Shri Gopaldas Jankiram Dahad vs The State Of Maharashtra, The Director ... on 4 October, 2002

[Cites 9, Cited by 0]

Bombay High Court

Shri Gopaldas Jankiram Dahad vs The State Of Maharashtra, The Director ... on 4 October, 2002

Equivalent citations: 2003(3)MHLJ551

Author: B.H. Marlapalle

Bench: B.H. Marlapalle, V.K. Tahilramani

JUDGMENT
 

B.H. Marlapalle, J.

1. In this petition filed under Articles 226 and 227 of the Constitution, the petitioner has called in question the judgment and order dated 20.7.2000 by which Misc. Application No. 563/98, Contempt Petition No. 6/99 and Misc. Application No. 71/2000 filed in Transfer Application No. 1046/91 ( Writ petition No. 840/94 as well as O.A. No. 495/97 Misc. Application No. 199/98 and Contempt Petition No. 33/1999, came to be decided by the Maharashtra Administrative Tribunal.

2. The cause of this petition has a checkered history and it is, therefore, necessary to deal with the factual matrix in detail for better appreciation of the inter-se disputes challenging the orders passed by the State Government through ofs Home Department, and which were a subject matter of challenge before the Maharashtra Administrative Tribunal.

4. Transfer Application No. 1046/91 came to be finally decided by the Tribunal vide its judgment and order dt. 14th December 1995 and the operative part of the said order read as under :-

                "Petition is   partly   allowed.     The                        
                impugned Govt.   Resolution  dt.    18.1.1984   and

19.1.1984 are hereby quashed and set aside. The applicant shall be reinstated in service as Assistant Diretor (General, Analytical and Instrumentation Division) in the Directorate of Forensic Science Laboratory within 3 months from the date of receipt of this order by the respondents. The period from 19.1.1984 to the date of his return to duty shall be treated as period of service as Assistant Director for purposes of seniority, fixation of his pay under the efficiency bar, if any, and shall not be paid arrears of salary for the period during which he did not work or the difference between the salaries he received as Assistant Chemical Analyser and the salaries of the Assistant Director. The petitioner shall rejoin duty at the place of his posting within 15 days from the date he received his posting order. In case he fails to join within that period, he will not be entitled to the reliefs. The respondents will be at liberty to hold Departmental enquiry against him as per rules for his lapses in the performance of his duties as Assistant Director, if they deem it necessary."

5. As the petitioner was denied the benefit of arrears of salary as well as the difference in payment of salary, he challenged the above decision of the Tribunal in S.L.P. (Civil) No. 10354/1996 and the same was dismissed by the Apex Court on 10.5.1996. The dismissal order read, :

                  "The   Special   Leave    Petition    is                        
                dismissed."                                                      
                                                                                
                 

 It   is   pertinent  to  note  that  the

respondent State authorities i.e. respondent Nos. 1 and 2 did not challenge the decision of the Tribunal in Transfer Application No. 1046/91, at any time and it thus received finality.

6. On 15th March, 1996, the State Government through the Home Department issued a resolution and reinstated the petitioner in the post of Assistant Director, Forensic Laboratory, w.e.f. 19.1.1984. The petitioner accordingly resumed his duties on 30th March, 1996 i.e. within the stipulated period of 2 weeks as was stated in the order passed by the Tribunal.

7. One Dr. V.B. Patil, who was at Sr. No. 18 in the seniority list for the post of Assistant Director as on 1.4.1983, came to be promoted to the post of Deputy Director, Forensic Laboratory on 23rd October, 1996 i.e. after the petitioner was reinstated in service and as noted a little while ago, the petitioner was senior to said Shri Patil in the post of Assistant Director. The Home Department, issued yet another resolution on 16th August, 1997 and decided the issue of the petitioners seniority as well as pay fixation. It was resolved that the period from 19.1.1984 to 30.3.1996 would be taken into consideration for seniority and pay fixation. The Government, therefore, resolved to promote the petitioner to the post of Deputy Director from 7.10.1993 and approved the said promotion with reference to the date of promotion of Smt. Krishnamurthy in that post. On 23rd October, 1997, the Home Department issued another resolution stating that the promotion of the petitioner to the post of Deputy Director would be treated from the nomination quota, as some time would be required to regularize his promotion from the promotion quota.

