Ravinder Nath v. State of Rajasthan (141) — 1992 DIGILAW 682 (RAJ)

SINGHVI, J.- The vires of the Circulars dated, 4.1.77 and 17.7.89 issued by the Government in the department of Personnel has been challenged in this writ petition filed under Article 226 of the Constitution of India. (2) The petitioner has prayed for quashing of these circulars and for issue of a direction to the respondents to consider his case for promotion to the post of Superintending Engineer (Civil) Irrigation Department and not to follow the sealed cover procedure as laid down in the aforesaid Circulars dated, 4.1.77 and 17.7.89. He has also prayed for quashing of the order dated, 31.3.91 and 29.6.91. (3) Briefly stated, the case of the petitioner is that he joined Government service in Irrigation Department on 17.7.61. Subsequently, he was selected by the Rajasthan Public Service Commission for appointment as Assistant Engineer by direct recruitment. He was promoted as Executive Engineer on regular basis by order dated, 13.11.75. In the seniority list of Assistant Engineers issued on 11.6.74, the name of the petitioner has been shown at serial No. 224. On the recommendations of the Departmental Promotion Committee two orders were issued on 30.1.91 and 26.9.91 for promotion of officers as Superintending Engineer (Civil) under rule 26 (1) of the Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954 against the promotion quota of 1990-91. According to the petitioner, S/Shri R.S. Chouhan, Seniority No. 225, Sohan Lal Manju, Seniority No. 227, R.N. Saxena, Seniority No. 228 and V.K. Jain, seniority No. 229 who have been promoted by these two orders are junior to him. Against his supersession, the petitioner made representation dated, 13th August 1991. He was communicated with the adverse remarks in his Annual Performance Report for the year 1982-83. The petitioner made representation and the same has not been disposed of so far. The petitioner has stated that another D.P.C. was likely to be held for making recommendations for promotions against the year 1991-92 and he apprehended that his case will not be considered fairly. (4) The petitioner has stated that during his 30 years service career neither any regular charge sheet has been served upon him nor any punishment has been imposed upon him. (4) The petitioner has stated that during his 30 years service career neither any regular charge sheet has been served upon him nor any punishment has been imposed upon him. Only a show cause notice dated, 15.4.82 was issued to the petitioner and he was called upon to show cause why disciplinary action should not be initiated against him in regard to his alleged lapse in non extension of Bank Guarantee at the time of payment of 17th running bill of M/s K.D. Bankers which was a contracting firm. Another notice to the same effect was issued to the petitioner on 3.6.83. The petitioner gave his reply to the notice dated, 20th March 1983 and denied his responsibilities. The petitioner has stated that the allegations levelled against him in the show cause notice dated, 15.1.82 relates to the year 1979 when he was posted as Executive Engineer, B & R.C., Division, Mahi Bajaj Sagar Project, Banswara. According to the petitioner after submission of the reply by him no action has been taken. Of course, a charge-sheet was issued to Shri K.P. Jain, the then Chief Accounts Officer in regard to the non extension of Bank Guarantee, but, the same was subsequently dropped. In fact, the department had not suffered any loss because, when the work done by the contractor was measured before the preparation. of 18th running bill by the successor of the petitioner it was found that measured unpaid work worth Rs. 1 lac had been done. According to the petitioner, he therefore, presumed that no action was going to be taken against him in future. However, he has been deprived promotion on the basis of the Circulars dated, 4.1.77 and 17.7.89 issued by the Government in exercise of its power under rule 24 A (15) and other similar rules in various other service rules framed under proviso to Article 309 of the Constitution. The notices dated, 15.4.82 and 3.6.83 have been used by the respondent Government for presuming that an enquiry is contemplated against the petitioner. On that ground sealed cover procedure has been adopted. The petitioner has submitted that two Circulars dated, 4.1.77 and 17.7.89 by which sealed cover procedure has been made applicable even to the cases in which enquiry is contemplated are ultra vires to the provisions of rule 24A (15). On that ground sealed cover procedure has been adopted. The petitioner has submitted that two Circulars dated, 4.1.77 and 17.7.89 by which sealed cover procedure has been made applicable even to the cases in which enquiry is contemplated are ultra vires to the provisions of rule 24A (15). More over, prescription of sealed cover procedure in all cases of contemplated or pending enquiries is by itself arbitrary and unreasonable, because, by such Circular, the discretion of the competent authority is curtailed. It is also the case of the petitioner that on the basis of the notices dated, 15.4.82 and 3.6.83, which relate to the working of the petitioner during 1979, he cannot be denied promotion on the post of Superintending Engineer. Moreso, when the then Chief Accounts Officer