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Allahabad High Court · body

1989 DIGILAW 191 (ALL)

Moti Ram v. Chairman, Central Warehousing Corporation Others

1989-02-22

D.S.BAJPAI, S.C.MATHUR

body1989
JUDGMENT S.C. Mathur, J. - The petitioner has approached this Court under Article 226 of the Constitution seeking expunction of the adverse entry awarded to him in the year 1985 and complaining against his supersession in the matter of promotion to the next higher post. 2. Admittedly, the petitioner was appointed Senior Assistant Manager (Accounts) in the Central Warehousing Corporation, as a Scheduled Caste candidate. He was posted at Kandla, Gandhi Dham, in the State of Gujarat. On transfer he joined the Regional Office at Lucknow on 20th May, 1985. On 30th May, 1985 Deputy Finance Advisor at the Head Office of the Corporation forwarded to the petitioner report of the Internal Audit Team for compliance. The petitioner was directed to take steps to bring about complete control on accounting aspects. For this purpose the petitioner was given one month's time. The petitioner was informed by the author of the letter that at the end of one month he would visit the petitioner's office to undertake a fresh review of the situation; a copy of the letter is on record as Annexure no. 3 to the writ petition. The Joint Manager (Personnel) at the Head Office communicated to the petitioner the following adverse remark appearing in his annual confidential report for the year 1985 through communication dated 19th September, 1985, annexure 4: The officer does not have proper appreciation of the accounting work and star has to be deputed from Head Office to continuously assist him in connection with accounting work. Many shortcomings were observed which were brought to his as well as Regional Manager's notice. The petitioner preferred representation against the adverse remark on 14th October, 1986, Annexure 5. Till the filing of the writ petition the representation of the petitioner had not been disposed of. Accordingly, one of the relief's claimed in the writ petition is for, a direction to the opposite parties to decide the representation expeditiously. It has, also been prayed that the adverse entry communicated through letter dated 19th September, 1986, annexure 4, be quashed. 3. The post next higher to the post of Senior Assistant Manager (Accounts) is Deputy Manager (Accounts). Certain persons were: either regularly promoted to the said post or made Incharge thereof but the petitioner was neither made Incharge nor he was promoted although he had completed five years on the post of Senior Assistant Manager (Accounts). 3. The post next higher to the post of Senior Assistant Manager (Accounts) is Deputy Manager (Accounts). Certain persons were: either regularly promoted to the said post or made Incharge thereof but the petitioner was neither made Incharge nor he was promoted although he had completed five years on the post of Senior Assistant Manager (Accounts). The petitioner has challenged these promotions and postings on the following grounds: (1) The person promoted posted are junior to him; (2) They do not possess five years experience on the post of Senior Assistant Manager (Accounts) which is necessary qualification for promotion and, therefore, they were disqualified for being considered for promotion; and (3) the petitioner was not considered for promotion. 4. With these pleas the petitioner seeks quashing of the promotion orders issued in favour of opposite parties 4 to 8. It is also the claim of the petitioner that being a member of the Scheduled Caste, he is entitled to be considered for promotion against the quota reserved for the said caste. 5. In the counteraffidavit filed on behalf of the Corporation it has been stated that the petitioner's representation against the adverse entry is receiving consideration and it would be disposed of in due course of time. So far as the question of promotion to the post of Deputy Manager is concerned, it has been stated that after the petitioner became eligible for promotion, 'he was considered each time Departmental Selection Committee met but tie said Committee did not find the petitioner fit for promotion. It is denied that any ineligible person has been promoted to the post of Deputy Manager (Accounts). The petitioner's claim of reservation in promotion is contested and it is stated that the corporation has not adopted any policy of reservation in the matter of promotion. It is asserted that promotion to the post of Deputy Manager is made on the basis of merit, 6. The petitioner has filed rejoinder affidavit and thereafter supplementary counter and supplementary rejoinder affidavits have been exchanged between the parties. 7. On the basis of the pleadings of the parties and the arguments advanced at the time of hearing the following questions arise for determination: (l) Whether the adverse entry awarded to the petitioner in the year 1985 is unwarranted and is liable to be quashed? (2) Whether the petitioner was considered for promotion? (3) Whether he was superseded arbitrarily? 7. On the basis of the pleadings of the parties and the arguments advanced at the time of hearing the following questions arise for determination: (l) Whether the adverse entry awarded to the petitioner in the year 1985 is unwarranted and is liable to be quashed? (2) Whether the petitioner was considered for promotion? (3) Whether he was superseded arbitrarily? (4) Whether any ineligible person was considered for promotion to the post of Deputy Manager (Accounts)? and (5) Whether there is any reservation for Scheduled Caste in the matter of promotion? Question No. 1 Adverse entry: 8. In regard to the adverse entry it was submitted by the learned counsel for the petitioner that the same reflects defective working in the office at Lucknow where he joined only on 2051985 and the defects on the basis of which entry has been given pertains to the period prior to his joining at Lucknow. On this basis it is submitted that the blame of his predecessor has been fastened upon him. The petitioner's representation against the adverse entry also proceeds on this basis. The petitioner's learned counsel submits that at Gandhi Dham no fault was found in petitioner's working. It is claimed that the petitioner's working was appreciated all along. 