Punjab-Haryana High Court
Janak Raj Mehrok vs Punjab School Education Board on 31 October, 2012
Author: A.K. Sikri
Bench: A.K. Sikri, Rakesh Kumar Jain
CWP No. 23425 of 2011 1
CWP No. 24181 of 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 23425 of 2011
Date of Decision : 31.10.2012
Janak Raj Mehrok
...Petitioner
Versus
Punjab School Education Board, SAS Nagar (Mohali)
through its Secretary and others.
...Respondents
CWP No. 24181 of 2011
Date of Decision : 31.10.2012
Smt. Sukhvinder Kaur Saroya
...Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Sanjay Majithia, Senior Advocate,
with Mr. Shailendra Sharma, Advocate,
for the petitioner in CWP No. 23425 of 2011.
Mr. J.S. Bhatti, Advocate,
for the petitioner,
in CWP No. 24181 of 2011.
Mr. G.S. Bal, Advocate,
for respondent No. 1 in CWP No. 23425 of 2011,
and respondents No. 2 and 3 in CWP No. 24181 of 2011.
Mr. Vishal Sharma, Advocate,
for respondent No. 2.
Mr. J.S. Puri, Additional Advocate General, Punjab.
****
CWP No. 23425 of 2011 2
CWP No. 24181 of 2011
A.K. SIKRI, C.J.
The validity of appointment of Smt. Pavitar Pal Kaur, who is arrayed as one of the respondents in both the writ petitions to the post of Joint Secretary, Punjab School Education Board (hereinafter referred to as the Board), is under challenge in both these writ petitions filed by the petitioners, who are also working in the office of the same Board.
2. For the sake of clarity and convenience, we shall take note of the facts emerging from the records of CWP No. 24181 of 2011, which was treated as the lead matter. Thereafter, additional facts that are required to be taken note of from the other writ petition, would be stated by us in order to complete the factual matrix. The petitioner - Sukhvinder Kaur Saroya, in CWP No. 24181 of 2011, was inducted in the Board as Retainer in the year 1993, which position she held upto 28.07.1995, when she was selected and appointed as Legal Advisor in the Board through an open competition. She got promotion as Senior Legal Advisor and Law Officer w.e.f. 09.04.1999 in the grade of Deputy Secretary which position she has occupied ever since. During this period, she has also worked on higher post of Controller of Examination for about 2 ½ years in its regular grade. She has also worked as Director, Academics and Joint Secretary for some spells. At the time of filing the present writ petition, she was working as Controller of Examination. Though, in the meantime, she was also promoted as CWP No. 23425 of 2011 3 CWP No. 24181 of 2011 Joint Secretary on 02.04.2010 on the basis of seniority-cum-merit, but from this post she was reverted back to her substantive post of Senior Legal Advisor on 08.11.2010, on the ground that her promotion to the post of Joint Secretary had not been approved by the Board of Directors. That reversion is challenged by her which is subject matter of CWP No. 11533 of 2009. However, as on today, she is under suspension and facing departmental inquiry.
3. The private respondent who was also working there was appointed as Secretary of the Board, vide order dated 31.08.2006. This appointment to the post of Secretary was assailed by the present petitioner by filing writ petition No. 3206 of 2007. Vide judgement dated 10.03.2009, the learned Single Judge of this Court set aside the appointment of the private respondent to the post of Secretary to the Board holding it to be undesirable and unwarranted. We will refer to this order in some detail at the later stage. Suffice is to state that this order was upheld by the Division Bench of this Court as well. The case of the petitioner herein is that even though the learned Single Judge and the Division Bench, in the earlier case, had passed strictures against the private respondent and labelled the Board as showing undue favour to the private respondent, after the quashing of this appointment of respondent No. 4, as Secretary to the Board, she is rewarded with the promotion to the post of Joint Secretary. It is alleged that even when the private respondent was not eligible for promotion to this post, as per the instant Rules, these Rules were CWP No. 23425 of 2011 4 CWP No. 24181 of 2011 amended to accommodate the private respondent.
