Rajasthan High Court - Jodhpur
Daljeet Singh vs R.C.S.A.T.& Ors on 13 May, 2010
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:: O R D E R ::
(1) Daljeet Singh Vs. Rajasthan Civil Services Appellate
Tribunal & Ors.
S.B.Civil Writ Petition No. 3176/1999
(2) Kishore Singh Vs. Rajasthan Civil Services Appellate
Tribunal & Ors.
S.B.Civil Writ Petition No. 583/2000
DATE OF ORDER :::: 13th May 2010
PRESENT
HON'BLE MR.JUSTICE A. M. KAPADIA
HON'BLE MR.JUSTICE DINESH MAHESHWARI
Mr. M.S. Singhvi for the writ petitioners
Mr. R. L. Jangid, Additional Advocate General
Mr. L.K. Purohit
Mr. A.R. Choudhary ], for the respondents.
....
Reportable BY THE COURT: (Per Dinesh Maheshwari, J.)
INTRODUCTORY:
These two writ petitions have been placed before this Bench pursuant to the orders of Hon'ble the Chief Justice on a reference made by the learned Single Judge of this Court on the correctness of the view expressed in the case of Prem Prakash Bidyasar Vs. State of Rajasthan (S.B. Civil Writ Petition No. 1634/1994 decided on 08.09.1995 - reported in 1996 WLR 197); and on the interpretation of the Explanation appended to Rule 24-A(11) of the Rajasthan Service of Engineers and Research Officers (Irrigation Branch) Rules, 1954 [hereinafter referred to as the 'Rules of 1954']. As per the order passed by the learned Single Judge in these writ 2 petitions on 19.03.2007, the following questions have been referred for adjudication by this bench:-
(i) Whether the judgment passed in P.P.Bidyasar reported in WLR 1996 Raj. 196 in regard to interpretation of the Explanation to clause 11 of the instructions has been correctly decided or not?
(ii) Whether according to Explanation to rule 24 (11) (B) of the Rajasthan Service of Engineers and Research Officers (Irrigation Branch) Rules, 1954 a candidate for the purpose of selection for promotion on the basis of merit is required to mandatorily possess at least five outstanding or very good APAR ratings for the whole of such five years, out of seven years preceding the year of selection or such requirement can be diluted by accepting APAR ratings relating to part year as outstanding/very good or for remaining part as only "good" in relation to one or more number of the required five years as "outstanding/very good" for such entire year?
THE BACKGROUND FACTS:
A brief reference to the background facts would suffice. These two writ petitions by the petitioners Daljeet Singh and Kishore Singh are directed against the same judgment dated 30.03.1999 whereby the Rajasthan Civil Services Appellate Tribunal, Jaipur has allowed the appeal preferred by the private respondent Laxmi Kumar Nuwal and has directed the Government to reconsider his case alongwith the case of the writ petitioners and other eligible candidates for promotion in merit quota on the post of Superintending Engineer, Irrigation Department for the vacancies of the year 1992-93.
The writ petitioners, on being selected by the Rajasthan Public Service Commission (RPSC), were initially appointed in the year 1970 as Assistant Engineer (Civil) in the Irrigation Department; and were, thereafter, promoted on the post of Executive Engineer (Civil). The writ petitioners were further 3 promoted to the post of Superintending Engineer (Civil) against the vacancies of the year 1993-94 on the basis of merit; and were yet further promoted to the post of Additional Chief Engineer by the order dated 02.08.1999 against the vacancies of the year 1999-2000.
The private respondent Laxmi Kumar Nuval, alike the writ petitioners, was appointed on the post of Assistant Engineer (Civil) in the same selection made by RPSC in the year 1970; but he was placed above the writ petitioners in the merit list prepared by RPSC. He was promoted to the post of Executive Engineer (Civil) in the year 1978. He was also considered for promotion to the post of Superintending Engineer against the vacancies of the year 1992-93 and 1993- 94 meant for merit quota but on both the occasions, he was not adjudged meritorious enough to be recommended for promotion. Ultimately, he was promoted to the post of Superintending Engineer (Civil) against the vacancies of the year 1994-95 in seniority-cum-merit quota. Aggrieved that he had been superseded by promotions made on merit quota and alleging wrongful denial to him of such promotion on merit quota, the private respondent filed the appeal before the Tribunal that came to be allowed by the impugned order dated 30.03.1999.
