Jharkhand High Court
Shree Ram Tiwari vs State Of Jharkhand Through Chief ... on 17 March, 2020
Equivalent citations: AIRONLINE 2020 JHA 1282
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 850 of 2019
with
I.A. No. 11852 of 2019
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Shree Ram Tiwari, aged about 61 years, S/O: Late Ramveyas Tiwari, R/O: Flat No. 302(A), Shiv Sarovar Apartment, Purani Ranchi, P.O:
G.P.O., P.S. : Kotwali, Distt: Ranchi (Jharkhand) .. Appellant-Petitioner Versus
1.State of Jharkhand through Chief Secretary, having its office at Project Building, P.O + P.S.: Dhurwa, Dist: Ranchi, Jharkhand
2.The Additional Chief Secretary, Department of Personnel, Administrative Reforms and Rajbasha, Govt. of Jharkhand, Project Building, P.O + P.S.: Dhurwa, Dist: Ranchi, Jharkhand.
3.The Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbasha, Govt. of Jharkhand, Project Building, P.O + P.S.: Dhurwa, Dist: Ranchi, Jharkhand.
.... Respondents-Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. Rishiksh Giri, Advocate
For the Respondents : Mr. Pankaj Kumar, A.C to Sr. S.C II
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Oral Judgment
Order No. 03 : Dated 17th March, 2020:
I.A. No. 11852 of 2019
This interlocutory application has been filed for condoning the delay of 36 days in preferring the present appeal.
2. Heard learned counsel for the parties.
3. Having regard to the averments made in the application and submission made on behalf of the parties, we are of the view that the appellant was prevented from sufficient cause in filing the appeal within the period of limitation. As such, the delay of 36 days in preferring the present appeal is hereby condoned.
4. I.A. No. 11852 of 2019 stands allowed.
2L.P.A. No. 850 of 2019
5. The instant intra-court appeal has been filed under clause 10 of the Letters Patent against the order/judgment dated 26.09.2019 passed by the learned Single Judge in W.P. (S) No. 467 of 2019, whereby and whereunder, claim of the writ petitioner-appellant for promotion to the post of Special Secretary, in view of the order dated 08.08.2018 passed in W.P. (S) No. 472 of 2018, has been refused by declining to interfere with the decision of 'Departmental Promotion Committee' (DPC) as contained in order dated 22.11.2018.
6. The brief fact of the case, which requires to be enumerated herein for proper adjudication of the lis, reads hereunder as:
The writ petitioner-appellant was appointed as Child Development Project Officer, Dhurki, Palamau on 25.02.1986 after being declared successful in the competitive examination conducted by Bihar Public Service Commission in the 30th Batch. The writ petitioner-appellant thereafter was appointed in Bihar Administrative to the post of Deputy Collector on 28.09.1988 and discharged his duties in different capacities and lastly he was transferred and posted as Joint Director, State Higher Education Department of Higher, Technical Education and Skill Development, Govt. of Jharkhand.
The writ petitioner-appellant was inflicted with the punishment of censure vide order dated 02.02.2016, against which, the writ petitioner-appellant preferred appeal, which was dismissed. Aggrieved thereof, the writ petitioner-appellant approached this Court by filing W.P. (S) No. 2127 of 2017 which was allowed vide order dated 05.09.2017 by quashing the order of censure, but the 3 case of the writ petitioner-appellant for promotion to the higher grade was not considered on the ground that the writ petitioner- appellant was inflicted with the punishment of censure.
7. According to the writ petitioner-appellant, he was entitled to be promoted to the post of Special Secretary in view of circular dated 04.04.2014 along with corrigendum dated 24.10.2014 as the writ petitioner-appellant was getting Grade Pay of Rs. 8700/- since 12.02.2015 i.e. from the date when the writ petitioner-appellant was promoted to the post of Joint Secretary, as such he has already completed 20 years of service way back in the year 2008, but, in spite of repeated representations made before the authority concerned his grievance for promotion to the higher post of Special Secretary has not been considered, which led the writ petitioner- appellant to approach before this Court by filing writ petition, being W.P. (S) No. 467 of 2019 but the same has been dismissed by the learned Single Judge of this Court, which is the subject matter of the present intra-court appeal.
8. Mr. Rishikesh Giri, learned counsel for the writ petitioner- appellant has submitted that although the writ petitioner-appellant was getting the Grade Pay of Rs. 8700/- entitling him to eligible to be promoted to the post of Special Secretary but the said benefit of promotion has been denied only on the ground that no junior has been granted promotion while writ petitioner-appellant was in service but according to the writ petitioner-appellant the same was not the ground for consideration of promotion rather according to the writ petitioner-appellant, the day when he became eligible to get promotion to the post of Special Secretary, it was incumbent upon 4 the authority concerned to grant promotion to the writ petitioner- appellant to the post of Special Secretary, having not done so, the respondents-authorities have committed gross illegality. This aspect of the matter has not been considered in right perspective by the learned Single Judge, therefore, the impugned order requires interference by this Court.
