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1980 DIGILAW 58 (KAR)

H. VEEBABHADRAPPA v. DEPUTY COMMISSIONER, RAICHUR

1980-02-25

CHANDRASHEKHAR

body1980
( 1 ) THE petitioner H. Veerabhadrappa, joined the services of the State Government in the office of the respondent- deputy Commissioner, Raichur district, Raichur, as II Division Clerk on 21-11-1958. It appears that the respondent- Deputy Commissioner circulated a provisional Gradation List of I Division Clerks and II Division clerks of that District and the petitioner's name was not to be found in the List. Therefore, he had filed W. P. No. . 6132/1976 praying for a mandamus to include his name in the List and that petition came to be disposed of by this Court on 20-2-1977 without any specific order being issued as his name had already been included in that List. The grievance of the petitioner in this writ petition is that on account of the order of the Government bearing No. FD 37 SRP 1 (71) dated 22-2-1971 issued for implementation of the recommendations of the Pay Committee headed by Justice Tukol (as ihe then was) regard should have been had to the recommendations where a particular cadre was stagnated for a long period without any avenue of promotions, a special Selection Time scale of pay was to be awarded subject to other conditions being satisfied. In Annexure III to, the Order above mentioned, the Government provided for implementation and awarding of the Selection Time Scale of Pay relevant to the petitioner's cadre in the following terms:"5. 1 (b) Where up-gradation of the posts in a Cadre is not justified by the work load and the level of duties and responsibilities attached to the posts and the period of service required to be rendered by a government employee for promotion is generally known to exceed 10 years or where he has no chances or limited chances of promotion, a selection Time Scale which will ordinarily be the next higher scale of pay may be sanctioned for the posts and the employee may, subject to satisfactory record of service, be promoted to the Selection time Scale, after completion of such period of service as may be specified in each case. The relevant entry in Annexure-III for the Post held by the petitioner runs thus: - si. No. Designation of posts: 1. Second Division Clerk Junior assistant. Selection Time Scale of Pay. Es. 120-5-5 50-8-190-EB-10-240. Conditions regulating promotion to selection Time Scale of pay. The relevant entry in Annexure-III for the Post held by the petitioner runs thus: - si. No. Designation of posts: 1. Second Division Clerk Junior assistant. Selection Time Scale of Pay. Es. 120-5-5 50-8-190-EB-10-240. Conditions regulating promotion to selection Time Scale of pay. A Second Division Clerk [junior assistant who has completed not less than 10 years of service as on 31-12-69 and who has 8 satisfactory record of service may be promoted with effect from 1-1-1970, a Second Division Clerk Junior Assistant who completes 10 years of service on or after 1-1-1970 and who has satisfactory record of service may be promoted from the date immediately following the date of such completion. " ( 2 ) IT is now stated by the petitioner that without considering the above provision made by the State of Karnataka for awarding the Selection Time scale of Pay in the cadre of II Division clerks to which the petitioner is entitled having put in the required number of years, viz. , 10 years continuous service, he discovered that one V. G. Kulkarni who was admittedly junior to the petitioner (who has not been made a party to this proceeding) was awarded the Selection Time Scale of pay. On petitioner's making a representation to the respondent-Deputy Commissioner, he was served with an endorsement as per Ext.-D to the petition by which he was informed that he was not awarded the Selection. Time Scale of Pay having regard to the adverse remarks in the confidential reports. This endorsement was issued on 21-8-1976. Aggrieved by the said endorsement, the petitioner" has approached this Court under art. 226 of the Constitution praying for the issue of a writ of certiorari to quash the endorsement dated 21-8-1976 at ex-D and for a direction in the nature" of mandamus to consider his case for being sanctioned Selection Time Scale of Pay in the Grade Rs. 120-5-150- 8-190-EB-10-240 from the date on which his juniors were awarded that selection Time Scale of pay. 120-5-150- 8-190-EB-10-240 from the date on which his juniors were awarded that selection Time Scale of pay. ( 3 ) THOUGH several grounds have been urged by the petitioner Shri Murlidhar rao, learned Counsel appearing for the petitioner has pressed into service only two of them which may be summarised as follows: ( 4 ) FIRSTLY, he has contended that annexure-III to the Government order dated 22-2-1971 was clearly indicative that in the matter of awarding the Selection Time Scale of Pay, the conditions regulating promotions to Selection Time Scale of Pay should be understood in such a way as to mean that same considerations as would be applicable for promotion to a higher cadre would be relevant. Secondly he has contended that if the contention was held not to be a valid contention or a contention with any force, the award of Selection time scale of Pay to the candidates eligible for the same must be in conformity with Art. 16 (1) of the Constitution of india. ( 5 ) SHRI S. G. Doddakale Gowda, learned High Court Government advocate appearing for the respondent has relied upon the statement of objections filed. The statement of objections merely justifies the over looking of the consideration for the petitioner for awarding the Selection time Scale of pay solely on the ground of adverse remarks contained in the confidential reports concerning the petitioner for the years 1970, 1972 and 1975. ( 6 ) THE learned Counsel for the petitioner has strongly relied upon rule 5 of the Karnataka Civil Services (Confidential Reports) Rules, 1976, (hereinafter referred to as the Rules) to demonstrate that the impugned endorsement at Ex-D is without the authority of law and in utter disregard of the rules of natural justice. Sub-rule (1) of Rule 8 of the said Rules reads as follows: "communication of remarks.