Ram Chandra v. State of U. P — 1979 DIGILAW 1337 (ALL)

JUDGMENT K. S. Varma, J. -On 1st May, 1945 the petitioner was appointed as Paid Apprentice in the Board of Revenue. In course of time, the petitioner was promoted to the post of Superintendent and has been working on that post. In all there are 11 Superintendents in the Board of Revenue and the petitioner is the senior most amongst them. None of the Superintendents is confirmed on that post. On the retirement of Sri Bhal Chandra Shukla, Assistant Secretary, Board of Revenue, the said post became vacant. The appointing authority of the post is the Rajyapal of Uttar Pradesh. Although, there are no rules for regulating the appointments to the post of Assistant Secretary but the manner of promotions is governed by a G. O., dated 30th November, 1971. The said G. O. is Annexure-1 to the writ petition. According to the said G. O., ad hoc appointments to the post of Assistant Secretary could be made on the basis of seniority subject to the rejection of unfit. On 30th June, 1978, the opposite party No. 3 was appointed to the post of Assistant Secretary, although he was junior to the petitioner. The order was passed subject to the approval of the State Government. The State Government however, did not approve of the appointment of opposite party No. 3. The State Government was of the view that by promoting opposite party No. 3, who is junior to the petitioner, complications were likely to arise. In this view of the matter, it was decided by the State Government that the post may remain unfilled till further directions from the Public Service Commission were obtained in regard to relaxation of qualifications. A true copy of the order of the State Government is Annexure-2 to the writ petition. The opposite party No. 2, however, wrote to the Government that it would not be in the interest of the working of the Board of Revenue that the post of Assistant Secretary be kept vacant. It was, however, suggested that the existing arrangement for the appointment of Assistant Secretary may be permitted to continue. On the 1st March, 1979 an adverse entry against the petitioner was expunged and an order was passed by the Board of Revenue that since the petitioner was the senior Superintendent and there was nothing against him the petitioner be appointed as Assistant Secretary on an ad hoc basis. On the 1st March, 1979 an adverse entry against the petitioner was expunged and an order was passed by the Board of Revenue that since the petitioner was the senior Superintendent and there was nothing against him the petitioner be appointed as Assistant Secretary on an ad hoc basis. The opposite party No. 3 was, however, reverted to the post of Superintendent. A true copy of the order appointing the petitioner as Assistant Secretary is Annexure-3 to the writ petition. On 2nd March, 1979 in pursuance of Annexure-3 the petitioner took over charge as Assistant Secretary and opposite party No. 3 was relieved and he joined as Superintendent. Subsequently, the State Government passed an order, dated 6/7th June, 1979 whereby the appointment of the petitioner to the post of Assistant Secretary was disapproved. He was ordered to be reverted to the post of Superintendent and directed that opposite party No. 3 should continue as Assistant Secretary on ad hoc basis. A true copy of the order is Annexure-4 to the writ petition. 2. The order, Annexure-4 has been challenged by the petitioner on the ground that since he was senior most Superintendent, he should have been retained as Assistant Secretary. Reliance in this respect was placed on Annexure-1 to the writ petition, whereby the appointment was made on the basis of seniority subject to the rejection of unfit. The petitioner while challenging the legality of Annexure-4, also challenged the constitutional validity of Rule 7 of the U. P. Rajaswa Parishad Sahayak Sachiv Seva Niyamavali, 1974. According to the petitioner the said rule provides that the Rajya Pal could make ad hoc promotion of any suitable candidate. The rule according to the petitioner envisages consideration of all the persons similarly placed while forming an opinion about suitability for promotion. The petitioners contention is that the Rule 7 does not lay down any criteria for judging suitability of a candidate and the rule confers on the appointing authority unrestricted and arbitrary powers in the matter of promotion. On the above allegations the petitioner has prayed for quashing of Annexure-4 to the writ petition and has also prayed that Rule 7 of the U. P. Rajaswa Parishad Sahayak Sachiv Sewa Niyamawali, 1974 referred to above be declared ultra vires. 3. The petition has been opposed by the opposite parties. On the above allegations the petitioner has prayed for quashing of Annexure-4 to the writ petition and has also prayed that Rule 7 of the U. P. Rajaswa Parishad Sahayak Sachiv Sewa Niyamawali, 1974 referred to above be declared ultra vires. 