on which the incumbent would have normally been promoted but for disciplinary/criminal proceedings observed thus:
"26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the 30 circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after Clause (iii) of paragraph 3 of the said Memorandum, viz., '"but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:
However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."
51. In the case of Delhi Jal Board(supra), while considering the issue of promotion in the matter of sealed cover procedure where the enquiry ended in exoneration but by that time another departmental enquiry was initiated, the Supreme Court observed thus:
"5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending 31 disciplinary inquiry. But the findings of the Disciplinary Enquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any Disciplinary Enquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when the DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed was opened to give effect to it, another departmental enquiry was started by the department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench."
52. The issue of adverse remarks in the ACR is no more res-integra in view of a catena of judgments by the Supreme Court. In the case of Badri Nath (supra), dealing with the issue of adverse entries/remarks and as to the question of fairness while considering an employee for promotion so also the element of mala fide and the relief, framed six questions which reads thus:
"(1) Whether, the award of 'censure' in the fourth disciplinary case by the State Government was contrary to the directions of the Governor during the President's Rule emergency and whether the State Government thereafter wanted to withdraw the reference to the UPSC and the UPSC refused to permit such withdrawal? Whether the appellant was treated fairly in respect of the said proceedings? (This point involved the questions of the validity of the "censure" order passed on 8-4-1980 and the 32 continuance of the case on the plea that the question of punishment had already been referred to the UPSC).
(2) Whether the assessment of the Confidential Reports of the appellant by the Joint Secretary Committee at its meeting dated 30.8.79 was vitiated by relying upon inadmissible or trivial material and by not giving weight to positive sides of his career and also by wrongly relying upon adverse remarks whose basis was knocked down by the dropping of various charges? Whether the appellant was dealt with fairly? (3) Whether very old remarks made before the appellant's earlier promotion to selection grade could be relied upon strongly even though the sting in them had faded? (These points related to the question of "fairness" in the matter of consideration of an officer for promotion under Article 16 and as to the manner in which "adverse remarks" can be taken into consideration.) (4) Whether the Chief Secretary, Sri V. Karthikeyan should have rescued himself from participating in the Joint Screening Committee meeting on 30.8.79? Or whether the doctrine of ''necessity'' applied?
(5) Whether the action of the 3rd and 4th respondents was mala fides? (These points raised questions relating to bias and the doctrine of necessity in administrative law and the plea of mala fides against Respondents 3 and 4.).
(6) To what relief? (The respondents contended that the Surpeme Court could neither issue a mandamus to promote the appellant to the super-time scale nor to assess his grading.)"
Answering the quetions, the Supreme Court held thus:
"22. On the basis of the above contentions, the following points arise for consideration:
(1) Whether, the award of 'censure' in the fourth disciplinary case (relating to furnishing his office without previous sanction) by the State Government was contrary to the directions of the Governor during the President's Rule emergency and whether the State Government thereafter wanted to withdraw the reference to the UPSC and the UPSC refused to permit such withdrawal?
Whether the appellant was treated fairly in respect 33 of the said proceedings?
(2) Whether the assessment of the Confidential Reports of the appellant by the Joint Secretary Committee at its meeting dated 30.8.79 was vitiated by relying upon inadmissible or trivial material and by not giving weight to positive sides of his career and also by wrongly relying upon adverse remarks whose basis was knocked down by the dropping of various charges? Whether the appellant was dealt with fairly?
(3) Whether very old remarks made before the appellant's earlier promotion to selection grade could be relied upon strongly even though the sting in them had faded?
(4) Whether the Chief Secretary, Sri V. Karthikeyan should have rescued himself from participating in the Joint Screening Committee meeting on 30.8.79? Or whether the doctrine of 'necessity' applied?
(5) Whether the action of the 3rd and 4th respondents was mala fides?
(6) To what relief?
27. This flows from the general principle of applicable to 'consequential orders'. Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime - like the recommendation of the State and by the UPSC and the action taken thereon - would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. In other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor in this case) and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order.