4. The un-amended Rule which existed at the relevant time for appointment to the post of Joint Secretary is as follows:-
Sr. No. Name of Mode of Minimum educational and post appointment other qualifications 1 2 3 4 1-A Joint Promotion by Master's Degree or LL.B. Secretary selection from with three years experience as amongst the Deputy Secretary or eligible Deputy equivalent capacity in the Secretaries office of the Board.
working in the Board.
5. As per this Rule, selection could be made from amongst the eligible Deputy Secretaries working in the Board. This Rule was amended vide notification dated 20.02.2008. In the amended provision provided, though the mode of appointment remained the same, there was some change made in the minimum educational and other qualifications. After amendment, the Rule reads as under:-
Sr. No. Name of Mode of Minimum educational and post appointment other qualifications 1-A Joint Promotion from Master's Degree or LL.B. Secretary amongst the with three years experience as eligible Deputy Deputy Secretary in the office Secretaries of the Board.
working in the office of the Board.
6. Further amendment was made vide notification dated 05.04.2010. As pointed out above, in the un-amended Rule, feeder cadre was Deputy Secretaries to the post of Joint Secretary. Vide this CWP No. 23425 of 2011 5 CWP No. 24181 of 2011 amendment, eligibility was thrown open not only to Deputy Secretaries, but also to those working 'in equivalent capacity' in the office of the Board. There was yet another amendment on 02.11.2011. It is this amendment with which we are concerned and, therefore, we reproduce this amendment as well:-
Sr. No. Name of Mode of Minimum educational
post appointment and other qualifications
1-A Joint Promotion by Master's Degree or LL.B.
Secretary selection from with three years
amongst the eligible experience as Deputy
Deputy Secretaries/ Secretary or its
Deputy Directors or equivalent capacity in the its equivalent office of the Board.
capacity in the office of the Board.
7. The mode of appointment as it stands now after the amendment makes those persons eligible for promotion to the post of Joint Secretary who are working as Deputy Secretaries/Deputy Directors or its equivalent. Thus, Deputy Directors are specifically included in the zone of consideration for promotion to the post of Joint Secretary. The private respondent, at the relevant time, was working as Deputy Director when she was considered for promotion to the post of Joint Secretary and was promoted as such.
8. As noted above, as per the petitioner, this amendment is malafide and arbitrary which has been occasioned to accommodate the private respondent who was otherwise not eligible. It is also the case of the petitioner that the private respondent is involved in a criminal case under the Prevention of Corruption Act, 1988, because CWP No. 23425 of 2011 6 CWP No. 24181 of 2011 of which she could not have been promoted to this post. It is submitted that the Board has again shown undue favour to the private respondent in carrying out this amendment. It is also the case of the petitioner that otherwise she was the only eligible candidate as per the un-amended Rules and legitimately entitled to the said promotion which is denied to her. On this basis, the petition is filed with the following prayers:-
(i) Issuance of an appropriate writ, order or direction especially in the nature of certiorari quashing the order dated 04.11.2011 (Annexure P-5) by which the respondent No. 4 has been promoted as Joint Secretary, Punjab School Education Board in an absolutely arbitrary, malafide, illegal and unconstitutional manner particularly when she is involved in a criminal case FIR No. 12, dated 14.06.2002, under Sections 420, 467, 468, 471, 120-B IPC read with Section 13(1) and 13(2) of Prevention of Corruption Act, 1988, Police Station, Vigilance Bureau, Mohali, Punjab, which is totally contrary to the provisions of Punjab School Education Board Act, 1969 and Government of Punjab instruction issued by the Department of Vigilance No. 10/1/98-4V(1)/3900-
4050 dated, Chandigarh, 6th March, 2000;
(ii) Issuance of a writ in the nature of quo-warranto declaring the respondent No. 4 ineligible for promotion to the post of Joint Secretary, Punjab School Education Board, S.A.S. Nagar, Mohali and;
(iii) Issuance of a writ of mandamus directing the respondents not to assign and allow the respondent No. 4 to carry out the duties as assigned by virtue of order dated 02.12.2011 (Annexure P-6).
9. The other petitioner - Janak Raj Mehrok, is also working as Deputy Secretary in the Board. He states that he is the senior most among Deputy Secretaries, but his case has been ignored and instead CWP No. 23425 of 2011 7 CWP No. 24181 of 2011 the private respondent is promoted to the post of Joint Secretary. He has also challenged the appointment on almost same grounds as raised by the other petitioner and heavily relied upon the observations made by the learned Single Judge and Division Bench of this Court in the earlier round of litigation when appointment of the private respondent to the post of Joint Secretary was set aside.
