Himachal Pradesh High Court
Mr. Rajinder Kumar Sharma vs State Of H.P. & Ors on 16 December, 2016
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 686 of 2010
Judgment reserved on: 25.11.2016
Date of decision: 16.12.2016
.
Mr. Rajinder Kumar Sharma ...Petitioner.
Versus
State of H.P. & Ors. ..Respondents
Coram:
of
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? No.
rt
For the petitioner : Mr. Ashwani K. Sharma, Senior Advocate
with Mr. Ishan Thakur, Advocate, for the
petitioner.
For the respondents: Ms. Meenakshi Sharma, Additional Advocate
General with Mr. J.S. Guleria, Assistant
Advocate General, for respondent No. 1.
Mr. Ramakant Sharma, Senior Advocate, with
Mr. Malay Kaushal, Advocate, for respondent
No. 2.
Mr. P.P. Chauhan, Advocate, for respondent
No. 4.
___________________________________________________________________
Tarlok Singh Chauhan, Judge (oral)
This writ petition has been filed claiming therein the following substantive reliefs:-
"i) Declare the Regulation 3 of H.P. Judicial Service (Suitability Test for Promotion to Cadre of Distt. Judges/Addl. Distt. Judges) Regulations, 2004 contrary to law and against the direction given by Hon'ble Supreme Court of India in the judgment dated 06.05.2002 passed in Brij Mohan Lal versus Union of India & others (2002) 5 SCC 1 and order to quash and set aside the same.
ii) Declare that the Regulations 7(3) of the H.P. Judicial Service (Suitability Test for Promotion to Cadre of Distt. Judges/Addl. Distt.
Judges) Regulations, 2004 suffers from the excessive sub-delegation without prescribing method/guidelines for evaluating judgements ::: Downloaded on - 15/04/2017 21:45:41 :::HCHP 2 and grading the ACR's and such Regulations cannot be sustained in the eyes of law and the same may be quashed and set aside.
iii) That the adverse entries recorded by the respondent No. 6 in the Annual Confidential Reports of the petitioner for the period from 12.05.2006 to 31.03.2007 and 01.04.2007 to 12.10.2007 may be ordered to be treated as non-est and the same may be quashed .
and set aside.
iv) That letter dated 24.07.2009 (Annexure P-10) issued by respondent No. 2 whereby representation of the petitioner was rejected by passing a non-speaking order may be quashed and set aside.
v) That the result (Final Marks Sheet) (Annexure P-4) regarding the Suitability test for promotion to the posts of Presiding Officers, Fast of Track Courts may be declared to be null and void and the same may be quashed.
vi) That the respondents No. 1 & 2 may be directed to produce on record the Notifications issued by the respondent No. 1 regarding the appointments of respondents No. 3 to 5 as the Presiding Officers rt of Fast Track Courts and after declaring the same to be illegal, may be ordered to be quashed and set aside.
vii) That as a consequential relief, the respondent no. 2 may be directed to initiate the fresh selection process for selection of eligible candidates for promotion to the posts of Presiding Officers of Fast Track Courts in terms of the directions of Hon'ble Supreme Court of India vide judgment dated 06.05.2002 passed in Brij Mohan Lal versus Union of India & others (2002) 5 SCC 1 and by dispensing with the requirement of oral interview, fresh selection may be ordered to be made on the basis of judgements delivered by candidates and their Annual confidential Reports.
viii) That the petitioner may be ordered to be promoted as Presiding Officer, Fast Track Court from due date when his immediate junior in the Gradation List was promoted with all the consequential benefits as are due and admissible to him."
2. The brief facts as pleaded in the petition are that the petitioner joined the judicial service on 5.12.1988 and was appointed as Sub Judge-cum-Judicial Magistrate. On 31.12.2003, he was promoted as Civil Judge (Senior Division).
3. In 2009, the High Court advertised four anticipated posts of the Presiding Officers, Fast Track Courts, which was to be made by way of promotion from amongst the Civil Judges (Senior Division) on the principle of merit-cum-seniority and passing the suitability test.
