Bombay High Court
Union Of India And Ors vs K.K.Verma on 19 March, 2018
Bench: V. K. Tahilramani, M. S. Sonak
SKC WP-2167-02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2167 OF 2002
Union of India & Anr. ...Petitioners
Versus
K. K. Verma ...Respondent
Mr. Suresh Kumar for Petitioner.
Mr. G. K. Masand i/b. Mr. Ajeet Manwani for Respondent.
CORAM : SMT. V. K. TAHILRAMANI, Acting C.J. &
M. S. SONAK, J.
Date of Reserving the Judgment : 08 March 2018
Date of Pronouncing the Judgment : 19 March 2018
JUDGMENT :
1] Heard the learned counsel for the parties. 2] The challenge in this petition is to the impugned judgment and order dated 23rd January 2001 made by the Central Administrative Tribunal (CAT) in Original Application No. 601 of 2001. By the impugned judgment and order, the CAT, has declared that the criteria adopted by the Departmental Promotion Committee (DPC) for assessment of the candidates for promotion to the post of Principal Head of Department (PHOD), in the railways as arbitrary.
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The CAT has further held that the respondent (original applicant before the CAT) was entitled for promotion to the post of PHOD and has directed for conduct of review DPC in order to promote the respondent to the post of PHOD with effect from the date his juniors were promoted with all consequential benefits. The promotion is directed to be notional from 8th December 1999 and the arrears are directed to be paid from the date of the review DPC. 3] This Court, by an order dated 11th October 2002 issued Rule and granted ad interim relief. By further order dated 13th January 2003, the ad interim stay granted on 11th October 2002 was confirmed.
4] In the meanwhile, the respondent has already retired from service. However, Mr. Masand, the learned counsel for the respondent is quite right in his submission that such retirement by itself does not render the present petition infructuous since, on the basis of the impugned judgment and order, the respondent will be entitled to consequential benefits like arrears and revision of pension in case the present petition is dismissed and the stay to the operation page 2 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 of the impugned judgment and order, vacated. Accepting this submission of Mr. Masand, we have heard the learned counsel for the parties and we proceed to dispose of this petition finally.
5] Mr. Suresh Kumar, the learned counsel for the petitioners submits that the DPC in the present case has in fact adhered to the guidelines prescribed for its functioning. He submits that the marking system adopted by the DPC could not have been regarded as the deviation or in any case substantial deviation from such guidelines. Mr. Suresh Kumar submits that the DPC is always at liberty to adopt its own procedure for assessment of suitability of candidates and as long as the method so adopted is not arbitrary or unreasonable, judicial review in such matters must be extremely limited. Mr. Suresh Kumar submits that the view taken by the CAT in the impugned judgment and order ignores these settled principles, regards judicial review. 6] Mr. Suresh Kumar submits that in the present case, the OA instituted by the respondent ought to have been dismissed on the ground of non joinder of necessary party page 3 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 i.e. the officer recommended for promotion and actually promoted to the post of PHOD. Such officer, was a necessary party and in his absence, the CAT should have simply dismissed the OA instituted by the respondent. 7] Mr. Suresh Kumar submits that admittedly, the officer who was recommended for promotion and actually promoted to the post of PHOD was assessed as 'outstanding' on two occasions and 'very good' on three occasions for the five years preceding the date of his consideration for promotion. In contrast, the respondent was assessed as 'very good' on five occasions for the past five years. In such circumstances, if the DPC upon evaluation of the candidature of the two officers made recommendation to promote the officer who had two 'outstandings' and three 'very goods', then, it cannot be said that there was any arbitrariness or unreasonableness involved in the matter so as to exercise the powers of judicial review.
8] Mr. Suresh Kumar submits that merely because the DPC chose to assign 5 marks to every grading of page 4 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 'outstanding' and 4 marks to every grading of 'very good', that by itself, does not amount to deviation from the prescribed criteria. In any case, that by itself, does not amount to any arbitrary or unreasonable exercise of power so as to warrant judicial review.
