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2002 DIGILAW 1212 (RAJ)

Achleshwar Prasad Gupta v. State of Rajasthan

2002-07-11

D.N.JOSHI, RAJESH BALIA

body2002
Honble BALIA, J.–Heard learned counsel for the parties. (2). This appeal has arisen in the following circumstances:- The appellant was appointed as Assistant Professor in Pediatrics vide order dated 21.08.1980. the appointment was to the Medical and Health Service (Collegiate Branch) of the State of Rajasthan, governed by Rajasthan Medical and Health Service (Collegiate Branch) Rules, 1962 (in short the Rules of 1992 hereinafter). The post of Associate Professor under the Rules of 1962 is filled 100% by promotion. The criteria for promotion to the existing post is 50% on the basis of `seniority-cum-merit and 50% `on merit. Under Rule 24-A(5), the requirement for promotion form the lower post to next higher post or category in the State Service is that candidate must have at least 5 years of service unless a different period is prescribed elsewhere in the Rules. However, this criteria for five years services can be relaxed by the Committee in case of non-availability of the persons with the requisite service of five years if they fulfil the qualification and other conditions for promotion prescribed in the Rules and are found otherwise suitable for promotion on the basis of `seniority-cum-merit. (3). Sub-Rule 5 (a) of Rule 24-A of the Rules provides for selection for promotion form the posts of Lecturer to the post of reader shall be made on the basis of `seniority cum merit and on `merit in proportion to fifty-fifty. In the case of non- availability of suitable persons for selection by promotion, strictly on the basis of `merit in a particular year, selection by promotion on the basis of `seniority cum merit may be made to fill in the vacancies available. (4). The explanation to Sub-rule (11) of Rule 24-A, which prescribe the procedure to be followed by the Committee for considering the promotions on merit under the Rules as it existed at the relevant time, reads as under:- ``Explanation:- For the purpose of selection for promotion on the basis of does not have ``Outstanding or ``Very good record in at least five out of the 7 years preceding the year for which D.P.C., is held. (5). The respondent No.2 Dr. Alok Purohit was also appointed in the year 1980. However, he was not appointed simultaneously alongwith the petitioner-appellant, but his appointment came later because one Dr. (5). The respondent No.2 Dr. Alok Purohit was also appointed in the year 1980. However, he was not appointed simultaneously alongwith the petitioner-appellant, but his appointment came later because one Dr. Ajay Kumar, who had been appointed alongwith the petitioner vide order dated 20.08.1981 had left the job and against the vacancy so caused in December, 1980, Dr. Alok Purohit was appointed thereafter. Thus, on the basis of initial appointment, the respondent No. 2 Dr. Alok Purohit was junior to petitioner as Lecturer in Peadiatrics. (6). In the year 1992-93, the promotion exercise was taken by the Departmental Promotion Committee. As a result of which, two persons were promoted as Readers/Associate Professors in Peadiatric, namely Dr. Deep Shivpuria and Dr. Alok Purohit, for which Dr.Shivpuria has been appointed on `seniority cum merit basis and Dr. Alok Purohit, who was junior to the petitioner had been appointed on `merit basis. This led to filing of the writ petition by the present appellant challenging the promotion of Dr. Alok Purohit. (7). The principal contention was that promotion of Dr. Alok Purohit on merit quota over-looking the claim of the petitioner, who was senior to the respondent No. 2 was in violation of Article 14 and 16 of the Constitution. (8). The grounds, which have been raised in the writ petition are: firstly that the post of Reader in Peadiatric on which Dr. Alok Purohit has been promoted was not vacant at the time of consideration by the D.P.C., against which appointment by promotion on `merit could be considered. secondly, the post, on which Dr. Alok Purohit has been promoted as per the cyclic order should have gone to the `seniority cum merit quota but this has wrongly been assigned by the D.P.C. to `merit quota. thirdly, that the petitioner was more meritorious than the respondent No. 2 Dr. Alok Purohit. fourthly it was alleged that about six months before the selection in question, the said Dr. Alok Purohit was not found fit for the post of Assistant professor, and therefore, he could not have been promoted on the merit quota only after a lapse of six months. (9). Lastly, that the petitioner