Ajit Kumar Baidya v. State of West Bengal — 1991 DIGILAW 23 (CAL)

ORDER: The petitioner has challenged an order promoting the respondent No.6 to the post of Additional Director (NCES) and has asked for promotion to the said post. According to the petitioner the promotion of the respondent No.6 was made contrary to the recruitment rules. It is the petitioner's case that he was the only person who could have been appointed to the said post. His grievance is that he was not considered at all for promotion. It is further contended by the petitioner that the ejecting of the respondent No.6 was vitiated by the mala fide of the respondent No.2 Mr. Ashoke Gupta, Secretary Department of Cottage & Small Scale Industries, Government of West Bengal. 2. The State Government has submitted that there was no infraction of the recruitment rules. The respondent No.6 has all the necessary qualifications to be appointed to the said post. The State Government however stated that the petitioner's case had not been considered because he was not confirmed in the post which he was holding namely Joint Director and as such was debarred from being considered. The State Government also contended that as a vigilance enquiry was pending against the petitioner, he was also debarred from being promoted. The State Government contended that the writ petition was not maintainable in the absence of the selection committee which had been constituted for recommending persons for promotion to the said post. It is finally submitted by the State Government that even if the promotion of the respondent no. 6 is set aside, the Court should not direct the promotion of the petitioner in place of the respondent no. 6, but should leave it to the authorities concerned to re-assess the suitability of the candidates to the post. 3. The respondent no. 6 contended that the question of suitability to a post should not be gone into by the Court in exercise of its jurisdiction under Article 226 It is contended that the evaluation of the candidate to a particular post should be left in the, hands of the expert body which had been constituted for that purpose and not be interfered with. 4. It has been submitted by the respondent no. 6 that the selection committee had correctly evaluated the merits of the case of the candidates and that such evaluation should not be interfered with by this Court. The respondent no. 4. It has been submitted by the respondent no. 6 that the selection committee had correctly evaluated the merits of the case of the candidates and that such evaluation should not be interfered with by this Court. The respondent no. 6 has relied on the following cases- The University of Mysore v. Govinda Rao reported in AIR 1965 SC 491 Dalpat Abasaheb Solanke v. Dr. B. S. Mahajan reported in AIR 1990 SC 434 Neelima Misra v. Dr. Harinder Kaur Paintal reported in AIR 1990 SC 1402 ; Parvez Quadir v. Union of India, reported in 1975 (1) SLR 4 ; 5. As far as the first three cases listed above are concerned they all deal with academic institutions. It is well established that the courts have not readily interfered with the matters relating to academic institutions. Secondly, in all the three cases the Supreme Court recognised that even in matters relating to academic institutions decisions to promote or appointment can be interfered with on certain well recognised principles such- as irregularity in procedure or mala fides- As I have come to the conclusion that there has been an irregularity In the procedures followed in promoting the respondent no. 6, I do not think that the decisions of the Supreme Court in any of the three cases is a bar to my setting aside the impugned order. 6. Furthermore in the said three cases the selecting authorities were admittedly experts in the field. In this case it has not been contended that the members of the departmental selection committee were experts in the field of non-conventional Energy sources. 7. In the fourth case the Supreme Court was called. Upon to decide the comparative merits of two candidates in relation to a post in the Indian Forest Services it was in that context that the Supreme Court declined to assess the question whether in fact the person selected is not suitable or a person selected was suitable for the post. 8. I do not propose to go into the comparative merits of the qualifications of the two candidates but will confine myself to the questions of the procedure followed for- promotion and mala fides. 9. The petitioner has been serving as the Joint Director of Industries (Bio-Gas) since 20th July, 1984. However, he has not been confirmed in the said post. I do not propose to go into the comparative merits of the qualifications of the two candidates but will confine myself to the questions of the procedure followed for- promotion and mala fides. 