9] Mr. Suresh Kumar submits that the CAT in the impugned judgment and order has declared that the respondent was entitled to promotion and thereafter, directed the constitution of a review DPC in order to formally recommend the promotion of the respondent and thereafter grant him all consequential benefits including deemed pay and arrears. Mr. Suresh Kumar submits that in such matters the courts and tribunals can at the highest direct reconsideration but only rarely can courts and tribunals issue a mandamus to promote. For these reasons also, Mr. Suresh Kumar submits that the impugned judgment and order warrants interference. 10] Mr. Masand, the learned counsel for the respondent submits that as per the DPC guidelines, the bench mark prescribed was 'very good'. Since, for the period preceding page 5 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 five years, the respondent was assessed as 'very good' for each of the years, it is apparent that the respondent had met with the bench mark. In such circumstances, the DPC, had no right or authority to evolve some other procedure, so as to deny promotion to the respondent. The criteria of marks evolved by the DPC was ex facie illegal and arbitrary and was therefore correctly set aside by the CAT. Mr. Masand submits that the CAT undoubtedly has jurisdiction to set aside the arbitrary and unreasonable criteria or method adopted by the DPC and therefore, the impugned judgment and order cannot be said to be suffering from any jurisdictional error so as to warrant interference in these proceedings.
11] Mr. Masand submits that the CAT has taken into consideration the plea of non joinder of necessary parties. On this ground, the CAT has made it clear that the selection of the officers to the post of PHOD is not being disturbed. In any case, now that such officer as well as the respondent have both retired, there is only question of payment of monetary benefits. In such circumstances, the issue of non joinder of necessary parties has become merely academic page 6 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 and there is no case to deny the respondent any relief on the said ground or even otherwise.
12] Mr. Masand submits that the DPC not only changed the criteria of prescribed guidelines, but further such revised criteria was never made known to any of the parties. He submits that in the absence of such criteria being made known to the parties, the DPC was not at all entitled to either change such criteria or apply such criteria. The CAT has quite correctly accepted this contention of the respondent and there is no illegality in the view taken by the CAT.
13] Mr. Masand submits that since the respondent was denied promotion on the basis of illegal and arbitrary criteria evolved by the DPC and since, such criteria has been set aside, the CAT, was entirely justified in holding that the respondent, who had admittedly secured the assessment of 'very good' for the preceding five years, was entitled to be promoted to the post of PHOD. Mr. Masand submits that there is no bar to the CAT from holding that a party is entitled to promotion and thereafter directing the page 7 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 conduct of a review DPC so that such promotion can actually be granted to the party concerned. 14] Mr. Masand submits that ad interim relief dated 11th October 2002 was issued by this Court without notice to the respondent. Therefore, the circumstances that the respondent has already retired without being promoted to the post of PHOD can never be held against the respondent. Mr. Masand submits that taking into consideration that promotion has been denied to the respondent for such length of time, this Court, should dismiss this petition and thereafter direct the petitioners to pay to the respondent consequential benefits including the arrears along with interest at the current rates. For all these reasons, Mr. Masand submits that this petition may be dismissed and Rule made be discharged.
15] The rival contentions now fall for our determination. 16] In this case, we are concerned with selection to the post of PHOD, which is admittedly a post of the level of Additional Secretary to the Government of India. In terms of page 8 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 the Rules, the selection to such a post is to be made on the basis of recommendations of a High Level Selection Committee comprising Chairman Railway Board, Secretary of Department of Personnel & Training and one Member of the Railway Board. The recommendations of such High Level Selection Committee are then to be approved by the Minister of Railways. Upon such approval, the recommendations are then forwarded to the Department of Personnel and Training (DOP&T) for securing the approval of the Government at the highest level i.e. Appointments Committee of the Cabinet (ACC) before, appointment is actually made in pursuance of such recommendations from the High Level Selection Committee.