::: Downloaded on - 15/04/2017 21:45:41 :::HCHP 34. The petitioner being one of the eligible Law Officer had applied and on 25.07.2009, his judgments and ACRs were evaluated by the Committees constituted by this Court and thereafter his viva-
.
voce was also conducted.
5. On 31.08.2009, the final result (select list) was declared by the High Court on its website and it is then the petitioner learnt that he has secured 55.98 marks out of total 100 marks, which were less of than the prescribed minimum qualifying marks of 60% and he could not make the grade, whereas the respondents No. 3 to 5 who were rt junior to him were shown to have secured higher marks and thus came to be appointed and promoted as Presiding Officers of the Fast Track Courts.
6. It is averred that it was on account of adverse entries in the ACRs for the period from 12.5.2006 to 31.3.2007 and 1.4.2007 to 12.10.2007 recorded by respondent No. 6 that the petitioner was not selected despite being meritorious and accordingly he filed the instant petition on the grounds taken in the petition.
7. Only the respondent No. 2 High Court has chosen to contest the petition and has filed reply wherein preliminary submissions regarding there being no cause of action in favour of the petitioner has been raised. On merits, it is submitted that selection of respondent Nos. 3 to 5 is in order as they have secured more marks than the petitioner and since the post was one of selection post, therefore, there is no question of petitioner being superseded.
::: Downloaded on - 15/04/2017 21:45:41 :::HCHP 48. As regards The ACRs, it has been denied that the petitioner had not been promoted merely on the basis of the entries recorded in the aforesaid ACRs, rather it is pointed out that the .
evaluation is based on the overall performance in the suitability test.
As regards the allegations of biasness against respondent No. 6, the same have been denied for want of knowledge.
We have heard the learned counsel for the parties and of have gone through the records of the case.
9. At the outset Shri Ramakant Sharma, Senior Advocate, rt representing respondent No. 2 has pointed out that nothing survives for adjudication in this petition as all the issues raised herein have already been considered and decided by A Coordinate Division Bench of which one of us (Justice Tarlok Singh Chauhan, J.) was member in CWP No. 1466 of 2010, titled Ranjeet Singh vs. State of H.P. & Ors., decided on 7.9.2016.
10. On the other hand, learned counsel for the petitioner Shri Ashwani K. Sharma, Senior Advocate, would claim that certain issues still require consideration as the same have not been dealt in Ranjeet Singh's case supra.
11. The first contention put-forth by the petitioner is that The Himachal Pradesh Judicial Service Rules, 2004, on the basis of which the petitioner has been denied promotion suffer from vice of excessive sub delegation in as much as it gives unbridled powers to the Committees of the Hon'ble Judges to evaluate judgments and to assess the ACRs, leaving vide scope open for arbitrariness.
::: Downloaded on - 15/04/2017 21:45:41 :::HCHP 512. This contention cannot be accepted for the simple reason that the petitioner participated in the selection process and knew well from the rules and regulations, the mode and manner in .
which selection was to be conducted and yet participated in the selection process without any demur or protest and after taking a chance and being unsuccessful he cannot now resile or take somersault saying that the procedure as adopted by the High Court of was vitiated. This cannot be allowed. The petitioner cannot approbate and reprobate at the same time. The petitioner, if really rt aggrieved, should have questioned the rules and regulations before participating in the selection process and is therefore, clearly estopped from filing the instant petition.
13. Identical issue was considered by this Court in Ranjeet Singh vs. State of H.P. & Ors. (CWP No. 1466 of 2010), wherein it was observed as under:-
"57. In addition to the above, we find that the petitioners in any event are not entitled to any relief under Article 226 of the Constitution for more reasons than one. They participated in the selection process and knew well from the rules and regulations, the mode and manner in which the selection was to be conducted and yet participated in the selection process without any demur or protest and after taking a chance and being unsuccessful, they cannot now resile or take somersault saying that the procedure as adopted by the High Court was vitiated. This cannot be allowed. The petitioners cannot approbate and reprobate at the same time. Moreover, petitioners have not even approached this court promptly and there is a gap of almost six months in between filing of these petitions and the declaration of the result. The result was declared on the website of the High Court on 14.9.2009, whereas the petition came to be filed only on 6.4.2010. The petitioners, if really aggrieved, should have questioned the rules and regulations before participating in the selection process and are clearly estopped from filing these petitions.