9. The petitioner has been serving as the Joint Director of Industries (Bio-Gas) since 20th July, 1984. However, he has not been confirmed in the said post. The petitioner has claimed experience in matters relating to Bio-Gas and other non-conventional Energy sources. This fact have not been disputed by the respondents. By a notification no. 487-Cot. (Estt) /46-22/84 dated 29th January, 1988, Recruitment Rules were published under article 309 of the Constitution of India relating to the post of Additional Director of Industries (Non-conventional energy sources) under the Directorate of Cottage & Small Scale Industries West Bengal. The method of recruitment prescribed under the said recruitment rules was as follows: i) By selection (Direct Recruitment) ; or ii) By promotion from the Joint Directors of Industries under the Directorate of Cottage & Small Scale Industries, West Bengal having 5 years experience as such and adequate knowledge about non-conventional Energy sources; or iii) By transfer of an officer in the IAS or an officer in WBCS (Ex) in the scale of pay Rs. 1600 to 2250/- 10. It appears from the affidavit in opposition affirmed on behalf of the State authorities that a departmental selection committee was constituted under the C and SSI Departmental Order no. 3187-Cot (Estt) dated 19th April, 1990. A meeting was held by the said selection committee on 14th June 1990 prior to the said meeting an integrity certificate of the eligibility of the Joint Directors was obtained from the Vigilance Commission. The Vigilance Commission gave clearance" to all the eligible officers except the petitioner as enquiries in respect of allegations against the petitioner were going on. According to the State Government the confirmation in the feeder post being essential under the existing rules, the petitioner was debarred from promoting also of this ground. The selection committee recommended the case of the respondent no. 6 for promotion to the post of Additional Director (NCES). The department accepted the recommendation of the selection committee. By an order dated 27th June. 1990 the respondent no. The selection committee recommended the case of the respondent no. 6 for promotion to the post of Additional Director (NCES). The department accepted the recommendation of the selection committee. By an order dated 27th June. 1990 the respondent no. 6 (?) communicated the promotion of the respondent no 6 to post of Additional Director of Industries (Non-conventional energy sources) on regular basis with effect from the date he took over charge and until further orders. Accordance to the petitioner, the order of promotion was handed over to the respondent no. 6 at 6-30 p. m. on 27th June 1990 and the respondent no. 6 took over charge at 7 pm. on the same day. 11. This fact has not been specifically denied either by the State - Government or by the respondent no. 6 in their respective affidavits. 12. I am of the view that the order dated 27th June, 1990 cannot be permitted to stand. It is an admitted position that the petitioner case for promotion had not been considered because of the pendency of the vigilance enquiry and because of his non-confirmation in the post of Joint Director of Industries (Bio-Gas). As far as the vigilance enquiry is concerned it appears from the records of the vigilance enquiry which were produced before me that the enquiry is in respect of unaccounted distribution and sale of Solar Cookers. The complicity of the petitioner in the matter has not even prima facie been alleged, much less established. Although the vigilance enquiry has been going on since 1989, there is no evidence that the Depart of Cottage & Small Scale Industries has been contemplated taking any disciplinary proceedings against the petitioner in this regard. 13. In a circular issued by the Chief Secretary, Government of West Bengal dated 12th June 1980, it has been stated as follows :- After careful consideration of the matter, it has been decided by the Government that "The confirmation/promotion/efficiency bar crossing/selection/grade appointment of a Government servant or recruitment of in-service candidates to higher posts should not be held up merely because enquiries are pending in the vigilance commission. These should be held up only if depart mental proceeding have been initiated or when the Vigilance Commission has recommended that departmental proceedings be initiated and Government has not taken any decision thereon at the time the question of confirmation/promotion ect, has come up." 14. These should be held up only if depart mental proceeding have been initiated or when the Vigilance Commission has recommended that departmental proceedings be initiated and Government has not taken any decision thereon at the time the question of confirmation/promotion ect, has come up." 14. In the decision of K. Somaiah v. Zonal Manager, FCI (AP) reported in 1978 SLJ 295 a single Judge of the Andhra Pradesh High Court has held as follows :- "When disciplinary proceedings are initialed and when they are yet to be completed, there is no knowing whether the petitioner can be found guilty of the charges that may be framed against him and he cannot before that be punished through either withholding of his promotion or by non consideration of his case for promotion. In either case, it amounts to imposition of punishment violating both the letter and spirit of Article 311 of the Constitution. Therefore, the pendency of contemplated initiation of the disciplinary proceedings against a person must be considered to have absolutely no import upon his right for being considered for promotion," 15. The aforesaid passage in my view correctly represents the law on the matter. 