8. The present respondent no.3 took exception to these resolutions i.e. resolutions dated 16.8.1997 and 23.10.1997 by filing O.A. No. 495/97. This fresh petition was listed before the Tribunal from time to time and on 26.11.1997, an interlocutory order came to be passed by the Single Bench of the Tribunal directing the respondent State Authorities not to fill in the post of Deputy Director which was likely to fall vacant on account of superannuation of one Shri M.K. Ambade on 30.11.1997 till the respondents in that petition had filed their reply. The petition was again placed before the Single Bench of the Tribunal on 21.1.1998 and the learned Member (Judicial) noted the undertaking given on behalf of the State Government to start the process for selection to the post of Deputy Director which process could not be started on account of the order dated 26.11.1997 directing to keep one post vacant and directed to start the process of selection of suitable officers for promotion as Deputy Director. The present petitioner was impleaded as respondent No.4 in O.A. No. 495/1997.

9. It appears that the State Government did precious little to initiate the process for filling in the post of Deputy Director by way of promotion and, therefore, the present respondent no.3 filed Misc Application No. 199/98 in O.A. No. 495/97 and prayed for directions to implement the said order and initiate the process of promotion. This Miscellaneous application was before the Tribunal from time to time and on 23.12.1998, notice was issued to the present petitioner as well. On 21.7.1998, when this application was placed before the Single Bench of the Tribunal, the learned Member (Judicial) recorded the undertaking given on behalf of the State Government for compliance and implementation of the order passed on 21.1.1998 and noted that, as a last and final chance, time was granted for 2 weeks to comply and implement the said order. Even thereafter, the State Government did not take any steps to initiate the process to fill in the post of Deputy Director by promotion and, therefore, the petitioner as well as respondent No.3 moved separate Contempt Petitions i.e. Contempt Petition Nos. 6 and 33/1997. On 14.10.1999, the Contempt Petition No.33/99 filed by the respondent No.3 came to be admitted by the Tribunal and the undertaking of the Presenting Officer to comply the order dated 21.1.1998 was recorded. The Tribunal further directed to consider the case of the present respondent No.3 for promotion strictly as per merits as early as possible and communicate the decision to the Tribunal separately. Both these petitions i.e. contempt petitions No. 33/99 and O.A. No. 495/97 were directed to be placed before the regular Division Bench for final hearing.

10. The State Government constituted Departmental Promotion Committee as per Govt. Resolution dated 23.7.1995, consisting of 3 members and the said Committee met on 4.11.1999. It noted that 2 out of 5 posts of Deputy Director from the promotion quota were vacant and considered the names of 6 eligible Officers, namely, 1) the petitioner, 2) Shri M.P. Kurhekar, 3) the respondent No.3, 4) V.V. Kamble, 5) A.G. Malvankar and 6) J.D. Pande. On assessing the Annual Confidential Reports of other 5 Officers for the period from 1994-95 to 1998-99, as well as the petitioner, for the period 1985-86, 86-87, 1996-97 to 1998-99, the said D.P.C. , recorded its assessment as "B" for the petitioner and held that he could not be considered for promotion as he did not meet the minimum Bench mark of "B +" as has been laid down in the Govt. Resolution dated 22.9.1994. The Committee, therefore, recommended the promotions of 2 Officers , namely, Shri Kurhekar and the respondent No.3. It also recommended the cases of Shri V.V. Kamble, A.G. Malvankar and J.B. Pande for promotion to the post of Deputy Director against the nomination quota as all of them had met the minimum bench mark of "B +"

or above. However, promotion orders were issued for the post of Deputy Director in favour of only 2 Officers, i.e. the present respondent No.3 and Shri Kurhekar. The petitioner, thus, lost promotion to the post of Deputy Director as per the recommendations made by the D.P.C. and, therefore, the Government issued a fresh resolution on 2nd June, 2000 whereby the petitioner came to be reverted to the post of Assistant Director.

11. He challenged this decision before the Tribunal (Mumbai Bench) in O.A. No. 551/2000 and the same was dismissed on the ground of resjudicata by the Division Bench on 10.10.2000. The petitioner had also moved Misc. Application No. 71/2000 before the Tribunal ( Aurangabad Bench) and the pending Misc. Applications filed by the petitioner in T.A. No. 1046/91, Contempt Petition No. 6/99, O.A. No. 495 alongwith Misc. Application filed in the same by the respondent No.3 as well as Contempt Petition No. 33/99, came to be decided by the impugned order dated 20th July, 2000, by the Division Bench of the Tribunal (Bench at Aurangabad).

