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2001 DIGILAW 745 (AP)

P. Maruthi Devi v. Government of India

2001-07-19

S.B.SINHA, V.V.S.RAO

body2001
S. B. SINHA, C. J. ( 1 ) THIS writ petition is directed against a judgment passed by the central Administrative Tribunal in Original application No. 1247 of 1998. The basic fact of the matter is not in dispute. ( 2 ) THE petitioner was appointed on 16. 3. 1989 as Scientist in the Electronics Test and Development Centre, Department of electronics. She along with others were called for interview before the departmental promotion committee in the year 1997 for considering them for promotion and by an order dated 25. 3. 1998 her juniors were promoted whereagainst she made a representation to the Secretary, Department of Electronics on 24. 4. 1998 to consider her case also for promotion. Allegedly when no action thereupon was taken, she approached the Central Administrative Tribunal by filing the aforementioned original application seeking to set aside the order dated 25. 3. 1998. ( 3 ) BEFORE the learned Tribunal the stand taken by him was that the impugned order of promotion granted in favour of the 5th respondent was passed with mala fide intention on the part of the 4th respondent who was bearing grudge against the petitioner having regard to the writ petition filed by the Department of Electronics sc/st Employees Welfare Association. It was further suggested that the 4th respondent and the Director-General of Standardization, testing and Quality Certification colluded with each other so as to grant less marks to the petitioner. ( 4 ) THE learned Tribunal has found that the allegations of mala fide against the 4th respondent could not be proved as in the assessment of the SCRs the petitioner obtained 24 marks whereas the 5th and 6th respondents had obtained 24 and 25 marks respectively against total marks of 30. It was also found that in the interview the petitioner secured 40 marks out of 70 marks whereas 5th and 6th respondents had secured 50 marks. The learned Tribunal came to the conclusion that on 28. 12. 1998 the 4th respondent had not been functioning as director of ETDC and neither he nor the director-General of Standardization, Testing and Quality Certification had been acting as a member of the departmental promotion committee. Before us, however, Mr. G. S. Rao, the learned Counsel appearing on behalf of the petitioner apart from reiterating the aforementioned contentions raised two further contentions. Before us, however, Mr. G. S. Rao, the learned Counsel appearing on behalf of the petitioner apart from reiterating the aforementioned contentions raised two further contentions. The learned Counsel would contend that the departmental promotion committee was not constituted according to the rules. It was submitted that as per the guidelines issued by the Central government where one member of the scheduled Caste candidate is considered for promotion, one of the members of the departmental promotion committee should be Scheduled Caste/scheduled Tribe. According to the learned Counsel it was obligatory on the part of the respondents herein to follow the said guidelines and failure to do so had invalidated the entire proceedings. The learned Counsel would also contend that while considering the cases of the parties the seniority of the petitioner had been totally overlooked as a result whereof, the authorities came to a wrong conclusion. ( 5 ) MR. M. Ratna Reddy, the learned counsel appearing on behalf of the Central government, however, would submit that in the instant case the question of mala fide on the part of the 4th respondent did not arise inasmuch he did not participate in the departmental promotion committee. The learned Counsel would contend that no allegations having been made as against the other members of the departmental promotion committee the learned Tribunal has rightly rejected the said contention. It was submitted that the constitution of departmental promotion committee cannot be said to be illegal inasmuch as the outside members were made members of the committee. ( 6 ) SO far as the allegation of mala fide against the 4th respondent is concerned, we are of the opinion that having regard to the findings arrived at by the learned tribunal, it must be held, that the petitioner had not been able to prove her allegation of mala fide. It is now well settled principle of law that plea of malice not only should specifically be raised but also should be proved. There cannot be any doubt having regard to the decision of the Apex Court in smt. S. R. Venkataraman v. Union of India and others, AIR 1979 SC 49 , that any action taken for any unauthorised purpose would amount to malice in law. But we must remind ourselves that it is now well settled that malice has to be pleaded and proved by cogent material evidence. S. R. Venkataraman v. Union of India and others, AIR 