58. In taking this view, it is not necessary to refer to multiple decisions on the issue and it would suffice to refer to two recent ::: Downloaded on - 15/04/2017 21:45:41 :::HCHP 6 judgments of the Hon'ble Supreme Court. In Pradeep Kumar Rai And Others vs. Dinesh Kumar Pandey and others (2015) 11 SCC 493, the Hon'ble Supreme Court observed as under:
"17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the .
process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellant did not challenge it at that time. Thus, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Earlier the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the of interviews were conducted (See: Vijendra Kumar Verma vs. Public Service Commission (2011) 1 SCC 150 and K.H. Siraj vs. High Court of Kerala, (2006) 6 SC 395)".
59. Similar issue came up recently before the Hon'ble Supreme rt Court in Madras Institute of Development Studies and Another Vs. K. Sivasubramaniyan & ors, (2016) 1 SCC 454, wherein it was held as under:
"13. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of experts. It was only after he was not selected for appointment, turned around and challenged the very selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post.
14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.
15. In Dr. G. Sarana vs. University of Lucknow & Ors., (1976) 3 SCC 585, a similar question came for consideration before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Athropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held: (SCC p. 591, para
15) "15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the ::: Downloaded on - 15/04/2017 21:45:41 :::HCHP 7 interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view .
gains strength from a decision of this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: (AIR p.432, para 9) '9....It seems clear that the appellant wanted to take of a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.'"
rt
16. In Madan Lal & Ors. vs. State of J&K & Ors. (1995) 3 SCC 486, similar view has been reiterated by the Bench which held that: (SCC p. 493, para 9) "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla 1998 Supp SCC 258 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 8
17. In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576, this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p.584, para 16) "16.We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been .
earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the of petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
18. In the case of Ramesh Chandra Shah and others vs. Anil rt Joshi and others, (2013) 11 SCC 309, recently a Bench of this Court following the earlier decisions held as under: (SCC p. 320, para 24) "24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
14. The petitioner would then urge that being senior to the selected candidates he had preferential right of being promoted and the members of the Selection Committee could not have down graded his ACRs, particularly, when the same had been accepted by the Hon'ble Chief Justice as Accepting Authority and earlier to that these had been submitted to the Reviewing Authority (Administrative Judge), who, too as an Hon'ble Judge of this Court.
::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 915. The High Court has framed Regulations nomenclatured as suitability test for promotion to the cadre District Judge/Additional District Judge (Regulations, 2004) which provided for suitability test .
which was based on evaluation of 5 Civil and Criminal Judgments rendered during one year in any month to be specified by Hon'ble the Chief Justice which carry 50 marks and thereafter 40 marks were assigned to the ACRs for the last five years and 10 marks were of reserved for the evaluation of the Special Reports of the District and Sessions Judges about the eligible Judicial Officers.
16. rt As per Rule 6, the Full Court was to constitute two Committees, each of two Judges to be referred to as the First Committee and the Second Committee. The First Committee was assigned the task of evaluating ACRs and Special Reports of the District & Sessions Judges in respect of eligible Judicial Officers whereas the Second Committee to examine the judgments of the eligible Judicial Officers having due regard to the following factors:-
(i) Knowledge of law;
(ii) Collation and appreciation of facts
(iii) Correctness of allegations
(iv) Language
(v) Clarity and reasoning.
17. The final marks obtained were to be worked out by the process of average by dividing the cross total marks allocable for all the judgments by the number of judgments examined.
18. The qualifying marks of the suitability test was prescribed as 60% and it is only after qualifying marks, as prescribed with the ::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 10 promotion was to be made on the basis of principle of seniority in the lower cadre.