12. Some other relevant developments are also required to be noted down. After the petitioner was reinstated, a fresh seniority list for the post of Assistant Director was drawn on 1.1.1997 and the petitioner was shown at Sr.No.1, whereas the present respondent No.3 has been shown at Sr. No.3 in the said list with Shri Kurhekar at Sr. No.2. In the seniority list for the post of Assistant Director as on 30.3.1996, the petitioners name stands at Sr. No.1, Shri V.B. Patil at Sr.No.2, Shri M.P. Kurhekar, at Sr.No.3 and the present respondent No.3 at Sr.No.4.

13. The Govt. of Maharashtra, by Govt. Resolution dated 10th December 1998, implemented the 5th Pay Commission recommendations w.e.f. 1.1.1996 and the pay scale of Rs.3200-4625, as applicable to the post of Deputy Director was revised to Rs. 10650-15850. It would be desirable to reproduce the old and revised pay scales for the Class I and CLASS II posts in the Forensic Laboratory, as under :-

-------------------------------------------------------

                Sr  Post                       Old pay   New pay                                    
                No.                            scale     scale

-------------------------------------------------------

1. Director 4500-5700 14300-18300

2. Jt.Director 4100-5300 14300-18300

3. Deputy Director 3200-4625 10650-15850

4. Asstt.Director 3000-4500 10000-15200

5. Asstt. Chemical Analyser 2000-3500 6500-10500

6. Scientific Officer 2000-3500 6500-10500 Admittedly, the posts at Sr.No.5 and 6 are in Class II, whereas Class I posts start from the post of Assistant Director onwards. On the day, the D.P.C. met for filling in the post of Deputy Director by way of promotion pursuant to the directions given by the Tribunal on 21.1.1998, the new pay scales were in existence.

14. Having discussed the sequence of events leading to this petition before us, we framed the following issues for our consideration and called upon the petitioner party in person, the learned Govt. Pleader as well as the learned counsel for respondent no.3 to address us on the same.

(A)Whether the petitioners case was required to be referred to the D.P.C. for its considerations for his promotion to the post of Deputy Director immediately on his reinstatement by order dated 15.3.1996 by respondent Nos.1 and 2.

(B)Whether the D.P.C. proceedings dated 4.11.1999 are vitiated.

(C)Whether the impugned resolution dated 2-6-2000 is sustainable in law.

15. The petitioner party in person, at the outset submitted that he was appointed to the post of Assistant Director by way of nomination vide order dated 3rd February, 1981 and, therefore, there was no question of his being reverted to the post of Assistant Chemical Analyser as he was not a promotee from the said post. If his challenge to the resolution issued on 18th January 1994 was upheld by the Tribunal regarding extending his probationary period, he would have been out of Govt. Service. On the next date, i.e. 19.1.1994, an order of reversion came to be passed, which was totally misconceived. Once both these orders were set aside by the Tribunal, the petitioner being out of service from June 1987 from the reverted post till he was reinstated could not affect his right for being considered for promotion to the post of Deputy Director and especially when the Tribunal, by its judgment dated 14.12.1995 had granted him the benefit of seniority and fixation of pay scale by considering the entire period from 19.1.1984 till he was reinstated. In addition, the said decision of the Tribunal was never challenged by the State Government or any other Officer including the respondent No.3. While his challenge to the Resolutions dated 18.1.1984 was pending before the Tribunal, Smt. Krishnamurthy , an officer junior to him in the post of Assistant Director came to be promoted and on his reinstatement in service as Assistant Director, one more junior Officer i.e Shri V.V. Patil was also promoted to the post of Deputy Director. This also indicated that there was one post of Deputy Director from the promotion quota after he was reinstated in service and he being the seniormost, he was required to be considered especially when the promotion order in favour of Shri Patil was issued on 23rd October, 1996. His right for being considered for promotion was thus infringed by the action of the State Government. The petitioner refers to the provisions of Rule 5 of the Recruitment Rules of 1981 and contends that he ought to have been considered and promoted to the post of Deputy Director before such a promotion was granted to Shri Patil and even otherwise, the said promotion ought to have been given to him with a deemed date with reference to the promotion granted to Mrs. Krishnamurthy who was below him in the seniority list for the post of Assistant Director as on 1.1.1983. It was not necessary for the Tribunal to direct the State Government to consider the case of the petitioner for promotion when the Recruitment Rules of 1991 were clear, there was vacancy available and junior Officers to the petitioner were considered for promotion to the post of Deputy Director. He was, thus, eligible for being considered and denial by the Government authorities in this regard would amount to denial of fundamental right under Article 16(1) of the Constitution of India. He has placed reliance on the decision of the Apex Court in the case of "

R.B. Desai Vs. S.K. Khanolkar and others"

reported in S.L.R. 2000(3) SC 26.