During the course of hearing, the Tribunal called for the original APAR dossiers of the private respondent and examined the relevant record of 7 years preceding the year 1992-93 i.e., from the year 1985-86 to 1991-92. After noticing that APARs of the private respondent in relation to the years 4 1989-90 and 1991-92 were recorded in two parts where, in one part of each of these years, he was assessed as "Very Good" and in the other part as only "Good", the Tribunal held, while relying on the aforesaid decision in the case of P.P. Bidyasar, that the assessment for both those years shall have to be taken as "Very Good" for the purpose of adjudging the merit of the private respondent. The Tribunal, accordingly, allowed the appeal and directed the Government to hold review DPC for promotion to the post of Superintending Engineer against the vacancies of the year 1992-93 in so far as the quota of merit was concerned. This order of the Tribunal has been questioned in these writ petitions. THE REASONS FOR THIS REFERENCE:
It was argued before the learned Single Judge in these writ petitions that when the APARs of the respondent Laxmi Kumar Nuwal in relation to the years 1989-90 and 1991-92 were recorded in two parts; one as "Very Good" and other as only "Good"; the Tribunal was not justified in rating the APARs for whole of these years as "Very Good". It was further argued that the Explanation to rule 24-A(11) of the Rules of 1954 had not been correctly appreciated by the learned Single Judge of this Court in Bidyasar's case (supra). It was pointed out that the aforesaid Explanation had substituted an earlier Explanation w.e.f. 30.11.1991; that as per the earlier Explanation, for the purpose of selection for promotion on the basis of merit, only the officers with outstanding or consistently very good record for 7 preceding years were to be selected; 5 and that in view of the judgment of this court in the case of Shambhu Singh Meena and others Vs. State of Rajasthan:
1992 (2) WLC 571, which was approved by the Hon'ble Supreme Court in Shambhu Singh Meena Vs. State of Rajasthan: 1995 Suppl. (2) SCC 431, the requirement was that a person, for being selected on merit, must possess "Very Good"/"Outstanding" ratings for all the 7 years in question.
The counsel for the petitioners contended that though the rule making authority intervened and changed the criteria of merit by reducing the requisite number of such ratings to at least 5 out of 7 years but indicated its intention that such requirement would be reduced any further particularly with the phraseology and language of the newly inserted Explanation. It was submitted that the use of the expression "at least" in the said Explanation was of the meaning that it cannot under any circumstances be less than 5 years. It was also contended that the requirement of "Very Good"/"Outstanding" rating for 5 years out of 7 years has it purpose because the promotion in question is on merit alone; and if such requirement is further diluted by permitting inclusion of such candidates who do not have "Very Good"/"Outstanding" rating for the whole of the year, the very object would be frustrated. It was submitted that though in P.P.Bidyasar (supra) the rigor of the merit of "Outstanding"/"Very Good" in relation to two years out of the required 5 years was diluted although the said petitioner in those years did not have "Very Good" rating for the whole of the year but such dilution, if taken to its logical conclusion, could mean that even if a person is having "Very Good"/ 6 "Outstanding" service record in one part of 5 years out of 7 years and lesser rating in the remaining part of those 5 years, yet his rating in such 5 years could be treated as "Very Good"
and he would be entitled to be considered for promotion against merit quota, contrary to the intention of the rule.
Several decisions were relied upon in support of the arguments advanced; and it was submitted that in case necessary, the judgment in P.P. Bidyasar (supra) be re-
considered by making reference to a larger bench.
The learned Additional Advocate General rather supported the submissions so made on the question of law and submitted that the learned Single Judge while deciding P.P. Bidyasar's case had not discussed much about the import and content of the said Explanation except noticing the same with reference to clause 11 of the Instructions laying down guidelines for promotion. The learned AAG argued that when as per the earlier Explanation, 7 years APAR ratings were required to be "Outstanding" or "Very Good", the Government, after consultation and deliberations, purposely decided to relax such requirement by providing that no person shall be selected if he does not have "Outstanding" or "Very Good" record in at least 5 out of 7 years preceding the year for which DPC is held; and hence, there was no escape from the interpretation that 5 out of 7 years "Outstanding"/"Very Good" rating was the minimum requirement for promotion against merit quota. The learned AAG also submitted that the view expressed by the learned Single Judge in P.P. Bidyasar required re-
consideration.7
The learned counsel for the respondent Laxmi Kumar Nuwal, however, submitted before the learned Single Judge that his client had lost interest in the matter and he had no instructions in the case; and did not make any arguments on the merits of the case.
In the reference order dated 19.03.2007, after examining the contentions so urged, the learned Single Judge took note of the provisions contained in the Rules of 1954, more particularly "the Explanation" under consideration. The learned Single Judge, then, referred to the facts in the case of P.P. Bidyasar (supra) and to the decision therein. The learned Single Judge further noticed the fact that the said decision in P.P.Bidyasar was subjected to challenge in SAW No.748/1995 which was dismissed by the Division Bench with the observations that on a close scrutiny of the material on record, the Court did not find any infirmity in the impugned judgment but without any discussion with regard to the interpretation of the Explanation in question.