16 The State Government relied upon two circulars dated 27th January, 1988 and 27th September, 1989 issued by the Chief Secretary Government of West Bengal which state that in cases of promotion 10 higher posts involving exercise of discretionary powers, the Vigilance Commission West Bengal shall have to be consulted for assessing integrity of the officers concerned. These circulars do not state that merely because an enquiry is pending against an officer he is debarred from being considered for promotion. Furthermore in this case, the vigilance commission could not at this stage have submitted a report adverse to the petitioner without even reaching a prima facie conclusion as to the petitioner's culpability in any offence. In fact the Supreme Court in the case of State of Madhya Pradesh v. Rani Singh reported in AIR 1990 SC 1308 held: "If the disciplinary proceedings had not reached the stage of framing charges after a prima facie case is established consideration for promotion to a higher selection grade cannot be withheld on the ground of pendency of such disciplinary proceedings." 17. Admittedly no disciplinary proceedings have even been initiated against the petitioner. Admittedly no disciplinary proceedings have even been initiated against the petitioner. As the authorities concerned have taken into consideration the fact that a vigilance enquiry is pending in which the petitioner may be involved and therefore excluding the petitioner from promotion they have, for all the reasons set out above, acted on an irrelevant consideration. 18. The second ground for non-consideration of the petitioner for promotion to the post of Additional Director appear to be his non confirmation in the post of Joint Director. It is contended by the petitioner that he must be deemed to have been confirmed in the post of Joint Director on the basis of Circular no 6059 dated 25th June 1979 as well as notification no. 6060-F dated 25th June, 1979. I do not propose to go into this question as I am of the view that the question of confirmation is irrelevant to the question of promotion. No rule has been cited by the Slate Government in support of their contention that a person cannot be considered for promotion unless he was confirmed in the feeder post. Undoubtedly the petitioner has been serving in the post of Joint Director since 1985 with some measure of success. No reason has been disclosed by the State Government for not confirming the petitioner in such position for the last 6 years. 19. The Supreme Court in the case of S.B. Patwardhan v. State of Maharastra reported in AIR 1977 SC 2051 has held that "confirmation is one of the inglorious uncertainties of Government services depending neither on efficiency of the incumbent nor on the availability of substantive vacancy." The Supreme Court struck down a rule relating to seniority because it "depended upon the fortuitous circumstances of confirmation". Again in paragraph 51 of the said judgment the Supreme Court stated that "accident of confirmation" cannot be an intelligible criterion for determining seniority. In that case the issue was whether the service of an officer not confirmed in the post could be ignored in computing seniority. The Supreme Court held that it could not. The question of seniority would be irrelevant for the purpose of determining an officer's right to be considered for promotion. Therefore, it would follow that merely because an officer is not confirmed in a post, would be irrelevant in considering him for promotion. 20. The Supreme Court held that it could not. The question of seniority would be irrelevant for the purpose of determining an officer's right to be considered for promotion. Therefore, it would follow that merely because an officer is not confirmed in a post, would be irrelevant in considering him for promotion. 20. The principles laid down by the Supreme Court have been applied in the case of Baleswar Das v State of U.P. reported in AIR 1981 SC 39 as well as in the case of O. P. Singla v. Union of India reported in AIR 1984 SC 1595 . 21. In any event the recruitment rules do not provide that on only Joint Directors who are confirmed in the post will be entitled to be considered for promotion. The State Government cannot read into the Recruitment Rules any further condition whittling down the field of consideration. It is not necessary for me to decide whether confirmation in the feeder post can be prescribed as a condition for promotion. Suffice it to say that the Recruitment Rules in this case contain ho such embargo. 