- (1) all adverse remarks whether in an ordinary or special report shall be communicated immediately in writing to the officer concerned. . . " ( 7 ) RULE 9 of the Rules provides for the manner of representation by the affected Government servant who has received the communication of the adverse remarks. . . " ( 7 ) RULE 9 of the Rules provides for the manner of representation by the affected Government servant who has received the communication of the adverse remarks. ( 8 ) SHRI Marlidhar has pointed out, and it has not been contradicted in the statement of objections filed or records of the case produced by the learned Government Advocate appearing for the respondent, that the endorsement which has placed reliance upon the confidential reports for the years 1970, 1972 and 1975 were never communicated to the petitioner till after his juniors were actually awarded the selection Time Scale of Pay. In fact, this becomes apparent on the face of the record because it is to be found from Exs-A, B and C which are true copies of the extracts of the confidential reports for the years 1970, 1972 and 1975 respectively all of which bear the date 14-7-1976 and there is no evidence as to the date on which the adverse remarks were entered in the relevant service register. For the petitioner it is that date borne by those exthibits, which is the date on which they were communicated him. ( 9 ) CHIEF Justice Chandrachud in the case of Gurdial Singh Fijji v. State of punjab, AIR 1979 SC. 1622 . has ruled as follows:"the principle is well settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. . . . . . " ( 10 ) FROM the above it is clear that non-communication of the adverse remarks in time affording an opportunity to the officer who has been adversely affected by such report to improve the quality of his work cannot enable the higher authorities to use the same to withhold either promotion or what in substance may amount to promotion. It is true that neither the promotion simpliciter nor what may amount to promotion may not be a legal right. It is true that neither the promotion simpliciter nor what may amount to promotion may not be a legal right. But it is now well settled that the right to be considered for such promotion is a condition of service and a legal right vesting in a Government servant. In the instant case, as is demonstrable by the date on which the communication of adverse remarks, and the date on which some of his juniors were awarded the. Selection Time Scale of pay which happens to be on or about 6th May, 19,6 that the petitioner was 1. overlooked, admittedly, on account of the adverse remarks without those remarks, having been communicated to him. This being impermissible in law a,s ruled by the Supreme Court in the decision cited above, the endorsement issued at Ex-D cannot be sustained and therefore it is liable to be quashed. ( 11 ) EVEN in the absence of the specific language which makes it necessary to treat the awarding of selection time Scale of pay on par with promotion, when all eligible persons who fall into one class are required to be awarded that Scale, the authority empowered to do that cannot ignore the mandate underlying art. 16 (1) of the Constitution. The learned Counsel for respondent has not placed any material before this court except the bald assertions in the statement of objections whether or not the adverse remarks in respect of all officials were taken into account and such officials having been denied award of the Selection Time Scale of Pay. In fact, there is no case made out by the state for defending the endorsement at ext.-D as not violative of Art. 16 (1) of the Constitution. ( 12 ) IT is unnecessary to go into the other questions raised in this petition, the petitioner has to succeed on the two grounds mentioned above. Rule issued earlier is made absolute. Ext.-D, the endorsement dated 21-8-1976 issued; by the respondent is quashed as one passed in excess of the jurisdiction vested in him and in violation of the rights of the petitioner both under the Constitution and the Rules framed under Art. 309 of the Constitution. Rule issued earlier is made absolute. Ext.-D, the endorsement dated 21-8-1976 issued; by the respondent is quashed as one passed in excess of the jurisdiction vested in him and in violation of the rights of the petitioner both under the Constitution and the Rules framed under Art. 309 of the Constitution. The petitioner is, therefore entitled to a direction in the nature of mandamus to the respondent to consider his case for awarding Of selection Time Scale of Pay in the cadre of II Division Clerks in accordance with the order of the Government dated 22-2-1971 without reference to the adverse remarks against the petitioner for the years 1970, 1972 and 1975. ( 13 ) THIS direction is, however, subject to petitioner being found to be suitable in other respects. If he is found suitable, then he shall be awarded the Section Time Scale of pay from the date on which his juniors were given that benefit. All consequential benefits that flow from such award shall be extended to him. ( 14 ) THERE will be no order as to costs. --- *** --- .