was charge sheeted in respect of the same subject matter and the said charge sheet was subsequently dropped. (5) The facts set out by the petitioner in the writ petition have remained uncontroverted, because, no reply has been filed by the respondents. Rule 24 A (15) of 1954 rules reads as under : "The Government may issue instructions for provisionally dealing with promotions, appointments or other ancillary matters in an equitable and fair manner of persons who may be under suspension, or against whom departmental proceedings is under progress, at the time, promotions are considered to a post to which they are eligible or would have been eligible but for such suspension or pendency of such enquiry or proceedings." (6) In almost all service rules similar provision can be found. Rule 24 A (15) was in the first instance, inserted in 1954 rules by amendment notification dated, 5.3.76, when general amendments were made in the various service rules. By notification dated, 7.3.78, Rule 24 A was substituted. Even in the substituted rule 24 A sub-rule 15 was maintained with identical language. (7) Circular dated, 4.1.77 was issued by the Government in the department of Personnel under Rule 24 A (15) as it stood by virtue of insertion vide notification dated, 5.3.76. The Circular dated, 17.7.89 has been issued in the exercise of the powers under Rule 24 A (15) as it stands now and which has been quoted herein above. (7) Circular dated, 4.1.77 was issued by the Government in the department of Personnel under Rule 24 A (15) as it stood by virtue of insertion vide notification dated, 5.3.76. The Circular dated, 17.7.89 has been issued in the exercise of the powers under Rule 24 A (15) as it stands now and which has been quoted herein above. (8) Circular dated 4-1-77 Paragraphs 1,2,3,4,5, 10 of the Circular dated 4.1.77 and Paragraphs 2.0, 2.1, 2.2, 3.1, 5.0, 6.0 of Circular dated, 17.7.89 have necessity to be quoted for the purpose of proper appreciation of the controversy involved in the writ petition. These are : "1. The Government have already amended the various serivce Rules, vide this Department Notification No. F. 10 (1) Karmit Ka-11/75-1 dated, the 5.03.1976 provided that Government may issue instructions for provisionally dealing with promotions, appointments or other ancillary matters in an equitable and fair manner of persons who may be under suspension, or against whom departmental proceedings are under progress at the time promotions are considered to a post to which they are eligible or would have been eligible but for such suspension or pendency of such enquiry or proceedings." The whole matter has been reconsidered by the government and in supersession of all previous orders noted in the margin, the following revised instructions to be adopted in such cases are laid down : No. F. 1 (7) Appts. (A-II)/65, dated, the 18.09.1971. No. F. 1 (7) Appts. (A-II)/68, dated, the 1.04.1975. No. F. 10 (1) Karmik/ ka-II/75, dated, 4.12.1975 Scope of the Instructions : 2. These instructions shall apply to a Government servant (i) who is under suspension (ii) against whom disciplinary proceedings either under rule 16 or 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, have been initiated i.e. where a charge sheet and statement of allegations have been issued under rule 16 and the disciplinary proceedings are pending at any stage or where a statement of allegations under rule 17, has been issued and the proceedings are pending, and (hi) against whom disciplinary proceedings are proposed to be initiated i.e. on the basis of a preliminary enquiry or otherwise a decision has been taken by the competent authority to initiate disciplinary proceedings against him but where a charge sheet and statement of allegations under rule 16 or a statement of allegations under rule 17 has been issued. Procedure to be followed in cases where a Government servant is under suspension at the time when promotion to higher posts is considered by the Departmental Promotion Committee or by the Appointing Authority, where there is no provision for holding Departmental Promotion Committee. 3. In such a case the Government servants suitabiUty for promotion should be assessed by the Departmental Promotion Committee or by the Appointing Authority, as the case may be, and a finding reached whether if the officer had not been suspended, he would have been recommended, selected for promotion. The Departmental Promotion Committee or the Appointing Authority as the case may be, should also take a view as to what the Government servants position in the list of selected persons (select list) would have been but for his suspension. 