Punjab-Haryana High Court
Shingar Chand vs The State Of Punjab And Another on 19 September, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CWP No. 10928 of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 10928 of 1991
Date of Decision: September 19, 2013
Shingar Chand
... Petitioner
Versus
The State of Punjab and another
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. Karanvir Singh Khehar, Advocate,
for the petitioner.
Mr. T.N. Sarup, Addl. A.G., Punjab
Paramjeet Singh, J.
Mr. Karanvir Singh Khehar, Advocate states that he has no instructions to argue the matter. However, on the asking of the Court, he assisted the Court.
The instant civil writ petition has been filed under Article 226 of the Constitution of India for quashing the order dated 13.05.1991 (Annexure P/7) vide which the name of the petitioner has not been cleared for appointment by promotion on regular basis to the post of Executive Engineer in Class-I Service and subsequent orders/communications Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 2 between respondent nos. 1 and 2 rejecting the clearance of the name of the petitioner for appointment on regular basis to the post of Executive Engineer w.e.f. 01.01.1983.
Brief facts of the case are that the petitioner joined the services of the State of Punjab as Sub Divisional Engineer in the Punjab Service of Engineers, Public Works Department, B&R Branch, Class-II Service in 1972. The petitioner belongs to Scheduled Caste Category and the seniority of the petitioner was fixed in the Class-II Service as per the roster point being a reserved category candidate. In the provisional seniority list, the name of the petitioner is at Sr. No.89 (Annexure P/1). The petitioner successfully cleared probation period and thereafter the petitioner was allowed to cross the efficiency bar in 1983. It is also averred by the petitioner in the petition that the following adverse annual confidential reports were conveyed to the petitioner which read as under:-
"i. A.C.R. for the year 1973-74. The petitioner represented against the same and the same was rejected. ii. Annual Confidential Report for the year 1974-75.
Representation of the petitioner against the same has since been rejected.
iii. Annual Confidential Report for the year 1975-76. The representation of the petitioner against the same has since been rejected.
iv. Annual Confidential Report for the year 1976-77 against which he represented and decision is awaited. v. Annual Confidential Report for the year 1984-85.
Representation of the petitioner against the same is still pending decision.Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 3
vi. Annual Confidential Remarks for the year 1985-86.Petitoner has duly represented against the adverse remarks and the decision is still awaited."
The main grounds for challenge to the impugned orders are that the petitioner became eligible for promotion to the post of Executive Engineer on completion of 18 years of service and had qualified the departmental examination as required under Rule 15 of the Punjab Service of Engineers Class I PWD (B&R) Rules, 1960 (hereinafter referred to as the "1960 Rules). A vacancy reserved for the candidate of Scheduled Castes in the rank of Executive Engineer became available on 1.1.1983. The claim of the petitioner is that on that roster point he was found suitable on the basis of his record. Subsequently he has been declared to be not entitled for promotion due to the departmental proceedings against him. The Departmental Selection Committee has wrongly taken into consideration the pending departmental enquiries, to conclude that the petitioner is not suitable for promotion. Work and conduct of the petitioner was found satisfactory and he has crossed the efficiency bar which amounts to promotion. The Public Service Commission is the final authority for determining the ultimate result of process of selection and the same found the petitioner suitable but respondent no.1 has no jurisdiction to decline promotion. Secondly, the Public Service Commission has no power to review the decision.
The respondents appeared and filed their separate replies. The stand of respondent no.1 - State of Punjab is that vide order dated Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 4 21.07.1986 the petitioner was promoted to the post of Executive Engineer on purely temporary basis for a period of six months or till he is approved by the Screening Committee and the Punjab Public Service Commission whichever is earlier without prejudice to the result of pending disciplinary proceedings against him. This condition was accepted by the petitioner and he never challenged the same. The Screening Committee constituted under Rule 8 of 1960 Rules and the Public Service Commission did not find the petitioner suitable for appointment in P.S.E. Class-I keeping in view his bad service record. Two punishments were awarded to the petitioner, one on 05.02.1981 for stoppage of two increments and another of 'Censure'. There were several serious enquiries against the petitioner pertaining to the subsequent period and one enquiry was relating to the period under review. In the enquiry relating to 1979-80, recovery and punishment of `Censure' was recommended. Besides this, there are adverse remarks for the period 1974-75, 1975-76, 1976-77, 1984-85 and 1985-86. Representations against some of the adverse remarks for the periods 1974- 75, 1975-76 and 1976-77 were considered and rejected. The petitioner was considered for promotion from 1983 to 1989 but he was not found suitable. The respondent, thus, prayed for dismissal of the writ petition.
