Kerala High Court
B.Pradeep vs The High Court Of Kerala on 12 December, 2019
Equivalent citations: AIRONLINE 2019 KER 794, (2020) 1 KER LT 168
Author: K. Vinod Chandran
Bench: K.Vinod Chandran, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941
W.A.No.2166 OF 2016
AGAINST THE JUDGMENT IN WP(C).8664/2015 DATED 20.09.2016
OF HIGH COURT OF KERALA
APPELLANT/ PETITIONER:
B.PRADEEP., AGED 50 YEARS, S/O BHASKARAN NAIR,
ASSISTANT SECTION OFFICER,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
BY ADVS.
SRI.R.T.PRADEEP
SMT.M.BINDUDAS
RESPONDENTS/ RESPONDENTS:
1 THE HIGH COURT OF KERALA,
REPRESENTED BY REGISTRAR GENERAL,
HIGH COURT OF KERALA, ERNAKULAM 628 031.
2 SASIDHARAN MOORIAN,
SECTION OFFICER/COURT OFFICER,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
3 REJI K. VARGHESE,
SECTION OFFICER/COURT OFFICER,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
4 SUJITH T.,
SECTION OFFICER/COURT OFFICER,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
OTHER PRESENT:
ADV.SMT.V.P.SEEMANDINI (SR.) FOR R1
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.11.2019, THE
COURT ON 12.12.2019 DELIVERED THE FOLLOWING:
W.A.No.2166 of 2016 - 2 -
"C.R."
K.Vinod Chandran & V.G.Arun, JJ.
--------------------------------
W.A.No.2166 of 2016
--------------------------------
Dated this the 12th day of December, 2019
JUDGMENT
K. Vinod Chandran,J:
An employee; prone to absenteeism, insubordination and habitual reluctance to do the assigned work, is before us challenging the refusal to promote him to the post of Section Officer/Court Officer; for reason of an in-eligibility prescribed by the Chief Justice other than in the rules framed under Article 229 of the Constitution of India. The appellant had dismal grading in his Annual Confidential Reports ('ACRs' for brevity) for the earlier years; but none in the years relevant for assessment of merit and ability for promotion (hereinafter termed the 'assessment years' for brevity); which is the preceding five years of the year of consideration. However, there were two penalties; one imposed as per Exhibit R1(g) dated 07.01.2011, of withholding of one increment without cumulative effect and another, of barring of two increments without cumulative effect by Exhibit P2 order W.A.No.2166 of 2016 - 3 - dated 13.11.2014; both in the relevant assessment years;
the year of consideration for promotion being 2015.
Pertinently the appellant, in the year of consideration was in the rigor of the penalty imposed in the previous year; of withholding of increment of two years with cumulative effect.
2. The learned Single Judge noticed the guidelines issued by the Chief Justice, which provided for a disqualification from consideration for promotion if the officer has earned any adverse remarks in the ACRs of last five years or received any punishment during that period. The power to issue such administrative orders was upheld by the learned Single Judge sourcing it to Article 229 of the Constitution of India, which makes the Chief Justice of the High Court, the supreme authority, in the matter of appointment of officers and staff of the High Court and determining their service conditions. Rule 37 of the Kerala High Court Service Rules, 2007 was also noticed to find that the first proviso to the Rule conferred the power on the Chief Justice to issue administrative orders to supplement the statutory rule; W.A.No.2166 of 2016 - 4 - as is available to the Governor or the Government. The administrative circular issued having not nullified any condition of eligibility, it only supplements and not supplants the Rules, was the finding. It was held that the criteria fixed by the Chief Justice determines the suitability of a candidate and not his eligibility as such, the former of which is not justiciable especially when it does not nullify an eligibility criteria. There being no criteria as per the rules to determine the merit and ability, that prescribed by the Chief Justice is immune from challenge. The currency of punishment being recognized as a disqualification for promotion in service jurisprudence, it was held that the past conduct could be taken into consideration while adjudging the suitability of an employee. The writ petition stood dismissed, against which the appeal is filed.
3. Sri.R.T.Pradeep, learned Counsel appearing for the appellant does not have any dispute that imposition of a penalty or the rigor of its spilling over, into relevant assessment years can be a consideration for deciding the merit and ability as has W.A.No.2166 of 2016 - 5 - been held in Union of India v. K.V.Jankiraman [(1991) 4 SCC 109]. His contention is that the same has to be provided in the statutory rule and the Chief Justice cannot issue administrative instructions to disqualify a person from consideration. The consideration of merit and ability as contemplated by the rules definitely takes in the consideration of punishments imposed; but, however, that has to be done by the Committee, appointed by the Chief Justice, which considers the merit and ability. It is also pointed out that Rule 37 adopts, inter alia, the Kerala Service Rules and the rules regulating the services for the time being in force applicable to the officers of the State, framed under the rule making power of the Governor or Government of Kerala, which, subject to the Rules of 2007, shall govern the members of the service.