The learned Single Judge referred to the antecedents, particularly of the provisions related with merit promotions;
referred to the criteria of merit promotions as existing previously; and referred to the ratio of Shambhu Singh Meena's case (supra) where the Hon'ble Supreme Court did not countenance the submissions that as a matter of practice for the purpose of selection for promotion on merit basis, a person having 5 out of 7 "Outstanding" or "Very Good" rating was considered fit. The learned Single Judge pointed out that the Supreme Court, on analysis of the entire matter and the 8 rule has held: "the rule requires that the record of the officer should be outstanding or consistently very good and that would imply that it should be for the entire period under consideration".
The learned Single Judge observed that in view of the position of law aforesaid, the requirement of rule had been that a candidate for the purpose of selection on merit should possess outstanding or consistently very good record for last 7 years. The learned Single Judge pointed out that the aforesaid Explanation was however substituted by the omnibus amendment made in all the State Service Rules by the Explanation which was considered by the learned single Judge in P.P. Bidyasar (supra). The learned Single Judge, thus opined that the background in which the new Explanation was substituted in the Rules clearly indicated that it was intended to dilute the earlier requirements and, instead, to provide that 'no person shall be selected if he does not have "Outstanding" or "Very Good" record in at least five out of the 7 years preceding the year for which DPC is held'.
The learned Judge observed that history of an enactment and the events that preceded the framing of a particular law can be looked into for the purpose of guidance in arriving at the true intention of the legislature; and further observed with reference to the decisions of the Hon'ble Apex Court that when the question arises as to the meaning of a certain provision in a statute it is not only legitimate but proper to read the provision in its context and the context means the statue as a whole, the previous state of law, other statutes in 9 pari materia, the general scope of the statute, and the mischief that it intended to remedy. The learned Judge, then, opined as under:-
"What I find from the explanation to rule 24(11)(B) is that the rule making authority has laid much emphasis on the requirement of having minimum five years APAR ratings as "outstanding" or "very good" by emphatically providing that "no person shall be selected if he does not have "outstanding" or "very good" record in at least five out of the seven preceding years for which DPC is held." The rule making authority has thus used selective words such as "no person", "does not" and "at least" in order to repeatedly emphasis on the requirement of having at least five out of seven APAR ratings as "outstanding" or "very good". The explanation with pointed reference to these three phrases if construed in the historical background in which it has been brought into the rule book by substituting the earlier explanation, makes the intention of the rule making authority clearly evident that it is the bottom line below which no one can be considered as meritorious for promotion in merit quota."
The learned Single Judge, thereafter, referred to the dictionary meanings of the expression "least", and to the various principles of statutory interpretation including the mischief rule in Heydon's case:(1584) 3 Co Rep 7a (V) as relied in Bengal Immunity Co. Vs. State of Bihar: AIR 1955 SC 661; the rule that every part of the statute must be given full effect; the requirement to take reasonable and common sense approach; and the requirement to arrive at true and legal meaning with reference to the words used in the enactment in the light of the object and purpose thereof. The learned Judge, then, stated disagreement with the decision in P.P. Bidyasar while saying,-
"What is, therefore, evident on close scrutiny of the judgment passed by the learned single Judge in P.P.Bidyasar is that all these aspects which are being deliberated upon in the present matter have not received the consideration of the learned single 10 Judge in the context of the rule position obtaining prior to introduction of the aforesaid explanation, what mischief it sought to suppress and the intention of the rule making authority insisting upon at least five out of the seven APAR ratings to be "outstanding/very good" for the purpose of promotion on merit. The words such as "no person", " does not" and "at least" as have been used in the explanation are pointer to the intention of the rule making authority that there cannot any further relaxation in regard to this much of merit out of the total period of seven years records, which period forms the basis for evaluation of merit of a given candidate."
Hence, the learned Single Judge found it necessary to make a reference in the matter with the following observations:-
"For what has been discussed above, I am not persuaded, with great respect, to concur with the view taken by the learned single Judge in P.P.Bidyasar which has since been upheld by the division bench too and doubt very much the correctness of the interpretation placed by the learned Single Judge on the said Explanation. In the light of the view I have taken of the matter and because I am bound by the aforesaid judgment, I consider it necessary to refer this matter for adjudication by a larger bench. Besides the fact that the division bench while upholding the judgment of the learned Single Judge has neither made any discussion nor recorded a specific finding as to the correctness of the interpretation taken therein, I am fortified from the view taken by their Lordships of the Hon'ble Supreme Court in Food Corporation of India and another Vs. Yadav Engineer & Contractor (1982) 2 SCC 499......."
It is in the aforesaid background that the matters have been placed before us on the questions as noticed at the outset. We have heard the learned counsel appearing for the parties and have given thoughtful consideration to the entire matter.