30. Even on merits of the fourth disciplinary case relating to the "furnishing", we shall point out, by the application of Wednesbury principles, that the order of censure dated 8.4.80 must be held to be vitiated.
34
31. It will be noticed that in the charge dated 30.10.75 there was no allegation that the expenditure for the office room in a sum of Rs. 20,807/- was wasteful or unnecessary. The only charge was about lack of prior approval. The appellant, on his explanation dated 19.11.75 pointed out that while prior sanction was necessary, the factual position was that the post of Commissioner of Archives and Historical Research was created and he found that some civil works etc. were necessary for (i) security of the Archives, (ii) fire-fighting equipment and (iii) renovation of the research hall. The expenditure in this behalf was made with full knowledge of the senior officials of the Government through formal sanction was not obtained. He pointed out that in March 1973, just few weeks before he took over as Commissioner, he mentioned to the then Chief Secretary, Mr. Sabanayagam, the Head of the Archives Department about the routine repairs that were being done to the Commissioner's room. This was followed by a formal letter (No. 50/ Commr./73-l) dated 22.8.73, requesting the Government to ratify his having bought the furniture from TANSI for the Commissioner's room, the Government ratified this in GO Rt. 864 Public (political) Dept. dated 14.3.74, Since the bill of repairs for the other works was not received from TANSI until 22.2.74, the Government could not be addressed as regards that item. Later on, due to pressure of work the matter was not taken up by him till 1975, when a further letter was written.
35. This Court considered in extenso in Union of India v. G. Ganayutham: (2000)IILLJ648SC the applicability of Wednesbury rules while judging the validity of punishments inflicted in disciplinary actions and the principle of 'proportionality' as applicable to such cases. The case on hand comes within the narrow limits of interference mentioned in the said judgment.
36. In our view, therefore, even on merits, the action of the Government awarding censure is, apart being without jurisdiction is also one made by not taking into account the various facts stated in the appellant's long explanation. The action is, in our opinion, arbitrary. At the most, the officer could have been told that, in future, he should be careful in obtaining in advance sanction. So much amount the "censure" in the fourth disciplinary inquiry-both on jurisdiction and 35 on merits. We hold that the order of censure was bad in law and that the State and Central Governments erred in relying on the same for rejecting his plea for super-time scale. Point 1 is decided in favour of the appellant.
51. The matter was examined in depth by a three Judge Bench in Baikunth Nath Das v. Chief District Medical Officer: (1992)ILLJ784SC. Thee the issue was whether uncommunicated adverse remarks could be relied upon. That case also considered the question of the relative strength of old remarks and also relevance of remarks made before an earlier promotion. Jeevan Reddy, J. speaking for the Bench laid down several important principles and we are however concerned with principles (iv) in para 34 of that judgment. The proposition was that firstly more importance would have to be attached to record of later years. Adverse remarks made before granting the earlier promotion (in a case of selection or merit promotion) must be considered to have lost the 'sting in them'. The relevant para reads as follows:
"34.(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/ character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sling, more so, if the promotion is based upon merit (selection) and not upon seniority."
In that case, the three Judge Bench overruled two earlier judgments of this Court. One of them is Brij Mohan Singh Chopra v. State of Punjab. There were two separate points emanating from the two Judge judgment in Brij Mohan Singh Chopra's case. They were referred to by the three Judge Bench Baikunth Nath Dan as follows:
"23. (1) It would not be reasonable and just to consider adverse entries of remote part and to ignore good entries of recent part. If entries for a period of more than 10 years past and taken into account, it would 36 be an act of digging out past to get some material to make an order against the employee.
(2) In..., it was held that unless an adverse report is communicated and representation, if any, made by the employee is considered, it may not be acted upon to deny the promotion. The same consideration apply where the adverse entries are taken into account in retiring an employee prematurely from service."
53. In the case of R.P. Bhardwaj (supra), while considering the issue on experience fulfilling the criteria, the Supreme Court, held thus:
"3. The regular promotion to the post of Superintending Engineer was made by order dated 20-10-1994. The grievance of the appellant is taht he has been shown at Sl.