4. The Kerala State and Subordinate Services Rules, 1958 [for brevity 'KS&SSR'] provides, by Rule 28, a procedure by which the merit and ability has to be assessed and that prescribes only consideration of the ACRs for three preceding years and it also stipulates W.A.No.2166 of 2016 - 6 - such consideration to be made by the Departmental Promotion Committee [for brevity 'DPC']. The Committee appointed by the Chief Justice for carrying out the selection has to, hence, follow the KS&SSR especially since there is nothing in the Rules of 2007 to regulate such consideration or merit and ability. The learned Counsel would rely on James Thomas & Others v. Chief Justice, High Court of Kerala & Others [1977 KLT 622], a Full Bench decision, The Full Bench found the KS&SSR applicable to the services under the High Court. Though not specifically mentioned to be applicable; by virtue of what the Full Bench termed 'the residuary clause' in Rule 35 of Kerala High Court Service Rules, 1970, which is almost in pari materia. Any rule framed by the Government or the Governor would be applicable to the High Court services too. Reliance is also placed on the decisions of the Apex Court in Sarva U.P. Gramin Bank v. Manoj Kumar Chak [(2013) 6 SCC 287] and B.Amrutha Lakshmi v. State of A.P. [(2013) 16 SCC 440] and a Full Bench decision of the High Court of Madras reported in The Deputy Inspector General of Police & Ors v. V.Rani [(2011) 4 MLJ 17]. W.A.No.2166 of 2016 - 7 -
5. Smt.V.P.Seemandini, learned Senior Counsel appearing for the High Court, would contend that promotion to the post of Section Officer/Court Officer is covered by Rule 20 of the Rules of 2007, wherein the specific post falls under Serial No.11. The categories referred to under Rule 20 are treated as selection posts for promotion, which promotion has to be on assessment of merit and ability; seniority being considered only where merit and ability are approximately equal. What the Chief Justice did, by administrative instruction, is to merely provide a criteria for assessment of merit and ability; taking into account any adverse remarks in the ACR or a punishment imposed on the candidate in the preceding five years. This does not run counter to any of the provisions in the Rules, nor is it in conflict with any rule made by the Chief Justice. Rule 37 as it now exists in the Rules of 2007, it is pertinently pointed out, is quite distinct from that considered by the Full Bench and is not in pari materia. The rule under consideration of the Full Bench had the residuary clause of 'other rules for the time being in force applicable to the officers under the rule W.A.No.2166 of 2016 - 8 - making control of the Governor or Government of Kerala' (sic). The present Rule 37 adopts the Kerala Service Rules, the Government Servants Conduct Rules, the General Provident Fund (Kerala) Rules and the rules regulating the pay of the services for the time being in force applicable to the officers under the rule making power of the Governor or Government of Kerala, subject to the Rules of 2007. Hence, the KS&SSR does not at all apply for reason of the adoption of 'other rules for the time being in force' being consciously omitted from Rule 37 as it exists in the Rules of 2007.
6. It is argued that the Chief Justice has the power of the Governor or the Government and when there is a lacuna in the statutory rule, it can be provided by way of executive/administrative instructions, which would be akin to an order issued under Article 162 of the Constitution. The power to frame the rules traces its source to Article 229 of the Constitution, which, as held by the learned Single Judge, asserts the supremacy of the Chief Justice insofar as the services of the personnel employed under the High Court. The Chief Justice having W.A.No.2166 of 2016 - 9 - issued administrative instructions to supplant the rules and there being no procedure delineated for assessment of merit and ability, the same is perfectly in order. The Chief Justice has just filled up the lacuna in the rules is the compelling argument. The learned Senior Counsel places reliance on the following decisions of the Apex Court in Pradyat Kumar v. C.J. of Calcutta [AIR 1956 SC 285], Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910], M.Gurumoorthy v. A.G., Assam & Nagaland [AIR 1971 SC 1850], Union of India v. K.P.Joseph [AIR 1973 SC 303], Chief Justice of A.P. v. L.V.A.Dixitulu [(1979) 2 SCC 34], State of T.N. v. K.S.Murugesan [(1995) 3 SCC 273], Dr.Krushna Chandra Sahu v. State of Orissa [(1995) 6 SCC 1], Hon'ble Chief Justice, High Court of Bombay v. B.S.Nayak [(2001) 9 SCC 763], Dhananjay Malik v. State of Uttaranchal [AIR 2008 SC 1913], Rajendra Singh Verma v. Lt.Governor (NCT of Delhi) [(2011) 10 SCC 1], Ram Ashish Dixit v. Purvanchal Gramin Bank Ltd. [(2013) 6 SCC 309] and Renu v. District & Sessions Judge, Tis Hazari [AIR 2014 SC 2175] and that of this Court in Deepa C. Das v. Deepa [2019 (2) KLT 295] and High Court of Kerala v. W.A.No.2166 of 2016 - 10 - Rajiv Jayaraj [I.L.R. 2019(2) Kerala 312].
7. We are primarily concerned with the question whether the administrative instruction of the Chief Justice disqualifying an employee of the High Court from promotion on the basis of the adverse remarks in the ACRs or the punishment imposed in any of the preceding five years, can be sustained under Article 229 of the Constitution as a prescription supplementing the Rules framed by the Chief Justice.