was on deputation under a foreign Government with the approval of the the Government of India at Libya from the year 1985 to 1990. Alok Purohit was not found fit for the post of Assistant professor, and therefore, he could not have been promoted on the merit quota only after a lapse of six months. (9). Lastly, that the petitioner was on deputation under a foreign Government with the approval of the the Government of India at Libya from the year 1985 to 1990. As per his Performance Report for the year 1985 to 1990 from his foreign employer, which has been sent to the Secretary, Medical and Health Department, Government of Rajasthan, Jaipur through Indian Ambassador at Libya read that during his tenure, petitioners work was of outstanding quality. The said document has been placed on record as Annexure 4 alongwith the writ petition. On this premise, a ground was raised in the petition that as per the A.P.A.R. instructions, when a person has been in foreign assignment, his confidential rolls of the years previous to the one when he has been sent on deputation only are to to be considered in the case of promotion. The instructions issued by the Government shows that the assessment for the purpose of urgent/temporary appointments and the D.P.C. of the performance of State Services Officers for the period they are deputed for service under a foreign Government, for the purpose of urgent/temporary appointments, the performance of the officer concerned during the relevant years could be treated as satisfactory. As for the Departmental Promotion Committee, the gradation of performance of the officer concerned should be treated as equivalent to the gradation of his performance in the previous seven years just before his deputation to a foreign Government. That is, if an officer was sent on deputation in 1974 and he remained abroad upto 1977, the reports on him from 1967-68 to 1973-74 would be looked into and if he is granted as `very good for those years, the gradation for 1974-75, 1975-76 and 1976-77, when he remained abroad, would also be determined to be `very good. (10). Inviting attention to the aforesaid instructions issued by the Government of Rajasthan vide Circular dated 28.12.1976, it was urged that though the performance report submitted by his immediate employer, the Foreign Government, his performance is found to be `Outstanding for the five years, he was under the Foreign Government on deputation, his work performance has been taken to be satisfactory in view of the aforesaid circular. It was also pointed out that if the Performance Report submitted by the Foreign Government is taken into consideration, apparently, the petitioner fulfils criteria of five years minimum Annual Performance Report of `very good category or above so as to bring him within the category of eligible candidate to be considered on merit vacancy. Thus apparently does not appear to have been taken into consideration while finding respondent No. 2 suitable for promotion on merit. (11). The learned Single Judge in his judgment under appeal have noticed all the contentions, contentions of the petitioner that he was more meritorious than the respondent No.2. (12). About the vacancy, the learned Single Judge has found that there were two vacancies available as one vacancy was available and the another was a retirement of one of the incumbents. The contention of the learned counsel for the petitioner that the vacancies, which were due to occur during the ensuing 12 months following 1.04.1992 cannot be taken into consideration, was not considered by the learned Single Judge and in our opinion rightly so. The learned counsel for the appellant also now does not pursue this contention. (13). The contention that the post against which Dr. Alok Purohit was promoted was not available to be filed on merit, was also not accepted by the learned Single Judge inter-alia on the ground that under the Rules, two posts were available and to each quota, one vacancy fell. The D.P.C. has considered the promotion in the ratio of fifty fifty. The is no violation of Rules. (14). We find in explanation given below sub-rule 5 (a) and 6(a) of Rule 24-A that if in a service, in any category of post, number of posts available for promotion is an odd number then for purpose of determining the vacancies for selection by promotion on the basis of seniority cum merit and merit in the proportion 50 : 50, the cyclic order shown in the explanation, namely, the first vacancy by seniority cum merit and subsequent vacancy by merit and the cycle is to be followed unless the post to be filed are exhausted. Apparently, as per this explanation, the