The petitioner further submitted that the resolution dated 16.8.1997 is required to be considered in the background that the petitioner, on account of the order passed by the Tribunal on 14.12.1995, had earned a right for being considered for promotion to the post of Deputy Director and that Smt. Krishnamurthy , who was next to him in the seniority list for the post of Assistant Director was already promoted in the said post when his petition was pending before the Tribunal and another Junior Officer Shri Patil was promoted to the same post on 23.10.1996. The Government discharged its obligation under the Recruitment Rules of 1991 through the Govt. Resolution dated 16.8.1997 and, therefore, it could not be challenged by the respondent no.3 in O.A. No. 495/97 before the Tribunal.

The Annual Confidential Reports for the post of Assistant Director are available only for the year 1981-82, 82-83 and 83-84 (partly) and thereafter the petitioner was not retained in the post of Assistant director. Once he was reinstated with continuity in service and seniority pursuant to the order passed by the Tribunal, the decision of the State Govt. in extending the probationary period was a nullity and thus, the adverse remarks, if any, for the earlier period in the post of Assistant Director could not be taken into consideration by the D.P.C. So far as the period from 1996-97 to 1998-99 is concerned, he worked in the post of Deputy Director and his A.C.Rs could not be considered for promotion to the same post. In addition, his A.C.Rs. for the period 1985-86 and 1986-87 were for the post of Assistant Chemical Analyser which was a Class II Gazetted post and the same could not have been considered while assessing his case for promotion to the post of Deputy Director by the D.P.C. in its proceedings held on 4-11-1999. The petitioner has also raised another contention regarding the A.C.R.s being biased on account of those having been written by an Officer or Officers junior to him in the post of Assistant Director.

16. Shri Savant, the learned Govt. pleader on the other hand has referred to the order passed by the Tribunal on 14.12.1995 and submitted that the said order did not direct the State Govt. to consider the petitioners case for promotion to the post of Deputy Director though it had granted him the benefit of seniority right from 19.1.1984 till the date he was reinstated inspite of the fact that he was out of Govt. Service from 3.6.1987 till he was reinstated, that is almost about 8 years and this position was clarified by the Tribunal in its subsequent order dated 21.1.1998 passed in O.A. No. 495/97. The State Government had given an undertaking in O.A. No. 495/97 to consider all the eligible officers for promotion to the post of Deputy Director against such a quota including the petitioner and the D.P.C. in its meeting held on 4.11.1999 has considered six officers including the petitioner. The Govt. has thus, discharged its responsibility as per the Recruitment Rules, 1991 and as the D.P.C. did not recommend the petitioners candidature for promotion, the State Govt. followed the recommendations of the D.P.C. and granted promotion in favour of the respondent No.3 and shri Kurhekar. On the basis of D.P.C. recommendations, the petitioner could not be retained in the post of Deputy Director and, therefore, the impugned resolution dated 2nd June 2000 was passed reverting him to the post of Assistant Director. The D.P.C. has considered the Annaul Confidential Reports of all the officers for a period of 5 years and assessed the merit of each of them. If the petitioner could not fulfill the minimum bench mark of "B+" pursuant to the Govt. Resolution dated 22.9.1994, the recommendations of the D.P.C. also could not be said to be vitiated and the Government was bound by the said recommendations.