8. At the outset, we have to notice that the Full Bench decision in James Thomas does not aid the appellant in the particular aspect urged by him. James Thomas was relied on to contend that all rules applicable to the Government service would equally apply to the High Court services as per Rule 37 of the Rules of 2007. The appellant urged that KS&SSR has been adopted even for the employees of the High Court and in such circumstance Rule 28 of the KS&SSR prescribes the mode of assessment of merit and ability. A prescription made by the Chief Justice would go against the said rule, which only mandates a consideration by the DPC, but not a W.A.No.2166 of 2016 - 11 - disqualification from consideration. However, as argued by the learned Senior Counsel, Rule 37 of the Rules of 2007 is couched differently from Rule 35 of the Rules of 1970. The emphasis laid by the Full Bench was on the residuary clause in Rule 35, which reads as "other rules for the time being in force applicable to the officers under the rule making control of the Governor or Government of Kerala". Rule 35, hence, adopted the Rules and Regulations specifically named therein as also the Rules regulating the pay of the government servants and other rules for the time being in force. A major departure is made in Rule 37, where the named Rules are the Kerala Service Rules, the Government Servants Conduct Rules and the General Provident Fund (Kerala) Rules. The 'residuary clause' only adopts the rules regulating the pay of the services for the time being in force applicable to the officers under the rule making power of the Governor or Government of Kerala. The words (adopting) "other rules for the time being in force", available earlier in the 'residuary clause' has been done away with. There is no question of adoption of KS&SSR or W.A.No.2166 of 2016 - 12 - Rule 28, which prescribes a procedure for assessment of merit and ability.
9. Be that as it may, James Thomas, all the same, has a relevance insofar as the specific adoption of the rules of pay of the Government services alone. In the Full Bench decision what arose for consideration were the promotions made on enhancement of posts of Upper Division Clerks. Senior persons who were not test qualified on the date of sanction of increased strength, were overlooked for promotion by the Chief Justice. Later, the Government ordered that unqualified seniors who were passed over for want of test qualification would have their seniority restored if they passed the test before 09.06.1969. The challenge was against the order issued by the Chief Justice implementing the said Government order. There, the High Court took a contention that the power of the Chief Justice is sourced to the second proviso to Rule
35. The second proviso read so:
"Provided further that the Chief Justice shall specifically issue orders sanctioning the grant of the scales of pay and allowances to the members of the service in accordance with those sanctioned by W.A.No.2166 of 2016 - 13 - the Government".
Apposite would be reference to the observation of the Full Bench rejecting the above contention:
"Ext.P-4 is stated to be issued under the second proviso to the above rule. That proviso authorises the issue of orders regarding the scales of pay and allowances to members of the service in accordance with those sanctioned by the Government. Ext.P-3 GO was not one which had relation to scales of pay and allowances. It affected seniority and promotion. Therefore its adoption under the second proviso to Rule 35 was beyond the scope of the rule".
10. As in the Full Bench decision, here too the issue arises in the matter of promotions and the Rules regulating the pay of the Government services would have no application on the subject. The question now is narrowed down and hinges on whether the Chief Justice was supplying a lacuna or filling up gaps in the procedure as delineated in the Rules of 2007.
11. We would first look at the law on the point as propounded by the Hon'ble Supreme Court. The decisions W.A.No.2166 of 2016 - 14 - cited at the Bar can be broadly and loosely classified into three. Foremost is the decision of the Hon'ble Supreme Court in K.V.Jankiraman, which found the imposition of a penalty not being the only consequence of the delinquent behaviour of an employee. The contention that the denial of promotion on the basis of imposition of penalty, would amount to double jeopardy was specifically negatived. On this decision revolves the entire fulcrum of the controversy arising in this case. The other cases can be loosely categorized as decisions which involves service under the Government and service in Judiciary or of the employees of the High Court; the latter category being regulated by the Rules promulgated by the Chief Justice, who stands in the same position as the executive Government with reference to Government servants. We also have to pertinently notice that the principle is the very same in both services with only the rule making authority being distinct and different, who exercise the very same powers jurisprudentially.
12. We first look at the decisions that arose from disputes amongst government servants. In Sant Ram W.A.No.2166 of 2016 - 15 - Sharma, a Constitution Bench of the Hon'ble Supreme Court was considering the issue of a senior, as per a gradation list, having been overlooked by the Government for promotion. The State contended that the appellant was superseded and three other officers confirmed in the higher category for reason of the overwhelming merit of those three persons. The merit as decided by the State was also on the basis of administrative instructions issued by the Government that, to the selection grade or a selection post promotions are to be based primarily on merit and not seniority in the service. The contention that administrative instruction cannot impose such restrictions without they being found in the statutory rules was specifically negatived. It was held that in the absence of statutory rules the Government had the power to issue administrative instructions regarding the principle to be followed in promotions. It was also held that the Government cannot amend and supersede a statutory rule by administrative instructions subject to the rider that if the rules are silent on any particular point, Government can fill up the gaps and supplement the W.A.No.2166 of 2016 - 16 - rules by issuance of administrative instructions which are not inconsistent with the rules already framed. This principle has held the field for long.
13. K.P.Joseph was a case in which the Government contested the claim of an employee on the ground that administrative orders does not confer a justiciable right upon the employee. Following Sant Ram Sharma, it was reiterated that the Government could fill up gaps and supplement the rules and issue instructions not inconsistent with the rules. Dr.Krushna Chandra Sahu was a case in which the above principle was further elucidated upon while interfering with the consideration of merit based only on the confidential character rolls of the candidates appearing for selection to the post of Medical Officers. Dhananjay Malik has no application to the facts of the above case. Ram Ashish Dixit found that the appellant was punished for misconduct, which form part of his service records; rightly taken into consideration while adjudging his suitability on criteria of seniority-cum-merit. The denial of promotion on grounds of misconduct proved in enquiry cannot be said to W.A.No.2166 of 2016 - 17 - be by way of punishment was the categorical finding.