Respondent no.2 - Punjab Public Service Commission (hereinafter referred to as the "Commission") filed separate reply and submitted that the Screening Committee meeting was held to screen the eligible PSE Class II Officers for promotion to PSE Class I. The meeting Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 5 was required to be presided over by the Chairman or any other members of the Commission under Rule 8 of 1960 Rules. The said Committee met on different dates and prepared a list of suitable candidates after taking into consideration the number of vacancies yearwise for the period from 1982 to 1989. The screening Committee heard the officers who came to present their cases and took into consideration the record of past five years including the enquiries pending against such officers. The case of the petitioner was examined by the Screening Committee for promotion to P.S.E. Class-I for the years 1983, 1985, 1986, 1987, 1988 and 1989. The Screening Committee considered the petitioner's case for the year 1983 and observed that two punishments were awarded to him, one on 5.2.1981 for stoppage of two increments and censure. There were several enquiries against him which pertain to the subsequent period. In the enquiry of 1979-80, recovery and punishment of Censure was recommended. During hearing his explanation had not been found satisfactory and his promotion case was, therefore, not approved. The case of the petitioner and 15 other officers was reviewed in the light of Rule 8(9) and 8(10) of 1960 Rules. Since the Screening Committee did not recommend the name of the petitioner for promotion to P.S.E. Class-I, the Public Service Commission reviewed his promotion case and found the following charges, allegations, enquiry and adverse remarks recorded against the petitioner:-
"1. The Screening Committee considered the petitioner's case in the year 1983 and the following two punishments were awarded to him. One on 5.2.1981 for stoppage of two increments with future Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 6 effect and censure on account of increments with future effect and censure on account of the following charges against the petitioner:-
(1) He failed to get the name of work amended on the muster roll no. 926 from Divisional Office.
(2) He is guilty for non dischargings his duty properly. (3) He is responsible for infringement of codal rules and dereliction of duty.
(4) He miserably failed to report the unpaid wage which were old for more than three months.
(5) He failed to check the attendance in the temporary muster rolls as required under rules.
(6) He is responsible for disobedience of instructions of higher authorities.
(7) He failed to exercise 50% check on the progress of work done of muster roll No. 926.
(8) He is responsible for making payment without endorsement of pay order.
There are also several enquires against the petitioner. The details of enquiries are as under:-
(A) Ist Enquiry
1. Period of enquiry 1985 under rule 10 of Punishment and Appeal Rules, 1970.
Allegations (1) While incharge of the work of replacement of superstructure of existing damaged high level bridge 5 spans 40" each over sunam choa on Sunam Bhikhi Road, two spans of deck slab were casted in his incumbency. The width of carriage way at site was constructed as 7.20 Minstead of 7.50 M. (2) Instead of casting R.C.C. railing as per drawings only halts for steel railing have been granted.
(3) The width of wheel guards have been kept less than as shown Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 7 in the design.
(4) According to existing instructions wearing coat was to be laid in two longitudinal strips with casting of alternative pannels in each strip but he has laid wearing coat in one lot without panelling.
(5) No provision has been made for embedding angle iron in the first span for providing expansion joints with the approach slab.
(B) IInd Enquiry Shri Shingar Chand while he was XEN at Sangrur (from 30.10.86 to 15.6.87) committed following acts of misconduct and irregularities and failed to safe-guard Government interest. Charges:
(1) Misuse of budget allotment by placing orders for the supply to Deodar wood sleepers in excess of actual requirement which is in violation of rule 15.2(b) of P.F.R.Vol.I. (2) He is guilty of charging the grade of Deodar wood sleepers from Ist grade to special grade without the approval of the competent authority in an excess payment of Rs.2,34,013-31 paisa. (3) He violated the instructions of the Chief Engineer, Punjab PWD (B&R) Patiala by not inspecting the timber himself, although he accompanied the S.D.E. (4) He passed the bill for payment on 4.3.87 in violation of rule 15(4)(b) of P.F.R. Vol.I. Thus in the absence of rate contract the whole purchase/payment is unauthorized. (5) He is also guilty for not bringing to the notice of the S.E. Construction Circle Sangrur while applying for L.O.C. On 12.3.87 that he has already made the payment.