9. The learnrd counsel for the Corporation submits that the adverse entry reflects upon the petitioner's working both at Gandhi Dham and at Lucknow. According to him it is wrong on the part of the petitioner to assume that the said entry refers only to the defects observed in the working of the Lucknow office. In support of the plea he has placed before us the relevant record containing the comments of Sri B. Ashok on the representation of the petitioner. This Sri B. Ashok is the same person who had recorded the adverse entry against the petitioner. With regard to the petitioner's claim that he was able to maintain accounts independently at Gandhi Dham Sri B. Ashok observes that even at Gandhi Dham the petitioner was not able to effectively follow up with all the outstandings against various cement allottees and the work had to be carried on by the Head Office and the statements had to be rewritten. From this observation it appears that the Head Office had to depute staff for carrying out work in the office to which the petitioner was attached. From this observation it appears that the Head Office had to depute staff for carrying out work in the office to which the petitioner was attached. Thus the observation in the adverse entry that staff has to be deputed from the Head Office is referable not only to the deployment of staff at the Lucknow office but also to deployment of staff at Gandhi Dham. It is also mentioned in the said comments that whatever work was carried out at Gandhi Dham office was because of the quality of accountants posted at the Port Operations Unit. From this observation it would appear that the officer awarding the adverse entry was of the opinion that the petitioner cannot claim credit for the work done there. 10. From the comments it appears that the Deputy Finance Advisor Sri B. Ashok had visited the petitioner's office at Lucknow in pursuance of the advice contained in letter dated 30th May, 1985, Annexure 3. His tour report dated 29th April, 1986 has been placed before us by the learned counsel for the Corporation. This Tour Report opens with the sentence The accounts of RO Lucknow is still in a mess and it will perhaps continue to be so unless we change the officers immediately. Shri Moti Ram's style of working has been completely depressing and lacking any initiative, drive, intelligence or any other qualities expected of from an officer. He would sign blindly whatever is put up to him without understanding the implications thereof, not even exhorting themselves to do so. The Tour Report then proceeds to highlight specific deficiencies in petitioner's working at the Lucknow office. One of the deficiencies pointed out in this report is in respect of the bank guarantees furnished by the contractors. Sri Ashok observes for instance Bank guarantees furnished by contractor (which everybody knows is not a liquid cash) was being accounted as such. Sri Ashok had visited the petitioner's office in April, 1986. As already mentioned, the petitioner had joined the Regional Office at Lucknow on 20th May, 1985. The deficiency mentioned herein continued even though the petitioner had already stayed at the Lucknow office for almost one year. Even if the fault was initially committed by the petitioner's predecessor, it had become the duty of the petitioner to rectify the fault. As already mentioned, the petitioner had joined the Regional Office at Lucknow on 20th May, 1985. The deficiency mentioned herein continued even though the petitioner had already stayed at the Lucknow office for almost one year. Even if the fault was initially committed by the petitioner's predecessor, it had become the duty of the petitioner to rectify the fault. It is not necessary for us to make a detailed examination of the comments made by Sri B. Ashok. We may only point out that from the comments and the Tour Report it appears that there is no arbitrariness in the award of adverse entry to the petitioner. The adverse entry has been made by the officer who had occasion to closely watch the petitioner's working. Therefore, there is no occasion for this Court to quash the said entry. The prayer of quashing the adverse entry is accordingly rejected. Questions no. 2 and 3 Promotion Supersession: 11. The petitioner stated that juniors to him had been promoted while he had not been considered for promotion. The learned counsel for the Corporation placed before us the proceeding of the Departmental Selection Committee which showed that the petitioner's grievance of nonconsideration is incorrect. Eversince the petitioner became qualified for being considered, he was considered but each time he was found unfit by the Departmental Selection Committee. The first selection, after the petitioner became eligible for promotion, was held on 17th July, 1985. At this selection the petitioner was considered along with Sri Subramaniyam. The learned counsel for the Corporation stated that Sri Subramaniyam was senior to the petitioner. This position was not disputed by the learned counsel for the petitioner. The Departmental Selection Committee made recommendation in favour of Sri Subramaniyam and found the petitioner unfit for promotion. The record shows that entries from the ears 1980 to 1984 were considered by the Departmental