3. The petition has been opposed by the opposite parties. Opposite parties 1 and 2 have filed a counter affidavit, in which they maintain that none of the Superintendents officiating in the Board of Revenue is confirmed. It was, however, admitted that the State Government had not approved the stand taken by the Board of Revenue vide Annexure-2 to the writ petition and directed that the post be kept vacant till the approval of the Public Service Commission was obtained for the relaxation of the Rule in regard to ad hoc appointment. The Board, however, did not consider it proper to keep the post of the Assistant Secretary vacant regard being had to the efficient working of the Board and again pressed upon the Government the necessity of making ad hoc appointment. The State Government did not approve of the request of the Board of Revenue. It has been stated in the counter affidavit that the adverse entry in the name of the petitioner was expunged and charge of the post of Assistant Secretary was given to opposite party No. 3. The stand taken by the State Government is that promotion would depend upon suitability for the job. According to the State Government, opposite party No. 3 was suitable for the job and hence he was appointed. 4. A counter affidavit has also been filed by opposite party No. 3. In the said counter affidavit it has been maintained that the petitioners claim to seniority was considered, but since the promotion was to be on the basis of seniority subject to the rejection of unfit and the opposite party No. 3, even though he was junior, was found to be more suitable for the job, he was appointed to the post. In the counter affidavit of opposite party No. 3 reliance has been placed upon Annexure C. A. 3. In paragraph 4 of the said document it has been stated that having regard to the personality, the capacity to control the subordinates and other considerations, it was found that the petitioner was not suitable for the post of Assistant Secretary. In the counter affidavit of opposite party No. 3 reliance has been placed upon Annexure C. A. 3. In paragraph 4 of the said document it has been stated that having regard to the personality, the capacity to control the subordinates and other considerations, it was found that the petitioner was not suitable for the post of Assistant Secretary. From a perusal of this document it appears that the petitioners claim to seniority was considered by the State Government but he was not found suitable for the job on account of other considerations referred in the said paragraph. 5. Mr. Brijesh Kumar, learned counsel for the petitioner still contended that in view of Annexure-1 the, appointment should have been on the basis of seniority and since the adverse entry awarded to the petitioner was expunged, there was no justifiable basis on which his claim could be ignored. The learned counsel for the petitioner relied upon M. S. Govindarajan v. The General Manager, Heavy Vehicles Factory, Avadi (1978 (1) Serv LR 69) (Mad). By referring to this decision, Mr. Brijesh Kumar submitted that in the absence of rule to the contrary, the promotions should be on the basis of seniority. On a close scrutiny of the facts of the case, we find that the decision referred to above has no application to the facts of the case. In fact, the observations made by the learned Judge support the contention of the other side. Paragraph 4 of the said report clearly indicates that seniority is not the only criterion for promotion. The question of seniority has to be taken into consideration but that consideration would be subject to the suitability of the candidate for the job. In the instant case, a perusal of Annexure C. A. 3 clearly indicates that the question of seniority of the petitioner was taken into consideration but he was considered unsuitable for the job as he was in other respects not up to the mark for the job. We are, accordingly, of the view that it is not possible for the petitioner to derive any assistance from the decision referred to above. 6. On behalf of opposite party No. 3 Mr. B. C. Saxena contended that the only claim which the petitioner could lay, was the consideration of question of seniority. We are, accordingly, of the view that it is not possible for the petitioner to derive any assistance from the decision referred to above. 