THE RELEVANT PROVISION/S:
In view of the questions involved, appropriate it shall be to refer to the relevant provisions in the Rules of 1954 dealing 11 with merit promotions with the note that various other service rules governing different services under the State carry similar provisions. In Bidyasar's case, the applicable one were the Rajasthan Administrative Service Rules. Rule 24-A of the Rules of 1954, applicable to present petitions, provides "Revised criteria, Eligibility and Procedure for Promotion to Junior, Senior and other posts encadred in the Service". Therein, after making various provisions concerning selection for promotion in the service, sub-rule (6) provides that the selection for promotion to all other higher posts or higher category of posts in the State service (which would include the post of Superintending Engineer also) shall be made on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50:50. The Explanation with which we are concerned is placed below sub-rule (11) of Rule 24-A ibid which provides, inter alia, for the method of consideration of the cases for promotion, preparation of select lists, and currency thereof. Sub-rule (11) of Rule 24-A ibid with the Explanation in question reads as under:-
"11(a)"The committee shall consider the case of all of the senior most persons who are eligible and qualified for promotion to the class of posts concerned under these rules and shall prepare a list containing names of the persons found suitable on the basis of seniority-cum-merit and/or on the basis of merit, as the case may be, as per the criteria for promotion laid down in these rules, equal to the number of vacancies determined under rule relating to "Determination of vacancies" of these rules. The list so prepared on the basis of seniority-cum-merit and/or on the basis of merit, as the case may be, shall be arranged in the order of seniority on the category of posts from which selection is made.
(b) The committee shall also prepare a separate list on the basis of seniority-cum-merit and/or on the basis of merit, as the case may be, as per the criteria for promotion laid down in the rules, containing 12 names of persons equal to the number of persons selected in the list prepared under (a) above to fill temporary or permanent vacancies, which may occur subsequently. The list so prepared on the basis of seniority-cum-merit and/or on the basis of merit shall be arranged in the order of the seniority in the category of posts from which selection shall be made.
Such a list shall be reviewed and revised by the Departmental Promotion Committee that meets in the subsequent year and that such list shall remain in force till the end of the last day of the next year or till the Departmental Promotion Committee meets, whichever is earlier. Such list shall be sent to the appointing authority together with annual confidential reports/annual performance appraisal reports and other service record of all the candidates included in the lists as also of those not selected, if any." Explanation:- For the purpose of selection for promotion on the basis of merit no person shall be selected if he does not have "Outstanding" or "Very Good" record in at least five out of the 7 years preceding the year for which D.P.C. is held." Noticeable it is that the 'Explanation' in the form it appears in the reproduction above came to the substituted with effect from 30.11.1991 in place of the earlier Explanation that read as under:-
''Explanation:- For purpose of selection for promotion on the basis of merit, officers with ''outstanding'' or consistently ''very-good'' record shall only be selected and their names arranged in the order of seniority.'' For a complete picture of the changing facets of the said Explanation in the Rules of 1954, it may be noticed that the aforesaid Explanation that came into force with effect from 01.04.1981 too had substituted its predecessor that read as under:-
"Explanation:- For the purpose of selection on the basis of merit, the list of officers graded as 'Outstanding and very good' shall be classified in the first category in the order of seniority the officers graded as 'good' shall be classified in the second category in the order of seniority and the officers graded as 'Average' and Not-selected' shall be 13 classified in the Third category. The officers graded and classified in the second category list shall be placed below the officers graded and classified in the first category list and such officers shall be appointed from this category only if the officers graded and classified in the first category list is exhausted otherwise they shall not be appointed to the service by promotion. The officers graded and classified in the third category list shall not be considered for appointment by promotion."
THE DECISION IN THE CASE OF P.P. BIDYASAR:
As noticed, in these matters, the issue posed before the Tribunal in the appeal filed by the private respondent was about treatment of such APARs that were recorded in part for any given year; where in one part, he was rated "Very Good"/"Outstanding" but in the other part, lower than that. The Tribunal held that in such part APARs, the one beneficial to the incumbent shall be taken into consideration while relying on the decision in P.P. Bidyasar (supra) whose correctness, as noticed, has been doubted by the learned Single Judge while making this reference. Hence, necessary it is to closely examine the decision in Bidyasar. The said petitioner Prem Prakash Bidiyasar was an officer of the Rajasthan Administrative Services who was placed under suspension in the year 1986; and during that period, a meeting of DPC for promotion in the senior scale was convened. The petitioner's result was kept in sealed cover. After certain rounds of litigation, the suspension order was ultimately revoked pursuant to the orders passed by this Court. After revocation of suspension, when the said sealed cover was not opened despite requests, the said petitioner filed a writ petition (No.1418/1992) for getting the sealed cover opened. During the pendency of this petition, the respondents convened a 14 meeting of DPC for promotion for the year 1992-93 and the petitioner's case was not considered. On 09.11.1992, the said CWP No. 1418/1992 was allowed and the respondents were directed to consider the case of petitioner for promotion on the basis of the merit for the year 1991-92 within a period of three months. The review DPC was not convened as per the said directions and, instead, on 10.02.1993, a charge-sheet was issued to the petitioner for willful absence from duty which was challenged in CWP No. 1445/1993 and was ultimately quashed in the year 1994. Then, on 15.03.1995, the respondents issued an order to the effect that the petitioner was not found suitable to be promoted on the basis of merit for the year 1991-92.