17] The Railway Board vide letter dated 26th September 1989 has issued certain guidelines to be followed for promotion to an administrative grades in the railway services. There is also an Office Memorandum (OM) dated 10th March 1989 issued by the DOP&T in the matter of procedure to be adopted by the Departmental Promotion Committees. Even assuming that these guidelines apply to promotions to the post of PHOD which are to be made on page 9 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 the basis of recommendations of High Level Selection Committee referred to earlier, it must be noted that the letter and the OM merely prescribes the guidelines to be followed by the DPC in such matters. Besides, even the guidelines merely provide that the confidential rolls / reports (CRs) of the candidates are only the basic inputs on the basis of which assessment is to be made by the Selection Committee. Further, the guidelines provide that the Selection Committee would not be guided merely by the overall assessment, if any, that may be recorded in the CRs, but will make its own assessment on the basis of the entries in the CRs. The guidelines provided that for the purposes of promotion from JA Grade to SA Grade to Additional Secretary's Grade, the bench mark shall be 'very good'. For this purpose, the Selection Committee will grade the officers who are considered to be suitable for promotion as 'very good' or 'outstanding'. Officers graded 'outstanding' will rank senior to all those are graded 'very good' and placed in the select panel accordingly. Officers with the same grading will maintain their existing inter se seniority.
18] The OM dated 10th March 1989 issued by DOP&T also
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states that each departmental committee should decide its own method and procedure for objective assessment of the suitability of the candidates. Further, clause 2.1.2 of the OM provides that at present DPC's enjoy full discretion to devise their own methods and procedures for objective assessment of the suitability of candidates who are to be considered by them. In order to ensure greater selectivity in matters of promotions, and for having uniform procedure for assessment by DPCs fresh guidelines have been prescribed. The fresh guidelines in terms provide that while merit has to be recognized and rewarded, advancement in an officer's career should not be regarded as a matter of course but should be earned by dint of hard work, good conduct and result oriented performance as reflected in the annual confidential reports and based on strict and rigorous selection process. Clause 2.2.1 again reiterates that confidential rolls are only the basic inputs on the basis of which assessment has to be made by each DPC. The evaluation of CRs should however be fair, just and non discriminatory. The guidelines also state that the DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs, but should make its own page 11 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 assessment on the basis of the entries in the CRs, because it has been noticed that sometime an overall grading in the CR may be inconsistent with the grading under various parameters or attributes.
19] Clause 2.3.1.(ii) of the aforesaid OM dated 10th March 1989 in terms provides that in respect of all posts which are in the level of Rs.3700-5000 and above, the bench mark grade should be 'very good'. However, officers who are graded as 'outstanding' would rank en bloc senior to those who are graded as 'very good' and placed in the select panel accordingly upto the number of vacancies, officers with same grading maintaining their inter se seniority in the feeder post.
20] Therefore upon careful consideration of the letter dated 26th September 1989 or the OM dated 10th March 1989, it is quite clear that the DPCs are entitled to decide their own methods and procedures for objective assessment of suitability of candidates. However, the methods and procedures which the DPCs adopt must not be unreasonable or arbitrary. Further, in order that there is substantial page 12 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 uniformity or that there is no unfettered discretion vested in such matters, certain guidelines have been prescribed. The guidelines also make it very clear that the CRs are only the basic inputs on the basis of which the assessment is to be made by the DPC. The guidelines emphasize that the DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of entries in the CRs. Finally, the guidelines, particularly, in relation to higher posts, prescribe that officers who are graded as 'outstanding' should rank en bloc senior to those who are graded as 'very good' and placed in the select panel accordingly upto the number of vacancies, officers with the same grading maintaining their inter se seniority in the feeder post. 21] This means that merely because an officer may have been graded as 'very good', such officer, cannot be said to be entitled for promotion on the basis of his seniority in the feeder grade when there are other officers who may have been graded as 'outstanding' in the zone of consideration. Taking into consideration the level of the post of PHOD there is no serious dispute that this principle is to apply in the page 13 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 matter of assessment on merit by the DPC or the DSC, which, as noted earlier, comprises Chairman Railway Board, Secretary DOP&T and one Member of the Railway Board. 22] In the present case, the selection committee, with a view to assess suitability of the candidates with greater objectivity merely provided that it would award 5 marks towards 'outstanding' grading, 4 marks toward 'very good' grading and 3 marks towards 'good' grading. This was done under the approval of Department of Personnel and Training (DOP&T). This can hardly be styled as some sort of a deviation or substantial deviation from the guidelines prescribed. As noted earlier, the DPCs or DSCs are at liberty to evolve their own methods and procedures for assessing the suitability as long as the methods and procedures so evolved by them are not arbitrary or unreasonable.