14. Now we turn to controversies that arose within judicial service and services in the High Courts, coming within the authority of the Chief Justice. Pradyat Kumar Bose, M.Gurumoorthy and L.V.A.Dixitulu are three Constitution Bench decisions, which upheld the power of the Chief Justice to make appointments and regulate by rules or administrative instructions the service of those persons in the employment of the High Court and those working in the Subordinate Judiciary respectively under Article 229 and 235 of the Constitution. Pradyat Kumar Bose was a case in which the Registrar and Accountant-General of the High Court was dismissed by the Chief Justice. It was argued that there are no rules framed by the Chief Justice to regulate the service of the employees of the High Court and, hence, the dismissal could be only under the Civil Services Rules. It was held that the power of appointment impliedly vested in the Chief Justice, the power of dismissal, notwithstanding the fact that no specific rule has been made in this behalf. M.Gurumoorthy was a case where, on reorganization W.A.No.2166 of 2016 - 18 - of cadre, one of the Selection Grade Stenographers was posted as Private Secretary to Chief Justice, which was sought to be interfered with by the Government through the Accountant General, who withheld the pay of the Secretary on instructions from the Government. The Constitution Bench held that the unequivocal purpose and obvious intention in enacting Article 229 was that in the matter of appointments of officers and servants of the High Courts, it is the Chief Justice or his nominee who is the supreme authority and there could be no interference by the executive except to the limited extent provided by the Article itself. L.V.A.Dixitulu again emphasized on the need to preserve the independence of the judiciary by reiterating the authority exclusively vested with the Chief Justice of the High Court respectively under Article 229 and 235 of the Constitution. Rajendra Singh Verma again dealt with the power of superintendence of the High Court over the Subordinate Judiciary under Article 235 of the Constitution. The specific issue was of a compulsory retirement of a Judicial Officer, the power for which was W.A.No.2166 of 2016 - 19 - held to be not liable to be circumscribed by any legislation, rule or order. These decisions does not really touch upon the controversy that has been raised in the above case; but, however, is relevant insofar as upholding the absolute authority of the Chief Justice to regulate the services of the employees of the High Court.
15. B.S.Nayak is more relevant insofar as the same being a case in which the Chief Justice of the Bombay High Court changed the criteria for promotion of Private Secretaries to the Judges, from seniority to merit-cum-seniority and fixed a criteria for assessing the merit. While assessing the same, the merit-cum-seniority was adjudged with reference to the confidential reports, dictation-typing and interview tests with leave and attendance records also being taken into consideration. These prescriptions were made on the administrative side. Even in the context of absence of any rule framed by the High Court or Chief Justice, it was upheld and found to be operative in the field of appointment. So were the norms of merit-cum-seniority as W.A.No.2166 of 2016 - 20 - laid down by the Chief Justice upheld, as the most befitting criteria for filling up the posts.
16. B.Amrutha Lakshmi, placed before us by the learned Counsel for the appellant, was a case in which an Assistant Commissioner was denied consideration for selection to the Indian Administrative Services when she obviously came within the zone of consideration as per the Recruitment Rules. The Principal Secretary to the Department of Revenue had restricted the zone of consideration to Joint and Additional Commissioners and higher officers on the ground that there were only three posts available and the stipulation was for sending a list of five times the posts available, i.e., 15 candidates. The Hon'ble Supreme Court found that the restriction made by the Principal Secretary was in violation of the rules which laid down the criteria of assessment of outstanding merit and ability. The Hon'ble Supreme Court noticing the rule for sending only 5 times the number of vacancies, for consideration, found that on an assessment of merit and ability a junior officer could very well figure in the 15 and hence, there was no W.A.No.2166 of 2016 - 21 - authority on the Principal Secretary to restrict the zone of consideration to higher officers when the rule provides for consideration of even persons in the lower cadres of the State Civil Services. The dictum does not help us resolve the controversy here, since it is not the seniority or the lack of it that denied the appellant, a consideration.
17. In Sarva Uttar Pradesh Gramin Bank, the question was as to the rule prescribed by the Bank for assessment of seniority-cum-merit when the Regional Rural Banks Act, 1976, under which the appellant-Bank was set up, empowered the Central Government to lay down the terms and conditions of service of employees of all Banks. It was in this context that introduction of criteria of merit-cum-seniority in the place of seniority-cum-merit as available in the Rules was set aside by the Hon'ble Supreme Court as having been prescribed by the Sponsoring Bank with a circular and not the rule making authority.
18. What emerges from the decisions is the unequivocal position that the service of the employees of W.A.No.2166 of 2016 - 22 - the High Court fall within the exclusive domain of the Chief Justice. The service could be regulated either by framing statutory rules or administrative instructions. In the absence of statutory rules, administrative instructions issued by the Chief Justice is perfectly in order. When once the statutory rule is framed,the service conditions so regulated cannot be interfered with by administrative instructions. There is a rider that, even when there are statutory rules, a lacuna could be filled up by the Chief Justice on administrative instructions which, if found to be supplementing the rules, are to be upheld. However, if they result in supplanting the rules or being in contravention of the rules framed, then necessarily the administrative instruction cannot override the prescription in the rule framed.