Shri Shingar Chand, Executive Engineer was charge sheeted on 5.7.88. He has, thus, failed to safeguard the Government interest as Executive Engineer, deliquently as laid down in para 5.4 of Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 8 P.W.D. Manual of order and thus rendered himself liable for disciplinary action as required under Punjab Civil Services (Punishment and Appeal) Rules, 1970 to make good the excess payment of Rs.2,30,756.00 paisa on account of change in grade of timber.
(C) Third Enquiry Period of Enquiry 1973-74 under Rule 10 of (P&A) Rules 1970 charges/allegations:
(1) He was instrumented in making payment of 2.30,425 NOS bricks to S.P. Walia, B.K.O. Jatpur when actually there was no bricks at the kiln site which tantamounts to embezzlement of Government money.
(2) Disregarding the interest of the Government exchequer and he played foul with Government money, with malafide intention and suspected personal gains and corruption. (3) Conniving and abetting illegitimate payment making fake record entries for receipt of 2,30,425 Nos. bricks costing Rs.13,476-
80 paise when actually there were no brick at kiln side. He connived at with others to make these illegitimate and bogus payment. (4) Negligence in performing his duty.
As per the information sent by the Chief Engineer, Punjab PWD B&R Branch, Patiala the Brick Kiln owners has deposited the amount of Rs.13476-80 paise with the department. The case is being further examined by the department.
(D) IVth Enquiry Period of enquiry 5/85 and 6/85 Under rule 10 of Punishment & Appeal Rules, 1970 (1) He is responsible for mis-appropriation of 388.66 bags of cement valuing Rs.21,404-10.
(2) He is responsible for manipulation of official record including making fictitious entries with mala fide intention and had Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 9 motive of concealing the mis-appropriation of cement made by him as charge No.1 above.
(E) Vth Enquiry Under rule 10 of (P&A) Rules 1970 Period of Enquiry 1971 to 76.
He alleged to be responsible for having issued steel to the various works / agencies at higher factor weight for unit length than the actual weight thereby misappropriating 34.997 tones of steel costing Rs.66,814-69 paise. Thus he allegedly held responsible for the following:
1. He issued 34.997 tones less steel to the various works agencies.
2. He applied factor (weights per unit length) entirely different from the actual factors and even from these give in PWD specifications.
3. He misappropriated 34.997 tones of steel costing Rs. 66814.69 himself or in connivance with the others.
4. He is thus liable to disciplinary action under Punishment & Appeal Rules to the Government for Rs.66,614.69 paise. Despite the enquiries there are adverse entries recorded in the confidential reports of the petitioner are as under:
I. 1.4.76 to 6.7.76 (1) You did not exercise fully your qualification to prepare technical reports and estimates.
(2) Information and returns are mostly received late from your Sub Division.
(3) You did not make any serious efforts to expose Corrupt Officials working under your charge during the period. (4) You overall assessment in Below Average.
II. 1.4.86 to 31.2.84 He neither inspected his work frequently nor exercised Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 10 sufficient financial and technical control over his works. He also committed a number of financial irregularities. III. 1.1.85 to 31.3.85 1 Are the projects and reports The report lack received from him and lucidly technical inclination.
prepared technically sound and they show that the is professionally and otherwise well qualified officer and with a sense of sound judgment?
2 Is the officer is good order? Does Disposal of matters not he habitually delay in dealing with satisfactory. matters which can ought to be disposed off promptly?
3 Does he inspect his work Not satisfactory frequently?
4 General Remarks He is an easy going
S.D.E. and does not
shown intense
enthusiasm in carrying
out the works
Besides, the above the following adverse entry has also been made:-
"This officer did not inspect his work frequently, did not carry out the works in an Economical member and committed a number of serious financial irregularities. Not yet recommended for promotion.
IV. 1.4.85 to 9.2.86
General remarks It is alleged that this SDE has done
embezzlement in connivance with
Sh. Dalip Singh S.E.
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CWP No. 10928 of 1991 11
Overall assessment Below average.
V. 1.4.85 to 31.8.85
1 Has he managed the work well? Not satisfactory
2 Is the officer in good order?Does No. He habitually
he habitually delay in dealing delays on occasion. with matters which can ought to be disposed of promptly.