6. On behalf of opposite party No. 3 Mr. B. C. Saxena contended that the only claim which the petitioner could lay, was the consideration of question of seniority. He has no right to be appointed merely because he was senior to opposite party No. 3. If the question of his seniority was considered along with other factors and the petitioner was not found to be suitable for the job, the petitioner cannot make a grievance if he is (not) preferred over opposite party No. 3. In support of his submission he relied upon Mir Ghulam Hussan v. Union of India ( AIR 1973 SC 1138 ). A perusal of paragraph 8 of the report would indicate that the Supreme Court rejected the contention that since there was nothing adverse against a person, he was entitled to be selected. The report of the Supreme Court is in the following manner:- "This claim is, of course, completely misconceived for the simple reason that promotion is not made on the basis of absence of complaint but on the basis of positive merit. Absence of adverse remarks is no criterion." A perusal of Annexure-3 clearly indicates that the petitioners case was duly considered but he was not found to be suitable. The mere fact that the adverse entry awarded to the petitioner was expunged is no ground for saying that the petitioner should necessarily be appointed to the post. We are, accordingly, of the view that the only claim which the petitioner could forward was a consideration of his seniority. That has been done in the instant case and the opposite party No. 3 has been found to be more suitable for the job even though he is junior to the petitioner. 7. Mr. Brijesh Kumar next contended that Rule 7 of the Rules confers an unguided power on the appointing authority in making promotion. According to the learned counsel any person may be promoted whom the Rajya Pal considers more suitable is very vague and unless guidelines are indicated in the Rules whereby the suitability of a person may be judged, the Rule would be hit by the principle of equality of opportunity and that the power conferred is arbitrary. In support of his contention Mr. In support of his contention Mr. Brijesh Kumar relied upon State of Mysore v. S. R. Jayaram ( AIR 1968 SC 346 ). A perusal of the said report would indicate that the vires of Mysore Recruitment of Gazetted Probationers was challenged. The argument before the Supreme Court was that Rule 9 (2), reserving to Government right of appointing any candidate whom it considers to be more suitable was violative of Articles 14 and 16 (1) of the Constitution. A close scrutiny of that case would indicate that the said rules regulated the appointment to different, cadres. It was contended before the Supreme Court that there were no guidelines in Rule 9 (2) to indicate as to how the suitability of a particular class was to be considered, in case, the suitability of jobs to various cadres was to be considered. For that purpose it was necessary that the Legislature should indicate guidelines as to how the suitability of a person for a particular cadre is to be judged. According to the Supreme Court since there was nothing in the rules to indicate as to how the suitability of a particular cadre had to be judged, the rule was held to violate the principle of equality of opportunity in the matter of appointment. The case in hand stands on a different footing. Here the appointment is to be made to the post of Assistant Secretary. Under U. P. Rajaswa Parishad Sahayak Sachiv Sewa Niyamawali, 1974, the question of promotion to the post of Assistant Secretary was to be taken into account. The suitability of a person for a particular job was to be considered. In such an eventuality the only thing that has to be determined is which of the several persons is suitable for the job. In order to determine whether the petitioner or the opposite party No. 3 is suitable for the post of Assistant Secretary, the seniority and other factors which have relevance, while determining the suitability, have to be taken into consideration. The case of both the parties was considered and opposite party No. 3 was found to be suitable for the job. In our opinion the principle enunciated in the Supreme Court decision referred to above has no application as the appointing authority 1980 All. L. J./7 II (1) was not required to make a selection of candidates for two different jobs. In our opinion the principle enunciated in the Supreme Court decision referred to above has no application as the appointing authority 1980 All. L. J./7 II (1) was not required to make a selection of candidates for two different jobs. While making selection of two jobs, it is undoubtedly necessary that the guidelines should be indicated in the rules as to what considerations should be taken into consideration while judging the suitability of a particular job as distinguished from the other job. Since in the instant case that situation is not there, it is not possible for the petitioner to derive any assistance from the decision of the Supreme Court referred to above. In our opinion reliance placed on State of Mysore v. S. R. Jayaram (Supra) is misconceived. We are of the view that Rule 7 aforesaid is valid. 8. For the reasons stated above, we find no force in the petition and it is, accordingly, dismissed. However, there will be no order as to costs.