19. Here we have an issue of the rules framed by the Chief Justice, being the Rules of 2007, which adopts only certain of the rules applicable to the State Civil Services. The KS&SSR has not been adopted as we found earlier. The residuary clause available in the earlier Rules of 1970, of adoption of other rules governing the W.A.No.2166 of 2016 - 23 - service of the Government servants has been consciously omitted in the new Rules framed. It is also not in dispute that Rule 20 of the Rules of 2007 provides for appointment to the selection posts by an assessment of merit and ability of the candidates who are eligible to be so considered. The subject selection or the post to which the selection is carried out is one coming under Rule 20.
20. There is no procedure fixed for assessment of merit and suitability and the Chief Justice had delegated his power to carry out the selection to a Selection Committee constituted; of three sitting Judges. The said procedure is perfectly in order, as has been found by the Constitution Bench in Pradyat Kumar Bose. There the Chief Justice had delegated the conduct of the enquiry, into the charges levelled against a judicial officer, to a Judge of the High Court. Negativing the contention of excessive delegation it was held so:
"It is well-recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire W.A.No.2166 of 2016 - 24 - and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides - is the ultimate responsibility for the exercise of such power".
21. Very hefty reliance was placed by the learned Counsel appearing for the appellant on a Full Bench decision of the Madras High Court in V.Rani (supra). The Full Bench was considering a reference as to whether the currency of punishment has to be treated as a bar for promotion during that period. On the facts noticed therein, the delinquent employee was imposed with a punishment of stoppage of two increments without cumulative effect, a minor punishment under Rule 8 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The above Rules along with Tamil Nadu State and Subordinate Service Rules were framed by the Government in exercise of the powers conferred under Article 309 of the Constitution. Rule 36(b)(i) of the State and Subordinate Service Rules prescribed promotions to selection category to be on grounds of merit and suitability; seniority being considered only when merit W.A.No.2166 of 2016 - 25 - and ability are approximately equal. There was no scheme as per the Rules regarding the manner of selection. Exactly similar prescription as in the Rules of 2007, subject to discussion in this case.
22. In V.Rani we find that the Government issued instructions through a Government Order detailing the effect of punishment for promotion or recruitment by-transfer, which the authority carrying out the selections; whether it be an individual or a Committee, was to consider on the basis of the nature and gravity of the allegations proved for which the penalty was imposed. A further Government Order was issued, in which, as in the present case, it was stipulated that a punishment other than censure within a period of five years would be held against the officer and his name would be passed over in matters of promotions. The Full Bench noticed K.V.Jankiraman, in which it was held that penalty of censure is also a blameworthy factor and would stand against a person when he is considered for promotion, especially that imposed or its rigor persists, in the year of consideration. The Full Bench of the Madras High W.A.No.2166 of 2016 - 26 - Court also placed reliance on K.S.Murugesan (supra), State of Haryana v. Shamsher Jang Shukla [AIR 1972 SC 1546], Dr.Rajinder Singh v. State of Punjab [(2001) 5 SCC 482] and Paluru Ramkrishnaiah v. Union of India [AIR 1990 SC 166]. The Full Bench held that the interdiction for consideration of promotion on the basis of a penalty imposed in the five years cannot be sustained since the same is not a part of the statutory rules framed under Article 309 of the Constitution. However, in the case of currency of punishment, the Full Bench took a different view.
23. We extract paragraphs 15, 16, a part of paragraph 22 and paragraphs 23 and 24:
"15. Therefore, the contention of Mr. G. Rajagopal, learned senior counsel appearing in W.A.(MD) No. 587 of 2010 and Mr. Ajmalkhan, learned Counsel for the Petitioner in W.P.(MD) No.3602 of 2011 that under Rule 36(b)(ii) of the Tamil Nadu State Subordinate Service Rules elicited above, promotion can be withheld only if a penalty has been passed by withholding the promotion and in all other cases irrespective of tendency of penalty, promotion is a matter of right based on seniority is totally unacceptable.W.A.No.2166 of 2016 - 27 -
In fact, Mr. G. Rajagopal, learned senior counsel appearing for the Appellant in W.A.(MD) No. 587 of 2010 would fairly submit that his contention is not that in all cases where punishment is being undergone, promotion should be given as a matter of right and that only in cases where promotion is withheld as a penalty as per statutory rules, viz., Tamil Nadu State and Subordinate Service Rules, the promotion should be withheld.
16. The above said Rule 36(b)(ii) cannot be read in isolation in order to come to a conclusion that irrespective of merit and ability, even in cases of currency of punishment imposed after following the procedures, a person should be given promotion blindly by seniority as it is antithesis to the service law and it is also opposed to the decision of the Supreme Court in State of Tamil Nadu v. K.S. Murugesan (cited supra). If such contention is accepted, the same will go against the established legal principle that promotion is not a matter of right.
Xxx xxx xxx
22. ... We have already expressed our view that during currency of punishment, no one can claim promotion as a matter of right. However, as rightly submitted by the learned Counsel, the letter dated 20.10.1997 cannot have any statutory W.A.No.2166 of 2016 - 28 - basis as we have held in respect of a similar letter of the Government dated 07.10.2005.