first post available to be filed by promotion on seniority cum merit basis and the subsequent thereto by merit quota. Apparently, as per this explanation, the first post available to be filed by promotion on seniority cum merit basis and the subsequent thereto by merit quota. In the present case, the first post has been admittedly filed on the basis of ``seniority cum merit basis and the next post has been filled by applying the merit criteria. This question is also now not persued by the learned counsel for the appellant. (15). The another contention, which did not find favour with the learned Single Judge was that Dr. Alok Purohit could not have filled the merit criteria after six months of his rejection of promotion by earlier D.P.C. and in our opinion rightly so. In the last selection, no person has been selected on the basis of merit and both the persons, who have been appointed on `seniority cum merit basis were senior to the petitioner. As both the persons have been found eligible against seniority cum merit quota and the vacancy of merit quota has not been filled, goes to show that D.P.C. has not found anyone suitable for the promotion, which included the petitioner also. There is no dispute about the fact that after the consideration of the previous posts, the Annual Performance Reports up to year 1990-91 had come. For the consideration of the promotions in question, one more A.C.R. has come into existence, which could make vital difference in the assessment of merit. Be that as it may,this question is also no more persued by the learned counsel for the appellant and we also need not examine the issue. (16). The learned counsel for the appellant has confined his contention before us to the question of non-consideration of his A.P.R. assessed by his foreign employer while he was on deputation by the D.P.C. and by considering his performance on the basis of seven years immediately before his appointment on deputation under Foreign Government. He has invited our attention in this regard to Government instructions concerning the Appraisal of Annual Performance of those government employees, who are on deputation, which is as under:- ``8. He has invited our attention in this regard to Government instructions concerning the Appraisal of Annual Performance of those government employees, who are on deputation, which is as under:- ``8. Drawal of Annual Performance Appraisal Reports in Respect of Employees on Deputation.- (i) In the case of employees on deputation to other departments/organisations which are controlled by the State Government, the Annual Performance Appraisal will be drawn up by the immediate superior officer in the department/organisation, and forwarded to the Head of Department concerned with the department/organisation in the case of subordinate/Ministerial and Class IV employees and to the Secretary of the Administrative Department concerned with the department/organisation in the case of officers belonging to the State Services for adding his remarks. The reports in respect of State Services will then be routed through the Administrative Secretary of the parent department for onward transmission to the Department of Personnel and those in respect of Subordinae, Ministerial and Class IV services to the head of the parent Department for deposit. Where the Head of Department is not the Appointing Authority, he will pass on the reports, after perusal, to the Appointing Authority for deposit. (ii) In the case of employees on deputation to organisations/bodies which are not under the control of the State Government, the Annual Performance Reports will be perused by the Administrative Secretary of the department concerned in the case of State services and by the Head of Department concerned in the case of Subordinate/Ministerial/Class IV services and forwarded to the Department of Personnel/Appointing Authority, as the case may be for deposit. izfrfu;qfDr ij fu;qDr jkt lsodksa ds okf"kZd xksiuh; izfrosnu & inksUufr ds le; ijh{k.k A question has arisen regarding assessment for the purposes of urgent/temporary appointments and the D.P.C. of the performance of State Services officers of the period they are deputed for service under a foreign Government. The matter has been considered and it has been decided that for the purpose of urgent/temporary appointments the performance of the officer concersned during the relevant could be treated as satisfactory. As for the Departmental Promotion Committee, the gradation of performance of the officer concerned should be treated as equivalent to the gradation of his performance in the previous seven years just