No.56 whereas other officers, namely Respondents 4 to 10 and the seniors who were left out earlier, have been shown above the appellant even though the record available for consideration for the two selections, namely, ad hoc promotion and regular promotion, was the same. We may, at the juncture, like to observe that the earlier promotion seems to have been considered and made on ad hoc basis. Learned counsel for the respondents points out that it was done by scruitinising the records by a Screening Committee whereas the regular selection is by the Committee headed by a member of the Public Service Commission. The consideration and the scrutiny for regular promotion would obviously be on a different footing. The regular selection would not fail merely by the reason that someone who is selected, was not given ad hoc promotion earlier. It is submitted that the criterion for selection to the post of Superintending Engineer is merit. That being the position, in our view, no grievance can be made even if some person junior to the appellant may have been selected considering merit, leaving out any other senior officer.
9. So far as Respondents 4 to 10 are concerned, though served, have not put in appearance nor any one appears for the Commission to explain the position. There is no 37 dispute about the position that if the eligibility criteria are reckoned in the light of the OM dated 19-07-1989, Respondents 7 to 10 would be required to complete 7 years on 1-10-1985 and not on 31-12-1985. Since on 1-10-1985, they had not completed 7 years, there consideration for filling up the vacancies of Superintending Engineer pertaining to the year 1985, is against the eligibility criteria. The case of the appellant was considered on the basis of comparative merit vis-a-vis Respondents 4 to 10 as well. The ouster of the appellant form the field of competitive selection may be attributed to his placement against Respondents 7 to 10. That being the position, in our view, the case of the appellant is liable to be considered afresh, keeping Respondents 7 to 10 out of the field of consideration."
54. In the case of Dev Dutt (supra), which has been reiterated in subsequent judgments by a Larger Bench as well, the Supreme Court held that gradings are required to be communicated within reasonable period to the employee concerned to afford an opportunity for representation, improvement and to address a representation, if need be.
55. However, in the instant case at hand, even if the down graded ACRs for the year 1993-94 and 94-95 were to be ignored, the case of the petitioner ought to have been considered for promotion to the post of Joint Director (Personnel)/Director (Personnel).
56. In the case of Abhijeet Ghosh Dastidar (supra), reiterating the view in the case of Dev Dutt (supra), the larger Bench of the Supreme Court, held thus:
"8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been 38 communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
10. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the benefit of re-fixation of his pension and other retrial benefits as per rules."
57. In the case of Hemraj Singh Chauhan (supra), depricating the lethargy, inaction and absence of a sense of responsibilty while eligible employees were rendered ineligible on account of delay; the Supreme Court, held thus:
"35. The Court must keep in mind the Constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a Welfare State.
36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 flows from guarantee of equality 39 under Article 14 of the Constitution.
42. Concurring with the aforesaid interpretative exercise, we hold that the statutory duty which is cast on the State Government and the Central Government to undertake the cadre review exercise every five years is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. Surely, lethargy, in- action, an absence of a sense of responsibility cannot fall within category of just exceptions."
58. The issue of downgrading of ACR's again fell for consideration of the Supreme Court in the case of Daljit Singh Grewal (supra), wherein the Supreme Court, observed thus:
"25. It is further contended by the learned senior counsel on behalf of the Appellant that the High Court should have taken into consideration the latest judgment of this Court rendered in the case of Sukhdev Singh v. Union of India: wherein it was held that all the ACRs whether poor, fair, average, good or very good, must be apprised to the concerned employee/officer within the stipulated time so that he/she can take suitable action if he/she is aggrieved by the same. While on the one hand, the High Court presumed that the Appellant had knowledge of the downgrading in his ACR, at the same time it was also observed that it was not clear whether the downgrading was conveyed to the Appellant.
26. It is further contended by the learned senior counsel appearing on behalf of the Appellant that the High Court should have considered the law laid down in the case of Gurdial Singh Fiji v.State of Punjab, wherein this Court has specifically held that the adverse remarks made in the ACR cannot be acted upon by the Authority to deny promotion to a post unless they have been communicated to the concerned person.