23. In the light of the above said categorical legal position, the submission of Mr.Ravi, learned Counsel appearing for the Respondent in W.A.280 of 2011 as well as for Petitioner in W.P. Nos.45960 of 2006 and 955 of 2007 and apart from Mr.R.Subramanian, learned Counsel appearing for the Petitioner in W.P. No. 47252 of 2006 that the letter of the Government dated 7.10.2005 cannot be equated with the statutory rules framed under proviso to Article 309 of the Constitution of India has to be certainly upheld. The Government letter dated 7.10.2005 stated to be the consolidated instructions regarding preparation of panel for promotion issued by the Secretary to Government, not even with the authority of the Governor of State, can never be treated as statutory rules at all. Therefore, the annexure therein are not enforceable as statutory rules especially with regard to a new phrase inserted viz., 'check period' by imposing a total embargo on the right of consideration of a Government servant who has undergone punishment for the period of one year in case of penalty of censure and five years in other cases of minor penalties, as it has no legal basis at all.W.A.No.2166 of 2016 - 29 -
24. While it is true that the tendency of punishment can be certainly aground for the Government to deny the promotion till the completion of the period of punishment, it can never be said that even after the period of punishment is over, in between the date of crucial date and the date of punishment there must be one year in case of censure and five years in other cases as disqualification period. The above said impediment in the name of 'check period' can never be imposed on a Government servant. Even though it has not been issued as statutory rules under the proviso to Article 309 of the Constitution of India, the said letter stating the currency of punishment as an embargo for considering for further promotion during the period of punishment cannot be said to be antithesis to the principles of law. The embargo imposed in respect of further period as stated above can never be said to be authorized under the statutory rules. The said Government letter can be treated as a circular issued by the Secretary to Government to all departments. This letter, as correctly submitted by the learned senior counsel Mr. G. Rajagopal, cannot supersede the statutory rules".
[Underlining by us for emphasis] W.A.No.2166 of 2016 - 30 -
24. We are in respectful agreement with the above proposition laid down by the Full Bench of the Madras High Court relying on the precedents of the Hon'ble Supreme Court. While a disqualification from promotion on the basis of proved delinquency and penalty imposed on that count, cannot be said to be against sound principles of service jurisprudence; when there are statutory rules framed, the disqualification should ideally and mandatorily figure there and the rules cannot be supplanted by prescriptions through administrative instructions. However, even in the absence of such prescriptions in the rules framed, there could be consideration of the said delinquency by the individual authority or Committee enjoined with the task of assessment of merit and ability ie; the selection. We have to consider the present case in the context of the law laid down in the above case following the binding precedents of the Hon'ble Supreme Court.
25. Shamsher Jang Shukla considered the prescription of a quota and qualifying test for selection of Assistants, by administrative instructions when the W.A.No.2166 of 2016 - 31 - statutory rules framed did not provide for the same. It was held that it cannot be said to be filling up the gaps since there was no difficulty in implementing the rule as such. Paluru Ramakrishnaiah reiterated the principle that executive instruction could make a provision only with regard to a matter not covered by the rules and that it cannot override any provision of the rule. There the automatic promotion claimed on successful completion of two year service, based on a Circular was found to be not possible in view of the clear provision in the Rule for selection based on a list prepared by a duly constituted DPC. Dr. Rajinder Singh held the equation of two posts to be bad, for reason of the equation being effected by a notification, without amending the statutory rules. The settled position of law, was held to be that no government order, notification or circular can substitute the statutory rules framed with authority of law. It was cautioned that any deviation would be disastrous and 'deprive the security of tenure and right of equality conferred on civil servants under the constitutional scheme'(sic) and result in 'negation of accepted service W.A.No.2166 of 2016 - 32 - jurisprudence'(sic).
26. The specific criteria adopted by the Chief Justice for effecting promotion to the selection post are the following:
"(i) The selection of candidates to be promoted shall be conducted by a Committee of Judges to be nominated.
(ii) The merit and ability of officers who are in the zone of consideration shall be adjudged on the basis of their last five years' ACR and also by conducting viva voce.
(iii) While considering the ACR of the officers, a maximum of 20 marks be allotted on five years' ACR, 04 marks for "Excellent", 03 marks for "Very good", 02 marks for "Good", 01 mark for "Satisfactory" and no mark for "adverse remarks".
(iv) For viva voce 20 marks be allotted, which shall be conducted by the Committee of Judges nominated.
(v) Any officer who secures 50% marks in the ACR and 40% marks in the viva voce shall be treated to have the merit and ability for promotion to the concerned post.
(vi) The officers who have earned any adverse remarks in the ACR of last five years under consideration and those who have received any punishment during that period shall be treated as not fit for promotion. However, advisory remarks and warning shall not be treated as disqualification for promotion.
(vii) Against each vacancy, normally four times of
candidates shall be under the zone of
consideration".
