Andhra HC (Pre-Telangana)
P. Sesham Raju vs Hon'Ble District And Sessions Judge And ... on 25 September, 1997
Equivalent citations: 1997(6)ALT105
Author: B.V. Ranga Raju
Bench: B.V. Ranga Raju
JUDGMENT S. Parvatha Rao, J.
1. The petitioner states that he is working as Upper Division Clerk in the Special Judicial First Class Mobile Court, Manthani. He states that he was called for interview by the Selection Committee for promotion to the post of Head Clerk in District Munsif's Court in Category 3 in Division IV of the A.P. Judicial Ministerial Service (for short 'the Service')/ and that he appeared for the interview held on 31-8-1996. He was not selected but respondents 2 and 3 who were his juniors were selected. He contends that no reasons were given for overlooking him and that his meritorious service and seniority was not given weight by the Selection Committee and that respondents 2 and 3 who were less meritorious than him were selected ignoring his claims. He admits that, earlier, disciplinary proceedings were initiated against him while he was working as Deputy Nazir in the Court of the Munsif Magistrate at Sultanabad and that punishment of stoppage of three increments without cumulative effect was imposed on him by the first respondent, that is, the District and Sessions Judge, Karimnagar, in his proceedings dated 11-6-1993. He approached this Court by way of Writ Petition No. 7677 of 1994 questioning the said disciplinary action taken against him and that Writ Petition was disposed of by order dated 25-3-1996 reducing the punishment imposed on him to stoppage of one increment for the period 1-3-1994 to 28-2-1995 without cumulative effect. He submits that disciplinary action could not have been set against him while considering him for promotion along with respondents 2 and 3 ignoring his seniority and meritorious service. He made a representation dated 29-1-1997 seeking promotion to Category-3 post; receiving no reply he now approaches this Court by way of the present Writ Petition seeking a Writ of Mandamus declaring the promotions of respondents 2 and 3 in the order of the first respondent in proceedings No. 167/PR-15/ADM/DCK/97, dated 7-1-1997, as illegal, arbitrary and unconstitutional being violative of Articles 14,16 and 21 of the Constitution of India and holding that the petitioner is entitled to be promoted with effect from 7-1-1997 to Category-3 post in Division IV of the Service and with consequential benefits.
2. The learned Counsel for the petitioner does not dispute that promotion to the posts in Category-3 of Division IV is to be made on grounds of merit and ability, seniority being considered where merit and ability are approximately equal as per Rule 8 of the A.P. Judicial Ministerial Service Rules in force as on to-day. However, he submits that yet seniority should not be ignored and if a senior candidate is not selected, reasons should be given as to why he is not selected. There is no doubt that when selections are to be made on the basis of merit and ability reasonable criteria and norms are to be adopted for assessing merit and ability; but reasons are not required under the Rules.
3. It is not the case of the petitioner herein that no such criteria or norms were adopted by the Selection Committee in the present case. He only rests his case on his seniority and his self-assessed merit. It is not the case of the petitioner that he was communicated any commendatory epistles about his performance or any special mentions were made about his achievements. To make ourselves doubly sure, we sought from the learned Counsel for the petitioner information about any special mention or notings in the service record of the petitioner which would prinia facie establish his merit and integrity. Obviously, the petitioner's Counsel could give information about the same only if such a mention or notings were intimated to him (see Chandra Gupta v. Secretary, Government of India, (D.N.).). But in his additional affidavit dated 24-9-1997, the petitioner referred to his confidential reports for the years 1993 to 1996, without explaining how he had access to them. He states that in his confidential reports pertaining to the years 1993 and 1994, it was recorded that his conduct and character were satisfactory and with regard to performance it was recorded as average. For the subsequent years 1995 and 1996, he states that it was recorded that he was fit for promotion. On this basis he contends that ignoring his case for promotion and promoting his juniors is discriminatory and hit by Articles 14 and 16 of the Constitution of India.
4. We find that the stand taken by the petitioner has no basis whatsoever. The petitioner has no right to promotion as such but he has only the right to be considered for promotion according to the Rules and to his turn and this is a guarantee flowing from Articles 14 and 16(1) of the Constitution of India as stated by the Supreme Court in Director, Lift Irrigation Corporation Limited v. P.K. Mohanty, CO. Arumugam v. State of Tamil Nadu, 1991 Supp. (2) SCC 199. 3. 1993 Supp. (3) SCC 575. and Syed Khalid Rizvi v. Union of India, 1992 Supp. (2) SCC 481.
5. The learned Counsel for the petitioner accepts that the petitioner was, in fact, considered by the Selection Committee. He also accepts that under the Rules, promotion has to be made on the basis of merit-cum-ability. But he contends that seniority cannot be ignored and if a senior is by-passed, reasons should be given by the Selection Committee. We do not find any merit in this contention. In National Institute of Mental Health and Neuro Sciences v. K. Kalyana Raman*, the Supreme Court, considering the selections based on interview and assessment of relative merits of candidates by the Selection Committee, observed as follows:-
"..........In the first place, it must be noted that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. The High Court seems to be in error in stating that the Selection Committee ought to have given some reasons for preferring Dr. Gauri Devi as against the other candidate. The selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility. There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without recording reasons cannot be found fault with. .............Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R.S. Dass v. Union of India, 1986 Supp. SCC 617. in which Union of India v. Mohan Lal Capoor, . was also distinguished."
