Rajasthan High Court - Jaipur
Sumer Chand Bhandari vs State Of Rajasthan And Ors. on 22 September, 1987
Equivalent citations: 1987WLN(UC)620
Author: Jagdish Sharan Verma
Bench: Jagdish Sharan Verma
JUDGMENT Jagdish Sharan Verma, C.J.
1. This litigation commenced in this Court more than twenty years back with the filing of a writ petition on March 3, 1967 by appellant Sumer Chand Bhandari, an officer of the Rajasthan Administrative Service, who was then in the junior scale, alleging unequal treatment in the matter of employment and promotion According to the Rules of this Court in existence till recently the writ petition was heard by a Single Judge who dismissed the same by an order dated September 30, 1975. In accordance with the provision contained in section 18 of the Rajasthan High Court Ordinance providing for an internal appeal, this appeal was then filed in 1975 and is now being disposed of by us. During this period the appellant's grievance has got aggravated at every stage of his service career resulting from his initial grievance that his juniors had been promoted to the senior scale in the Rajasthan Administrative Service before him; and this continued till his retirement from the Indian Administrative Service on December 31, 1983 on attaining the age of superannuation. The claim of the appellant now is reduced only to the monetary benefits if he succeeds to any extent in this litigation. This is not an isolated incident of its kind to reveal the resultant hardship to the litigants as a result of a writ petition being required by the earlier Rules to be heard in the first instance by a Single Bench and then on appeal by a Division Bench for the passage of the lis through one Court only.
2. The appellant argued his case in person before us. Embittered by the passage of time and the travails of the litigation taking so long and two stages to pass through one Court only, the appellant took some time at the hearing to confine himself, only to the relevant facts and points at this stage. However he showed remarkable adjustment to ultimately confine his case only to the real grievances which alone are material. We shall now state the only material facts relevant for deciding the limited controversy which survived at the end of the hearing before us.
3. The appellant has considerable academic distinction. He was appointed to the Rajasthan Administrative Service as a direct recruit in the junior scale in 1955 according to the Rajasthan Administrative Service Rules, 1954. A Departmental Promotion Committee was held on September 21, 1966 to select officers for promotion to the senior scale of Rajasthan Administrative Service. This Departmental Promotion Committee prepared two lists which were Ex. 3 dated December 7, 1966 selecting 29 persons and Ex. 2 dated January 4, 1967 selecting 15 persons for promotion to the senior scale. In addition a select list Ex. 6 of 21 persons was also prepared by this Departmental Promotion Committee which was given effect much later on February 21, 1970. It may be mentioned that the appellant's name was not included in any of these lists, while the names of many persons junior to him were included. This is the starting point of appellant's grievance.
4. We may also mention that selection to the senior scale was based on the principle of 'seniority-cum-merit' and also on the basis of 'merit' alone in the proportion of 2 : 1 according to the Rules, the validity of which has been upheld by the Supreme Court and is no longer in dispute. We shall omit reference to the facts relating to officers other than O.P. Joshi respondent No. 48, K.L. Kochar respondent No.49, D.N. Upadhyay respondent No.50 and K.M. Sahi respondent No. 61. Since the appellant confined his claim ultimately at the hearing to seniority over these four officers only at every stage commencing with the senior scale in the Rajasthan Administrative Service and the consequential benefits on that basis. In the writ petition filed on March 3, 1967 soon after the impugned selections made by the Departmental Promotion Committee held on September 21, 1965 and the appointments made on that basis challenge was made to the selections contained in all these three lists. It is, therefore, obvious that the writ petition was filed promptly without any avoidable delay.