10. Some of the observations made by the learned Single Judge in CWP No. 3206 of 2007 titled as Sukhwinder Kaur Saroya Vs State of Punjab and others in his judgement dated 10.03.2009 and the Division Bench upholding the said judgement in LPA No. 161 of 2009, are as under:-
"In the aforesaid judgement, Single Bench of this Court observed as under:-
"Respondent No. 4 has been accused of a serious dereliction of duty and accused of conniving with others for illegal appointments. The manner in which the Board has defended the action of appointment of respondent No. 4 deserves no appreciation. Despite having the knowledge of pendency of criminal case and the serious nature of accusation, respondent No. 4 has been preferred for appointment to such a sensitive post. The trial of the criminal case is still going on. Keeping in view the pendency of criminal proceedings as also the nature of the accusations, the Board should have refrained from appointing respondent No. 4. But that has not happened. To the contrary the Board is trying to defend its actions and the action of respondent No. 4 treating her as a member of its family. This Court cannot be a mute spectator to such an action particularly when it concerns larger public interest."
The Court was also pleased to quote a passage from a judgement of the Hon'ble Supreme Court of India which is as follows:-
CWP No. 23425 of 2011 8CWP No. 24181 of 2011
"20. The time has come when the postings of officers holding sensitive posts should be done in transparent manner giving no scope for any grievance. It was really desirable for the State Government to steer clear of controversy and not to post respondent No. 3 as the Chief Secretary."
LPA No. 161 of 2009 filed against the judgement dated 10.03.2009 was also dismissed."
11. While dismissing the appeal, the Division Bench reproduced the observations of the learned Single Judge, wherein, it was stated that the Board was trying to defend its action and the action of the private respondent treating her as a member of its family.
12. At the outset, we would like to record that in CWP No. 3206 of 2007, the appointment of Pavitar Pal Kaur (respondent No. 4) to the Post of Secretary was under challenge. The Court had set aside this appointment on the ground that she was facing criminal trial which was still pending and having regard to the pendency of the said criminal proceedings and also the nature of accusations, the Board should have restrained from appointing her as the Secretary. While doing so, the Court had also deprecated the stand of the Board trying to defend such an action. However, in the present case, we are concerned with the appointment of the same very person i.e. respondent No. 4 to a different post, namely, that of Joint Secretary of the Board. This promotion is governed by the Rules which have already been taken note of above. It is not in dispute that, as per amendment in these Rules carried out on CWP No. 23425 of 2011 9 CWP No. 24181 of 2011 02.11.2011, the respondent No. 4 is eligible to be considered for the post of Joint Secretary, as the feeder post is that of Deputy Secretary/Deputy Director or the post equivalent to which she was working as Deputy Director before her promotion to the post of Joint Secretary. There is no dispute that she possesses the minimum educational and other qualifications prescribed for the post. However, the petitioners have laid challenge to this appointment on the following basis:-
(i) The amendment of the Rule is made in a malafide and arbitrary manner just to accommodate respondent No. 4, as the Board has always shown undue favour to her, which is clear from the remarks passed in judgement dated 10.03.2009.
(ii) The criminal proceedings are still pending against respondent No. 4 and, therefore, she could not have been promoted to the post of Joint Secretary.
13. The Board has filed the counter affidavit refuting the allegations. The Board has also given the justification for carrying out the amendment. It was also argued that even as per the un- amended Rule, respondent No. 4 was eligible for promotion, in as much as, the un-amended Rule made the Deputy Secretary or its equivalent capacity in the office of the Board as eligible and the post of Deputy Director was equivalent to that of Deputy Secretary. On that basis, it was argued that amendment was only clarificatory in nature.