After noticing such facts and background, the learned Single Judge, while deciding the writ petition by the said petitioner P. P. Bidyasar, found justified his grievance of being subjected to harassment; and that as per the Government Instructions on promotions, he was entitled to be promoted. The learned Single Judge said,-
"6. The learned counsel for the petitioner has submitted and in my opinion with justification that the petitioner was being harassed and was made to suffer in the matter of promotion illegally probably because of having filed petition after petition against the respondents. The Govt. of Rajasthan has issued executive instructions on the procedure to be followed by the D.P.C. in the matter of promotions. Clause 11 of the instructions governs consideration for promotion. Explanation to this clause provides as under:-
"Explanation: For the purpose of selection for promotion on the basis of merit no person shall be selected if he does not have 'Outstanding' or 'Very Good' record in at least five out of the 7 years preceding the year for which D.P.C. Is held."15
The learned Judge observed that for merit quota of the year 1991-92, the period of 7 years would commence from the year 1984-85 but in the petitioner's case the APARs from the year 1979 were to be taken into consideration after following the rules applicable where the officers are kept under suspension. The learned Judge found that out of this period of 7 years, the petitioner had "Outstanding" or "Very Good"
remarks for the years 1980-81, 1981-82, 1982-83, 1983-84 and 1985-86 though in the year 1980-81 and 1981-82, the remarks were written for two periods and in one of which, in each year, the petitioner was rated as "Very Good"/"Outstanding" but for the period covered by another report for the same year, he was rated to be "Above Average".
In this scenario and backdrop, the learned Judge held that 'the remark beneficial to the officer will have to be taken in such circumstances to be remark for the year'. The learned Single Judge said,-
".....Thus, out of the period of seven years from 1979- 80 to 1985-86 the petitioner had outstanding or very good remarks for the years 1980-81, 1981-82, 1982- 83, 1983-84, 1985-86. It is true that in the year 1980- 81 and 1981-82 remarks were written for two periods and in one of which, in each year, the petitioner has been rated as very good or outstanding, but for the period covered by another report for the same year, he has been rated to be above average. The remark, beneficial to the Officer will have to be taken in such circumstances to be remark for the year and thus, the petitioner has got five very good or outstanding remarks during the period of seven years which was to be considered for promotion. Under the Govt. instructions, he was eligible for being considered in the merit quota....."
For the aforesaid reasons, the learned Single Judge quashed the orders impugned and while issuing consequential 16 directions, observed that the petitioner had been harassed and compelled to file the petition and hence, held him entitled to the costs quantified at Rs. 10,000/-.
It is the aforesaid theory of taking into consideration the 'beneficial' remarks out of part remarks that was applied by the Tribunal in allowing the appeal filed by the private respondent of the present writ petitions; and whose correctness has been doubted by the learned Single Judge in the reference order. THE REAL QUESTION:
After having taken note of the background facts, the relevant provisions and the decision in P.P.Bidyasar's case, in our opinion, the basic and real question in this reference is as to how the Explanation appended to sub-rule (11) of Rule 24-A of the Rules of 1954, whereby, for the purpose of merit promotion, a person ought to have "Outstanding" or "Very Good" ratings in at least 5 years out of 7 years preceding the year of consideration, shall be employed in the event of any of relevant year's ratings having been given in parts and in one part he be rated "Outstanding" or "Very Good" but in the other part lower than "Very Good"? If the decision in P.P.Bidyasar's case is taken to be applicable to the statutory rule and is held to have laid down the law correctly and of universal application then, as per the said decision, in such part APARs, the one beneficial to the incumbent shall be taken into consideration. THE INTERPRETATION OF THE 'EXPLANATION' Having taken note of the relevant provisions of the Rules of 1954, the questioned decision in P.P.Bidyasar and 17 the real point calling for determination, appropriate it is to take up for interpretation in the first place the Explanation appended to sub-rule (11) of Rule 24-A of the Rules of 1954 in its plain meaning on the fundamental rule of literal interpretation. The rule of literal interpretation is that in construing a written instrument, grammatical and ordinary sense of the words is adhered to unless that would lead to some absurdity, or some repugnancy or inconsistency. The words of a statute are, obviously, required to be given their natural and ordinary meaning and understood in that sense; and the sentences are construed according to their grammatical meaning but not when giving of such literal meaning leads to some absurdity or if there is something in the context or in the object of the statute to suggest to the contrary. In the case of Raghunath Rai Bareja & Anr. Vs. Punjab National bank & Ors.: 2006 AIR SCW 6446, the Hon'ble Supreme Court, while referring to several of the fundamental decisions on the point, has explained the principle thus:
''40. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute....'' The Hon'ble Supreme Court has further pointed out,-
''46. The rules of interpretation other than the literal rule would come into play only if there is any doubt with regard to the express language used or if the plain meaning would lead to an absurdity. Where the words are unequivocal, there is no scope for importing any rule of interpretation vide Pandian Chemicals Ltd. Vs. C.I.T., 2003 (5) SCC 590.'' 18
47. It is only where the provisions of a statute are ambiguous that the Court can depart from a literal or strict construction vide Nasiruddin Vs. Sita Ram Agarwal, AIR 2003 SC 1543. Where the words of a statute are plain and unambiguous effect must be given to them vide Bhaiji Vs. Sub-Divisional Officer, Thandla, 2003 (1)SCC 692.'' Though several rules of interpretation have been referred by the learned Single Judge in the reference order but we feel that recourse to the other rules of interpretation is really not necessary in this case. The words of the said Explanation are absolutely clear, unambiguous, and unequivocal; and in our opinion are not susceptible to any other meaning than the plain and the literal one. There is no likelihood of any anomaly or absurdity in giving the words and phrases occurring in the said Explanation their plain and simple meaning; nor there is any likelihood of the object being defeated by giving plain, simple and direct meaning to what has been stated.