27. It is further contended by the learned senior counsel that the Respondent No. 4 could not have downgraded his ACR and that too without conveying the same to him, as he had not personally seen the work of the Appellant.40
There should have been some reason for the Respondents to make adverse entries in his ACR's for the relevant periods by changing the original entries made by the Reporting Authority- Respondent No. 5. The adverse entries made in the ACR's of the Appellant for the relevant periods were not communicated to him. If there were any adverse entries in the ACR's, the same should have been communicated to the Appellant to enable him to improve his shortcomings or submit a representation against the adverse entries. It was further contended by the learned senior counsel that the favourable entries recorded in the ACR's for the relevant periods were deliberately not produced before the Selection Committee or DPC by the Respondents so that the Appellant would not be considered for promotion and promoted to the promotional post, which aspect of the matter should have been taken into consideration by the High Court while passing the impugned judgment and order in the writ petition and also in the order passed in the review application.
36. The High Court in the impugned judgment further observed that the final reporting authority had downgraded the Appellant as an 'average' officer for the above relevant period. As per the executive Instructions dated 10.01.1985 issued by the State Government, the Commandant General is the final Authority for the rank of the District Commander. That being the factual position, the downgrading of the performance of the Appellant in his ACR for the above relevant period by the Respondent No. 4 was not valid as the same was done without any authority and competence. The adverse entries in the ACR have deprived the Appellant of his right of promotion to the post in question and therefore, the said adverse entries in the ACRs against the Appellant are not legal and valid. The ACR for the period 2000-2001 is extracted hereunder:41
59. In the case of Chhaya Bhatnagar (supra), a Division Bench of this Court on the issue of yearly determination of vacancies, held thus:
"35. Indisputably, under the scheme of Reg. 1955, the crucial date to consider the eligibility of an officer and to adjudged his suitability is based on his preceding five years service record to the year of vacancy, which the committee is supposed to 42 examine u/Reg. 5(4) for final empanelment in the select list after approved by the Commission and as should not be making authority that there could be a situation where for good 16 years, the Selection Committee, upon whom legal obligation is casted to meet every year, failed to meet and at the same time delay of its kind could not be attributable to the officer who was never at fault but became victim of inaction of official respondents and as noticed that the officer remains a member of service at least for another six years as his eligibility for consideration is upto the age of 54 years and if the earlier vacancies are determined for the preceding six years, this question noticed by this court, such situation could not be visualized by the rule remains irrelevant and may not arise for consideration as to whether the officer should be substantive member of State Civil Service on the date of meeting of the Committee or against the year of vacancy for which his candidature has been considered and after adjudging suitability has been placed in the approved select list against the year of substantive vacancy in fulfillment of the mandate of scheme of Reg. 1955.
36.The golden rule of interpretation of the statute, it is well settled principles of law that a plain meaning must be attributed to the statute and the statute must be construed according to the intention of the legislature and the statute has to be given its literal and natural meaning and the intention of the legislature must be found out from the language employed in the statute itself. Keeping golden rule of interpretation of statute into consideration and the fact that the approved select list prepared in terms of scheme of Reg. 1955 of last 16 years has to be taken to its logical conclusion and in meeting out the exigency which has come before us and the conjoint reading of the scheme of Reg. 1955 and the requirement of R. 8(1) of the Rules, 1954 that officer must be substantive member of State Civil Service in the context referred to herein can be safely considered to the year of substantive vacancy for which the officer's eligibility has been considered and placed in the approved select list and the present interpretation alone will serve the purpose and fulfill the object with which the scheme of Reg. 1955 has been framed by the rule making authority in exercise of powers conferred u/R. 8(1) of the Rules, 1954 and any other interpretation of R. 8(1) of the Rules, 1954 will leave a manner of doubt for the reason, as already observed, that under the 43 present scheme of Reg. 1955, there is no provision of clubbing or carry forward of the vacancies and if these 28 vacancies remain unfilled after the officer is placed in the approved select list notified for the years 1996-97 to 2006, such unfilled vacancies either could be considered for carrying forward in the next year or may be clubbed and be considered to be the vacancies of 2012 but as already observed that there is no provision of clubbing or carry forward of the vacancies and in our considered view officers who are placed in the approved select list against the year of earlier vacancies of 1996-97 to 2006 are substantive member of service in terms of R. 8(1) of Rules, 1954 and are eligible for appointment and since retired on attaining age of superannuation entitled for all notional benefits flowing thereof which alone will meet the ends of justice and that is further supported by an affidavit filed by the Union of India furnishing details to this court where the State Civil Service Officers were given appointment in the IAS after retirement but by courts order. It will be relevant to refer to such officers who are eleven in number of different States who were given appointment at various point of time after they are retired from service, which are ad infra:--
38. We find no substance in the submission made for the reason that those who have been placed in the approved select list for each year, as already considered by us under the scheme 44 of Reg. 1955 read with Rules, 1954, have to be considered for deemed appointment for notional benefits flowing thereof and that being so there is no occasion to carry forward the vacancies in the next subsequent year and that may also avoid the clubbing of vacancies, which as alleged remained unfilled in the year 2012.