4. The findings as to the suitability and the place in the select list of the Government servant should be recorded separately and attached to the proceedings of the Departmental Promotion Committee in the sealed envelope superscribed "Finding regarding suitability for promotion on the basis of merit/seniority-cum-merit in (Service/Grade/Post) in respect of Shri (Name of the Officer)" and "not to be opened till after the termination of the suspension of Shri ( Name of the Officer)." The proceedings of the Departmental Promotion Committee need only contain the note, "The findings are contained in the attached sealed envelope." Similarly, where there is no provision for holding a Departmental Promotion Committee, the Appointing Authority will record a separate note and observe the procedure given above. The vacancy that could have gone to the Government servant but for his suspension should be filled only on an officiating basis by the next person in the select list. If later, the government servant concerned is completely exonerated and it is held that the suspension was wholly unjustified, he should be promoted to the post filled on an officiating basis, the arrangement made previously being reserved. Where however, the post which could have gone to the officer but for his suspension ceases to exist before his re-instatement he can only be promoted to the first vacancy that may be available in future. In case where a Government servant is not exonerated, the Departmental Promotion Committee or the Appointing Authority, as the case may be, that reconsider the case keeping in view the findings of the disciplinary proceedings and the decision taken thereon. In case where a Government servant is not exonerated, the Departmental Promotion Committee or the Appointing Authority, as the case may be, that reconsider the case keeping in view the findings of the disciplinary proceedings and the decision taken thereon. Procedure to be followed in cases where a Government servant is not under suspension when promotions are considered by the Departmental Promotion Committee or by the Appointing Authority where there is no provision for holding Departmental Promotion Committee but disciplinary proceedings are pending or are about to be initiated under rule 16 of the Rajasthan Services (Classification, Control and Appeal) Rules, 1958. 5. Where promotions are to be made on the recommendations of a Departmental Promotion Committee, ordinarily the sealed cover procedure as given in paras 3 and 4 should be followed. In exceptional cases, where the Departmental Promotion Committee after looking into the charge sheet and the statement of allegation feels that the delinquency of the Government servant is of a technical or a minor nature i.e.supervisory negligence in a departmental enquiry or a joint Departmental enquiry etc. the Commitee may, for reasons to be recorded in writing, recommend promotion provisionally till the next meeting of the Departmental Promotion Committee. Where the sealed cover procedure has been followed on conclusion of the disciplinary proceedings if the Government servant concerned is exonerated, the recommendations of the Departmental Promotion Committee in the sealed cover for his promotion shall be implemented and he shall be promoted on a regular basis. Similarly, where a government servant has been promoted provisionally on the basis of the recommendation made by the Departmental Promotion Committee and where the said government servant on conclusion of the disciplinary proceedings has been exonerated, he shall be promoted on a regular basis in respect of a Government servant in whose cases the sealed cover procedure has been followed or who has been promoted provisionally on the basis of the recommendation made by the Departmental Promotion Committee and who upon conclusion of the disciplinary proceedings has not been exonerated, his case should be reconsidered again by the Departmental Promotion Committee in the light of the decision taken by the disciplinary authority in the disciplinary proceedings. The Committee shall then make suitable recommendations regarding the Government servants promotion or otherwise. The Committee shall then make suitable recommendations regarding the Government servants promotion or otherwise. (10) Where in the case of a Government servant, the sealed cover procedure as given in para 3 and 4 has been followed for selection by promotion from the post on which he was regularly appointed, to the next higher post and who by virtue of his seniority becomes eligible for promotion to the second next higher post but the Departmental Inquiry has not been concluded by the Disciplinary Authority by the time the meeting of the Departmental Promotion Committee is held, such a person should be considered for promotion to the second next higher post purely on provisional basis by the Departmental Promotion Committee or the Appointing Authority, as the case may be, and the sealed cover procedure as given in para 3 and 4 should be followed in such cases. In respect of a Government servant in whose case the sealed cover procedure has been followed or who has been promoted provisionally on the basis of the re-commendations made by the Departmental Promotion Committee, and who upon conclusion of the disciplinary proceedings has not been exonerated, his case should be reconsidered again by the Departmental Promotion Committee in the light of the decision taken by the disciplinary authority in the disciplinary proceedings.The Committee shall then make suitable recommendations regarding otherwise. Person not selected by the Departmental Promotion Committee without taking into account the Departmental Enquiry pending against them." Circular dated 17.789 2.0. Cases of Government servants to whom sealed cover procedure will be applicable : At the time of consideration of the cases of Government servants for promotion, details of Government servants coming in the zone of consideration for promotion falling under the following categories should be specifically brought into the notice of Departmental Promotion Committee : (i)— Government servants under suspension : (ii) — Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings ; (iii)— Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution; (iv)— Government servants against whom an investigation on serious allegation of corruption, bribery or similar grave misconduct is in progress either by the A.C.D. or Lok Ayukta or any other agency departmental or otherwise. 