1979 SC 49 , that any action taken for any unauthorised purpose would amount to malice in law. But we must remind ourselves that it is now well settled that malice has to be pleaded and proved by cogent material evidence. (See Vijayawada municipality v. A. P. S. E. Board, AIR 1977 sc 87, Kedar Nath v. State of Punjab, AIR 1979 SC 220 , Keshab Roy v. State of W. B. , (1973) 3 SCC 216 ). It is also interesting to note that in Regional Manager v. Pawan kumar Dubey, (1976) 3 SCC 334 , the Apex court has held that normally question of malice may not be gone into in a writ proceeding. Malice in fact is required to be conclusively proved in a properly instituted proceedings before an appropriate forum in accordance with law. This aspect of the matter has been considered by this Court in writ Appeal Nos. 421 and 356 of 2001 disposed of on 11. 6. 2001. In Prabodh Sagar v. Punjab State Electricity Board, (2000) 5 scc 630 , the apex Court held:. . . . . . Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. We ourselves feel it expedient to record that the petitioner has become more of a liability than an asset and in the event of there being such a situation vis-a-vis an employee, the employer will be within his liberty to take appropriate steps including the cessation of relationship between the employer and the employee. The service conditions of the board s employees also provide foi voluntary (sic compulsory) retirement, a person of the nature of the petitioner, as more fully detailed hereinbefore, cannot possibly be given any redress against the order of the Board for voluntary retirement. There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word "mala fide" by the petitioner would not by itself make the petition entertainable. There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word "mala fide" by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion i. e. , exactly what the High Court has done and that is the reason why the narration has been noted in this judgment in extenso. Tampering of the annual confidential rolls has been alleged but there is no evidence in regard thereto or even to link up the two private respondents therewith. While it is true that the earlier relationship between an employer and employee or between the employees was that of mutual trust, confidence or welfare, presently the situation in general stands polluted and may be even one degree higher than the pollution of the environment, but that does not however clothe the Court to come to a conclusion of mala fide without there being any basic evidence being made available to the Court. ( 7 ) IT is not in dispute that neither the 4th respondent nor the Director-General of Standardisation, Testing and Quality certification took part in the meeting of the departmental promotion committee. ( 8 ) FURTHERMORE, the allegation against the 4th respondent as having malice against the petitioner has rightly been rejected by the learned Tribunal inasmuch as the petitioner has obtained 24 marks for assessment of SCR out of 30 marks earmarked whereas the 5th and the 6th respondents had obtained only 24 and 25 marks respectively. ( 9 ) THE constitution of a departmental promotion committee is done in terms of the rules. The size and composition wherefor would be as follows: (i) Size and Composition: As mentioned in the Recruitment Rules, unless otherwise decided by the Ministry/department/office, for Groups a and b promotions, members will be at least from one level above. For group A promotion by selection, Chairman/member of the UPSC will preside over the meeting. In respect of Groups C and D, chairman of the Committee will be an officer of a sufficiently high level. One of the members will be from outside the department, preferably belonging to SC/st and in appropriate status compatible with other members and the post to which promotion is made. For technical posts, the officer nominated from other department should have the requisite technical competence. One of the members will be from outside the department, preferably belonging to SC/st and in appropriate status compatible with other members and the post to which promotion is made. For technical posts, the officer nominated from other department should have the requisite technical competence. For selection to 10 or more posts in Groups c and D, it is mandatory to have one member from SC/st and one from a minority community. For less than 10 vacancies, no effort should be spared in finding the required number of members from these communities. In Groups A and B services/posts, in the dpc if none is an SC/st officer, a member belonging to SC/st will be co-opted either from within the Ministry/department or from outside. Close relative of any employee in the panel to be considered should not be a member of that DPC. ( 10 ) IN the instant case, the departmental promotion committee was required to be consisted of a Chairman who would be a person of eminence, two outside members one of whom would be an expert representing industry and another academician, and two internal members who are sufficiently senior level officers preferably one from the Government departments. It has not been disputed that the constituted departmental promotion committee is in terms of the aforementioned norms. When one of them had not attended the meeting, the same would not vitiate the entire proceedings. As regards inclusion of a member of a Scheduled Caste/scheduled tribe is concerned, the same has been laid down in Government of India, Department of Personnel and Administrative Reforms office memo dated 10. 