CWP No. 23425 of 2011 10CWP No. 24181 of 2011
14. We had summoned the original record vide which the proposal for amendment to the Rules was mooted. The records were produced and we have perused the same. The records indicate that the Board pointed out that the roster point for the post of Joint Secretary fell for the candidate under Scheduled Caste category. However, this post could not be filled up from amongst the Scheduled Caste candidate, as no person from this category was eligible. Since the post was getting carry forward for a large number of years, in order to give chance to the Scheduled Caste category candidate, it was proposed to include Deputy Director as well. The relevant portion and the exact wording of the agenda dated 27.06.2011, presented before the Members of the Regulation Committee, is as under:-
"The post of Joint Secretary is an important administrative post. Due to non-availability of the competent officers having qualification, as laid down in the Regulations because of the post lying vacant, the working of the office is being affected. In this situation, it is advised that while making amendment in the regulations, chance of promotion to the post of Joint Secretary be given to the other officers working on the post equivalent to that of Deputy Secretary and working in the same grade. While doing so, the competent officers would be available and there would be efficiency in the office working. In this regard, the proposal at flag 'A' alongwith comments are being sent to the Rule Committee."
15. This agenda brings out two aspects. On the one hand, it negates the contention of the respondent that the post of Deputy Director was treated as equivalent to that of Deputy Secretary. Had CWP No. 23425 of 2011 11 CWP No. 24181 of 2011 that been so, there was no need for amendment. The aforesaid agenda clearly shows that amendment was not by way of clarification, but on the premise that Directors, as per the existing Rules, were not eligible, which would mean that the post of Deputy Director was not treated as equivalent to that of Deputy Secretary by the respondents themselves and that prompted the Board to propose the amendment. However, at the same time, it also shows the necessity for carrying out the amendment, as the feeder cadre was restricted to Deputy Secretaries and the post in question fell under the quota of Scheduled Caste category candidate, but there was no Scheduled Caste category candidate available. This reason for including Deputy Directors also in the aforesaid category for promotion to the post of Joint Secretary with same qualifications, cannot be treated as malafide. After all, the matter was considered at the highest level in the government and for the aforesaid reason, justification was found for amending the Rules. We, therefore, reject the contention of the petitioners that the amendment was malafide or to favour the respondent herein.
16. We now deal with the second question, namely, whether respondent No. 4, could be considered for the post of Joint Secretary, in view of criminal proceedings against her. This aspect is governed by the regulations framed by the Board. There are no regulations as such, which are produced before us or shown to us. However, learned counsel for the Board has produced 'Guidelines on CWP No. 23425 of 2011 12 CWP No. 24181 of 2011 Departmental Promotion Committees' and referred to paras 17.8.1 and 17.8.2 which read as under:-
17.8.1. Procedure for adhoc promotion - Inspite of the six monthly review referred to in para 17.7.1 above, there may be some cases where the disciplinary case/criminal prosecution against the Government servant are not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept its findings in respect of the Government servant, in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of giving him adhoc promotion keeping in view the following aspects: -
(a) Whether the promotion of the officer will be against public interest;
(b) Whether the charges are grave enough to
warrant continued denial of promotion;
(c) Whether there is no likelihood of the case
coming to a conclusion in the near future;
(d) Whether the delay in the finalization of
proceedings, departmental or in a Court of law, is not directly or indirectly attributable to the Government servant concerned; and
(e) Whether there is any likelihood of misuse of official position which the Government servant may occupy after adhoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution.
The appointing authority should also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the Bureau.
17.8.2. In case the appointing authority comes to a conclusion that it would not be against the public interest to allow adhoc promotion to the Government CWP No. 23425 of 2011 13 CWP No. 24181 of 2011 servant, his case should be placed before the next DPC held in the normal course after the expiry of the two years period to decide whether the officer is suitable for promotion on adhoc basis. Where the Government servant is considered for adhoc promotion, the DPC should make its assessment on the basis of the totality of the individual's record of service without taking into account the pending disciplinary case/criminal prosecution against him."
17. The aforesaid guidelines make it clear that normally an employee against whom disciplinary case or criminal prosecution is pending is not to be promoted in higher post during the pendency of those proceedings. However, it softens the rigors of this rule in those cases, where such disciplinary case or criminal prosecution can be prolonged. In such circumstances, if the proceedings are not concluded even after the expiry of two years from the date of meeting of the first DPC, the appointing authority may consider the desirability of giving him/her adhoc promotion. Three conditions are to be fulfilled as per these guidelines, namely, (i) two years have elapsed since the consideration of the incumbents by the first DPC and on the basis of the first DPC, the findings of the DPC were kept in a sealed cover; (ii) the employee against whom disciplinary case or criminal proceedings are pending should not be under suspension; and (iii) even when the aforesaid conditions are satisfied, the promotion to the higher post, that too on adhoc basis, is not automatic, but it is left to the discretion of the appointing authority to consider the desirability of giving such adhoc promotion.