2.1 Procedure to be followed by DPC in respect of Government servants under Cloud: The DPC shall assess the suitability of Government servant coming within the purview of the circumstances mentioned above alongwith other eligible conditions without taking into consideration the disciplinary case or criminal prosecution pending or contemplated against them or where the investigation in progress. The assessment of the DPC including "Unfit for promotion" and the place in the select list of the Government servants recorded separately by it will be kept in a sealed cover. The cover will be superscribed "Finding regarding suitability for promotion to the post of ... in respect of Shri ... (name of the Government servant). Not to be opened till the termination of the disciplinary case/ criminal prosecution/investigation against Shri ...." The proceedings of the D.P.C. need only contain the note. "The findings are contained in the attached sealed cover." The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the finding of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover. 2.2. The same procedure outlined in para 2.1 above will be followed by the subsequent DPC convened till the disciplinary case/criminal prosecution/investigation pending or contemplated against the Government servant concerned is concluded. 3.1. Action after completion of disciplinary case/criminal prosecution/investigation : On conclusion of the disciplinary case/criminal prosecution or an investigation which results in dropping of allegation or complaint against the Government servant is completely exonerated, .the recommendations of the DPC shall be implemented. The due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his junior on the basis of such position. The Government servant may be promoted, if necessary by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of junior, but he will not be allowed any arrears of pay for the period preceding the date of actual promotion. The Government servant may be promoted, if necessary by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of junior, but he will not be allowed any arrears of pay for the period preceding the date of actual promotion. 5.0 Six Monthly Review of "sealed cover" cases : It is necessary to ensure that the disciplinary case/criminal prosecution/investigation instituted against any Government servant is not unduly prolonged and all efforts to finalise expeditiously the proceedings should be taken so that the need for keeping the case of a Government servant in a sealed cover is limited, to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the cases of Government servants, whose suitability for promotion to a higher post/grade has been kept in a sealed cover on the expiry of 6 months from the date of convening the first DPC which had adjudged his suitability and kept its finding in the sealed cover. Such a review should be done subsequently also every six months. The review should inter-alia, cover to following aspects— (i) The progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite their completion; (ii) Security of the material/evidence collected in the investigation to take a decision as to whether there is a prima facie case for initiating disciplinary action or sanction prosecution against the officer. If as a result of review, the appointing authority comes to a conclusion in respect of cases covered by item (ii) above that there is no case for taking action against the Government servant concerned, the sealed cover may be opened and he may be given his due promotion with reference to the position assigned to him by the DPC. 6.0 Sealed cover applicable to officers coming under cloud before promotion: The Government servant who is recommended for promotion by the DPC but in whose case any of the circumstances mentioned in para 2 above, arise after the recommendations of the DPC are received but before he is actually promoted will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this circular order will be applicable in his case also. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this circular order will be applicable in his case also. (9) Of the aforesaid two circulars, the circular dated 4.1.1977 was made applicable not only to the cases where disciplinary proceedings had actually been initiated but also to the cases where such enquiry was proposed to be initiated. The said circular sought to cover the cases where even the chargesheet had not been served on the government servant, but a decision had been taken to initiate the enquiry. Thus the sealed cover procedure incorporated in that circular could be applied to a case before actual initiation of enquiry. However, the circular gave discretion to the Departmental Promotion Committee (for short DPC) to recommend provisional promotion of the government servant. The DPC was entitled to recommend provisional promotion of a government servant in case it felt satisfied that the government servant should not be deprived of his promotion merely because of pendency of an enquiry where the allegation of delinquency was of a technical or minor nature. The DPC could recommend further promotion of such government servant on provisional basis if the inquiry remained pending uptill the time, the government servant became due for promotion to the next higher post. The circular also provided for regularisation of such provisional promotion in the event of exoneration of Government servant and for reconsideration by the DPC in case the government servant was to be punished in the departmnental enquiry. However, the circular dated 17.7.1989 not only provides for application of sealed cover procedure to the cases where enquiry has not been actually initiated but at the same time the discretion of DPC to make recommendation for provisional promotion has been taken away. Now the DPC cannot make any recommendation for promotion even though it may be fully satisfied that the government servant deserves to be recommended for promotion. The discretion of the DPC has now been put in the straight jacket formula. When the DPC cannot make any recommendation for promotion, as a logical corollary, even the appointing authority is left with no discretion to make promotion of such government servant against whom departmental enquiry is pending or regarding whom a decision has been taken to initiate departmental enquiry. When the DPC cannot make any recommendation for promotion, as a logical corollary, even the appointing authority is left with no discretion to make promotion of such government servant against whom departmental enquiry is pending or regarding whom a decision has been taken to initiate departmental enquiry. (10) A look at rule 24A (15) clearly shows that the rule making authority empowered the government to issue instruction for dealing with promotions, appointments, etc. of a person who may be under suspension or against whom departmental proceedings are under progress at the time of consideration for promotion. The rule making authority did not intend to vest power with the government to issue instructions in respect of persons against whom departmental enquiry has not been initiated and where such enquiry is only in contemplation or is about to be initiated. A departmental enquiry can be treated to be under progress only after it has been initiated and initiation of a departmental enquiry can take place only after the Government servant is served with a charge-sheet. Service of charge sheet is the point where enquiry can be said to have been initiated. Till then the enquiry can be said to be only under contemplation. A contemplated enquiry can never be treated at par with an inquiry which had been initiated because contemplation of enquiry comes to an end with the service of charge-sheet with which the departmental proceedings stands initiated. In P.R. Naik vs. Union of India (1), their Lordships of the Supreme Court have clearly held that a departmental enquiry cannot be treated as initiated till the service of chargesheet upon the delinquent employee. It is thus evident that by issuing the circulars dated 4.1.1977 and 17.7.1989, which have been made applicable to cases other than in which the government servant is under suspension or against whom departmental proceedings is under progress, the Government has clearly acted beyond its authority, which has been conferred upon it, under rule 24A (15) of 1954 Rules and both the circulars dated 4.1.1977 and 17.7.1989 are therefore ultravires to Rule 24A (15) insofar as they provided for application of sealed cover procedure even to the cases of government servant against whom departmental enquiry is proposed to be initiated. (11) The next question which requires consideration is as to whether by issuing administrative instructions, the Government can curtail the power of appointing authority of making recommendations for promotion or can it completely shut out the discretion of the DPC. A perusal of the important clauses of the two circulars, which have been reproduced above, shows that the circular dated 4.1.1977, as it was amended subsequently, vested a wide discretion on the DPC to make recommendations for provisional promotion of a person after taking note of the technical or minor nature of delinquency alleged against him. The DPC could make recommendation for provisional promotion even on the next higher post in favour of a person, who has earlier been recommended for provisional promotion. However, under the circular dated 17.7.1989 a total embargo has been imposed on the discretion of the DPC by virtue of Para 2.1. The only relaxation is in the form of para 5.0. It is well known that the departmental enquiries against the government servant are held in accordance with the provisions of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short CCA Rules) and even though the government has from time to time issued instructions for expeditious disposal of the departmental enquiries, such instructions issued by the Government have been followed more in their breach than in compliance. In the absence of any statutory period of limitation the Court cannot ordinarily quash