The said Explanation clarifies as to who cannot be considered for the purpose of selection for promotion on the basis of merit; and provides that for merit promotion 'no person shall be selected if he does not have "Outstanding" or "Very Good" record in at least five out of the 7 years preceding the year for which D.P.C. is held'. In our opinion the language used is so certain and crystal clear that no other interpretation is possible except that for being selected in merit promotion under the said Rules of 1954, a person must have minimum 5 years record as "Outstanding" or "Very Good" within the bracket of 7 years under consideration. The phrase 'at least' definitely draws a bottom line; and in our opinion, there is no 19 scope for any dilution of this minimum to any lower level.
The entire of the present controversy has arisen because of the reason that there are cases where annual records and particularly the ratings are found recorded in parts and when in one of the parts, a person is rated below "Very Good" though having "Outstanding" or "Very Good" rating in the other part. In our view, even such an eventuality cannot lead the Court to put any other interpretation on the plain language of the provision. It cannot be assumed that the rule making authority had been oblivious of or ignorant about the fact that in such records, the person could be given the rating in parts in a year and could be given different ratings in any particular year. The provision would be presumed to have been inserted in the rules with the Government being conscious of all the eventualities; and merely because the rule may lead to a seemingly harsh position qua a person having part rating below "Very Good" in a particular year, it cannot, in our considered view, be a reason for modulating or diluting the rule so as to provide for a fiction in relation to such part ratings and to take the one so-called 'beneficial' to the employee into consideration. In our view, the clear and explicit terms of the Explanation aforesaid leave no room for doubt that for the purpose of merit promotion, there has to be minimum 5 years' "Outstanding" or "Very Good"
ratings out of the relevant 7 years without any scope for dilution in such requirement.
The plain and literal meaning as is available from the wordings and phraseology of the Explanation in question does not lead to any absurdity or unintelligible result either. 20 Noticeable it is that for such merit promotion, it is not that only the record of 5 years is considered but what is considered is the record of preceding 7 years to the year for which DPC is held. The requirement is that out of such 7 years, the person must have at least 5 years ratings of "Outstanding" or "Very Good". Thus, whatever concession was considered fit to be given, has already been given in the provision itself. Now to stretch it beyond such relaxation and to bring a person to 5 years requisite ratings by omitting from consideration the part of record where he has not been rated "Outstanding" or "Very Good", in our opinion, would be not only against the plain words and their meanings but would also be against the object and purport of the said Explanation. We do not find any reason to take any other view of the matter except that emerges from the plain meaning of the words and phrases employed.
The learned Single Judge has pointed out meaning of the word "least" as available in different dictionaries; and the one available in from Random House Dictionary of the English Language in its 1983 Publication could be usefully reproduced as under:-
"least (lest) adj. a superl. of little with less or lesser as compar. 1. smallest in size, amount, degree, etc; slightest: He walked the least distance of all. 2. lowest in consideration or importance. - n. 3. something that is least; the least amount, quantity, degree etc. 4. at least, a. at the lowest estimate or figure:...."
Thus, "at least" signifies the "lowest" and the "smallest"; and we are clearly of the view that this "smallest" cannot be reduced any further. In fact, the Explanation is couched in 21 specific negative expressions with use of clear words and phrases such as "no person", "does not" and "at least". It does not need much emphasis that use of negative expressions and words is essentially to make the provision imperative and mandatory in character. In the case of M.Pentiah & Ors. Vs. Muddala Veeramallappa and Ors.: AIR 1961 SC 1107, the Hon'ble Apex Court said,-
"....Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative...."