22. Therefore, the non-Consideration of the petitioner's case for promotion on the ground that he was not confirmed in the post of Joint Director appears to be wholly unjust and incorrect. In view of my findings, the entire promotional process culminating in the order promoting the respondent no. 6 cannot be allowed to stand. This determination would be sufficient to dispose of the merits of the writ petition. However, it is necessary to advert to the other reliefs to be granted. 23. It is alleged by the petitioner that the respondent no. 2 was actuated by mala fides and was instrumental in seeing that the petitioner was not appointed to the post of Additional Director. According to the petitioner, he is the President of the Association of the Director etc. of Cottage & Small Scale Industries. In 1988 a writ petition was moved by some officers of the Directorate including the petitioner challenging inaction of the Government in implementing a policy of scale promotion. In the course of this proceedings, a contempt application was filed against the respondent no. 2. The respondent no. 2 had been directed to appear in Court, and was compelled to comply with the order passed by the Court in the writ proceedings. In the course of this proceedings, a contempt application was filed against the respondent no. 2. The respondent no. 2 had been directed to appear in Court, and was compelled to comply with the order passed by the Court in the writ proceedings. According to the petitioner since the contempt proceedings, the respondent no. 2 has harboured feeling of animosity against the petitioner it would not be unnatural to assume that a person would react with resentment against the initiator of the contempt proceedings particularly when the initiator is a subordinate officer in the same Directorate. No affidavit-in-opposition has been filed by the respondent no. 2 controverting this allegation. Even in the affidavit which has been affirmed by the respondent no. 3 on behalf of the respondent no. 2 there is a very general denial. The petitioner has relied upon the decision of the Supreme Court in Pratap Singh v. State of Punjab reported in AIR 1954 SC 72 in which allegations of mala fide made in the petition were taken as proved in the absence of any affidavit from the person against whom such allegations were made and who alone could have contradicted them. 24. It is argued on behalf of the respondents that the respondent no. 2 did not form part of the selection committee which recommended the case of respondent no. 6 and as such mala fides of the respondent no. 2, even if established would not be relevant to the present case. It is however, contended by the petitioner that in constellating such election committee a new procedure had been evolved by the respondent no. 2 by officers subordinate to the respondent no.2 who would be influenced by the prejudice of the respondent no. 2 against the petitioner, only to give a colour of fairness. 25. As I am satisfied that the entire decision in process for promoting the respondent no. 6 cannot be sustained by reason of the wrongful exclusion of the petitioner from consideration, I refrain from deriding the question whether the respondent no. 2 was himself involved in the decision to exclude the petitioner from promotion. I am however satisfied that the respondent no. 2 may however hold a grudge against the petitioner in view of his conspicuous silence on the subject. 26. 2 was himself involved in the decision to exclude the petitioner from promotion. I am however satisfied that the respondent no. 2 may however hold a grudge against the petitioner in view of his conspicuous silence on the subject. 26. It is finally contended by the petitioner that the only person who could be considered for promotion to the post of Additional Director (NCES) was the petitioner himself. Therefore, it is submitted that if the Court strikes down the promotion of the respondent no 6 the Court must issue a direction on the respondents to promote the petitioner to the said post. The petitioner has set out in great detail, hi, knowledge about non conventional energy sources. This' has not been contravened by the state respondents. In fact even the paragraphs dealing with the petitioners insertions contained in the petition have been verified by the State Government as submissions. The petitioner has relied upon three decisions of the Supreme Court to contend that the Court bas the jurisdiction to direct promotion retrospectively i.e. from the date on which the petitioner should have been promoted i.e. 27th June, 1990 The first case cited by the petitioner is the decision of the Supreme Court in the Comptroller & Auditor General v. K.S. Jagannathan reported in AIR 1987 SC 537 . In that 'case the Supreme Court has stated that the Court has power under Article 226 in a proper case to prevent injustice and to pass any order which the authority should have passed the exercise of its direction. The second case cited by the petitioner is the case of State of Madhya Pradesh v. Bani Singh reported in AIR 1990 SC 1308 in which the Supreme Court upheld the prayer for retrospective promotion. The last case cited by the petitioner in this regard in the case of Dhari Gram Panchayat v. Saurashtra Mazdoor Mahajan reported in 1987 (4) SCC 213 to a Similar effect. 