W.A.No.2166 of 2016 - 33 -
27. Clause (i) has already been upheld by us and there is no challenge to it. The challenge made in the writ petition is to Clauses (ii), (iii), (iv), (v) and
(vi). We find that the nature of the criteria challenged differ substantially and Clause (vi) has to be considered separately. Clause (ii) speaks of the merit and ability of officers in the zone of consideration to be adjudged on the basis of their last five years ACR and also by viva voce. Clause (iii) stipulates specific marks to be awarded for the different grading in the ACR. Clause (iv) prescribes 20 marks for the viva voce and Clause (v) prescribed a cut off mark of 50% in the ACR and 40% in the viva voce. In fact the adverse entries in the ACRs, as also the proved delinquency, are as per established legal principles, aspects to be considered in the selection.
28. As we noticed, Rule 20 of the High Court Service Rules of 2007 speaks of promotion to selection categories to be made on ground of merit and ability. There is no further criteria prescribed in the Rules. In that circumstance, the criteria provided by the Chief W.A.No.2166 of 2016 - 34 - Justice for assessing such merit and ability as also the Committee constituted of three Judges, according to us, is perfectly permissible and comes within the authority of the Chief Justice. It does not violate the statutory rule and only supplements the rules and provides guidelines for the Selection Committee to carry out the selection, which, otherwise, cannot be prescribed by the Selection Committee.
29. Dr.Krushna Chandra Sahu is very relevant on the aspect of what is the power of the rule making authority and the committee appointed to carry out the selection. Looking at the merits of the selection, at the outset the Hon'ble Supreme Court indicated that the decision of the Selection Committee can be interfered with only on limited grounds; viz., (i) illegality or material irregularity in the constitution of the committee, (ii) its procedure vitiating the selection, or
(iii) proved mala fides affecting the selection. Therein the rule being silent as to the principles and guidelines for judging the merit and suitability of a candidate, the members of the Selection Board, by a majority, resolved W.A.No.2166 of 2016 - 35 - to determine the suitability on the basis of confidential character rolls of the candidates. It was held:
"33. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Article 309. It is basically the function of the rule-making authority to provide the basis for selection. This Court in State of A.P. v. V.Sadanandam [1989 Supp (1) SCC 574] observed as under: (SCC pp. 583-84, para 17) "We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old rule and for personnel belonging to other zones being transferred on promotion to offices in other zones. In drawing such conclusions, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive."
(emphasis supplied)
34. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In P.K. Ramachandra Iyer v. Union of W.A.No.2166 of 2016 - 36 - India [(1984) 2 SCC 141] it was observed: (SCC pp. 180-81, para 44) "By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm"."
30. A number of other decisions were also quoted by the Hon'ble Supreme Court to find that the Selection Committee does not possess inherent jurisdiction to lay down standards in relation to what is prescribed under the Rules, which has to be necessarily laid down by the rule making authority. We have to notice that from Sant Ram Sharma, the established principle is that the rule making authority cannot amend or supersede statutory rules by administrative instructions and if the rules are silent on any particular point and there are gaps, such gaps could be filled up by supplementing the rules with instructions, not inconsistent with the rules.
31. The appellant had placed reliance on a Division Bench judgment of the Karnataka High Court, reported in ILR 2004 Karnataka 4633 [C.Channe Gowda v. High Court of Karnataka]. There, the promotion to the W.A.No.2166 of 2016 - 37 - post of Assistant Registrars in the High Court was to be carried out on the basis of seniority and efficiency. The question was whether an interview can be held for selection. It was held that the relevant rule does not provide for any such criteria and the assessment being on seniority-cum-efficiency, there is no need for a comparative assessment of merit; especially when the senior even though less meritorious, would have priority. We are unable to accept the said proposition and we also note that therein the assessment was on grounds of seniority and efficiency; whereas here merit has prominence, as the ground for selection is 'merit-cum-ability'. The decision also has no application in so far as the specific criteria prescribed for selection. We, hence, repel the challenge against Clauses
(ii), (iii), (iv) and (v) as it only supplements the statutory rule and provides a criteria for consideration of the merit and ability by the Selection Committee appointed by the Chief Justice.
32. The next question is as to whether Clause
(vi) can be sustained, which provides a criteria for W.A.No.2166 of 2016 - 38 - exclusion of officers coming within the zone of consideration. The criteria provided is with respect to exclusion of persons having adverse remarks in the ACRs or imposition of punishment for proved delinquency in the last five years; who are treated as not fit for promotion. This would violate the statutory rule insofar as Rule 20 having prescribed selection on grounds of merit and ability, which has to be necessarily assessed by the authority empowered with or constituted, to carry out the selection as per the guidelines issued by the appointing authority. As has been held in K.V.Jankiraman, a Committee or individual authority who considers merit and ability could definitely look at the ACRs and issuance of any punishment as against the candidate considered for selection and could decide against the candidate or ignore such adverse remarks or punishment imposed on grounds of countervailing aspects of merit. However, there can be no administrative instruction issued to dis-entitle a person from consideration for promotion as such; without such prescription of disqualification appearing in the rule itself. A W.A.No.2166 of 2016 - 39 - prescription of that nature would be supplanting the rules and not supplementing it.