19. Somewhat identical provisions, more particularly, those .
relating to the evaluation of the ACRs and examining of judgments is contained in the regulations on the basis of which promotions were made to the Civil Judge (Senior Division) came up for consideration in Ranjit Singh's case supra and it was observed as under:-
of
14. We are not impressed by such submission as the selection committee is not guided merely by the overall grading that may be recorded in the ACR and in order to ensure justice, equity and fair play, is required to make its own assessment on the basis of in-depth examination of service records of eligible officers, deliberating on the rt quality of the officers on the basis of performance as reflected under various columns recorded by the Reporting/Review Officer/Accepting Authority in the ACRs for different years and then finally arrive at the classification to be assigned to each eligible officer in accordance with the provisions of promotions, regulations/rules.
15. It has come on record that the High Court in terms of Regulation 6 of the Regulations dated 28.3.2009, constituted two committees consisting of two Hon'ble Judges, referred therein as the First Committee and the Second Committee as provided under Regulation No.7. The First Committee evaluated the ACRs of all Judicial Officers by taking into consideration all the entries in various columns of the ACRs and the assessment thereafter was independently made not influenced by the entries made against last column 'Net Result' or the ultimately decision of the District & Sessions Judge. This was done as per provisions of Regulation 7.2.
16. Similarly, the Second Committee as per provisions of Regulation 7.3 (a), (b) & (c) had examined the judgments delivered by the Judicial Officers bearing in mind:
(i) Knowledge of law;
(ii) Collation and appreciation of facts
(iii) Correctness of allegations
(iv) Language
(v) Clarity and reasoning.
Assessment of merit of each and every eligible officer was independently made by the Committees and thereafter the selections were made.
17. As already observed earlier, the criteria for selection as also the composition and constitution of the Committees to evaluate the ACRs and the judgments of the Judicial Officers was pursuant to and in compliance of the directions of the Hon'ble Supreme Court in Malik Mazhar Sultan and another vs. Uttar Pradesh Public Service Commission & Ors. 2008 (17) SCC 703 as clarified in Malik ::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 11 Mazhar Sultan and another vs. Uttar Pradesh Public Service Commission & Ors. 2009 (17) SCC 583.
18. Notably, petitioners themselves have appended with their petitions copy of the guidelines framed by the government for effecting promotions on the basis of merit-cum-seniority wherein .
it is clearly provided that the DPC is to independently assess the Annual Confidential Reports of the candidates and grade them as 'average', 'good', 'very good' and 'outstanding'. It is further provided that while grading officers, as aforesaid, one should not mechanically follow the grading given by the Reporting Officer.
The relevant portion of the instruction is extracted below and reads thus:
"While grading officers as "Outstanding", "Very Good" and "Good", one should not mechanically follow the grading of given by the Reporting Officer. They should also take into account the nature of the job against which an individual is posted as well as its responsibilities......."
19. A perusal of the aforesaid instructions leave no manner of rt doubt in our mind that the Selection Committees was not to be guided merely by the overall grading in the ACRs, but was required to make its own assessment on the basis of entries in the ACRs.
20. Undeterred the petitioner would then argue that this Court should itself interfere with the grading of the Selection Committee. We are not impressed even by this submission for the simple reason that it is beyond cavil that the Court of its own cannot assess the merit of one individual who moves the Court.
21. Identical question was raised in Ranjeet Singh's case supra and it was observed:-
"20. Petitioners would then seek indulgence of this Court to interfere with the grading given by the Selection Committee, which to our mind, is not permissible in view of the consistent law on the subject, as discussed hereinafter.