23] In this case, the DPC or the DSC, did not even deviate from bench mark of 'very good'. Whilst maintaining the same, prescribed for a further objective criteria of giving marks in the various grades which would ultimately assist page 14 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 the DPC or the DSC in an objective manner to assess the suitability of the candidates before it. In the present case, there is no dispute that the respondent had grading of 'very good' in each of the 5 years preceding the year of assessment and was therefore awarded 20 marks. In contrast, the officer who was recommended for promotion / appointment, by the High Level DPC or the DSC had 2 'outstanding' gradings and 3 gradings of 'very good'. Such officer, was consequently awarded 22 marks. This method or procedure was applied uniformly in respect of all the candidates. We find nothing arbitrary or unreasonable in the adoption of such method or procedure. In fact, such method or procedure ensured greater objectivity in the assessment of the merit of the candidates before the DPC or the DSC.
24] As noted earlier, even the guidelines provided that officers who have been graded as 'outstanding' must rank en block senior to those who are graded as 'very good'. The guidelines also provide that the CRs are only the basic inputs and it is within the province of the DPC or the DSC to grade the candidates suitably and not good just by the page 15 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 overall grading, if any, as reflected in the CRs. Taking all these aspects into consideration, we are unable to agree with the view taken by the CAT that the method of assigning marks to the gradings constitutes any deviation or any serious deviation from the guidelines prescribed. We are also unable to agree with the CAT that such method or procedure adopted by the DPC or the DSC was arbitrary or unreasonable so as to warrant interference in the exercise of judicial review.
25] The CAT has ruled that the deviated procedure or criteria should have been made known to the candidates. Again, we are unable to agree with the CAT on this score as well. In the first place, as noted earlier, the method or procedure can hardly be styled as any deviation. In any case, when the guidelines themselves provide that the DPC or the DSC can evolve its own procedure or methods, then, in a matter of this nature, there is no question of insisting upon prior disclosure. It is too far fetched to indicate if the candidates were to know that their gradings would be marked, they might have discharged their duties more efficiently. In any case, the DPC or the DSC has in fact taken page 16 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 into consideration the gradings of the candidates / officers but as a matter of convenience, assigned to such gradings marks so that there is greater objectivity and transparency in the entire process. In such circumstances, there was no warrant for the CAT to interfere with the procedure and the method adopted by the DPC or the DSC, which as noted earlier, comprised Chairman Railway Board, Secretary DOP&T and the Member of the Railway Board. 26] In the present case, taking into consideration the nature of the post of PHOD and the stringent procedures provided for determining merit and making appointments, it is apparent that the candidates who had secured the grading of 'outstanding' were ranked en bloc senior to the candidates who, may have secured the grading of 'very good'. This is in terms of the letter and the OM upon which the respondent had himself placed reliance. Therefore, it is not as if this was a case where the moment a candidate secures the bench mark 'very good' he or she was entitled to be promoted or selected for appointment on the basis of seniority in the feeder cadre. Since, the respondent, had been graded as 'very good' for preceding 5 years, at the page 17 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 highest, the respondent could have claimed a grading of 'very good' before the DPC. Candidate who was selected however, had at least 2 'outstanding' and 3 'very good' gradings in the preceding 5 years. In such a situation, there was nothing unreasonable or arbitrary in the DPC grading such officer / candidate as 'outstanding', though, by awarding him 22 marks as against the 20 marks secured by the respondent. Instead of grading the selected candidate / officer as 'outstanding', all that the DPC or the DSC has done is to assess his grading and award him 22 marks as against 20 marks awarded to the respondent. Again, there is nothing arbitrary or unreasonable in the method or procedure evolved by the DPC or the DCS so as to warrant interference in exercise of powers of judicial review. 27] In Anil Katiyar vs. Union of India & Ors.1, the Hon'ble Supreme Court held that having regard to the confidential procedure which is followed by the Union Public Service Commission, it is not possible to hold that the decision of the DPC in grading the appellant as 'very good' instead of 'outstanding' was arbitrary. No ground is therefore made out for interference with the selection of the 1 (1997) 1 SCC 280 page 18 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 respondent no. 4 by the DPC on the basis of which he had been appointed as Deputy Government Advocate. In this case, the Hon'ble Supreme Court did not approve the approach of the CAT in scrutinizing and ultimately interfering with the method and procedure adopted by the DPC in the matter of selection to the post of Deputy Government Advocate.