18. Even while exercising such a discretion, certain aspects are CWP No. 23425 of 2011 14 CWP No. 24181 of 2011 to be kept in mind, which are specifically stipulated therein, namely, whether the promotion of the officer will be against public interest; whether the charges are grave enough to warrant continued denial of promotion; whether there is no likelihood of the case coming to a conclusion in the near future; whether the delay in the finalization of proceedings, departmental or in a Court of law, is not directly or indirectly attributable to the Government servant concerned; and whether there is any likelihood of misuse of official position which the Government servant may occupy after adhoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution. There is a further stipulation of consulting Central Bureau of Investigation, in case departmental proceedings or criminal prosecution arose out of investigation conducted by the Bureau.
19. After consideration of the matter in the aforesaid manner, if the appointing authority holds the view that it would not be against the public interest to allow adhoc promotion to such an employee, his case is to be placed before the next DPC held in normal course. In that DPC, the norms, which are to be followed by it are stipulated in para 17.8.2 of the aforesaid guidelines.
20. We find from the record that no such procedure, as stipulated hereinabove, was followed in the instant case. No doubt, the respondent No. 4 is facing criminal prosecution for a last number of years. However, it was not a case where two years had expired CWP No. 23425 of 2011 15 CWP No. 24181 of 2011 after the first DPC. On the contrary, on the basis of record it was conceded by the learned counsel for the Board that this was the first DPC, on the basis of whose recommendations, the respondent No. 4 was given promotion to the post of Joint Secretary. Furthermore, the appointing authority did not consider the case on the parameters laid down in guidelines 17.8.1, namely, did not consider as to whether the promotion of the respondent No. 4 would not be against public interest. When this mandatory procedure prescribed for consideration has not been followed, the promotion of the respondent No. 4 to the post of Joint Secretary, cannot be sustained.
21. We, accordingly, set aside the order of promotion of the respondent No. 4 to the post of Joint Secretary of the Board given to her vide order dated 04.11.2011 as well as notification dated 02.11.2011. We make it clear that after the expiry of two years from the holding of the said DPC, the respondent No. 4 shall become eligible to be considered for adhoc promotion and the appointing authority would be at liberty to dwell on the issue as to whether it would be desirable to give adhoc promotion to the post of Joint Secretary or not on the parameters laid down in guidelines 17.8.1 and once such an opinion is formed, keeping in view the aforesaid objective considerations, the case of the respondent No. 4, could thereafter be put up before the next DPC, which may be held thereafter.
22. The next question arises is as to whether mandamus can be issued directing the Board to promote the petitioner in CWP No. 23425 of 2011 16 CWP No. 24181 of 2011 CWP No. 23425 of 2011 as Joint Secretary w.e.f. 17.04.2011. The case of the petitioner, in this behalf, is that he was the only candidate eligible for the post of Joint Secretary, as he had completed three years' service on 16.04.2011, which eligibility condition no other candidate fulfilled. Even then, mandamus to promote him cannot be granted as it is the function of the Departmental Promotion Committee to consider the candidature of eligible candidates. In case the petitioner was the next person on merit list, recommended for promotion by the DPC held in November, 2011, then orders can be passed by the appointing authority giving him the promotion on the basis of said recommendations, as the promotion of the respondent No. 4 has been set aside. However, if no such exercise is done, then the only direction which can be given is to mandate the appointing authority to get DPC convened for the post of Joint Secretary as on November, 2011 and consider the case of eligible candidates including this petitioner. If the petitioner was the only person eligible as on that date and is found fit for promotion, he would be given promotion to the post of Joint Secretary.
23. These two writ petitions are disposed of in the aforesaid terms.
(A.K. SIKRI) CHIEF JUSTICE (RAKESH KUMAR JAIN) JUDGE 31.10.2012 Amodh