8. 1981 and 18. 8. 1983 which is to the following effect:. . it has been suggested that Ministries/departments may endeavour to the maximum extent possible, to nominate a Scheduled caste/scheduled Tribe officer while constituting the Departmental Promotions committee, Selection Boards, etc. , for recruitment/promotions to posts/services under them. Particularly where a Selection board or a Departmental Promotions committee has to make bulk selections for a large number of vacancies, say, for thirty or more at a time, no effort should be spared in finding a Scheduled Caste or Scheduled Tribe officer for inclusion in the Selection Board/departmental promotion Committee. , for recruitment/promotions to posts/services under them. Particularly where a Selection board or a Departmental Promotions committee has to make bulk selections for a large number of vacancies, say, for thirty or more at a time, no effort should be spared in finding a Scheduled Caste or Scheduled Tribe officer for inclusion in the Selection Board/departmental promotion Committee. According to the Department of Personnel and AR, Office memorandum dated 29th january, 1973, in respect of a Departmental promotions Committee for a Group C or group D post, one of the members of the committee should be an officer from a department not connected with the one in which promotions are considered. It has been provided in the Department of Personnel and AR Office memorandum dated 8th April, 1974 that in the event of a Scheduled Caste/scheduled tribe officer not being available in the Ministry/department itself for nomination in the Departmental Promotions committee, there is no objection to nominating, to the extent possible, a scheduled Caste/scheduled Tribe officer from another Ministry/department. Having regard to the point made in the consultative Committee for the Ministry of home Affairs, it has not been decided that in cases where an outside representative is inducted as a member of a DPC he should invariably be an officer belonging to SC/st community and only where this is impracticable, should an officer belonging to sc/st from the same department be nominated to the DPC. In the event of an officer belonging to SC/st not being available for nomination to the DPC, either from outside organisations or from the same department, an endorsement to this effect should be obtained before holding the meeting of the DPC from the Liaison Officer of the Ministry/department/office concerned with the DPC to the effect that all efforts have been made to find a SC/st officer for the DPC, but with no success. ( 11 ) A bare perusal of the aforementioned provision would clearly show that nomination of Scheduled Caste/scheduled Tribe officer in the departmental promotion committee is not mandatory. Furthermore, a suggestion had been issued therein to make an endeavour to the maximum extent possible to nominate such an officer where bulk selection has to be made for a number of vacancies say for 30 or more at a time. Furthermore, a suggestion had been issued therein to make an endeavour to the maximum extent possible to nominate such an officer where bulk selection has to be made for a number of vacancies say for 30 or more at a time. The number of vacancies in the instant case was two and in that view of the matter also the aforementioned provision cannot be said to have any application in the instant case. ( 12 ) WE, therefore, do not find any merit in the contention of Mr. G. S. Rao. ( 13 ) BEFORE parting with this case we may however notice that by an order dated 11. 3. 1999 the names of the 5th and the 6th respondents had been deleted. The said order dated 11. 3. 1999 had not been produced before us. We do not know as to how the 5th and the 6th respondents had again been arrayed as parties in this writ petition. We may further notice that the petitioner has also been promoted with effect from 1. 1. 1999. Her only grievance as it stands now seems to be that she should have been promoted with effect from 1. 1. 1998. Having regard to our findings aforementioned such a relief cannot be granted in favour of the petitioner. There is thus no merit in this writ petition which is accordingly dismissed. There shall be no order as to costs.