33. In this case, we notice that the Registry of the High Court did not include the name of the appellant. The appellant approached this Court with a writ petition, in which there was an interim order for consideration by the Selection Committee; by provisional inclusion in the select list. We have called for the files of the Selection Committee. We find that based on the interim order, the Selection Committee considered the appellant along with others. The marks awarded looking at the ACR and the viva voce, made him eligible for promotion, he having obtained more than 40% in the viva voce and 50% in the assessment of ACRs as per the criteria prescribed by the Chief Justice. Later, the Chief Justice requested the Committee to re-consider the issue. The Committee again came back with the same recommendation as to the assessment based on the criteria; but, however, noticed Clause (vi) of the criteria to deny him a position in the final select list. We have already found that Clause (vi) is in violation of the statutory rules and it supplants W.A.No.2166 of 2016 - 40 - the rules and not supplements the same.
34. We strike down Clause (vi); but, however, we have a reservation on the appellant's eligibility for consideration for promotion; which issue has to be dealt with on the position that existed at the time of preparation of the list for consideration by the select committee; ie: at the stage prior to the issuance of the interim order for consideration, which in any event was provisional and subject to the result of the writ petition. We go back to the decisions, especially since it is evident that the punishment of imposition of withholding of two increments without cumulative effect had currency for two years. The penalty was imposed in 2014, the year of selection is 2015 and by reason of the currency of punishment, the appellant had an impediment in being considered for promotion. In this context, we notice the Full Bench decision of the Madras High Court and the final analysis made therein, which are available in paragraph 28:
"28. Therefore, after analysis of the entire law on the subject, we answer the reference as follows:W.A.No.2166 of 2016 - 41 -
1. During the period of currency of minor punishment, an employee cannot claim as a matter of right to be promoted to the next category merely on the basis that he is otherwise fit for promotion and to that extent, the finding of the Division Bench in Subramanian v. Government of Tamil Nadu rep.
by its Secretary, Chennai and Ors. [2008 (5) MLJ 350] stands overruled. It is needless to state that after the currency of punishment period, the Government servant is entitled to be considered for promotion to the next post, if otherwise eligible.
2. If any benefit has been conferred on the party to the judgment rendered by the Division Bench in Subramanian v. Government of Tamil Nadu rep. by its Secretary, Chennai and Ors. [2008 (5) MLJ 350], the same shall not be affected by the judgment of this Bench since there is a factual finding in that case that there was a technical lapse committed by the delinquent and no financial loss caused.
3. The detailed instructions issued by the Government in G.O. Ms. No. 368, Personnel and Administrative Reforms Department dated W.A.No.2166 of 2016 - 42 - 18.10.1993 issued by the Chief Secretary to Government by order of the Governor, cannot be equated to the statutory rules framed under the proviso to Article 309 of the Constitution of India and it can utmost be administrative instructions issued under Article 162 of the Constitution of India. In any event, the said Government Order does not deal with the case of promotion of a Government servant during the currency of punishment.
4. The Government letter No. 18824/S/2005-2, Personnel and Administrative Reforms (S) Department dated 7.10.2005 with annexure 1 to 7 and the letter No. 248 (P&AR) Department dated 20.10.1997 are not statutory rules framed under proviso Article 309 of the Constitution of India and cannot be read either with the Tamil Nadu Government Servants Conduct Rules, 1973 or under the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules.
5. Consequently, the embargo put on the right of Government servant for being considered for promotion for a further period, after the period of minor punishment is over, in the name of 'check period' viz., one year in the case of W.A.No.2166 of 2016 - 43 - censure and five years in the case other minor punishments is illegal and impermissible under the statutory rules".
We place specific emphasis on the 1st and 5th of the five aspects declared by the Full Bench of the Madras High Court. The 1st of these extracted, declares that during the currency of punishment, no employee can claim as a matter of right to be promoted to the next category. The 5th declaration finds that the check period as is provided in this case in clause (vi) cannot be sustained, if prescribed by administrative instructions. The earlier extracts made from the Full Bench judgment of the Madras High Court, also favour this finding.
35. We also notice K.S.Murugesan, from which paragraph 7 is extracted:
"7. It would thus be clear that when promotion is under consideration, the previous record forms the basis and when the promotion is on merit and ability, the currency of punishment based on previous record stands as an impediment. Unless the period of punishment gets expired by efflux of time, the claim for consideration during the said period cannot be W.A.No.2166 of 2016 - 44 - taken up. Otherwise, it would amount to retrospective promotion which is impermissible under the Rules and it would be a premium on misconduct. Under these circumstances, we are of the opinion that the doctrine of double jeopardy has no application and non-consideration is neither violative of Article 21 nor Article 14 read with Article 16 of the Constitution".
In the result, the Writ Appeal is partly allowed, upholding the challenge to Clause (vi) of the criteria prescribed by the Chief Justice as violative of the statutory rules. Clauses (ii), (iii), (iv) and (v) are upheld, since it only supplements the statutory rules and not supplants it; nor is it in violation of the statutory rules. On the question of the appellant's promotion, we have to uphold the decision of the Registry in having not included his name when proposing the selection of candidates within the zone of consideration.
Obviously the appellant's consideration by the Selection Committee was only based on the interim order of this Court in the writ petition. We have held that the exclusion of the appellants name was proper for reason of the currency of penalty standing against his right to be W.A.No.2166 of 2016 - 45 - considered. We uphold the decision of the learned Single Judge finding the appellant to be not entitled to be promoted on that ground. The parties are directed to suffer their respective costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN JUDGE vku/-
[ true copy ]