3 Are his arrangements for Not economical carrying out work satisfactory and are his methods economical?
4 He has adequate knowledge of Miserably failed to accounts and able to properly control expenditure. control his expenditure? Huge excesses over estimates were noticed.
5 Does he inspect his work Not satisfactory frequently 6 Has the officer maintained his Large No. of financial reputation for integrity? irregularities were committed by him 7 Has he taken steps during the No year under report to remedy defects if any to which his attention might been drawn during the previous years?
8 Do you consider him fit for No
promotion
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CWP No. 10928 of 1991 12
9 General Remarks. His inclination is
towards committing
financial irregularities
rather than doing some
useful work.
10 Grading Below Average
After doing through the above facts of the case the petitioners' case was reconsidered by the Commission and agreed with the recommendations of Screening Committee. The respondent No.1 was also informed vide letter No. PR 233/89/9604 dated
5.7.91."
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner vehemently contended that the petitioner was promoted on temporary basis keeping in view his record and he is entitled to regular promotion to PSE Class-I Service. The record has been wrongly considered while denying regular promotion. The record prior to 1983 was satisfactory and he could not have been denied promotion on that ground and the Commission has no power of review / revision.
On the other hand, learned State counsel vehemently contended that the record of the petitioner was considered by the Screening Committee which was constituted under Rule 8 and the Screening Committee did not find him suitable for promotion, the claim of the petitioner was considered for the years 1983 to 1989 and he was not Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 13 found fit for promotion keeping in view his bad service record. Accordingly, the case of the petitioner along with 15 others was reviewed in view of rule 8(9) and 8(10) of the 1960 Rules. The petitioner did not deserve promotion.
I have given my anxious thought to the contentions raised by the learned counsel for the parties.
So far as the contention of the petitioner that he has a good record and is entitled to promotion is concerned, from the perusal of the record, it is clear that the record of the petitioner is not upto the mark. It has been found to be Below Average, number of inquiries, as mentioned in the foregoing paragraphs were initiated against him and punishment was also awarded. The case of the petitioner has been considered for the years 1983 to 1989. During this period, he was not found fit for promotion by the Screening Committee keeping in view the petitioner's service record. The petitioner has been considered for promotion by the competent authority. An employee has a right only of consideration for promotion, if from his service record he is not found suitable for promotion, he cannot claim promotion as a matter of right. In the case of the petitioner, his record from the very beginning is not upto the mark, even punishments have been awarded in the year 1979-80, recovery and punishment of `Censure' was awarded. There are adverse remarks for the period 1974-75, 1975-76, 1976-77, 1984-85 and 1985-86. The Division Bench of this Court in Sudarshan Shastri vs. Managing Director, Punjab State Seed Corporation Ltd., 1997(1) S.C.T., 651 has held that an employee has a Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 14 right only of consideration for promotion, if from his service record he is not found suitable for promotion, he cannot claim promotion as a right.
Hon'ble Supreme Court has also considered identical situation in Union of India vs. K.V. Jankiraman, (1991) 4 SCC 109. In the said case, Hon'ble Supreme Court has considered the circumstances under which the banks could resort to the "sealed cover procedure", when considering the claims of the eligible candidates for promotion. Hon'ble Supreme Court also examined the impact of departmental punishment for assessment of the suitability of an employee for promotion. The ratio of law laid down by Hon'ble Supreme Court is as under:-
"29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, 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 Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 15 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. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal."
The Hon'ble Supreme Court in the case of Rani Laxmibai Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 16 Kshetriya Gramin Bank and others vs. Manoj Kumar Chak, (2013) 6 SCC 287 also had an occasion to consider the identical situation. The Hon'ble Supreme Court in that case has held as under:-
"34. Similarly, the reliance placed by Mr. Dhruv Mehta on the judgment of this Court in K.V. Jankiraman's case (supra) is also misplaced. In this judgment, this Court considered the circumstances under which the banks could resort to the "sealed cover procedure", when considering the claims of the eligible candidates for promotion. The court also examined the impact of departmental punishment for assessment of the suitability of an employee for promotion. The relevant ratio of this Court is as under :
"29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, 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 Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 17 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. For these reasons, we are of the view that the Tribunal is not Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 18 right in striking down the said portion of the second sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal."