Again, in the case of Nasiruddin & Ors. Vs. Sita Ram Agarwal: (2003) 2 SCC 577, the Hon'ble Court held,-
".....It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character."
The wordings and phraseology as used in the Explanation under consideration leaves nothing to doubt that the requirement of having minimum 5 years rating as "Outstanding" or "Very Good" has been provided as a mandatory requirement to be fulfilled for a person to be considered for merit promotion. The phraseology of the Explanation is clearly indicative of mandatory nature of the provision and makes it clear that the same cannot be diluted any further.
In view of what has been discussed above, we do not find any necessity of referring to any other rule of interpretation. Yet, if the other relevant rules of interpretation are applied, as discussed by the learned Single Judge in the 22 reference order and as argued by the learned counsel for the petitioner, they only strengthen the view that the requirement of higher ratings for minimum 5 years is the bottom line and cannot be reduced further. The history of the Explanation shows that while the provision before 01.04.1981 was likely to cause severe hardship to some persons who got lower remarks for particular years by denial of promotion altogether, the same was substituted by the provision that required "Outstanding" or consistent "Very Good" record for merit promotion. When such rule was, in practice, sought to be diluted and 5 years' higher ratings were being employed, the Courts did not approve of such deviation. In Shambhu Singh Meena and 4 Others Vs. State of Rajasthan & Ors.: 1992 (2) WLC 571, the Division Bench of this Court referred to several decided cases pronounced against deviation from the rule and, inter alia, quoted the following passage from the decision in the case of Randhir Singh Vs. State of Rajasthan :-
"The Explanation has also used the word "only" while it says that officers with "outstanding" or consistently "very good" record shall only be selected. No deviation can be made from the Explanation. A person whose service record is not "outstanding" or consistently "very good" cannot be selected on the basis of merit. He has to be considered on the basis of seniority-cum-merit as per proviso to Rule 28-A (6)."
The aforesaid decision in Shambhu Singh Meena was taken to the Hon'ble Supreme Court where, again, the practice was referred and relied upon as would appear from the following passage in the decision [1995 Suppl (2) SCC 431] noticing the contentions on behalf of the petitioners:-
"3. It is contended by the learned counsel for the 23 petitioners that the relevant rule, that is, the Explanation to sub-rule (11) does not prescribe how many years' service record should be considered by the DPC and for how many times during that period the record should be outstanding or consistently very good. The DPCs and other administrative authorities who had to construe, execute and apply the rule construed the requirement of the rule as 5 outstanding or very good out of 7 years' record. The High Court, therefore, should have accepted that construction and should not have taken a different view....."
The Hon'ble Supreme Court did not accept the aforesaid contention and emphatically said,-
"8. The rule requires that the record of the officer should be outstanding or consistently very good and that would imply that it should be so for the entire period under consideration."
The aforesaid decision, though relates to the Explanation as previously existing but leaves no manner of doubt that any dilution on the merit criteria has always been viewed with disfavour by the Courts.
Noticeable again it is that the decision in Shambhu Singh Meena had essentially been in relation to the Explanation existing in similar nature rules before 30.11.1991. As noticed, the Explanation in the present form was substituted in the rules with effect from 30.11.1991 in place of the earlier one. Thus, the strict requirements of "Outstanding" or consistent "Very Good" was modulated in the fashion that if a person is having "Outstanding" or "Very Good" record in at least 5 years out of 7 preceding years, he could be considered for merit promotion. It has rightly been contended that whatever dilution was considered proper, was indeed provided in the rules and no further reduction, dilution or erosion is permissible. 24
It has also rightly been pointed out that if literal construction of the Explanation is deviated in any manner, the possibility cannot be ruled out where a person having "Very Good"/"Outstanding" service record in one part of 5 years out of 7 years and lesser rating in the remaining part of those 5 years, could yet have his rating in such 5 years be treated as "Very Good" and claim to be considered for promotion against merit quota, contrary to the intention of the rule.
Thus, reference to the history, antecedents, object and purpose, also make it absolutely clear that in the true interpretation, the requirement of at least 5 years "Outstanding" or "Very Good" record out of 7 years as stated in the Explanation is mandatory in character and cannot be reduced further in any event.
We are clearly of opinion that the Explanation appended to sub-rule (11) of Rule 24-A ibid admits of no dilution or variation; and for the purpose of merit promotion, there is no warrant for the proposition that if in any particular year a person's ratings are made in parts and if he is rated "Outstanding" or "Very Good" only in a part thereof; and is rated below "Very Good" in the other part, then, he may be taken "Outstanding" or "Very Good" for the whole year with reference to such part higher rating. The mandate of the Explanation, plain and simple, is to look at the preceding 7 years' records and not to consider a person for merit promotion if he is not having at least 5 years ratings as "Outstanding" or "Very Good". If in any year, even for a part, he is rated below "Very Good", in the true operation of the rule, 25 that particular year would not be counted for the purpose of the requisite 5 years.