41. As regards submissions made by Mr. Ashok Gaur, Senior Counsel in D.B. Civil Writ Petition Nos. 7118/2013 & 14779/2013, whose client still has not been considered but his grievance is that all the 28 unfilled substantive vacancies from the year 1996-97 to 2011 may be considered to be the vacancies of 2012 and his client may be considered for appointment in accordance with the scheme of Reg. 1955.
42. The submission made is without substance for the reason that clubbing of vacancies is otherwise not permissible under the scheme of Reg. 1955 and once the officer who is substantive member of service and after his suitability being adjudged and finds place in the approved select list cannot be left aside from being considered for appointment and this what has been considered by us and there remains no vacancy D.B. Civil Writ Petition No. 7472/2013 is that the unfilled vacancies of unfilled of the preceding 16 years and thus, the occasion of available vacancies of the earlier years from 1996-97 to 2011 which as alleged to be filled in 2012 may not be made available to be considered as vacancies of 2012.
43. As regards submissions made by Mr. Mahendra Shah, Advocate who too is appearing for one of the petitioner Chhaya Bhatnagar in at the each year be carried forward to the next subsequent year and that may enlarge the number of vacancies and that may consider the petitioner to be eligible for consideration.
However, the name of the officer (Chhaya Bhatnagar) did not find place in the select list of the preceding 16 years, appears for the reason that for the earlier years i.e. 1996-
97, she was lower in seniority and for the vacancies of subsequent years, she has crossed the age of 54 years, could not be considered 45 eligible and that being so, at least the submission made by Mr. Shah is to carry forward the vacancies to the next subsequent year is without substance and deserves outright rejection.
60. Under the Regulations of 1974, there is a detailed procedure in place for promotion under Part-VI as contemplated under Regulation 25, which provides that where the Appointing Authority considers it expedient to withhold promotion of an officer against whom an enquiry is contemplated or pending till final decision thereon, the post shall be kept reserved for him and shall be filled in only on finalisation of the case.
61. Regulation 24 contemplates a detailed procedure for promotion including the zone of consideration of persons eligible for promotion in the service. Where one vacancy is available, five eligible persons are to be considered. Thus, the respondents are obliged to consider the case of the petitioner for the year 1998, 1999 and 2000, in accordance with the procedure contemplated under the Regulations of 1974.
