UNION OF INDIA v. PAL SINGH — 1999 DIGILAW 396 (GUJ)

C. K. THAKKER, C. K. BUCH, J. ( 1 ) BEING aggrieved by the judgment and order passed by the learned Single Judge in SCA 3650 of 1998 on July 23, 1998, the present appeal is filed by the Union of India and others. Respondent was the original petitioner. He preferred Special Civil Application No. 3650 of 1998 for appropriate writ, order or direction in terms of para 11 which reads as under:"11. A. Be pleased to allow this petition and be pleased to quash and set aside the orders dated 22. 12. 1994 and 8. 7. 1995 declaring the same illegal and void. B. Be pleased to direct the respondent to pass the order of promotion prior to the date of promotion of junior to the post of A. S. I. and to pay all consequential benefits with arrears in accordance of law and be pleased to allow the seniority notionally, pending admission and final disposal of this petition. C. Be pleased to direct the respondent not to withhold the next due promotion of S. I. which is under consideration before No. 2 and be pleased to direct respondent No. 2 to consider the case of promotion of S. I. from the date the junior is promoted. D. Be pleased to direct the respondents to pay all the due arrears i. e. leave encashment, yearly bonus and F. P. A to the petitioner as ordered by the Honourable High court of Jammu and Kashmir and Calcutta High court. E. Any other and further relief that may be deemed fit just and proper in the interest of justice be granted. F. Cost of this petition be awarded. " ( 2 ) THE case of the petitioner was that he was appointed in 1970 with the present appellants. In 1983, he was working at Central Industrial Security Force Unit, at Srinagar. On 9/08/1983, theft was committed and the petitioner was placed under suspension. He preferred a petition in the High court of Jammu and Kashmir which was allowed and the action taken against the petitioner was quashed and set aside. In April, 1988, he was promoted as Head Constable with effect from 1/04/1988. It was his case that in the cadre of Head Constable, he was senior to one Jai Shanker. He preferred a petition in the High court of Jammu and Kashmir which was allowed and the action taken against the petitioner was quashed and set aside. In April, 1988, he was promoted as Head Constable with effect from 1/04/1988. It was his case that in the cadre of Head Constable, he was senior to one Jai Shanker. For that, our attention was invited by the learned counsel for the petitioner to the fact that the date of appointment of the petitioner was 4/10/1970; whereas, Jai Shanker was appointed on 14/10/1970. ( 3 ) THE next promotional post from the post of Head Constable was Assistant Sub-Inspector ("asi" ). According to the petitioner, his case was required to be considered for promotional post of ASI and if found fit, he was to be promoted in the year 1988. He was,however, not promoted to the post of ASI on the ground that a departmental inquiry was pending against him. The case of the petitioner was, hence, considered for promotion to the post of ASI but was kept in a sealed cover and the inquiry proceeded further. In October 1991, inquiry proceedings were over and he was exonerated. In the light of the said fact, sealed cover was opened. According to the department,however, the petitioner was found fit to be promoted to the post of ASI in the year 1990 and accordingly, he was promoted to the said post on November 15, 1991, but was given deemed date of promotion from 1/09/1990. On the other hand, Jai Shanker who was junior to the petitioner came to be promoted as ASI earlier and was further promoted to the post of Sub Inspector ("si") in 1994. The petitioner, therefore, felt aggrieved and filed the above petition. ( 4 ) THE learned Single Judge was of the view that the petitioner was entitled to be promoted to the post of ASI from the date on which junior to him viz. Jai Shanker was promoted and accordingly, the authorities were directed to give notional promotion to the petitioner on the post of ASI with effect from 1/08/1988 when Jai Shanker was promoted. Regarding further promotion to the post of SI, the learned Single Judge observed that it would be open to the petitioner to make fresh representation and if such representation would be made, the authorities were directed to decide the same expeditiously. Regarding further promotion to the post of SI, the learned Single Judge observed that it would be open to the petitioner to make fresh representation and if such representation would be made, the authorities were directed to decide the same expeditiously. Relevant part of the judgment reads as under :"in view of this, there can be no other conclusion than that the petitioner has been arbitrarily deprived of his promotion on the post of ASI at the time when it was due to him. So far as the further promotion to the post of SI is concerned, the same is kept open. In view of the aforesaid,this Special Civil Application is allowed. Respondent is directed to give the petitioner notional promotion on the post of ASI w. e. f. 1. 8. 