22. In the case of Dalpat Abasaheb Solunke Vs. Dr.B.S. Mahajan etc, AIR 1990 SC 434, the Hon'ble Supreme Court held as under:
"9........It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the Candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject........"::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 12
23. In the case of State of Madhya Pradesh Vs. Shrikant Chapekar, JT 1992 (5) SC 638, the Hon'ble Supreme Court held as under:
"4.We are of the view that the Tribunal fell into patent error in substituting itself for the DPC. The remarks in the annual .
confidential report are based on the assessment of the work and conduct of the official/officer concerned for a period of one year. The Tribunal was wholly unjustified in reaching the conclusion that the remarks were vague and of a general nature. In any case, the Tribunal 'outstepped its jurisdiction in reaching the conclusion that the adverse remarks were not sufficient to deny the respondent his promotion to the post of Deputy Director. It is not the function of the Tribunal to assess the service record of a Government servant and order his promotion on that basis. It is for the DPC to evaluate the of same and make recommendations based on such evaluation. This Court has repeatedly held that in a case where the Court/Tribunal comes to the conclusion that a person was considered for promotion or the consideration rt was illegal, then the only direction which can be given is to reconsider his case in accordance with law. It is not within the competence of the Tribunal, in the fact of the present case, to have ordered deemed promotion of the respondent."
24. In Nutan Arvind Vs. Union of India & ors (1996) 2 SCC 488, the Hon'ble Supreme Court has held that when a High level committee had considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, the court cannot sit over the assessment made by the DPC as an appellate authority.
25. In the case of Ramanand Prasad Singh & another Vs. Union of India & others (1996) 4 SCC 64, the Hon'ble Supreme Court held as under:
"14.........The Committee applies its mind to the service records and makes its own assessment of the service records of the candidates marking them as outstanding, very good. good and so on. The Selection Committee does not necessarily adopt the same grading which is given by the Reporting/Reviewing Officer in respect of each of the candidates. In fact the Selection Committee makes an overall relative assessment of the confidential report dossiers of the officers in the zone of consideration. It thus does not evaluate the confidential report dossier of an individual in isolation. It is after this comparative assessment that the best candidates are put in the Select List........"
30. In the case of Union of India & ors Vs. S.P. Nayyar, (2014) 14 SCC 370, it has been held by the Hon'ble Supreme Court as under:
"11.It is settled that High Court under Article 226 of the Constitution of India cannot sit in appeal over the assessment made by the DPC. If the assessment made by the DPC is ::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 13 perverse or is not based on record or proper record has not been considered by the DPC, it is always open to the High Court under Article 226 of the Constitution to remit the matter back to the DPC for recommendation, but the High Court cannot assess the merit on its own, on perusal of the service record of one or the other employee.
.
12. The selection to the post of Addl. DIG is based on merit-
cum- suitability which is to be adjudged on the basis of ACRs of different candidates. The merit position can be adjudged by the Selection Committee on appreciation of their Character Roll. In absence of the Character roll of other candidates, who were also in the zone of promotion, it is not open to the High Court to assess the merit of one individual who moves before the High Court, to give a finding whether he comes within the zone of promotion or fit for promotion."
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22. The learned counsel for the petitioner would then argue that the regulations framed by respondent No. 2 disclose no guiding rt factors to be taken into consideration by the Hon'ble Committee at the time of evaluating judgments and Annual Confidential Reports. It is also vehemently contended that this Court itself has the power to judge the comparative merit of the candidates, more particularly, when there is nothing adverse against the petitioner.
23. Notably identical contentions were put-forth in Ranjit Singh's case and the same were negated by observing:-
"32. It is equally settled that this court cannot arrogate to itself the power to judge the comparative merit of the candidates and consider the fitness and suitability for promotion, it is the job of DPC. That apart, this court, while exercising its power of judicial review, will not sit in appeal over the assessment made by the DPC, unless the same is perverse or is not based on record or proper record has not been considered by the DPC and even in such cases, the court will only remit the matter back to the DPC for recommendation, but will not assess the merit of its own on perusal of the service record of one or the other employee. However, as observed earlier, in absence of bias or malafides, even this ground will not be available to the petitioners.
33. Moreover, the petitioners have failed to point out any rule or regulation requiring the Selection Committee to record reasons. In the absence of any such legal requirement, the selection made without recording reasons cannot be faltered with. Even otherwise, giving of reasons for decision is different from and in ::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 14 principle distinct from the requirement of procedure or fairness. The procedure or fairness is the main requirement in the administrative action. The 'fairness' or 'fair procedure' in the administrative action has to be observed and the Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or .
irrelevant considerations. But there is nothing on record to suggest that the Selection Committee did anything contrary.