9. Mr. Pankaj Kumar, A.C to learned Sr. S.C II, appearing for the respondents-State of Jharkhand has defended the order passed by the learned Single Judge, inter alia, on the ground that promotion to the higher grade cannot be claimed as a matter of right rather right to consideration for promotion to the higher post is only to be taken into consideration and accordingly the case of the writ petitioner- appellant was considered but the Departmental Promotion Committee, in its meeting, has taken decision by not recommending the name of the writ petitioner-appellant on the ground that no junior to the writ petitioner-appellant has been granted promotion while writ petitioner-appellant was in service rather only after his superannuation senior to writ petitioner-appellant has been granted promotion as Special Secretary w.e.f. 27.07.2018. Further, on account of the order of punishment of censure, the case of the writ petitioner-appellant was not considered, at the relevant time but the Departmental Promotion Committee, while considering the case of the writ petitioner-appellant has found that no junior to him has been granted such promotion while he was in service and as such, the learned Single Judge while considering the aforesaid decision of the DPC, if declined to interfere with the said decision of the DPC, it cannot be said that any illegality has been committed, therefore, 5 submission has been made that the order passed by the learned Single Judge may not be interfered with.
10. This Court having heard learned counsel for the parties and on appreciation of the rival submissions, first deem it fit and proper to deal with the scope of High Court sitting under Article 226 of the Constitution of India as also power of judicial review in the decision of the 'Departmental Promotion Committee'.
11. The Hon'ble Apex Court in the case of Anil Katiyar (Mrs) Vs. Union of India & Ors reported in (1997) 1 SCC 280 has held that having regard to the confidential procedure which is followed by the Union Public Service Commission, it is not possible to hold that the decision of the DPC in grading the appellant as "very good" instead of "outstanding" was arbitrary. The Hon'ble Apex Court has deprecated the approach of the Central Administrative Tribunal in scrutinizing and ultimately interfering with the method and procedure adopted by the DPC in the matter of selection of Deputy Government Advocate.
The Hon'ble Apex Court in the case of Badrinath Vs. Government of Tamil Nadu & Ors reported in (2000) 8 SCC 395 has held that unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, Courts and Tribunals cannot interfere with assessments made by DPCs in regard to merit or fitness for promotion.
Further, the Hon'ble Apex Court in the case of State Bank of India & Ors Vs. Mohd. Mynuddin reported in (1987) 4 SCC 486, while dealing with the scope of judicial review of High Court sitting under Article 226 of the Constitution of India, has been pleased to 6 hold that interference is only to be shown if there is any error in decision making process.
Further, in the said case, it has been held that whenever promotion to a higher post is to be made on the basis of merit no officer can claim such promotion as a matter of right by virtue of seniority alone with effect from the date on which his juniors are promoted. It is not sufficient that in his confidential reports it is recorded that his services are 'satisfactory'. An officer may be capable of discharging the duties of the post held by him satisfactorily but he may not be fit for the higher post. Before any such promotion can be effected it is the duty of the management to consider the case of the officer concerned on the basis of the relevant materials.
It has further been held that the methods of evaluation of the abilities or the competence of persons to be selected for such posts should in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post, to be nominated by the employer. The court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility or assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. It is only when the process of selection is vitiated on the ground of bias, mala fides or any other similar vitiating circumstance that other considerations will arise. 7
Likewise, the Hon'ble Apex Court in the case of Union of India & Anr Vs. S.K. Goel & Ors reported in (2007) 14 SCC 641 has been pleased to hold that the judgment of the Tribunal did not call for any interference inasmuch as it followed the well-settled dictum of service jurisprudence that there will ordinarily be no interference by the courts of law in the proceedings and recommendations of DPC unless such DPC meetings are held illegally or in gross violation of the rules or there is misgrading of confidential reports. No judicial review of DPC proceedings, which are ordinarily conducted in accordance with the standing government instructions and rules is warranted.
The Hon'ble Apex Court in the case of M.V. Thimmaiah & Ors Vs. Union Public Service Commission & Ors as reported in (2008) 2 SCC 119 has held that recommendations should not normally be interfered with unless there is mala fide or apparent error or violation of statutory rules and further Selection Committee could arrive at gradings different from those given in ACRs Confidential Record/Report, gradings given by the reporting/reviewing officer, DPC/Selection Committee can differ in its assessment from.
The Hon'ble Apex Court in the case of Union of India & Ors Vs. S.P. Nayyar reported in (2014) 14 SCC 370 has been pleased to hold that the High Court under Article 226 of the Constitution of India cannot sit in appeal over assessment made by DPC.
For ready reference, the relevant paragraph 11 is quoted herein below:
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"11.It is settled that the High Court under Article 226 of the Constitution of India cannot sit in appeal over the assessment made by the DPC. If the assessment made by the DPC is perverse or is not based on record or proper record has not been considered by the DPC, it is always open to the High Court under Article 226 of the Constitution to remit the matter back to the DPC for recommendation, but the High Court cannot assess the merit on its own on perusal of the service record of one or the other employee."
12. This Court has examined the factual aspect on the basis of underlying principles and on the basis of judgment referred herein above wherefrom the fact which is admitted is that the writ petitioner is claiming to be promoted as Special Secretary on the ground that he has fulfilled the criteria for consideration of promotion to the said post.