62. For the petitioner was exonerated of the charges levelled vide charge sheet dated 29 th March, 1993, under Regulation 6/7 vide order dated 26 th December, 2000, in compliance of the directions issued by this Court vide order dated 8th December, 2000; he was entitled for consideration for promotion to the higher posts as well. Admittedly, when the sealed cover was opened, it revealed that the Selection Committee found the petitioner fit for promotion to the post 46 of Deputy Director (Personnel), and he was accordingly promoted to the post against the vacancy of the year 1994, after his retirement attaining the age of superannuation as would be evident from the order dated 1 st January, 2001. Hence, his case was considered for further promotion to the post of Joint Director (Personnel)/Director (Personnel), against the vacancy of year 1998, 1999 and 2000. However, the claim of the petitioner has been declined, as conveyed to him vide impugned order dated 24 th July, 2001 (Annexure-
11), for the Selection Committee which met on 30 th June, 2001, did not find him suitable for further promotion. On a consideration of the minutes of the Selection Committee held on 30th June, 2001, it is reflected that the petitioner's case has not been considered in the right perspective in accordance with the Regulations of 1974. The claim of the petitioner has been declined for he did not acquire four years experience on the post of Deputy Director (Personnel).
63. Indisputably, vacancy did exist at the relevant time in the post of Joint Director (Personnel)/Director (Personnel), in the face of the fact that respondent No. 4, was accorded promotion to the post of Joint Director (Personnel)/Director (Personnel), though on ad hoc basis, for he too was not in possession of the required period of service of four years as Deputy Director (Personnel).
64. Considering the fact that the petitioner was accorded promotion on the post of Deputy Director (Personnel) with 47 retrospective effect vide order dated 1st January, 2001, against the vacancy for the year 1994, he would complete four years of service in the year 1998, and therefore, his case is required to be considered in accordance with the Regulations of 1974, and the criteria contemplated thereunder for subsequent years as well i.e. for the year 1998, 1999 and 2000.
65. By now, it is well settled by a catena of judgments by the Apex Court of the land that unless an adverse report is communicated and representation, if any, made by the employee is considered, the same may not be acted upon to deny the promotion to the concerned employee.
66. From the factual matrix and materials available on record, it is not disputed that respondent No.4-Shri G.R. Sharma, though did not serve as Deputy Director (Personnel), for four years, which has been pleaded in the counter affidavit on behalf of the respondents as a condition precedent, while resisting the claim of the petitioner; was accorded promotion on temporary/ad-hoc basis and was further promoted to the post of Director (Personnel), without any insistance of such requirement granting relaxation in exercise of powers conferred by virtue of Regulation 26 of the Regulations of 1974.
67. It is also not disputed that respondent No. 4, was lateron accorded substantive apointment on the post of Joint Director (Personnel) and Director (Personnel). Further, he has 48 also been accorded consequential benefits without insisting upon the condition of four years service on the post of Deputy Director (Personnel). Therefore, the same reasoning has to apply in the case of the petitioner while considering his case for promotion to the post of Joint Director (Personnel)/Director (Personnel). The State Government cannot adopt differential approach in case of the petitioner contrary to the one adopted in case of respondent No. 4-G. R. Sharma. Thus, ouster of the petitioner from the field of consideration for promotion to the post of Joint Director (Personnel)/Director (Personnel) on the ground of non- fulfillment of the condition of four years service as Dy. Director (Personnel); is arbitrary, unfair and mala fide.
68. That being the position, in the opinion of this Court, the case of the petitioner deserves to be considered, afresh. This Court finds no substance in the submissions made on behalf of the respondent while resisting the calim for reason that respondent No.4- Shri G. R. Sharma, along with another, was considered under the Regulations of 1974, and was accorded promotion to the post of Joint Director (Personnel)/Director (Personnel), without any insistance on the condition of 4 years service as Deputy Director (Personnel), though on ad- hoc basis. However, later on he has been allowed to retain the post of Joint Director (Personnel)/Director (Personnel), in substantative capacity and has been accorded all consequential benefits.
49
69. For the reasons and discussions aforesaid, the writ application succeeds and is hereby allowed.
70. In the result, the respondents are directed to consider the case of the petitioner for promotion to the post of Joint Director (Personnel)/Director (Personnel) with reference to the vacancy of the year 1998, 1999 and 2000. The exercise shall be completed as expeditiously as possible; however, in no case later than four months from the date of a certified copy of this order is presented.
71. However, in the facts and circumstances of the case, there shall be no order as to costs.
(VEERENDR SINGH SIRADHANA),J.
Pooja/Pcg