17. Shri Deshmukh, the learned counsel for respondent no.3 has invited our attention to the Recruitment Rules of 1991 and submitted that selection for promotion was required to be made by the D.P.C. on the basis of merit i.e. by assessing the A.C.Rs, the D.P.C. has considered the A.C.R.s of all eligible Officers including the petitioner and the respondent no.3 and the case of the respondent no.3 was rightly recommended for promotion by the D.P.C. There is no infringement of the Recruitment Rules of 1991 while granting promotion to the respondent no.3 in the post of Deputy Director. He has also submitted that the petitioner was enrolled as an Advocate some time in 1989 and practised law till he was reinstated. In support of this, the roll of Advocates published by the Bar council of Maharashtra and Goa has been brought on record at Exh.R-6 annexed to the affidavit in reply filed by the respondent no.3. Shri Deshmukh as well as Shri Savant, Learned Govt. Pleader, have supported the impugned order passed by the Tribunal.

17.A At the outset, we must clarify the effect of the order dated 21.1.1998 passed by the Tribunal in O.A. No. 495/97. The learned Govt. Pleader placed beore us the R.& P. from the Tribunal and we have noticed that the order dated 21-1-1998 was an interlocutory order passed by the Single Bench, though O.A. No.495/97 was required to be heard and decided by the Division Bench of the Tribunal. The Original Application was not even admitted by the Tribunal as on 21-1-1998. Under such circumstances the order dated 21-1-1998 can not be termed as an order clarifying or explaining the amplitude of the final decision dated 14-12-1995 in T.A.No.1046/1991(W.P. No. 840/1984).

18. Rule 5 of the Recruitment Rules of 1991 provides for appointment to the post of Deputy Director and it reads thus :

"Appointment to the post of Deputy Director (Biology, Serology, Toxicology, Physics, Ballistics, General Analytical and Instrumentation, Prohibition Division and Regional Forensic Science Laboratories) in the Directorate shall be made either :-

(a)by promotion of a suitable person on the basis of a selection from amongst the persons holding the post of Assistant Director in the Directorate having three years service after regular appointment in the post; or

(b)by nomination from amongst the candidates who,:

(i)unless already in the service of Government are not more than fourty years of age;

(ii)Possess a masters degree atleast in second class or a Doctorate Degree in the respective subject as mentioned in the Schedule I;

and

(iii)thereafter have acquired research experience of recognised merit in analytical methods in the relevant subject for not less than ten years after acquiring qualifications mentioned in the sub-clause(i) of clause(b) of this rule;

Provided that,:

(i)Preference may be given to candidates who possess research and development experience in the respective field as mentioned in the Schedule II;

(ii)the age limit may be relaxed by Government on the recommendation of the Commission in farour of candidates possessing exceptional qualifications or experience or both.

19. The petitioners appointment to the post of Assistant Director was governed by "the Deputy and Assistant Directors in the Forensic Science Laboratories - Recruitment Rules, 1975 ( For short, "the Recruitment Rules of 1975").Rule 8 of the said Rules pertaining to the appointment to the post of Assistant Director provides that the said post is required to be filled in by promotion or nomination in the ratio of 3:1. Rule 8 reads thus :

(1)"Appointment to the post of Assistant Director in the Directorate shall be made either :

(a) ...

(b)by nomination from amongst candidates who :

(i)unless already in the service of Government are not more than 35 (thirty-five) years of age ;

(ii)possess a post-graduate degree at least in second class, in any branch of Chemistry or Biochemistry of a recognised university or an equivalent qualification ;

(iii)have training and analytical or research experience in a recognized laboratory for a period of not less than five years after obtaining the Post-graduate degree;

Provided that the age limit may be relaxed in the case of a candidate with exceptional qualifications and/or experience;

(2)Preference will be given to candidate who possess research or analytical experience relevant to the Division in which the appointment is to be made.

(3)The ratio for appointment to the posts by nomination and by promotion shall be 3:1.

(4)A candidate selected for appointment by nomination shall be on probation for a period of two years;

(5)A person appointed, whether by promotion or by nomination, shall be required to pass examinations in Hindi and Marathi according to the prescribed rules unless he has been exempted from passing them.

20. Clause(i) of the appointment order issued in favour of the petitioner for the post of Assistant Director by nomination dated 3rd February, 1981 reads thus :

" They shall be on probation for a period of 2 years from the date they assume charge of the post"

This clause did not empower the State Government to extend the probationary period and the petitioner had completed the said period of 8th February, 1983. In case of "Wasim Beg Vs. State of Uttar Pradesh and others" , such a clause of probation fell for interpretation and in para 15 , the Apex Court observed :-

Where an employee at the end of the probationary period automatically gets confirmation in the post or where an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation .

(a)There are broadly two sets of authorities of this Court dealing with this question. In those cases where the rule provides for maximum period of probation beyond which probation cannot be extended , this court has held that at the end of the maximum probationary period, there will be deemed confirmation of the employee unless rules provides to the contrary.

(b)However, when the Rules prescribe a maximum period of probation if there is a further provision in the rules for continuation of such probation beyond the maximum period, the Courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended, and

(c)The other line of cases deals with rules where there is no maximum period prescribed for probation and either there is a Rule providing for extension of probation or there is a Rule which requires a specific act on the part of the employer (either by issuing an order of confirmation or any similar act) which would result in confirmation of the employee. In these cases unless there is such an order of confirmation, the period of probation would continue and there would be no deemed confirmation at the end of the prescribed probationary period.

21. Reading the provisions of Rule 8 of the Recruitment Rules of 1975 as well as the terms of appointment order issued in favour of the petitioner, it is clear that he was deemed confirmed in service on the date he completed the probationary period i.e. 8th Februry, 1983. The Tribunal has considered all these aspects and recorded a finding that the action of the respondent no.2 in extending the probationary period as well as reverting the petitioner to the post of Assistant Chemical Analyser was illegal and void-ab-initio. On completion of probationary period, the petitioner stood confirmed in the post of Assistant Director and, therefore, there was no question of extending the probationary period or he being reverted to any lower post and more so when he was appointed to the post of Assistant Director by nomination and not by promotion. The Tribunal gave him continuity in service even taking into consideration that he had moved an amendment application for incorporating prayer for reinstatement and this application was subsequently withdrawn. When he was removed from the substantive post of Assistant Director, he was rightly reinstated in the said post. The State Government preferred not to challenge this order and, therefore, it was bound by the same and the consequences flowing therefrom.

22. When the petitioner came to be reinstated by order dated 15th March, 1996, it was known to the respondent No.2 that Smt. Krishnamurthy who was junior to the petitioner in the post of Assistant Director was already promoted to the post of Deputy Director as per the order dated 30/9/1993. There was one vacancy in the post of Deputy Director from the promotion quota and the against the same, Shri V.B. Patil came to be appointed on 23rd October 1996. The petitioner was thus, eligible for being considered for promotion to the post of Deputy Director immediately on his reinstatement pursuant to the order passed by the Tribunal.

23. A Government servant who meets the requirements for the higher post has a right for being considered for promotion and denial of this right would violate the guarantee of Articles 14 and 16(1) of the Constitution. Reference in this regard could be usefully made to the decisions in the case of " Union of India Vs. K.V. Janakiraman" and " Sarabjitsingh Vs. Ex-Major B.D. Gupta" . It was, therefore, necessary for the respondent no.2 to refer the case of the petitioner to the D.P.C. for its consideration as per the provisions of Rule 5 of the Recruitment Rules of 1991 for being promoted to the post of Deputy Director against a promotee quota in the year 1996 itself. This was not done and after Shri V.B. Patil was promoted, the Government issued a resolution dated 16.8.1987 and granted the said benefit of promotion to the petitioner from the date Smt. Krishnamurthy was promoted i.e. 7.10.1993. There is no doubt that before this resolution was issued, it was necessary to have an approval of the M.P.S.C. and it is not known whether the same was done. We, therefore, answer the first issue in favour of the petitioner and hold that he was required to be considered for promotion to the post of Deputy Director immediately on his reinstatement in the post of Assistant Director pursuant to the order passed by the Tribunal on 14.12.1995 and the respondent no.2 was required to refer the petitioners case to the D.P.C. or to the Government by following the provisions of Rule 5 of the Recruitment Rules of 1991.

24. Coming to the next issue, the petitioner has placed before us a copy of the Govt. Circular dated 23rd July, 1985 annexed with the notification of the same date prescribing the details to constitute a Departmental Promotion Committee (D.P.C.) and the procedure required to be followed by it. Rule 5 of the Recruitment Rules of 1991 stipulates promotion of a suitable person on the basis of selection from amongst the persons holding the post of Assistant Director in the Directorate who have completed 3 years service after regular appointment in the post. Thus, any officer holding the post of Assistant for a period of 3 years, after regular appointment is eligible for being considered for promotion to the post of Deputy Director. The D.P.C. is, therefore, required to make selection from amongst those eligible Officers. Under the Circular dated 23rd July, 1985, the number of persons to be considered for inclusion in the select list shall be equal to three times the number of vacancies available for promotion if such vacancies do not exceed 25. On the basis of the provisions of Rule 5 of the Recruitment Rules and the guidelines in the circular dated 23rd July, 1985, it was imperative that the D.P.C. was constituted to fill in one post of Deputy Director which was vacant when the petitioner was reinstated and the D.P.C. ought to have considered the candidature of 3 eligible Officers including the petitioner. This has not been done and we do not have the benefit of the D.P.C. proceedings which culminated in the promotion of Dr. V.B. Patil by order dated 23rd October, 1996.