As has been held by the Hon'ble Apx Court in the case of State Bank of India & Ors Vs. Mohd. Mynuddin (supra) wherein it has been held that promotion cannot be claimed as a matter of right rather right to consideration is only considered to be the fundamental right and as such merely possessing requisite eligibility criteria does not entitle the public servant to get promotion rather it is up-to the DPC to assess the suitability, subject to fulfillment of eligibility criteria as per the recruitment/promotion rules.
13. Admitted position herein is that in pursuance to the departmental proceeding, punishment of censure was inflicted upon the writ petitioner-appellant, which as per the writ petitioner- appellant delayed his consideration for promotion, which was assailed by the writ petitioner-appellant by invoking writ jurisdiction of this Court under Article 226 of the Constitution of India in W.P. (S) No. 2127 of 2017. It is evident from order passed in W.P. (S) No. 9 2127 of 2017 by learned Single Judge of this Court that the relief was sought for by the writ petitioner-appellant for quashing the order of censure but no relief has been sought for promotion to the higher post and finally the said writ petition was allowed vide order dated 05.09.2017 by quashing the order of punishment of censure.
Thereafter, the writ petitioner-appellant approached this Court by filing W.P. (S) No. 472 of 2018 for consideration of his promotion to the higher post of Additional Secretary as well as to the post of Special Secretary on the ground that he is fulfilling the eligibility criteria to hold the said posts as also in view of quashing of punishment order.
It is evident from order dated 08.08.2018 passed in W.P. (S) No. 472 of 2018 that the writ petitioner-appellant was promoted to the post of Additional Secretary w.e.f. 30.01.2017 after quashing of the order of punishment by this Court in W.P.(S) No. 2127 of 2017. It further appears that W.P. (S) No. 472 of 2018 was disposed of with a direction to consider the case of the writ petitioner-appellant for promotion to the post of Special Secretary in view of quashment of punishment order and promotion to the post of Additional Secretary.
Pursuant thereto, meeting of DPC was convened wherein the case of the writ petitioner-appellant was considered but the Committee has taken a decision vide order dated 22.11.2018 by not recommending the name of the writ petitioner-appellant as because by that time the writ petitioner-appellant has superannuated from service w.e.f. 31.03.2018 while it is only after his superannuation his immediate senior was granted promotion as Special Secretary w.e.f. 27.07.2018.
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Being aggrieved with order dated 22.11.2018, the writ petitioner-appellant again approached this Court by filing W.P. (S) No. 467 of 2019 for direction upon the respondents to consider the case of the writ petitioner-appellant for higher promotion and quashing of order dated 22.11.2018.
The learned Single Judge has considered the legality and propriety of the order dated 22.11.2018 and shown no interference in the decision taken by the DPC wherein it was held that no right for promotion has accrued upon the writ petitioner-appellant and only right to consideration for promotion was there and the same has been done in case of the writ petitioner-appellant. Further, ground has been taken that the writ petitioner-appellant has not been able to make out a case that any junior to him has been considered for promotion. The learned Single after considering the decision taken by the DPC declined to interfere with the decision of the DPC on the basis of settled position of law that the decision of the DPC is only to be interfered with if it suffers from bias or mala fide and further promotion to the higher post cannot be claimed to be a fundamental right rather right to consideration is fundamental right.
14. The meeting of DPC was held on 26.07.2018 from which it is evident that the committee has considered the case of the writ petitioner-appellant and has not recommended his name on the ground that while the writ petitioner-appellant was in service, no junior to him has been granted promotion as Special Secretary rather after his retirement his immediate senior was granted promotion to the post of Special Secretary on 27.07.2018, therefore, 11 this Court is of the view that promotion being not a fundamental right rather right of consideration is the fundamental right and the case of the writ petitioner-appellant was considered by the DPC wherein a conscious decision has been taken by considering the principle of recommending the name of the public servant to be promoted to the higher post i.e., if any junior to a pubic servant has being granted promotion to the higher post certainly a right will be said to be accrued in favour of such employee, who has been superseded by the junior but that is not the case herein as would be evident from the decision of the DPC rather it is the specific case of the writ petitioner-appellant that none of the juniors has ever been granted promotion to the post of Special Secretary while the writ petitioner-appellant was in service.
15. Further, it is evident from the nature of direction passed by this Court in W.P. (S) No. 472 of 2018 wherein the learned Single Judge while disposing of the writ petition has directed for consideration of the case of the writ petitioner-appellant for promotion in accordance with law and accordingly the case of the writ petitioner-appellant was considered and the DPC strictly relying upon the principles of consideration of promotion to the higher post i.e., if any junior has been granted promotion superseding the senior the right to promotion to such senior employee will be there and in that circumstance the said right cannot be snatched away. But no such case is available in the present facts and circumstance and therefore, if the learned Single Judge has declined to interfere with the decision taken by the DPC under the power of judicial review as 12 conferred under Article 226 of the Constitution of India, according to our considered view it cannot be faulted with.
16. In the result, the present intra-court appeal fails and is accordingly dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Alankar/ -
A.F.R.