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2000 DIGILAW 123 (RAJ)

Kewal Kumar Gupta v. State of Raj.

2000-02-02

SHIV KUMAR SHARMA

body2000
Honble SHARMA, J.–The petitioners seek to quash the order dated September 9, 1997 of the Rajasthan Civil Services Appellate Tribunal Jaipur. Grievance of the petitioners is that the Tribunal committed illegality in straightway directing the State Government to promote respondent No.2 against the quota of 1991-92 in Selection Scale of RAS. As a result of the decision of Tribunal respondent No.2 has become senior to the petitioners and their rights of further promotion have been seriously jeopardised. (2). As per averments of the writ petition the respondent No.2 was junior to the petitioners in terms of the order dated Feb. 23, 1996 (Annexure-1). This order was challenged by the respondent No.2 by the filing an appeal before the Tribunal. The appeal stood allowed by the Tribunal vide order dated Sept. 9, 1997 which has been called in question in the instant writ petition. A look at the impugned order demonstrates that the learned Tribunal at its own arrived at a conclusion in up-grading the Annual Performance Appraisal Reports (for short the APAR) of the respondent No.2 of the year 1987-88 from `Good to `Very Good. Admittedly the petitioners were not impleaded as party before the Tribunal. (3). In the written statement it was pleaded by the respondent No.2 that in view of the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 (for short the Act of 1976) the powers of the Service Tribunal are co-extensive with the powers of the Government. In the facts and circumstances of given case the Tribunal can pass order under Section 4(2) of the Act of 1976 to promote a Government servant. In the appeal before the Tribunal, the respondent No. 2 had impleaded S.D. Sharma as he was only the aggrieved party. Inspite of the fact that the petitioners were superseded by their juniors they never felt aggrieved. They never claimed for promotion against the years for which they were not selected for merit promotion inspite of being considered. On the other hand the respondent No.2 being aggrieved by his supersession by his junior S.D. Sharma, preferred an appeal before the Tribunal. The persons who were considered for merit promotion but not found suitable were neither necessary parties nor they are affected by the order of the Tribunal. The petitioners only had a right to be considered for selection and this right was given to them. The persons who were considered for merit promotion but not found suitable were neither necessary parties nor they are affected by the order of the Tribunal. The petitioners only had a right to be considered for selection and this right was given to them. The petitioners have no claim for merit vacancies of the year 1991-92. It was also averred by the respondent No.2 that the petitioner No.1 has already filed appeal before the Tribunal. The petitioners have approached this court with uncleaned hands and the writ petition deserves to be dismissed on this ground alone. (4). I have pondered over the rival submissions and carefully weighed the material on record. (5). First limb of arguments of Mr. Ajay Rastogi, learned counsel appearing for the petitioners is that the learned Tribunal passed order dated September 9, 1997 directing the respondent State to promote the respondent No.2 in Selection Scale against the quota of 1991-1992 on the basis of merit whereby the present petitioners who are senior to the respondent No.2 and as per recommendations made by the review Departmental Promotion Committee dated Feb. 23, 1996, became senior to him by virtue of Rule 33 (1)(iii) of the Rajasthan Administrative Service Rules, 1954 (in short the Rules of 1954) committed illegality as no opportunity was afforded to the petitioners as they were not parties before the Tribunal and the impugned order of the Tribunal is against the principles of natural justice and consequential orders passed by the Government on March 26, 1998 is also not sustainable. Reliance was placed on Arun Tewari vs. Zila Mansavi Shikshak Sangh and others (1) and Anil Kattiyar vs. Union of India and others (2). (6). A combined look at the scheme of the Rules of 1954 demonstrates that the vacancies shall be determined on 1st April every year which are required to be filled by promotion during the financial year. Selections for the post of selection scale of RAS shall be made on the basis of merit and on the basis of seniority cum merit in the proportion of 50:50. All the persons falling in zone of consideration have a right to be considered for promotion. Promotion against merit vacancies shall be made strictly on the basis of criteria laid down in `Explanation appended with Rule 28B 11(c). Seniority in next lower grade has secondary role to play for selection against merit vacancies. All the persons falling in zone of consideration have a right to be considered for promotion. Promotion against merit vacancies shall be made strictly on the basis of criteria laid down in `Explanation appended with Rule 28B 11(c). Seniority in next lower grade has secondary role to play for selection against merit vacancies. It is relevant only in preparing list of persons selected for promotion on the basis of seniority cum merit and/or on the basis of merit, as the case may be equal to the number of vacancies determined for a particular year. The seniority of persons promoted to higher category of posts shall be determined from the date of their regular selection to such posts. The persons selected in any subsequent year