Selection Committee. Sri Subramaniyam had very Good entries in all these years. As against this the petitioner had only two Very Good entries and the rest were merely Good, In view of the comparative merit recorded in the proceeding of the Selection Committee, the petitioner's supersession cannot be said to be arbitrary. The next selection took place on 22nd April, 1987. In this selection the petitioner alone was considered. The Departmental Selection Committee, however, did not find the petitioner fit for promotion. The next selection took place on 22nd April, 1987. In this selection the petitioner alone was considered. The Departmental Selection Committee, however, did not find the petitioner fit for promotion. At this selection, entries for the years 1981 to 1985 were considered. The record shows that in the year 1981 the petitioner had earned Good entry, while in the years 1982, 1983 and 1984 he had earned Very Good entries. However, in the year 1985 he had earned the adverse entry referred to hereinabove. We have already observed that the entry of the year 1985 does not suffer from any infirmity. Accordingly, the petitioner's supersession also does mot suffer from any infirmity. 12. On 9th January, 1988 the petitioner was considered for promotion along with five other officers. Entries for the years 1982 to 1986 wer considered. The Departmental Selection Committee selected K.K. Sabhdeva, Dipen Ghosh, Tajinder Singh, Surya Rao and K.S. Chauhan. The Committee did not find the petitioner fit for promotion. The proceedings of the Departmental Selection Committee indicate the comparative merit of the candidates who were considered for promotion. The petitioner had earned Very Good entries in the years 1982 and 1983 while he had earned two Good entries in the years 1984 and 1986. The adverse entry of 1985 was of course there. It would thus be seen that in the five years, for which the entries were considered, the petitioner had earned Very Good entries only in two years. As against this K.K. Sachdeva, opposite party no. 4 had four Very Good entries to his credit and one entry was Good. He did not have any adverse entry. Dipen Ghosh, opposite party no. 5, had Very Good entries in all the five years. Tajinder Singh, opposite party no. 6 had Very Good entries in all the five years and Surya Rao had Very Good entries in four years and had Good entry in one year. K.S. Chauhan had earned Very Good entries in three years and had earned Good entries in two years. None of the selected candidate had any adverse entry. From the facts stated herein it would be seen that the Departmental Selection Committee did not act arbitrarily. As such, neither the petitioner's claim that he was not considered for promotion can be upheld nor his claim that he was arbitrarily superseded. None of the selected candidate had any adverse entry. From the facts stated herein it would be seen that the Departmental Selection Committee did not act arbitrarily. As such, neither the petitioner's claim that he was not considered for promotion can be upheld nor his claim that he was arbitrarily superseded. Question No. 4 It is not disputed that only those Senior Assistant Managers (Accounts) could be considered for promotion to the post of Deputy Manager who had put in five years service on the former post. The learned counsel for the petitioner submits that although K.K. Sachdeva had not completed five years service on the post of Senior Assistant Manager (Accounts) he was promoted to the post of Deputy Manager. On behalf of the Corporation it is not admitted that Sri K.K. Sachdeva was promoted at a time when he had not put in five years service. It is asserted that he was only made Incharge of the post of Deputy Manager (Accounts) which did not amount to promotion. 13. The petitioner has not placed on record any order whereby K.K. Sachdeva may have been promoted to the post of Deputy Manager (Accounts). He merely refers to the two orders issued by K.K. Sachdeva on 20th June, 1987 and 27th July, 1987. The description of Sri K.K. Sachdeva in these orders substantiates not the petitioner's claim but the claim of the Corporation. Sri Sachdeva had described himself in these orders as Deputy Manager (Accounts) I/C. It is, therefore, obvious that in making promotion to the post of Deputy Manager (Accounts), the Corporation has not violated the eligibility criterion. Question No. 5 Reservation for Scheduled Caste: 14. For claiming that reservation is available to Scheduled Caste candidates not only at the stage of initial recruitment but also at the stage of promotion, the learned counsel for the petitioner has placed reliance upon paragraph 9 of the Central Warehousing Corporation (Staff) Regulations, 1986 read with the Brochure on Reservation for Scheduled Castes and Scheduled Tribes in Services, Seventh Edition, published in the year 1987, by the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training, New Delhi. Paragraph 9 of the Regulations deals with the procedure for recruitment and promotion Clause (A) thereof deals with direct recruitment and clause (B) deals with promotion. Neither of these clauses makes any reference to reservation. Paragraph 9 of the Regulations deals with the procedure for recruitment and promotion Clause (A) thereof deals with direct recruitment and clause (B) deals with promotion. Neither of these clauses makes any reference to reservation. Reservation is mentioned in clause (C) which reads as follows: (C) Reservation for Scheduled Castes, Scheduled Tribes and other Categories in services under the Corporation, In making appointments in the services of the Corporation, reservations, relaxation of age limits and other concessions would be provided to the Scheduled Castes, the Scheduled Tribes and other categories of persons as directed by the Central Government from time to time. The Managing Director may issue detailed administrative instructions accordingly. From this provision it would appear that reservation for Scheduled Castes is dependent upon the directions issued by the Central Government and the orders issued by the Managing Director of the Corporation. Learned counsel for the petitioner has not invited our attention to any order of the Central Government or of the Managing Director of the Corporation providing for reservation in favour of Scheduled caste candidates. 