35. At this stage, we may also notice that this court on 18.9.2015, after having heard the matter for some time, directed respondent No.2 (High Court) to place on record the reports of both the committees i.e. First Committee which evaluated the ACRs of all the Judicial Officers and the Second Committee which evaluated the judgments of the Judicial Officers in terms of provisions contained in Regulation 6, 7.2 and 7.3 of the of Regulations.
36. In compliance to the aforesaid order, reports of the Committees were placed as Annexures R-2/A and R-2/B respectively. The final marks sheet were then placed and rt thereafter unanimously approved by the Hon'ble Full Court vide Annexure R-2/C.
43. What, therefore, emerges from the aforesaid exposition of law is that where the Full Court of the High Court recommends any particular action on the administrative side, the High Court on the judicial side has to exercise great caution and circumspection in setting aside that order because it is a complement of all the High Court Judges, who act on their collective wisdom. In the very nature of things it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court."
24. The petitioner would then contend that he being senior to the private respondents had legitimate expectation of being promoted earlier to them.
25. Incidentally, the same contention was raised before this Court in Ranjeet Singh's case supra and it was observed as under:-
44. It is next contended by the petitioners that they being senior to the private respondents, had legitimate expectation of being promoted earlier to them.
45. The doctrine of legitimate expectation has been subject matter of a recent decision of the Hon'ble Supreme in Union of ::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 15 India & Another vs. Lieutenant Colonel P.K. Choudhary and others (2016) 4 SCC 236, wherein it was observed as under:
"51. Halsbury's Laws of England, Fourth Edition, Volume I(I) 151 explains the meaning of "Legitimate Expectation" in the following words:
.
"81. Legitimate expectations. -- A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial of review; it may mean that the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so; or it may mean that, if the authority proposes to defeat a person's legitimate rt expectation, it must afford him an opportunity to make representations on the matter. The courts also distinguish, for example in licensing cases, between original applications, applications to renew and revocations; a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant."
(emphasis supplied)
52. Legitimate expectation as a concept has engaged the attention of this Court in several earlier decisions to which we shall presently refer. But before we do so we need only to say that the concept arises out of what may be described as a reasonable expectation of being treated in a certain way by an administrative authority even though the person who has such an expectation has no right in law to receive the benefit expected by him. Any such expectation can arise from an "express promise" or a "consistent course of practice or procedure" which the person claiming the benefit may reasonably expect to continue. The question of redress which the person in whom the legitimate expectation arises can seek and the approach to be adopted while resolving a conflict between any such expectation, on the one hand, and a public policy in general public interest on the other, present distinct dimensions every time the plea of legitimate expectation is raised in a case.
53. In Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 one of the earlier cases on the subject this Court considered the question whether Legitimate Expectation of a citizen can by itself create a distinct enforceable right. Rejecting the argument that a mere reasonable and legitimate expectation can give rise to a distinct and enforceable right, this Court observed: (SCC p. 76, para 8) "8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct ::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 16 enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation .
of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non- arbitrariness and withstand judicial scrutiny. The doctrine of of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."
(emphasis supplied)
54. To the same effect is the decision of this Court in Union of rt India v. Hindustan Development Corporation and Ors. (1993) 3 SCC 499, where this Court summed up the legal position as under: (SCC pp. 540 & 546-47, paras 28 & 33) "28..... For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable.
Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense."
***
33. On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such ::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 17 expectation by showing some overriding public interest. Therefore, even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation .
which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public of interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the court is satisfied that a case of legitimate expectation is made out rt then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors." (emphasis supplied)
55. Reference may also be made to the decision of this Court in Punjab Communications Ltd. v. Union of India and Ors. (1999) 4 SCC 727, where this Court held that a change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness." The choice of policy is for the decision-maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based merely on legitimate expectation without anything more cannot ipso facto give a right. Similarly in Dr. Chanchal Goyal (Mrs.) v. State of Rajasthan (2003) 3 SCC 485, this Court declined relief on the plea of legitimate expectation on the ground that the appellants had not shown as to how any act was done by the authorities which created an impression that the conditions attached to the original appointment order were waived. No legitimate expectation could be, declared this Court, claimed on such unfounded impression especially when it was not clear as to who and what authority had created any such impression. The decisions of this Court in Ram Pravesh Singh v. State of Bihar (2006) 8 SCC 381, Sethi Auto Service Station and Anr. v. Delhi Development Authority and Ors. (2009) 1 SCC 180, Confederation of Ex- servicemen Association v. Union of India (2006) 8 SCC 399, and State of Bihar and Ors. v. Kalyanpur Cements Ltd. (2010) 3 SCC 274, reiterate the legal position stated in the decisions earlier mentioned.
::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 1856. In Monnet Ispat and Energy Ltd. v. Union of India and Ors. (2012) 11 SCC 1, this Court reviewed the case law on the subject and quoted with approval the following passage in Attorney General for New South Wales (1990) 64 Aust LJR 327:
(Monnet Ispat case, SCC p. 107, para 184) .
"184.......To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords law.' (Attorney General for New South Wales case.) This Court went on to hold that if denial of legitimate expectation of in a given case amounts to denial of a right that is guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or in violation of principles of natural justice the same can be questioned on the well-known grounds attracting Article 14 of the Constitution but a claim rt based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles."
49. Principles of merit-cum-seniority lay greater emphasis on merit and ability and seniority plays less significant role. Seniority is to be given only when merit and ability are approximately equal. Therefore, in such circumstances, there was no question of petitioners having any legitimate expectation for promotion as the ranking or position in the gradation list-seniority list in itself did not confer any right upon them to be promoted to selection post.
26. As a last ditch effort, the petitioner would then contend that it was only on account of respondent No. 6 being biased against the petitioner that his ACRs were down graded which in fact led to the non-selection of the petitioner.
27. While going through records of the file, we do not find any reason to agree with the contention of the petitioner as it has not at all been established on record that the so-called adverse entries, in fact, formed the basis or foundation for the non-selection of the petitioner rather the selection was based on the performance and independent grading made by the Selection Committee.
::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 1928. It has specifically come in the reply of respondent No. 2 that the ACRs for the year 2006-07 was not the cause for denying promotion to the petitioner. It was rather on the basis of overall .
performance in the suitability test that he was not found fit to have qualified the same.
29. Further, the petitioner has placed no material on record whereby we can gather that Shri Sher Singh, the then District & of Sessions Judge, was biased or the ACRs recorded by him formed the basis of his non-selection. It has rather come on record that entries rt made by the reporting officer in the ACRs of a Judicial Officers were placed before the Reviewing Authority and thereafter before the Accepting Authority and as such it is a far fetched notion of the petitioner that he had been ignored on the basis of the adverse entries in the Annual Confidential Reports.
30. Moreover, the aforesaid averments regarding the ACRs not being the sole basis for the petitioner not making a grade have been made by the respondent on affidavit and the petitioner has not chosen to controvert these averments by filing any rejoinder.
31. In addition to what has been observed above, it would also be noticed that after submissions of the reports by the two Committees, a final mark sheet was then placed and thereafter unanimously approved by Hon'ble Full Court, and therefore, the matter would hardly be opened to judicial review as has already been held in Ranjeet Singh's case supra, wherein it was observed as under:-
::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 20"36.In compliance to the aforesaid order, reports of the Committees were placed as Annexures R-2/A and R-2/B respectively. The final marks sheet were then placed and thereafter unanimously approved by the Hon'ble Full Court vide Annexure R-2/C. .
37. In such circumstances, the further question that falls for our consideration is the scope of judicial review in matters which have been approved by the Hon'ble Full Court.
38.It cannot be disputed that the Full Court acts on the collective wisdom of all Judges and, therefore, the exercise undertaken by the Full Court is not ordinarily amenable to judicial review except under extra ordinary circumstances.