1988 when the persons junior to him were promoted. For the further promotions and other benefits, it will be open for the petitioner to make fresh representation and if such representations are made, the same shall be decided by the appropriate authorities without being influenced of their earlier decisions. Rule made absolute to the aforesaid extent. No order as to costs. " ( 5 ) BEING aggrieved by the aforesaid judgment and order, Union of India has filed the present appeal. ( 6 ) WE have heard Mr. Jayant Patel,learned counsel for the appellant and Ms Madhuben Sharma for the respondent. ( 7 ) IT was the case of the petitioner before the learned Single Judge that by not promoting him to the post of ASI, illegality was committed. It was submitted that at the relevant time when the petitioner was required to be considered for the promotional post of ASI, in view of the pendency of a departmental inquiry against him, he was not promoted. The authority hence rightly adopted sealed cover procedure. In 1991, the inquiry proceedings were over and the petitioner was totally exonerated. He was therefore, promoted in 1991 with effect from September 1990. In the light of the said decision, his seniority was also changed and he was placed between Sr. No. 3682 and 3683 (at 3682-A ). The grievance of the petitioner ,however, was that when he was totally exonerated, there was no earthly reason for not promoting him to the post of ASI from 1988 when he became due and eligible. In the light of the said decision, his seniority was also changed and he was placed between Sr. No. 3682 and 3683 (at 3682-A ). The grievance of the petitioner ,however, was that when he was totally exonerated, there was no earthly reason for not promoting him to the post of ASI from 1988 when he became due and eligible. The stand of the authorities before the learned Single Judge was that the case of the petitioner was considered for promotion to the post of ASI in 1988 and in 1989 but he was not found fit and that is why he was not promoted. In 1990 the petitioner was found fit and he was given deemed date of 1990. But as he was not found fit for two years in 1988 and 1989, by refusing promotion, no illegality was committed by the authorities and the learned Single Judge committed an error of law and of jurisdiction in directing the authorities to promote the petitioner to the post of ASI from 1. 8. 1988. In the alternative it was submitted that even if the learned Single Judge was satisfied that the action of the respondent authorities was bad in law and his case was required to be considered in the light of the rules and regulations in force, at the most only direction which could have been issued by the learned Single Judge would be to consider the case of the petitioner in accordance with law. ( 8 ) MS. Sharma, on the other hand, submitted that that the order passed by the learned Single Judge was quite legal and proper. She further submitted there was no earthly reason not to give promotion to the petitioner from the post of Head Constable to the post of ASI. She also submitted that the criterion for granting promotion from the post of Head Constable to the post of ASI was of "seniority cum merit" and as per settled law, in case of "seniority cum merit", the negative test must be applied and unless a person is found to be unfit, he could not be superseded. She also submitted that the criterion for granting promotion from the post of Head Constable to the post of ASI was of "seniority cum merit" and as per settled law, in case of "seniority cum merit", the negative test must be applied and unless a person is found to be unfit, he could not be superseded. She submitted that in the light of the above test, the learned Single Judge directed the authorities to show the Confidential Report of the petitioner and considering them, the learned Single Judge stated:"along with the reply, the nominal roll considered for promotion on the post of ASI has also been produced as Annexure `a. It indicates reportings of the ACRs as follows; 1981 satisfactory 1982 satisfactory 1983 not available 1984 not available 1985 not available 1986 satisfactory 1987 good 1988 good. In column 19, it is stated "not yet fit. "". . . IN view of this, there can be no other conclusion than that the petitioner has been arbitrarily deprived of his promotion on the post of ASI, at the time when it was due to him. So far as the same is kept open. In view of the aforesaid, this Special Civil Application is allowed. Respondent is directed to give the petitioner notional promotion on the post of ASI w. e. f. 1. 8. 1988 when the persons junior to him were promoted. For the further promotions and other benefits, it will be open for the petitioner to make fresh representation and if such representations are made, the same shall be decided by the appropriate authorities without being influenced of their earlier decisions Rule made absolute to the aforesaid extent. No order as to costs. " ( 9 ) FROM the above it is clear that the Confidential Reports of the petitioner was satisfactory for the years 1981 and 1982. For three years i. e. 1983,1984 and 1985, the Confidential Reports were not available as his services were terminated. In 1986 it was satisfactory and in the year 1987 as well as in 1988, they were good. ( 10 ) IF in the light of the above facts, the learned Single Judge has issued a mandamus directing the respondent authorities to give promotion to the petitioner to the post of ASI with effect from 1. 