THE IMPORT AND CORRECTNESS OF THE DECISION IN P.P.BIDYASAR:
To the extent it stands contra to what has been observed, found, and held hereinabove, we cannot approve the decision in P.P.Bidyasar's case (supra). We have found that the mandate of the Explanation is not to consider a person for merit promotion if he is not having at least 5 years ratings as "Outstanding" or "Very Good" out of 7 years ratings under consideration. If in any year, even for a part, he is rated below "Very Good", that particular year would not be counted for the purpose of the requisite 5 years. There is no scope for any reduction or concession in these 5 years in any eventuality. The theory of application of so-called beneficial entry, as adopted in P.P.Bidyasar, in our view, remains away, apart from, and rather against, the object and purport of the provision; and cannot be said to be of a correct proposition.
Apart from the above, where in our view the proposition stated in P.P.Bidyasar cannot be taken as correct, we may point out that even otherwise, P.P.Bidyasar had been a decision rendered essentially in the backdrop that the Court was satisfied about the petitioner having been subjected to unnecessary and long harassment and hence, proceeded to observe that "the remark beneficial to the officer will have to be taken in such circumstances to be the remark for the year". Such observations were not made with reference to any reason or any particular principle of law. The appeal against 26 the said decision was of course dismissed by the Division Bench of this Court but without any discussion on any aspect related with the principles of law, particularly on the rules applicable and interpretation thereof; and without any ratio. Rather, the Division Bench observed that the learned Single Judge had taken the previous orders into account. The decision in P.P. Bidyasar's case, when closely examined, makes it clear that it had been a decision rendered essentially on its own facts and cannot be said to be laying down any proposition of law as precedent. In the case of Oriental Insurance Co. Ltd. v. Raj Kumari & Ors.: AIR 2008 SC 403, the Hon'ble Supreme Court has explained the principles relating to precedents in the following:-
"11. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates (i)findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See: State of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC 647) and Union of India and Ors. v. Dhanwanti Devi and Ors. (1996 (6) 27 SCC 44). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn v. Leathem (1901) AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides."
Viewed in the light of the above, in our view, P.P. Bidyasar's case can only be treated to be a case decided on its own facts and not laying down the law of universal application.
Further we find substance in the submission of the learned counsel for the petitioner that in P.P.Bidyasar, the learned Single Judge proceeded rather without taking notice of the Explanation as applicable because the Explanation relevant for the year of consideration i.e., 1991-1992 was the one which was substituted w.e.f. 30.11.1991 and not the Explanation that is in question in the present case. If the said Explanation, as existing before 30.11.1991 was applicable, the decision in P.P.Bidyasar is, with respect, directly hit by the decision of the Hon'ble Supreme Court in Shambhu Singh Meena (supra).
The theory adopted in Bidyasar cannot be said to be applicable to the interpretation of the statutory rule for yet another reason that what the learned Single Judge purportedly considered in P.P.Bidyasar was referred as the clause contained in "executive instructions", as is apparent from the 28 observations reproduced hereinabove. It is noticed that though the provision had been referred in P.P.Bidyasar as that of executive instructions but in fact is verbatim the Explanation introduced w.e.f. 30.11.1991. However, it appears that the learned Single Judge proceeded to attach a flexibility to the provision while taking it to be of executive instructions and not the statutory rule. Such a flexibility, with respect, is not available in the operation of the Explanation appended to sub- rule (11) of Rule 24-A of the Rules of 1954 that lays down mandatory requirements, as discussed supra. THE ANSWERS:
In view of what has been discussed above, our answers to the referred questions are:
(i) The order passed in the case of Prem Prakash Bidyasar vs. State of Rajasthan: 1996 WLR 197 can neither be said to be a binding precedent nor as laying down correct proposition of law for the purpose of interpretation of the Explanation appended to sub-rule (11) of Rule 24-A of the Rajasthan Service of Engineers and Research Officers (Irrigation Branch) Rules, 1954
(ii) In the true operation of the Explanation appended to sub-rule (11) of Rule 24-A of the Rajasthan Service of Engineers and Research Officers (Irrigation Branch) Rules, 1954, a candidate, for the purpose of selection for promotion on the basis of merit, is required to mandatorily possess "Outstanding" or "Very Good" APAR ratings for the whole of at least 5 years, out of 7 years preceding the year of selection;29
and such requirement cannot be diluted by taking APAR ratings "Outstanding" or "Very Good", given only for a part of the year, as the rating for entire year when the ratings are given in part and a person is rated as "Outstanding" or "Very Good" only in a part of the year and is rated below "Very Good" in the remaining part.
The record be now placed before the concerned bench for decision of the writ petitions on their merits. MK (DINESH MAHESHWARI),J. (A.M.KAPADIA),J.