These observations make it abundantly clear that promotion can be justifiably denied to eligible candidate at the time of his/her performance appraisal by the DPC. The fact that the officer/employee has been departmentally punished would form part of the service record and can be taken into account by the DPC. In such circumstances, the employee cannot possibly claim to have been subjected to a further penalty on the basis of the misconduct which led to his punishment. This, however, would not permit the management to debar an employee from being considered for promotion at the stage of considering whether such an employee is "eligible" to be considered in terms of Rule 2(e).
35. The observations in Rajendra Kumar Srivastava (supra) also do not support the submissions made by Mr. Dhruv Mehta. In paragraph 13, it is observed as follows :
"13. Thus it is clear that a process whereby eligible candidates possessing the minimum necessary merit in the feeder posts is first ascertained and thereafter, promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary merit is recognised and accepted as complying with the principle of "seniority-cum-merit".
What would offend the rule of seniority-cum-merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 19 adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority-cum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the functions of the higher post, is not violative of the concept of promotion by seniority-cum-merit."
These observations also make it clear that whilst assessing the eligibility of the candidates, determination of bare minimum merit is not envisaged. There is, in fact, a complete segregation of Rule 2(e) from Rule 2(f). Determining the eligibility of candidate is in the nature of a ministerial function. The management merely has to see that the candidate possesses the minimum length of service and that he/she is confirmed in the feeder cadre. The determination of bare minimum merit is on the basis of the performance in the written test/interview and performance appraisal. This is the function of the Selection Committee i.e. Departmental Promotion Committee."
As per the record, the petitioner was promoted only on temporary basis. When the temporary promotion is made, it does not mean that the petitioner has got a vested right for regular promotion. Rather from the perusal of the record, it is clear that the petitioner was promoted to the post of Executive Engineer on purely temporary basis, without prejudice to the result of pending disciplinary proceedings against him, for a period of six months or till he was approved by the Screening Committee and the Commission whichever would be earlier, vide order dated Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 20 21.07.1986. The said order was never challenged by the petitioner and he accepted the conditional temporary promotion. The Screening Committee and the Commission considered the case of the petitioner and found him unfit for promotion. Hon'ble Supreme Court in R.P. Bhardwaj vs. Union of India and others, (2005) 10 SCC 244 has held that when the ad hoc promotion made by scrutiny of records by a Screening Committee whereas regular promotion is made by the Committee headed by the members of Public Service Commission, the consideration and scrutiny for regular promotion would obviously be on a different footing from that for ad hoc promotion. In R.P. Bhardwaj's case (supra), the Hon'ble Supreme Court has observed as under:-
"3. The regular promotion to the post of Superintending Engineer was made by order dated 20.10.1994. The grievance of the appellant is that he has been shown at Sl. No. 56 whereas other officers, namely respondents 4 to 10 and the seniors who were left out earlier, have been shown above the appellant even though the record available for consideration for the two selections, namely, ad hoc promotion and regular promotion, was the same. We may, at this juncture, like to observe that the earlier promotion seems to have been considered and made on ad hoc basis. Learned counsel for the respondents points out that it was done by scrutinising the records by a Screening Committee whereas the regular selection is by the Committee headed by a member of the Public Service Commission. The consideration and the scrutiny for regular promotion would obviously be on a different footing. The regular selection would not fail merely by the reason that someone who is selected, was not Kumar Virender 2013.10.04 18:04 I attest to the accuracy and integrity of this document CWP No. 10928 of 1991 21 given ad hoc promotion earlier. It is submitted that the criterion for selection to the post of Superintending Engineer is merit. That being the position, in our view, no grievance can be made even if some person junior to the appellant may have been selected considering merit, leaving out any other senior officer."
In view of the above, the contention of the petitioner cannot be accepted.
So far as the contention of the petitioner that Commission has no power to review is concerned, the same is also not sustainable. The provisions of rule 8 (6) of the 1960 Rules specifically provide that revision of list shall be prepared every year. Since the petitioner has been considered for different years ranging from 1983 to 1989, list had been revised from time to time and this has been done in consonance with the provisions of Rule 8 read with sub Rule (9) and (10) of 1960 Rules, the Commission has power to consider the list prepared by the Committee along with other documents and come to its independent conclusion. In view of this, the contention of the petitioner is without merit and the same is rejected.
In view of the above, present writ petition being devoid of merit is dismissed. No order as to costs.
September 19, 2013 [ Paramjeet Singh ]
vkd Judge
Kumar Virender
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