25. When the provisions of Rule 5 of the Recruitment Rules specify promotion to be granted on the basis of select list to be prepared by the D.P.C. and the said provision does not specify the criteria of merit-cum-seniority or seniority-cum-merit. It is imperative for the D.P.C. to prepare a merit list on the basis of its assessment of all the eligible Officers by going through their Annual Confidential Reports and the entire service record. This has not been done.

By Govt. Resolutions dated 21st February 1994 and 22nd September 1994, the State Government was pleased to set out the minimum bench mark for being included in the select list for promotion to the higher post. The D.P.C., which met on 4.11.1999 has considered the Govt. Resolution dated 22.9.1994 and held that an Officer like the petitioner, who did not obtain the minimum bench mark of "B+" was not eligible for being promoted to the post of Deputy Director and more so because the said Govt. Resolution stated that for promotion to the post which have a minimum step of Rs.5099 in the pay scale, for a particular post, the candidates being considered for promotion to the said post must score the minimum bench mark of "B+". When the petitioner derived the right for being considered for promotion to the post of Deputy Director in 1996, the pay scale applicable to the post of Deputy Director was Rs. 3200-4625 and, therefore, the minimum bench mark for being eligible for promotion was B and not B+. The Govt. Resolution dated 22.9.1994 was not applicable to the petitioner when he ought to have been considered for promotion to the post of Deputy Director alongwith Dr. V.B. Patil.

Subsequently, the Govt. of Maharashtra by G.R. dated 10th December, 1998 revised the salaries of Government Employees and by following the 5th Pay Commission recommendations. It is noticed that under the Directorate of Forensic Science Laboratory and Chemical Analyser, even the post of Scientific Assistant which falls in non-Gazetted category starts with a basic salary of Rs.5000/- and the lowest Gazetted post of Administrative Officer in Class II starts with the basic salary of Rs.6500/-. After the Govt. Resolution dated 10th December 1998 was issued by the State Government, it was also necessary to revise the guidelines regarding the minimum bench mark as set out by Govt. Resolution dated 22nd September,1994 and the D.P.C. held on 4.11.1999 was required to follow such revised guidelines only. But none existed and the D.P.C. followed the old guidelines which could be , if the logic is adopted by the D.P.C. is accepted, made applicable even to non-gazetted posts, under the Forensic Laboratory.

26. When in Rule 5 of the Recruitment Rules of 1991, there is no provision to prepare a select list either on the basis of seniority-cum-merit or merit-cum-seniority, it was necessary for the D.P.C. to recommend the names of the Officers strictly on the basis of merit as per its assessment of the Annual Confidential Reports and the entire service record. In case of " B.V. Sivaiah & Ors. v. K. Addanki Babu & Ors.

" , it was held that the criterion of seniority-cum-merit in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and comparative assessment of merit is not required to be made. Similarly, in the case of promotions on the basis of merit-cum-seniority, the assessment of D.P.C. would culminate into drawing the select list strictly on the basis of its merit and seniority will not be a predominant factor so long as the eligible officers in the zone of consideration have been considered by the D.P.C. In the instant case, out of the 5 Officers who came to the minimum bench mark of "B+" , two of them came to the bench mark of A i.e. the respondent no.3 and Shri A.G. Malwankar and, therefore, by strictly following the principles as set out under Rule 5 of the Recruitment Rules,1991, it was necessary for the D.P.C. to recommend the names of the present respondent No.3 and Shri A.G. Malwankar rather than Shri Kurhekar. It appears that the D.P.C. prepared the select list on the basis of the principle of seniority-cum-merit, which is not applicable and this is one more reason why the D.P.C. proceedings are, in fact, vitiated.