In Major General I.P.S. Dewan v. Union of India, . the Supreme Court reiterated that position and held as follows:-
"Sri Ramaswamy then relied upon the decision in Manager, Government Branch Press v. D.B. Belliappa, . in support of his submission that administrative orders affecting the rights of citizens should contain reasons therefor. We are afraid, the said principle cannot be extended to matters of selection. Unless the rules so require, the Selection Committee/Selection Board is not obliged to record reasons why they are not selecting a particular person and/or why they are selecting a particular person, as the case may be..........".
That was also a case where the selection was not based on seniority, but on merit and where there were no allegations of mala fides or bias against the members of the Selection Board. In Sarat Kumar Dash v. Biswajit Patnaik, 1995 Supp. (1) SCC 434. the Supreme Court observed that in case of promotion on the basis of merit-cum- suitability, the seniority should have no role to play when the candidates were found to be meritorious and suitable for higher posts, and that a juniormost man could steal a march over his seniors and jump the queue for accelerated promotion and that this principle inculcated dedicated service and accelerated ability and encouraged merit to improve excellence, and that seniority would have its due place only where the merit and ability were approximately equal or where it was not possible to assess inter se merit and the suitability of two equal eligible competing candidates who came very close in the order of merit and ability. The Supreme Court also made it clear that in case where the relative merit and suitability or ability had been considered and evaluated, and found to be superior, then the seniority had no role to play. After considering all these cases, the Supreme Court more recently observed in State of Rajasthan v. Sriram Verma, . as follows:-
"It is one thing to say that such a course (giving reasons for not selecting a senior and selecting a junior) is fair and desirable but it is altogether a different thing to say that such a course is obligatory or necessary in all cases for in the latter event the selections made are liable to be set aside for not complying with the said requirement. The High Court has pointed out that such selections are likely to be challenged in a Court of Law and if no reasons are recorded - or at least the record indicates the reasons - for superseding a senior and selecting his junior, the Court would not be in a position to consider the grievance effectively and satisfactorily. This argument brings to our mind the decision in Bhagat Raja v. Union of India, . but that was a case where the order questioned before the Court was a quasi-judicial order. It is equally true that even in administrative matters, this Court has been insisting upon the duty to act fairly which may sometimes require an opportunity of hearing. But having regard to the nature of function of selection - and taking into consideration the fact that the only right of the Government servant is a right to be considered and not a right to promotion - we do not think it possible to infer the requirement of recording reasons in all situations. ' At the same time, we think that it is always desirable that procedure adopted by the selecting body should be fair and such as to lend credence to the process; it should be such as to inspire confidence in all concerned within the practicable limits. From this point of view, it would be a wholesome step for the Government of Rajasthan - for that matter, all Governments - to provide either by amendment of Rules or by general instructions that in the matter of promotions on the basis of merit or merit- cum-seniority/merit-cum-suitability, the selecting authority should follow the method of grading all the candidates appearing before them. This requirement we are suggesting in cases where the Rules do not provide for grading or for awarding marks or for recording of reason for overlooking a senior; where, however, the Rules already provide for awarding of marks or any other appropriate method, our suggestion may not be applicable. It must also be understood clearly that ours is a suggestion to avoid complaints of arbitrariness and primarily with a view to make the process credible. The Governments shall keep this underlying object in mind and cause appropriate amendments or issue appropriate instructions. It is obvious that any such amendments /instructions shall have only prospective operations."
6. Admittedly, there is nothing to show that the petitioner is having any outstanding service or meritorious service. On the other hand, as per his own statement, in his confidential reports for 1993 and 1994 it was recorded that his performance was average, Apart from this, admittedly, in the departmental enquiry held against him the charges were found proved and punishment was imposed on him in the proceedings of the first respondent. That was questioned by the petitioner in Writ Petition No. 7677 of 1994. A Division Bench of this Court while disposing of the Writ Petition by order dated 25-3-1996 did not interfere with the finding on the charges but reduced the punishment observing as follows:
".............We feel that the quantum of punishment deserves to be altered as the present one is a bit harsh and exorbitant. Hence, the Writ Petition is disposed of modifying the punishment of stoppage of three increments without cumulative effect to one of stoppage of one increment without cumulative effect."
We called for the records in the said Writ Petition and we find that the charge proved against him was that the petitioner herein demanded money for sending the bailiff for execution of an attachment warrant. It is not the case of the petitioner that respondents 2 and 3 were also subjected to disciplinary enquiry or that the Selection Committee found that he was equal in merit and ability when compared to them.
7. In view of the admitted facts in the present case, we find that the petitioner's grievance of discrimination has no substance. We are supported in our view by the observations of the Supreme Court in Union of India v. K.V. Jankiraman, (1999) 4 SCC 109. In that case a three Judge Bench of the Supreme Court, speaking through Sawant, J., observed as follows:
"............. On principle .................. the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a Promotion Committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion."
8. On the facts narrated by the petitioner himself, we find that no prima facie case is made out for enquiring into the promotions made. We are again supported in this view by the decision of the Supreme Court in U.P. Jal Nigam v. Narinder Kumar Agarwal13, wherein the Supreme Court after observing that "it is settled law that merit and integrity are the sole considerations for selection posts and seniority would become relevant only when merit of all the candidates are approximately equal", held as follows:
"................The Committee appears to have proceeded on the premise of merit and ability and evaluated the criteria of all the 17 candidates and selected four candidates who were standing at Nos. l, 2, 6 and 8. In the absence of any compelling circumstances brought to our notice to show that the selected candidates are not possessed of superior merit and ability than that of the respondent, we do not think that the selection is beset with any illegality."
9. The Writ Petition is, therefore, dismissed.