5. The appellant was given the senior scale by order dated November 28, 1967 and it is by the very same order that the aforesaid O.P. Joshi and one Guman Singh of whom reference would be made late, were given the senior scale in the same manner. Out of the four officers respondents Nos. 48 to 50 and 61 over whom the appellant claims seniority at every stage of the service career, the first to be promoted to the senior scale was O.P. Joshi who was promoted by the same order along with the appellant. K.L. Kochar and D.N. Upadhyay were promoted to the senior scale by order dated November 21, 1968, while K.M. Sahai was promoted to the senior scale on February 21, 1970. Admittedly O.P. Joshi, K.L. Kochar, D.N. Upadhyay and K.M. Sahai who were all junior to the appellant in the junior scale were promoted to senior scale with or after the appellant but not earlier. Thereafter the appellant was confirmed in the senior scale on December 26, 1970, while these persons were confirmed on January 22, 1970. Later the date of confirmation of these officers was prepesned to December 1, 1969. In the Departmental Promotion Committee held in the year 1970 for selection of officers to the selection scale from the senior scale of Rajasthan of Administrative Service the appellant was not considered eligible on the ground that the appellant had been given the selection scale substantively from December 26, 1970 by the Departmental Promotion Committee held on December 20, 1970, while these four officers junior to him were treated eligible on account of their prior confirmation in the senior scale from December 1, 1969, and they were selected for promotion to the selection scale. The appellant was given selection scale only later by giving him an ad-hoc appointment on July 5, 1974, substantive appointment on April 13, 1976 and confirmation on May 18, 1977. For the same reason these four officers were selected in the Indian Administratative Service prior to the appellant while the appellant was selected in the Indian Administrative Service panel in 1978 and given appointment in the Indian Administrative Service on April 18, 1980. This difference in the service career of the appellant vis-a-vis these four officers who were junior to him initially continued till the appellant retired on attaining the age of superanduation on Decemuer 31, 1983.
6. The appellant's surviving grievance at the end of hearing before us is against not being given seniority over the aforesaid four officers O.P. Joshi, K.L. Kochar, D.N. Upadhyay and K.M. Sahai throughout the service career in the Rajasthan Administrative Service and the Indian Administrative Service with consequential benefits. The other points stated by him initially at the hearing but rightly given up at the end need not be mentioned by us.
7. It would be appropriate at this stage to make a mention of another litigation initiated by the aforesaid Guman Singh, who was junior to the appellant, which culminated with decision of the Supreme Court in Guman Singh v. State of Rajasthan and Ors . Several points raised in the writ petition filed by the appellant stand covered by that decision. The grievance made by Guman Singh was in a way similar to that of the present appellant. Apart from challenging the validity of Rule 27, Rule 28 B and Rule 32 of the Rajasthan Administrative Service Rules, 1954 as they then stood, a challenge was made by Guman Singh also to the validity of a circular issued on August 27, 1966 by the Chief Secretary of the State directing the Selection and Promotion Committees and the appointing authorities to make the selection on the basis indicated therein. As earlier indicated the promotions were to be made on the basis of 'seniority-cum-merit' as well as 'merit' alone and the circular gave directions about the manner in which the same had to be made.
8. The Departmental Promotion Committee held on September 21, 1966 had admittedly made the selections in accordance with this circular dated August 27, 1966. Guman Singh too was aggrieved by the same. The Supreme Court upheld the validity of these Rules which provided inter-alia for promotion on the basis of 'merit' alone in addition to 'seniority-cum-merit' in the proportion indicated, but the circular dated August 27, 1966 was quashed. The Supreme Court issued a direction to review the case of the said Guman Singh and three other persons who were parties to that litigation without giving a general direction for review of all such cases. Two persons who had filed writ petitions directly in the Supreme Court under Article 32 of the Constitution and which were heard along with Guman Singh's appeal were not granted any relief, since their writ petitions filed in 1970 were considered to be delayed. However, there is no delay in the case of the present appellant Sumer Chand Bhandari, who has filed the writ petition on March 3. 1967 soon after the selections made by the Departmental Promotion Committee held on September 21, 1966 were implemented. All the same the State Government did not take the desirable step of reviewing all such cases and it decided to review only the post 1970 cases.