enquiry proceedings only on the ground of delay or on the ground of non-compliance of the time Schedule specified in the administrative instructions of the Government. At the same time, no statutory guidelines have been framed specifying the nature of cases in which inquiry under Rule 17 of CCA Rules can be initiated and cases in which enquiry under Rule 16 of the CCA Rules can be initiated. It is, therefore, by and large, left to the discretion of the competent authority to initiate enquiry under Rule 16 or 17 of the CCA Rules. It primarily depends on the discretion of the competent authority, as to under which rule an enquiry is to be initiated. This discretion plays an important role for determining the fate and the career of a government servant. It more or less depends on the notion of discipline which is entertained by a particular competent authority. It primarily depends on the discretion of the competent authority, as to under which rule an enquiry is to be initiated. This discretion plays an important role for determining the fate and the career of a government servant. It more or less depends on the notion of discipline which is entertained by a particular competent authority. Instead of being based on rationale or objective considerations it becomes by and large a matter of subjective satisfaction of the concerned competent authority as to under which rule the inquiry is to be initiated. A believer of strict discipline may view a minor lapse as serious and order initiation of inquiry under Rule 16. Any officer of the coordinate rank who may be liberal in his approach may order initiation of enquiry under Rule 17 of the CCA Rules in the same case . Likewise the point of time of initiation of inquiry, also depends on wholly uncertain and unpredictable factors. In large number of cases disciplinary enquiry is initiated after lapse of many years of the commission of the alleged delinquency. Preliminary enquiry/investigation takes years and after the completion of preliminary enquiry it again takes quite some years to the competent authority to make up its mind. Above all the actual conduct of the disciplinary enquiry depends on many factors. Sometimes delay is caused on account of the delinquent himself. At times the presenting officers in the department are responsible for the delay in the conduct and completion of departmental enquiry. It is thus clear that unpredictable and uncertain factors and subjective satisfaction of a particular officer plays important role, in the initiation, conduct and conclusion of the departmental proceedings. Therefore it is highly inequitable to indirectly punish a government servant by denial of promotion, though temporarily, by application of the sealed cover procedure irrespective of point of time of alleged delinquency; irrespective of the point of time of initiation of enquiry and above all irrespective of the nature of allegations. Although placement of recommendation of a DPC in sealed cover in respect of a particular government servant cannot strictly be termed as a punishment under rule 14 of the CCA Rules, nevertheless it cannot altogether be ignored that till the recommendations of the DPC remain in sealed cover, the government servant cannot get his promotion whereas his juniors may get such promotion. Every government servant is basically careerist and he wants to enjoy higher status in the form of promotion and therefore denial of promotion to him is like imposing an indirect punishment on him. (12) That apart, a perusal of the scheme of the Rules of 1954 shows that right to make recruitment by direct recruitment or promotion vests with the competent authority. In cases of the State Service the Government is the appointing authority. In cases of subordinate and ministerial services Head of the Department/Head of the Office is the competent authority. Recommendation of the DPC or any other agency merely provides material on the basis of which the competent authority is to take a final decision in the matter of appointment. Even when a DPC makes recommendations for promotion of a person, an absolute right is not conferred in favour of a government servant to be promoted. After the recommendation is made by the DPC under Rule 24A(11), the Commission is required to be consulted. The Commission has also a right to effect change in the list prepared by the DPC, in case such change is considered necessary by the Commission. After the receipt of the list the appointing authority has to approve the list with such modifications, which are in its opinion just and proper. List prepared after consultation with the Commission is to be sent to the appointing authority. Only after the approval of the list by the appointing authority, appointment by promotion can be made. The provisions of sub-rules (12) and (13) of Rule 24A clearly show that ultimate right to make appointment vests with appointing authority and the recommendation made by the DPC, is always not binding on the appointing authority. The appointing authority has been conferred with the discretion, by the Rule Making Authority, to make modifications in the list prepared by the DPC and which may have been approved even by the Commission. The only check on this discretion of the Government is that the Government can make modification only for good and sufficient