and the seniority inter se of person selected on the basis of seniority cum merit and on the basis of merit in the same selection shall be the same as in the next below grade. It is not disputed that the petitioner No.1 was initially promoted to selection scale of RAS by the order dated Feb. 10, 1992 against the seniority cum merit vacancies of the year 1991-92. Petitioner No.2 was also promoted in selection scale on the basis of seniority cum merit by order dated August 21, 1992 against the vacancies of the year 1992-93. Petitioners 3, 4 and the respondent No.2 were promoted by the order dated June 13, 1994 against the seniority cum merit vacancies of the year 1994-95. None of the petitioners and the respondent No.2 were passed over by their juniors in respect of their promotion in selection scale because their promotions were on the basis of seniority cum merit. All the petitioners were considered for merit promotion against the vacancies of the year 1991-92 but there junior Mr. S.D. Sharma was selected instead. A look at the material on record reveals that inspite of the fact that all the petitioners were superseded by their juniors, they never felt aggrieved. They never claimed for promotion against the years for which they were not selected for merit promotion inspite of being considered. It appears that respondent No.2 being aggrieved by his supersession by his junior Mr. They never claimed for promotion against the years for which they were not selected for merit promotion inspite of being considered. It appears that respondent No.2 being aggrieved by his supersession by his junior Mr. S.D. Sharma against merit quota of 1991-92 preferred appeal before the Tribunal challenging the proceedings of the DPC on the ground that DPC had erred by holding him not suitable for promotion against the merit vacancies of the year 1991-92. Mr. S.D. Sharma was impleaded as the party in the appeal before the Tribunal. I am unable to pursuade myself to agree with the submissions advanced before me by Mr. Rastogi that the petitioners were necessary parties before the Tribunal. The petitioners are not able to establish that they had claim for merit vacancies of the year 1991-92. In my considered opinion seniority in the next below grade is only seen while deciding inter se of the persons selected on the basis of seniority cum merit and merit in a particular year. The petitioners had not shown any grievance of their supersession by the officers including Mr. S.D. Sharma and they did not challenge their supersession. Moreover the petitioner No.1 also preferred appeal No. 1313/99 before the Tribunal, which is pending as yet. The prayer made in aforesaid appeal No. 1313/99 by the petitioner No.1 demonstrates that the petitioner No.1 had no grievance against the selection of respondent No. 2. (7). To be considered against merit quota for the year 1991-92 a person must have `outstanding or `very good APARs for last preceding 7 years. The petitioners in the instant writ petition have not stated that they are having `outstanding or `very good APARs for last preceding 7 years. Under these circumstances I am of the view that the petitioners have no legal right or claim for year 1991-92 and they were not necessary parties in the appeal preferred by the respondent No.2. (8). In Arun Tewaris case (supra) it was indicated by their Lordships of the Supreme Court that the court ought not have decided a writ petition without impleading the affected persons as respondents or atleast some of them. The ratio of Arun Tewaris case is not applicable in the instant writ petition. The respondent No.2 already impleaded Mr. (8). In Arun Tewaris case (supra) it was indicated by their Lordships of the Supreme Court that the court ought not have decided a writ petition without impleading the affected persons as respondents or atleast some of them. The ratio of Arun Tewaris case is not applicable in the instant writ petition. The respondent No.2 already impleaded Mr. S.D. Sharma being affected party and as the petitioners do not come in the category of affected parties they were not impleaded by the respondent No.2. (9). Second limb of arguments of Mr. Ajay Rastogi, learned counsel is that the Tribunal has seriously erred in passing the final order promoting the respondent No.2 against the quota and selection scale of 1991-92 in RAS. In order to appreciate this submission, it will be necessary to examine the relevant provisions of the Act of 1976. Section 4 of Act of 1976 provides thus- ``Section 4. Duties of the Tribunal-(1) The Rajasthan Civil Services Appellate Tribunal shall hear an appeal against the order passed by any officer or authority on any service matter or matters affecting a Government servant in his personal capacity. (2) The Tribunal shall have power to confirm, vary or reverse the order against which the appeal is preferred or to remand the matter for fresh decision in accordance with the directions given by it. (10). The Division Bench of this Court in State of Rajasthan vs. Aklanka Jindel and others (3) had occasion to examine section 4(2) of the Act of 1976 and it was indicated thus- ``The powers of the Service Tribunal are co-extensive with the powers of the Government. Normally the function of the DPC should not be assumed by the Government and it acts on the recommendations made by the DPC. However, in the facts and circumstances of a given case, the Tribunal can pass an order in exercise of its powers under section 4(2) of the Act of 1976 to set aside the order of reversion of a government servant and to direct the State Government to promote