27. From the affidavit -in-opposition affirmed on behalf of the respondent no. 6 it has been stated that there were other candidates apart from the respondent no 6 whose cases were considered for promotion to the post of Additional Director (NCES'. 27. From the affidavit -in-opposition affirmed on behalf of the respondent no. 6 it has been stated that there were other candidates apart from the respondent no 6 whose cases were considered for promotion to the post of Additional Director (NCES'. I also accept the State Governments submission relying on the decision of the Supreme Court in the case of State of Mysore & v. Syed Mohammed reported in AIR 1968 SC 113 that consideration of the candidates for promotion should be left to the authority concerned. I therefore hold that the State Government should be directed to consider the question of suitability of candidates including the petitioner and the respondent no. 6 for promotion to the post of Additional Director (NCES) strictly in keeping with the recruitment rules. If the State Government upon such consideration is of the view that the petitioner should be promoted, it will be the duty of the State Government to promote him with effect from 25th June, 1990. 28. The last point argued by the State Government, which should have been argued as a preliminary issue, was that the writ petition was not maintainable as the petitioner did not include the members of the election committee as parties to the writ petitioner. Reliance was sought to be placed on the decision of a single Judge of this High Court in the case of Jaidev Jain v. Union of India & anr. reported in AIR 1972 Col. 253. I am unable to accept this submission. The case relied upon relates to the challenge of the decision of a tender committee. In this case it is the final decision dated 27 6.90 which is under challenge. In that case the members of the tender committee had not been made parties although their names had been disclosed in the affidavit-in-opposition. In this case the respondents have neither disclosed the name of the selection committee members in their respective affidavits nor the recommendation made by such selection committee. No allegations have been made by the petitioner against the selection committee. In fact the writ petitioner's case was not placed before the selection committee at all by the concerned -authorities. 29. In any event, keeping in view of the decision of the Supreme Court in the case of Udit Narayan Singh v. Board of Revenue reported in AIR 1963 SC 786 . In fact the writ petitioner's case was not placed before the selection committee at all by the concerned -authorities. 29. In any event, keeping in view of the decision of the Supreme Court in the case of Udit Narayan Singh v. Board of Revenue reported in AIR 1963 SC 786 . I do not think that the members of the selection committee were necessary parties to this proceeding for the reasons stated and particularly when it was not their decision which is sought to be quashed. The promoting authority is not the selection committee, its role was merely recommendatory. Therefore the writ petition in my view is maintainable in the absence of the members of the selection committee. 30. For the reasons aforesaid I set aside the order no. 5201-Out (Estt) dated 27th June 1990 issued under the signature of the Deputy Secretary, Department of Cottage & Small Scale Industries. I direct the concerned authority to consider the petitioner's case for promotion to the post of Additional Director (Non-conventional Energy Sources) strictly in terms of the Recruitment Rules dated 29th January, 1988 If, in consideration the petitioner's case, the concerned authority is of the view that the petitioner was entitled to promotion to the said post, such promotion will be given with effect from 27th June, 1990. In view of the possibility of the respondent no. 2's prejudice against the petitioner and particularly in view of the fact that the respondent no. 2 was party respondent to this proceeding and an affidavit having been filed on his behalf in which the petitioner's claim for promotion has been disputed, I direct that the respondent no. 2 should not be involved in the process of consideration for promotion of the petitioner to the post of Additional Director (NCES) at any stage. There will be no order as to costs. The writ petition is disposed of accordingly. Let all parties act on a signed copy of the minutes of the operative portion of this order. Prayer for stay of operation of this order is made and the same is refused. Impugned order set aside; directions given.