39. Here, it would be equally relevant to refer to the following of observations of the Hon'ble Supreme Court in Syed T.A. Naqshbandi & ors Vs. State of Jammu & Kashmir & ors (2003) 9 SCC 592, wherein it was inter alia held thus:
rt "10. ....Neither the High Court nor this Court, in exercise of its powers of judicial review, could or would at any rate substitute themselves in the place of the Committee/Full Court of the High Court concerned, to make an independent reassessment of the same, as if sitting on an appeal. On a careful consideration of the entire materials brought to our notice by learned counsel on either side, we are satisfied that the evaluation made by the Committee/Full Court forming their unanimous opinions Is neither so arbitrary or capricious nor can be said to be so irrational as to shock the conscience of the Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions a vast range of multiple factors play a vital and important role and no one factor should be allowed to be overblown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. Viewed thus, and considered in the background of the factual details and materials on record, there is absolutely no need or justification for this Court to interfere in the matter, with the impugned proceedings."
40. In this context, it shall be apt to re-produce the following observations of the Hon'ble Supreme Court in Rajendra Singh Verma Vs. Lieutenant Governor (NCT of Delhi) and others (2011) 10 SCC 1.
"218. On a careful consideration of the entire material, it must be held that the evaluation made by the Committee/Full Court, forming their unanimous opinion, is neither so arbitrary nor capricious nor can be said to be so irrational, so as to shock the conscience of this Court to warrant or justify any interference. In cases of such assessment, ::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 21 evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and no one factor should be allowed to be blown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things it would be difficult, nearing almost an impossibility .
to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court.
of
219. Viewed thus, and considered in the background of the factual details and materials on record, there is absolutely no need or justification for this Court to interfere with the impugned proceedings. Therefore, the three appeals fail and are dismissed. Having regard to the facts of the case, there shall be no order as to costs."
rt
41. In Registrar General, Patna High Court Vs.Pandey Gajendra Prasad and others, AIR 2012 SC 2319, the Hon'ble Supreme Court after reviewing the entire case law reiterated the principles laid down from time to time with regard to the scope of judicial review in such like cases and held that when the report of the Administrative Committee was put up before the Full Court which takes a conscious decision to award the punishment/dismissal from service, then it would be very difficult rather almost impossible to subject such an exercise to judicial review except in extra ordinary cases.
42. Yet again in recent decision in High Court of Judicature of Patna, through Registrar General Vs. Shyam Deo Singh & ors (2014) 4 SCC 773, after referring to the earlier decision in Syed T.A. Naqshbandi Vs. State of Jammu & Kashmir, (2003) 9 SCC 592, the limited judicial review that is permissible was reiterated by the Hon'ble Supreme Court in para 8 of the judgment, which reads thus:-
"8.The importance of the issue can hardly be gainsaid. The evaluation of the service record of a judicial officer for the purpose of formation of an opinion as to his/her potential for continued useful service is required to be made by the High Court which obviously means the Full Court on the administrative side. In all High Courts such evaluation, in the first instance, is made by a committee of senior Judges. The decision of the Committee is placed before the Full Court to decide whether the recommendation of the Committee should be accepted or not. The ultimate decision is always preceded by an elaborate consideration of the matter by Hon'ble Judges of the High Court who are familiar with the qualities and attributes of the judicial officer under ::: Downloaded on - 15/04/2017 21:45:42 :::HCHP 22 consideration. This is also what had happened in the present case. The very process by which the decision is eventually arrived at, in our view, should permit a limited judicial review and it is only in a rare case where the decision taken is unsupported by any material or the same reflects a conclusion which, on the face of it, cannot be sustained that .
judicial review would be permissible."
43. What, therefore, emerges from the aforesaid exposition of law is that where the Full Court of the High Court recommends any particular action on the administrative side, the High Court on the judicial side has to exercise great caution and circumspection in setting aside that order because it is a complement of all the High Court Judges, who act on their collective wisdom. In the very nature of things it would be of difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another rt possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court."
32. In view of the aforesaid discussion, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan)
Judge
December 16, 2016 (Chander Bhusan Barowalia)
(sanjeev) Judge
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