reasons. The appointing authority has been conferred with the discretion, by the Rule Making Authority, to make modifications in the list prepared by the DPC and which may have been approved even by the Commission. The only check on this discretion of the Government is that the Government can make modification only for good and sufficient reasons. Thus when it is clear that the ultimate authority to make appointment vests with the government or other competent authority, by issuing administrative instructions, the Government cannot abdicate, abridge or curtail its own authority of making final selections nor can the Government has issue such restriction on the powers of other appointing authorities who are vested with the discretion and authority of making appointment in accordance with the statutory Rules. The Government cannot by issuing administrative instructions completely shut out application of mind by a competent authority. (13) In Guman Singh vs. State of Rajasthan (2), somewhat similar question arose before the Supreme Court in respect of circular issued by the Government of Rajathan on 27.8. 1966 in the matter of promotions to some State Services. While making a reference to the principle laid down in Sant Ram Sharma vs. State of Rajasthan (3) , their Lordships observed : "The Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." Their Lordships further held that the Circular issued in that case by which marks were prescribed, completely restricted the power which was vested by the Rules: in the Selection Committee and the appointing authority and therefore, the circular was ultra vires to the Rules. Their Lordships held : The circular of August 27, 1966, contained administrative instructions for the guidance of Selection Committee and the Appointing Authorities and it was not left open to them to ignore these instructions or to act contrary to the directions contained in it. Their Lordships held : The circular of August 27, 1966, contained administrative instructions for the guidance of Selection Committee and the Appointing Authorities and it was not left open to them to ignore these instructions or to act contrary to the directions contained in it. The instructions contained in the circular for making system are so rigid that they ourtail or restrict the powers conferred on the Selection Committees and the Appointing Authorities by the rules and they are opposed to the selection to be made strictly on merit as provided under Rules 28-B and 32." In para 53 of the judgment their Lordships brought out the distinction between the two circulars and proceeded to observe : "The object of the circular may be to bring about uniformity in the award of marks. But the directions contained therein do offend the rules. This is not a case of the Government filling up the gaps or of giving executive instructions on matters not provided for by or not inconsistent with the Rules. The learned Judges of the Division Bench of the High Court, have by and large, upheld the validity of the making system as well as the other instructions contained in the circular of 1966 on the ground that the marking system as pointed out by the State has been in vogue from 1960, on the basis of a previous circular, dated August 31,1960, issued by the State Government. Reliance placed upon this circular of 1960 by the High Court in our opinion, is not justified. We have gone through the circular of 1960 which is No. F.l (6) Apptts. (D)/60, dated August 31,1960. That circular was issued by the State to clarify the misapprehension that appears to have been caused in the application, for promotion of the principle of merit-cum-seniority or seniority-cum merit. For the purposes of having uniformity, the State Government had laid down certain principles in the said circular to be borne in mind by the Promotion Committees. No doubt there is a marking system indicated therein. But there are two features which distinguish the circular. If 1960 from that of the 1966 circular. In paragraph 3 of the former circular, it is specifically laid down that the principles mentioned therein are only in the nature of executive instructions to be kept in view by the Committees when making promotions. It is made . But there are two features which distinguish the circular. If 1960 from that of the 1966 circular. In paragraph 3 of the former circular, it is specifically laid down that the principles mentioned therein are only in the nature of executive instructions to be kept in view by the Committees when making promotions. It is made . clear that those Committees "should, however, exercise their own discretion while applying the above principles in view of the fact that occasionally the Confidential Rolls may not have been written with full sense of responsibility. Moreover, some of the rules permit interview before selection and in such cases the Selection Committee will have to assess suitability of the officer as a result of the interview also." Under the circular of 1960, we have already indicated no such discretion is left to the Selection or Promotion Committee to adopt any method other than that indicated in the circular. In fact it is emphasised that the Statutory Service Rules and the instructions contained in the circular are to be treated as a complete code by the Committees. Another point to be