8. In 1986 it was satisfactory and in the year 1987 as well as in 1988, they were good. ( 10 ) IF in the light of the above facts, the learned Single Judge has issued a mandamus directing the respondent authorities to give promotion to the petitioner to the post of ASI with effect from 1. 8. 1988, it cannot be said that such an order could not have been passed by the learned Single Judge. She, however, submitted, that even if this court was of the opinion that no such direction could have been issued by the learned Single Judge, the appeal may be allowed by directing the authorities to consider the case of the petitioner in accordance with law for the post of ASI. So far as further promotion is concerned the learned Single Judge himself has made it clear that the authorities will take an appropriate decision. ( 11 ) HAVING heard the learned advocates for the parties, we are of the opinion that the LPA deserves to be partly allowed. We are not shown statutory rules for promotion from the post of Head Constable to the post of ASI. It was the case of the petitioner before the learned Single Judge that it was "seniority cum merit". If it is so, obviously negative test must be applied and unless a senior person is found to be unfit, he cannot be superseded (vide State of Mysore and anor. vs Saiyed Mohmed and ors AIR 1968 SC 1113 ). But there is substance in the argument of Ms. Sharma that a bald statement made in the affidavit in reply by the authorities that the case of the petitioner was considered in 1988 and 1989 and he was not found fit cannot be accepted on its face value in the light of the fact that the learned Single Judge perused Confidential Reports of the petitioner of eight years. For three years, they were satisfactory, for two years, they were good and for remaining three years, they were not available. ( 12 ) IN our opinion therefore, the case will have to be considered in the light of the Statutory Rules if any and in absence of such Rules on the basis of norms, guidelines, administrative instruction and/or policy adopted and followed by the respondent. ( 12 ) IN our opinion therefore, the case will have to be considered in the light of the Statutory Rules if any and in absence of such Rules on the basis of norms, guidelines, administrative instruction and/or policy adopted and followed by the respondent. Therefore, to the extent that the learned Single Judge has issued mandamus directing the authorities to give promotion to the petitioner with effect from 1. 8. 1988 cannot be sustained. In Syed Mohmood, almost in similar circumstances, a direction was issued by the High Court to give promotion to the petitioners. When the State approached the Apex Court, the Honourable Court observed that" the High Court should not have directed the authorities to give promotion to the officers but ought to have issued mandamus ordering them to consider their cases as if the question had arisen in 1959 when the cases of other candidates similarly situated were considered and to pass appropriate orders including the benefits to which the petitioners were entitled to. ( 13 ) IN the instant case also the order passed by the learned Single Judge directing the authorities to give promotion to the petitioner to the post of ASI with effect from 1. 8. 1988 is quashed and set aside. Instead a direction is issued to the respondent authorities to consider the case of the petitioner as and when he became due for promotion to the post of ASI in the light of statutory Rules and/or policy in force considering his Confidential Reports. The authorities will also pass appropriate order as to from which date the petitioner was to be promoted and to other consequential benefits on the basis of the decision arrived at by them. ( 14 ) SO far as further promotion to the post of S. I. is concerned, we see no reason to interfere with the order passed by the learned Single Judge as the learned Single Judge has allowed the petitioner to make fresh representation and the authorities were directed to decide the said question in accordance with law. ( 15 ) THE authorities will comply with the directions as expeditiously as possible, preferably within six months from the receipt of the writ by this court. ( 16 ) FOR the foregoing reasons, the LPA deserves to be allowed partly and is accordingly partly allowed. ( 15 ) THE authorities will comply with the directions as expeditiously as possible, preferably within six months from the receipt of the writ by this court. ( 16 ) FOR the foregoing reasons, the LPA deserves to be allowed partly and is accordingly partly allowed. In the facts and circumstances there will be no order as to costs. .