9. Since appellant's writ petition was pending, an order dated December 15, 1973 was passed saying that the case of appellant Sumer Chand Bhandari had also been reviewed vis-a-vis 61 persons named therein including the aforesaid O.P. Joshi, K.L. Kochar, D.N. Upadhyay and K.M. Sahai, but the appellant was not found suitable for being given any relief. As earlier stated, the appellant has now confined his claim only against the said four persons O.P. Joshi, K.L. Kochar, D.N. Upadhyay and K.M. Sahai even out of these 61 persons. The appellant's grievance is that the said review in his case was only a sham exercise and consideration of the appellant's case ignoring the circular which had been quashed by the Supreme Court was not done in reality.
10. The only arguments of the appellant which survive for consideration by us are now mentioned. His first contention is that the review order dated December 15, 1973 was a sham exercise since the review was not made properly in accordance with the decision of the Supreme Court in Guman Singh's case (supra) by ignoring the circular. His next contention is that the select list Ex. 6 prepared by the Departmental Promotion Committee held on September 21, 1966 which was actually a waiting list of 21 persons including aforesaid O.P. Joshi, K.L. Kochar, D.N. Upadhyay and K.M. Sahai was invalid being contrary to the Rules. Alternatively he contends that even if this list be valid, since this list was implemented on Fepruary 21, 1970 and he too was given substantive appointment in the senior scale in December, 1970, according to the then existing Clause (8) of Rule 28-B he was entitled to be placed above these four officers in the senior scale. It is argued that on this basis he was entitled to prior promotion in the selection scale of the Rajasthan Administrative Service and at every subsequently stage of the service including Indian Administrative Service, since he was selected when first considered for the same. On this basis the appellant has claimed also the consequential benefits flowing from his prior selection before these four officers.
11. Mainly the learned Government Advocate has relied substantially on the State Government's stand that the appellant's case for promotion to the senior scale was reviewed by the order dated December 15, 1973 in which he was not found suitable for being placed above the 61 officers including the said O.P. Joshi, K.L. Kochar, D.N. Upadhyay and K.M. Sahai who had been selected by the Departmental Promotion Committee of 1966. It was also contended that the substantive appointment of these four officers in the senior scale was made from December 1, 1969, while the appellant's substantive appointment was with effect from December 26, 1970, since these four officers where selected by the Departmental Promotion Committee of 1966, while the appellant was selected by the Departmental Promotion Committee of 1970 and, therefore, the appellant could not be placed above them. On this basis it was also contended that the appellant was not eligible for being considered by the Departmental Promotion Committee held on December 20, 1970 for promotion to the selection scale while these four respondents having been confirmed from December 1, 1969 were eligible.
12. In our opinion the limited stand taken by the appsllant at the end of the hearing before us must be accepted. The admitted position is that the appellant was promoted and appointed in the senior scale of Rajasthan Administrative Service by an order dated November 28, 1967 in the same manner in which the said O.P. Joshi and Guman Singh were appointed by the same order to the senior scale without making any distinction in the nature of their appointment to the senior scale. The order also shows the appellant Sumer Chand Bhandari was senior to both O.P. Joshi and Guman Singh. K.L. Kochar and D.N. Upadhyay were promoted to the senior scale much later by order dated November 21, 1968 K.M. Sahai was promoted to the senior scale even later only on February 21, 1970. The appellant continued to work in the senior scale of the Rajasthan Administrative Service ever since his initial appointment therein by order dated November 28, 1967 till he was confirmed. No material has been produced by the State Government to show that O.P. Joshi who was promoted along with him or the other three officers, K.L. Kochar, D.N. Upadhyay and K.M. Sahai who were promoted much after the appellant, were in any manner assessed superior to the appellant in the senior scale on the basis of their performance so as to provide any reasonable basis for giving all or any of these four respondents date of confirmation prior to the appellant, particularly when the appellant was admittedly senior to all of them in the substantive rank. Moreover, the length of continuous officiation in the senior scale of the appellant was much more than that of K.L. Kochar, D.N. Upadhyay and K.M. Sahai and equal to that O.P. Joshi who too was junior to him and, therefore, even on the principle of determination of seniority on the basis of length of continuous officiation, the appellant was entitled to be placed above all these four respondents.