28] In Union of India & Anr. vs A. K. Narula 2, the Hon'ble Supreme Court was concerned with the OM dated 10th March 1989 issued by the Ministry of Personnel, Public Grievances and Pension which laid down the procedure of selection where recruitment rules require promotions to be made by selection. This OM is quoted in paragraph 4 of the judgment and order of the Hon'ble Supreme Court and from the perusal of the same, it is virtually the same as OM dated 10th March 1989 with which we are concerned in the present matter. Upon due consideration of such guidelines, the Supreme Court at paragraph 15 has held that the guidelines give certain amount of play in the joints to DPC by providing that it need not be guided by the overall grading recorded in CRs but may make its own assessment on the 2 (2007) 11 SCC 10 page 19 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 basis of the entries in the CRs. The DPC is required to make an overall assessment of the performance of each candidate separately but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness, that the selection calls for interference. Where DPC has proceeded in a fair, impartial and reasonable manner by applying the same yardstick and norms to all candidates and there is no arbitrariness of the process of assessment by the DPC, the court will not interfere, vide SBI vs. Mohd. Mynuddin3. 29] In Badrinath vs. Government of Tamil Nadu & Ors.4, the Hon'ble Supreme Court has held that unless there is a strong case for applying the Wednesbury doctrine (Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation5) or there are mala fides, courts or tribunals cannot interfere with the assessment made by the DPC in regards to merit or fitness of promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or 3 (1987) 4 SCC 486 4 (2000) 8 SCC 395 5 (1947) 2 All ER 680 page 20 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 irrelevant or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspects of one's career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of judicial review under Article 226 of the Constitution are not foreclosed. Undue interference by the courts or tribunals will result in paralyzing recommendations of Departmental Committees and promotions.
30] In State Bank of India vs. Mohd. Mynuddin (supra), the Hon'ble Supreme Court has held that whenever promotion to a higher post is to be made on the basis of merit, no officer can claim such promotion as a matter of right by virtue of seniority alone with effect from the date on which his juniors are promoted. It is not sufficient that in his confidential reports it is recorded that his services are satisfactory. An officer may be capable of discharging the duties of the post held by him satisfactorily but he may not be fit for the higher post. Before any such promotion can be effected it is the duty of the management to consider the page 21 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 case of the officer concerned on the basis of the relevant materials. The methods of evaluation of the abilities or the competence of the persons to be selected for such posts should in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post, to be nominated by the employer. The court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. It is only when the process of selection is vitiated on the ground of bias, mala fides or any other similar vitiating circumstances and other considerations will arise. In the present case, the CAT, has clearly ignored these well settled principles. 31] We are also of the opinion that in the present case, the CAT, ought not to have entertained the OA 601 of 2001 without insisting upon impleadment of the selected and the appointed officer to the post of PHOD. Such an objection page 22 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 had in fact been raised before the CAT. However, CAT in the ultimate paragraph of the impugned judgment and order has merely observed that since the respondent has not made the selected persons parties to the OA, the CAT will not disturb their selection. However, immediately thereafter, the CAT, has proceeded to declare that the respondent was entitled for promotion to PHOD and has directed the respondents before the CAT to hold a review DPC for promoting the respondent to the post of PHOD with effect from the date his juniors were promoted with all consequential benefits. At the stage when such directions were issued, in all probabilities, the selected persons were actually holding the post of PHOD. Since, the CAT had already ruled that the respondent was entitled for promotion to the post of PHOD, nothing further, was required to be done by the review DPC other than to recommend the respondent for promotion. Similarly nothing further was required to be done by the respondents other than to promote / appoint the respondent to the post of PHOD by giving him a deemed date. This means that either the respondents would have to create some supernumerary post if this was possible or revert the selected and page 23 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 appointed person holding the post of PHOD. In the minimum, the selected persons, would have to be ranked as junior to the respondent. All such directions could never been issued without insisting upon the impleadment of the selected person. This is an additional ground for interference with the impugned judgment and order made by the CAT.