27. Now, coming the case of the petitioner as assessed by the D.P.C., his Annual Confidential Reports for the years 1985-86 and 1986-87 were considered. In both these years, he was functioning as Assistant Chemical Analyser and the A.C.R.s were written for the said post in the month of June 1986 for the period 1.4.1985 to 21.7.1985, whereas for the period from 22.7.1985 to 31.3.1986, they were written in April 1986. The First A.C.R. was written by one Shri G.P. Kawale and second one by Shri S.V.Parilkar. For the period 1.4.1986 to 31.3.1987, the A.C.R. has been written on 29th April 1987 by Shri S.V. Parlikar and it has been confirmed by Smt. Krishnamurthy, who was junior to the petitioner in the post of Assistant Director. Coming to the next period from 1.4.1996 to 31.3.1997, the A.C.R. has been written by Smt. Krishnamurthy, for the period 1.4.1997 to 31.10.1997 by Shri B.M. Shinde and for 1.11.1987 to 31.3.1997 by the same Officer. For the period 1.4.1998 to 31.3.1999 again Shri Shinde has written the A.C.Rs. The A.C.R.s for these 3 years have noted the petitioners post as Assistant Director and there is clear interpolation over the post of Deputy Director. It cannot be disputed that the petitioner was given the post of Deputy Director from 7.10.1993 by resolution dated 16.8.1997 and thus, he is deemed to have discharged the functions of Deputy Director. For promotion to the post of Deputy Director, the A.C.R.s written for the said post could not be considered and this is another reason vitiating the D.P.C. proceedings. We have also noted tht his Annual Confidential Reports for the period of 1-4-1983 to 18-1-1984 have been written on 5.6.1984.

28. Though the Tribunal in the impugned order dated 20th July, 2000 has recorded its perusal of the A.C.Rs. as well as the D.P.C. proceedings, we are unable to agree with the findings recorded by the Tribunal in that regard and in fact, the record as has been noted by us, is contrary to the said findings. We are aware that while exercising our powers under Article 226 of the Constitution, we cannot sit in appeal over the finding recorded by the D.P.C., but if the proceedings of the D.P.C. are not in keeping with the Rules and the guidelines set out by the State Government, surely, the proceedings would stand vitiated and consequently promotions granted as a result of such proceedings would be a nullity. The petitioner was not holding the post of Deputy Director or Assistant Director right from 19.1.1984 till he was reinstated pursuant to the resolution dated 15th March, 1996 and these 8 years period has been directed by the Tribunal to be treated as continuous service in the post of Assistant Director with all consequential benefits except the difference in pay or arrears. The D.P.C. is required to have due regards to this factual position as and when it reassembles. We must also refer to the inordinate delay caused in holding the D.P.C. proceedings. In spite of the order passed by the Tribunal on 21.1.1998, the D.P.C. met only on 4.11.1999 and that too after a gap of several years and ultimately as a result of Contempt Petition No.33/1991 filed by the present respondent no.3 having been admitted by the Tribunal in October 1999. It is clear that the Government acted only when it was threatened with action of contempt. The circular dated 25th July, 1985 states that the D.P.C. is required to meet atleast once in a year and the Government acted in breach of its own policy decision in holding the D.P.C. meeting in response to the directions issued by the Tribunal on 21.1.1998. The D.P.C. ought to have held its proceedings in 1996, 1997 as well as 1998 and in all these years there were vacant posts of Deputy Director from the promotion quota.

29. In the result, we partly allow the petition and quash and set aside the impugned resolution dated 2nd June, 2000 as well as the promotions effected pursuant to the D.P.C. held on 4.11.1999 as the said proceedings are vitiated. We direct that the D.P.C. shall meet to consider the cases of the Officers holding the post of Assistant Director who were eligible for for being promoted in the year 1996 as well as in 1997 and submit its recommendations on the basis of the posts vacant and the guidelines set out in the circular dated 25th July, 1985. The D.P.C. shall recommend the names of the Officers strictly on the basis of merit and the concept of minimum bench mark shall not be made applicable unless the State Government issues fresh resolution in supersession of the existing resolution of 22nd September 1994.

The D.P.C. shall meet within a period of three months from today and submit its recommendations immediately thereafter. The State Government shall take appropriate action on the recommendations of the D.P.C. including consultations with the M.P.S.C. and issue promotion orders accordingly.

Rule made absolute in terms of the above order.

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