15. Learned counsel for the petitioner, however, submits that in view of clause (c) orders issued by the Central Government would ipso facto become applicable to the Corporation. In view of the language of clause (c) we are unable to accept the submission of the learned counsel. 16. Paragraphs 19.1 and 19.2 comprised in chapter 19 of the Brochure have been relied upon for submitting that the Central Government has in fact issued directions for reservation in favour of Scheduled Castes in the services of Public Sector Undertakings, Statutory and Semi Government Bodies under the control of the Government. These paragraphs read as follows 19.1 The various instructions given in this Brochure relate to reservations for Scheduled Castes and Scheduled Tribes in postservices under the Government. The Public Sector Undertakings, Statutory and SemiGovernment Bodies etc. under the control of the Government, have also been asked 10 make reservation for Scheduled Castes and Scheduled Tribes in their services on the lines of the reservations in services under Government by separate instructions as mentioned in the following paragraphs. The Public Sector Undertakings, Statutory and SemiGovernment Bodies etc. under the control of the Government, have also been asked 10 make reservation for Scheduled Castes and Scheduled Tribes in their services on the lines of the reservations in services under Government by separate instructions as mentioned in the following paragraphs. 19.2 Public Sector Undertakings: In Ministry of Home Affairs O.M. No. 5/1/63 SCT (1) dated 4364, Ministries were requested to issue suitable instructions to the public sector undertakings under their control to make reservations for Scheduled Castes and Scheduled Tribes in their services on the lines of the reservations in Central Government services. The Bureau of Public Enterprises, Ministry of Industry has since arranged for issue to the various public sector undertakings, suitable directives through the administrative Ministries concerned for making reservations for Scheduled Castes and Scheduled Tribes in their services. The directive and supplementary directives were forwarded by the Bureau of Public Enterprises to the administrative Ministries for issue to the Public undertakings with the following O. Ms.: O.M. No. 2 (115)/68 BPE (GM) dated 1891969. O. M. No. 2 (115)/68 BPE (GM) dated 17121970. O. M. No. 6/1/73 BPE (1C) dated 1051974. Paragraph 19.1 merely recites that Public Sector Undertakings have been asked to make reservations for Scheduled Castes and Scheduled Tribes in their services on the lines of reservation in services under the Government. The letter or order of the Central Government whereby the Public Sector Undertakings have been asked to make reservations has not been placed on record and accordingly the terms in which directions have been issued are not known. We cannot presume that the Corporations have been mandatorily asked to provide for reservation at the stage of promotion. From paragraph 19.2 it appears that the Bureau of Public Enterprises have also issued directives for making reservations. These directives, it appears, were forwarded by Bureau to the administrative Ministries for issue to the Public Undertakings. The office memoranda, through which the directives have been issued, have been referred to in the paragraph. However, a copy of the directives is not available on the record of the writ petition. Accordingly our comments made in respect of paragraph 19.1 is applicable to paragraph 19.2 also. The office memoranda, through which the directives have been issued, have been referred to in the paragraph. However, a copy of the directives is not available on the record of the writ petition. Accordingly our comments made in respect of paragraph 19.1 is applicable to paragraph 19.2 also. As such, it has not been established as a fact that the Central Government issued any directive to the Public Undertakings to provide reservation to Scheduled Caste candidates at the stage of promotion from lower post to higher post. In the absence of factual evidence of reservation, the two authorities cited by the learned counsel are of no avail to the petitioner. They may merely be referred to. They are: (1) AIR 1969 Punjab and Haryana 178 Basant Lal Mehrotra v. State of Punjab and others; and (2) AIR 1987 Supreme Court 537 The Comptroller and Auditor General of India and another v. K.S. Jagannathan and another. 17. In view of the above the opposite parties cannot be said to have committed any illegality if they did not consider the petitioner's case for promotion on the basis of reservation policy in respect of Scheduled Caste candidates prevailing in the Central Government. 18. Accordingly the writ petition lacks merit and is hereby dismissed but without any order as to costs. Interim order, if any, shall stand discharged 19. After the above judgment had been pronounced, Sri Akhilesh Sahai, learned counsel for the petitioner prayed for certificate of fitness for filing appeal before their Lordships of the Supreme Court. Our judgment does not raise any substantial question of law of general importance which needs to be decided by their Lordships. Accordingly, the certificate prayed for is refused. (Petition dismissed)