noted is that in 1960 the question of promotion on the basis of merit alone had no place. That principle was adopted only, as pointed out by us earlier, in 1965 which led to the amendment of the rules. Therefore, the principles mentioned in the circular of 1960 cannot be relied on when considering the validity of the present circular, when promotion by merit alone has been recognised by the Rules from 1965. We have already indicated that the instructions in the 1966 circular contravene the Rules. Therefore, we are of the opinion that the circular, dated August 27, 1966, is bad and accordingly it is struck down. We make it clear that we express no opinion on the validity or otherwise of the circular of August 31, 1960. We have only referred to that circular to show that the High Court has committed an error in placing reliance on the same." (14) What has been done by the impugned circular dated 17.7.1989 is to put a complete bar on exercise of discretion by the DPC or the competent appointing authority. Every possibility of application of mind by a competent appointing authority has been ruled out by virtue of circular dated 17.7.1989. In my considered opinion this is clearly impermissible under law. Every possibility of application of mind by a competent appointing authority has been ruled out by virtue of circular dated 17.7.1989. In my considered opinion this is clearly impermissible under law. The power which has been conferred on the Government by Rule 24 A (15) and similar provisions contained in other Rules to deal with the promotion of government servants provisionally has in effect been used for completely obliterating the discretion of the DPC and the competent authorities and virtually stultifying the statutory discretion vested in them by the rules. Therefore, this part of the instructions cannot be treated as supplementing the rules. They are clearly contrary to the scheme of the rules relating to promotions. (15) There is yet another aspect of the matter which cannot altogether be ignored. In various Service Rules criteria for promotion is seniority-cum merit. When criteria for promotion is seniority-cum merit, ordinarily a person who does not have any adverse record during the period under consideration, has a right to be promoted. By virtue of circular dated 17.7.1989, the DPC cannot make recommendation for promotion even on seniority-cum merit irrespective of the fact that otherwise a person might be suitable and irrespect of the fact that the delinquency for which he is being proceeded against may be of remote past and he may have been promoted on the higher post, in the meanwhile. Once the disciplinary enquiry has been initiated or has been proposed to be initiated sealed cover procedure will have to be followed as a matter of course in terms of the circular dated 17.7.1989. Thus the discretion of the competent authority is totally stultified by virtue of circular dated 17.7.1989. (16) On the basis of the above discussion it must be held that the circulars dated 4.1.1977 and 17.7.1989 are ultra vires to Rule 24 A (15) of 1954 Rules in so far as these circulars provide for application of sealed cover procedure in cases of government servants against whom departmental proceedings is not under progress but in whose cases only a decision has been taken to initiate departmental proceedings. Para 2.1 of the circular dated 17.7.1989 is ultra vires to the scheme of Rule 24A (12) and (13) and (14) of Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954 and similar other rules in so far as it completely negates the discretion of the DPC as also of the Government and other competent authority even to make provisional promotion of a person against whom disciplinary enquiry is pending or is proposed and to this extent these circulars are quashed. (17) Coming to the facts of the case in hand it is to be seen that no charge sheet had been served on the petitioner so far. The notice which was issued to the petitioner on 15.4.1982 relate to his working of 1979. However, only on account of this notice, the petitioner has been denied promotion to the post of Superintending Engineer. Once I have held that the sealed cover procedure cannot be allowed in a case of government servant against whom the departmental enquiry has not been initiated, it must further be held that non-promotion of the petitioner to the post of Superintending Engineer is illegal. The petitioner has been subjected to discrimination and his right of equality has been violated. (18) The writ petition is, therefore, allowed. The circular dated 4.1.1977 and 17.7.1989 are declared ultra vires to the Rules and are quashed to the extent stated hereinabove. Denial of promotion to the petitioner to the post of Superintending Engineer (Civil) is also declared as illegal. The respondent Government is directed to consider the case of the petitioner for promotion to the post of Superintending Engineer afresh in the light of the observations made in this order and if he is otherwise found suitable to give him promotion as Superintending Engineer with retrospective effect i.e. a date from which his junior has been promoted and also give him all consequential benefits. This exercise must be undertaken and completed within four months of the receipts of the certified copy of this order. Costs made easy.