13. It is obvious that the first substantive post in the senior scale available for them had to be given to the appellant and these four respondents could be confirmed only after the appellant. Since seniority has been reckoned on the basis of date of confirmation, giving a prior date of confirmation to these four respondents was wholly unjustified and arbitrary. There is also no rational basis for subsequently prepensing the date of confirmation of these four respondents to December 1, 1969 which was obviosly for treating them as eligible for consideration by the Departmental Promotion Committee held on December 20, 1970 for promotion to the selection scale, even though the appellant was not considered eligible merely on the ground of a subsequent date of confirmation given to him. In our opinion this act was wholly arbitrary and amounts to a clear discrimination which violates Articles 14 and 16 of the Constitution.
14. We may refer to Clause (8) of Rule 28B of the Rajasthan Administrative Service Rules, 1954, as it then existed, on the basis of which the inter se seniority of the promotees on the basis of 'merit' and 'seniority-cum-merif had to be fixed. Clause (8) reads as under:
28B. Promotion by selection on basis of merit:
(8) Among persons appointed in the same class, category or grade of posts during the same year, persons appointed on the basis of senio-rity-cum-merit shall rank senior to those appointed by promotion on the basis of merit; the seniority inter se of persons appointed in the same class, category or grade of posts by promotion strictly on merit, shall, without regard to the order of preference, be determined as if such persons had been appointed by promotion on the seniority-cum-mctit The persons junior to the appellant who were promoted on the basis of merit alone could not rank in seniority above the appellant was promoted on the basis of seniority-cum-merit when none of them had in fact been promoted to the senior scale on a date prior to the appellant's promotion. Even according to this rule, O.P. Joshi, was promoted along with appellant had to be placed below the appellant while the other three respondents promoted much later had to be below him.
15. Obviously it was to circument this difficulty that these four respondents were confirmed in the senior scale by prepensing their date of confirmation to December 1, 1969. We have already indicated that this was not permissible unless the appellant also was given the same benefit for relating their inter se seniority in the cadre of senior scale officers of the Rajasthan Administrative Service.
16. In this respect we may add that the material produced before us shows that no distinction was drawn between the appellant and these four respondents in the nature of their promotion to the senior scale in order to support the contention of the respondents that the appellant's promotion in the senior scale was merely ad-hoc while that of these respondents was regular. The record particularly the aforesaid order dated Nov. 28, 1967 promoting toe appellant along with O.P. Joshi, Guman Singh and some others, order dated November 21, 1968 promoting K.L. Kochar and D.N. Upadhyay and order dated September 20, 1969 from the State Government to the Accountant General authorising payment of salary to the appellant, O.P. Joshi, Guman Singh, K.L. Kochar, D N. Upadhyay and many others clearly indicate that appellant's promotion to the senior scale was made in the same manner as that of these respondent. There is thus no valid basis to distinguish the appellant's promotion as only ad-hoc treating these respondents to be appointed substantively; or to treat appellant Sumer Chand Bhandari as junior to O.P. Joshi, K.L. Kochari, treat D.N. Upadhyay and K.M. Sahai in the senior scale of the Rajasthan Administrative Serevice; or to treat appellant as ineligible for promotion to the selection scale in 1970 while treating O.P. Joshi, K.L, Kochar D.N. Upadhpay and K.M. Sahai eligible for such promotion. It follows from this conclusion that the order dated December 15, 1973 saying that the appellant on review of his case was not found suitable to be placed above at least these four respondents O.P. Joshi, K.L. Kochar, D.N. Upadhyay and K.M. Sahai is clearly arbitrary and, therefore, invalid to this extent. The only basis shown by the respondents for treating these four respondents senior to the appellant has already been shown to be untenable.