32] In Suresh vs. Yeotmal Dist. Central Co-op. Bank Ltd. & Anr.6, the Hon'ble Supreme Court has held that a petition challenging promotions cannot be adjudicated unless candidates higher-up in seniority are impleaded as parties.
33] In Rashmi Mishra vs. M.P. Public Service Commission & Ors.7 and Prabodh Verma & Os vs. State of Uttar Pradesh & Ors.8, the Hon'ble Supreme Court has held that a High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of the being 6 AIR 2008 SC 2432 7 (2006) 12 SCC 724 8 (1984) 4 SCC 251 page 24 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 before it as respondents in a representative capacity if their number is too large, and, therefore, Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity.
34] Mr. Masand has however contended that as of now both the respondent as well as the selected person have already retired. Mr. Masand submits that therefore, as of today, there is no question of any reversion or creation of supernumerary post. Mr. Masand submits that at present the only question is of award of consequential monetary benefits to the respondent and therefore, the issue of any joinder of the selected person is merely academic. In the peculiar facts and circumstances of the present case, we are unable to agree. If the submission of Mr. Masand is to be accepted then it would amount to burdening the petitioners with the payment of salary, as well as pensionary benefits twice over. Such salary and pensionary benefits have already been drawn by the selected person whose page 25 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 selection the CAT has not interfered with. At the same time, similar salary and pensionary benefits will have to be awarded to the respondent once again. Accordingly, we are of the opinion that the CAT ought not to have entertained the OA without insisting upon the impleadment of the selected person, who was a necessary party to such proceedings.
35] Applying the aforesaid principles to the facts of the present case, we are satisfied that the CAT should not have entertained the OA without insisting upon the impleadment of the selected person who was admittedly appointed to the post of PHOD.
36] Again in the present case, we find that the CAT has straightway directed the petitioners to promote the respondent to the post of PHOD. Even where the court or a tribunal comes to the conclusion that promotion has been denied arbitrarily or without any reason, ordinarily, the court or the tribunal can issue a direction to consider the case of the concerned officer for promotion but it cannot issue a direction to promote the officer concerned to the page 26 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 ::: SKC WP-2167-02 higher post without giving an opportunity to the employer to consider the question of promotion. Where the State Government or a statutory authority is under an obligation to promote an employee to a higher post which has to be filled up by selection, the State Government or the statutory authority alone should be directed to consider the question whether the employee is entitled to be so promoted and the court should not ordinarily issue a writ to the Government or the statutory authority to promote such officer straightway. (See : State Bank of India & Ors. vs. Mohd. Mynuddin9 and State of Mysore vs. Syed Mahmood10).
37] For all the aforesaid reasons, we allow this petition and set aside the impugned judgment and order made by the CAT. Rule is made absolute in terms of prayer clause (a). However, there shall not be no order as to costs. (M.S. SONAK, J.) (ACTING CHIEF JUSTICE) CHANDKA 9 (1987) 4 SCC 486 10 AIR 1968 SC 1113 page 27 of 27 ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 01:56:51 :::