him without calling a fresh DPC. This would depend on the facts of each individual case and the tribunal can take this view in a matter where no fresh material has to be taken into consideration by the DPC and the view taken by the DPC is held to be wrong and illegal. (11). This would depend on the facts of each individual case and the tribunal can take this view in a matter where no fresh material has to be taken into consideration by the DPC and the view taken by the DPC is held to be wrong and illegal. (11). Again in Rajendra Singh vs. State of Rajasthan and others (4) the Division Bench of this Court placing reliance on State of Rajasthan vs. Aklanka Jindel and others (supra) propounded that the jurisdiction of Tribunal is co-extensive with that of the departmental promotion committee/appointing authority. The Tribunal can exercise those powers which are exercisable by the departmental promotion committee or by the appointing authority. It was clarified that the Rajasthan Civil Services Appellate Tribunal exercises appellate jurisdiction and not a supervisory jurisdiction as is exercised by the Central Administrative Tribunal constituted under the Administrative Tribunals Act, 1985. (12). In the impugned order dated September 9, 1997, the learned Tribunal observed that the DPC has not appreciated and appraised the relevant record of the respondent No.2 properly and his performance for year 1987-88 was not evaluated correctly. The reporting officer for the years 1986-87 and 1987-88 was the same officer. His evaluation for the year 1986-87 was `outstanding/very good but inspite of assessing the work of the respondent No.2 in the APAR of the year 1987-88 as `important contribution his over all assessment was recorded only `good without recording any reason for this down grading. The respondent No.2 was also awarded with a State level merit certificate appreciating his services and efficient work disposal in a State level function on 15.08.1996. His outstanding work during 1987 to 1989 as SDO Nagaur was specifically appreciated in the citation. The learned Tribunal after placing reliance on the ratio of UP Jal Nigam vs. Prabhat Chand Jain (5) observed that down grading of the evaluation in the APAR of 1987-88 from `outstanding to good by the reporting officer without assigning any reason was unsustainable. Looking to the assessment in APARs of other relevant years and work performance of the year 1987-88, the learned Tribunal found the respondent No.2 suitable for promotion against merit vacancies of the year 1991-92 prior to Mr. S.D. Sharma. (13). Looking to the assessment in APARs of other relevant years and work performance of the year 1987-88, the learned Tribunal found the respondent No.2 suitable for promotion against merit vacancies of the year 1991-92 prior to Mr. S.D. Sharma. (13). In UP Jal Nigam vs. Prabhat Chandra Jain (supra) their Lordships of the Supreme Court propounded thus: ``The High Court to justify its view has given an illustration that if an employee legitimately had earned an `outstanding report in a particular year which, in a succeeding one, and without his knowledge, is reduced to the level of `satisfactory without any communication to him, it would certainly be adverse and effect him at one or the other stage of his career... As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from `very good to `good that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidential in the situation is to record reasons for such down grading on the personal file of the officers concerned, and inform him of the change in the form of an advice... ``It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain.... (14). The learned Tribunal in view of the powers provided under section 4(2) of the Act of 1976 had jurisdiction co-extensive with that of Departmental Promotion Committee/appointing authority and in my considered opinion the learned Tribunal has rightly exercised the powers of the departmental promotion committee/ appointing authority in making its own assessment of the APAR of respondent No.2 and recording the finding in upgrading the APAR of 1987-88 from `good to `very good on the basis of the material placed on record by the respondent No.2. The ratio propounded in UP Jal Nigams case (supra) was rightly held applicable in the case of respondent No.2. (15). Case of Anil Kattiyar (supra) is not applicable in the facts and circumstances of this case. The ratio propounded in UP Jal Nigams case (supra) was rightly held applicable in the case of respondent No.2. (15). Case of Anil Kattiyar (supra) is not applicable in the facts and circumstances of this case. In that case it was held by their Lordships of the Supreme Court that having regard to confidential procedure which is followed by the Union Public Service Commission, it was not possible to held that the decision of the DPC in grading the appellant as `very good instead of `outstanding was arbitrary. The Supreme Court perused the confidential procedure followed by the DPCs in the Union Public Service Commission for giving over all gradings, including that of `outstanding to an officer and thereafter refused to interfere with the selection of respondent No.4 by the DPC but set aside the observations of the CAT whereas in the instant case the jurisdiction of the Tribunal is co-extensive with that of Departmental Promotion Committee/Appointing authority in view of Section 4(2) of the Act of 1976. (16). In view of what I have discussed hereinabove, I do not find any merit in the writ petition. It is accordingly dismissed without any order as to costs.