17. It is not the case of the respondents that the appellant was found unsuitable for promotion to the selection scale of the Rajasthan Administrative Service or for appointment to the Indian Administrative Service when first considered for the same, but that he was not considered earlier since he was ineligible on account of fixation of his seniority below the four respondents O.P. Joshi, K.L. Kochar, D.N. Upadhyay and K.M. Sahai when they were given these promotions. We have already held that this act, was contrary to the Rules and was arbitrary with the result that the appellant has to be placed in the senior scale of Rajasthan Administrative Service above all these four respondents.
18. Ordinarily after this conclusion we would have directed consideration of the appellant's case for earlier promotion to the selection scale of the Rajasthan Administrative Service and thereafter appointment to the Indian Administrative Service from the date on which the first amongst these four respondents was given this promotion or appointment. However, this would not be the appropriate course now in the present case when the appellant has already retired from service after being appointed to the Indian Administrative Service and the question is only of giving him monetary benefits calculated on the basis of treating him as senior to these four respondents in the senior scale of Rajasthan Administrative Service and at every subsequent stage of the service career thereafter. In such a situation, taking into account the fact that the appellant was selected for promotion/appointment when first considered eligible, the appropriate direction to give would be to require his promotion/ appointment above these four respondents at every stage of the service career instead of a mere direction for consideration of his case for this purpose. The appellant's retirement several years back and the long lapse of time justify moulding the relief in this manner to avoid any further delay and to make the relief given to the appellant as meaningful as possible at this stage without any adverse effect even upon the four respondents above whom the appellant has been placed in the senior scale of the Rajasthan Administrative Service and at every subsequenf stage of the service career. We have already, indicated that these four respondents are not to be deprived of any benefit given or accorded to them, but the appellant has to be given all the benefits to which he would be entitled on being placed above them at every stage of the service career. This is to be done, if necessary, by creating a supernumerary post to implement this direction. This is the only manner in which we can put back the clock as best as possible in these circumstances and give any meaningful relief to the appellant in order to undo the injustice done to him so far.
19. As a result of the aforesaid discussion, it follows that the appellant Sumer Chand Bhandari is entitled to be placed in the senior scale of the Rajasthan Administrative Service and at every subsequent stage of the service career above O.P. Joshi, respondent No. 48, K.L. Kochar, respondent No. 49, D.N. Upadhyay, respondent No. 50 and K.M. Sahai, respondent No. 61. Since these four respondents have been confirmed in the senior scale with effect from December 1, 1969 it would not be appropriate at this stage to disturb their placement with reference to this date of confirmation, but the appellant Sumer Chand Bhandari must be placed above all four of them by giving him by the same or an earlier date of confirmation whichever is feasible. The appellant is also entitled to all the consequential benefits i.e. of promotion to the selection scale of the Rajasthan Administrative Service and to the India Administrative Service prior to these four officers from a date on or before date on which the first amongst these four respondents was given the consequential promotion and benefit. It would not be proper to disturb the placement of even these four respondents in view of the lapse of several years and therefore, this exercise may be performed by creation of a supernumerary post, if necessary, at every stage. Since the appellant has already retired from service at the end of 1983, he is now entitled only to the monetary benefits calculated on this basis. This order will also ensure that none of these four respondents. O.P. Joshi, K.L. Kochar, D.N. Upadhyay or K.M. Sahai suffer any detriment while the appellant gets his due at least in the shape of monetary benefit. We direct accordingly. In order to avoid any further delay in the matter, we also direct the State Government to implement this order and to give all the consequential monetary benefits resulting from this order to the appellant within a period of three months. The appellant shall also get a consolidated sum of Rs. 3,000/- as costs from the State Government.