before his deputation to a foreign government. As for the Departmental Promotion Committee, the gradation of performance of the officer concerned should be treated as equivalent to the gradation of his performance in the previous seven years just before his deputation to a foreign government. That is, if an officer was sent on deputation in 1974 and he remained abroad upto 1977 the reports on him for 1967-68 to 1972- 73 would be looked into and if he is graded as `very good for those years, the gradation for 1974-75, 1975-76 and 1976-77 when he remained abroad, would also be deemed to be `very good. Further, on conclusion of the assignment of the officer, a letter should be obtained from the Ambassador of the relevant country there were no specific complaints about the officer. (17). With these two circulars, he also invited our attention to a later circular dated 8.41985 concerning the Performance Appraisal of government employees on deputation under Foreign Government while they were under such deputation, which reads as under:- mu jkT; lsokvksa ds vf/kdkfj;ksa dh i`Fkd ls fjiksVZ izkIr djus ds ckcr tks fd fonskh ljdkjksa esa izfrfu;qfDr ij jgrs gSA ¼mijksDr fo"k; esa jkT; ljdkj }kjk ;g fu.kZ; fy;k x;k gS fd tks] jkT; lsok ds vf/kdkjh] vU; fonskh ljdkj esa izfrfu;qfDr ij jgrs gks] mudh izfrfu;qfDr vof/k dh lekfIr ij muds fonskh fu;U=.k vf/kdkjh ls vyx ls fjiksVZ izkIr dj yh tkos ,oa fu;qfDrdrkZ vf/kdkjh ds voyksdu ds ipkr~ lEcaf/kr vf/kdkjh dh okf"kZd dk;Z eqY;kadu izfrosnu i=oyh esa j[k nh tkosA bl izfrfu;qfDr vof/k dh ewY;kadu izfrosnu Hkjus dh vko;drk ugha gksxhA½ (18). In the aforesaid background, it was urged by the learned counsel for the appellant that as per the last instruction received by the State of Rajasthan in this connection, no separate evaluation for the period on deputation shall be made by parent department. Instead the Appraisal Report under the foreign employee must find place in the record of his Annual Performance Appraisal Report and that must from the basis for considering the case of the petitioner on merit for promotion to the next higher post. he invited out attention to Annexure 4 filed alongwith the writ petition, which is dated 5.8.1990. The Work Appraisal Report submitted by his Foreign employer for the period between 1985 to 1990 for the purpose of inclusion in his file through the Ambassador of Indian Embassy in Libiya. he invited out attention to Annexure 4 filed alongwith the writ petition, which is dated 5.8.1990. The Work Appraisal Report submitted by his Foreign employer for the period between 1985 to 1990 for the purpose of inclusion in his file through the Ambassador of Indian Embassy in Libiya. According to that communication during his tenure with the Foreign employer, his work was of Outstanding quality. (19). Mr. Mridul contends that apparently for five years period between 1985 to 1990, his Annual Appraisal Report must be readed as `Outstanding and that fulfils the condition of his eligibility to merit criteria, but the same does not appear to have been taken into consideration. He also contended that if his Annual Appraisal is taken as per the report submitted by his Foreign employer, he ought to have been considered more meritorious than the respondent No. 2, as he had to be considered continuously performing outstandingly for the entire period, during deputation as found by his immediate employer on deputation, who alone had occasion to vouch for his performance. He categorically had taken a stand that in view of the Government Circular dated 28.12.1976 referred to above, his performance during the period he was on deputation under a Foreign Government has been treated to be satisfactory, which according to Performance Appraisal criterion is two level below `very good. According to the criteria necessary for considering a candidature on merit, he must have at least five out of immediately preceding seven years Annual Performance appraisal Report putting him in the category of `very good or above. Obviously, if his performance of five years has taken to be satisfactory, he had not been considered eligible for merit quota. thus, it is contended that the present case is a clear case of non- application of mind to the relevant material, which was in existence at the relevant time, which was in existence at the relevant time, which has resulted in giving promotion to a person junior to the petitioner-appellant ahead of him on merit quota. He therefore, has prayed that his case may be considered by taking into account the report submitted by his employer on deputation, namely, the Foreign Government, under which he was serving. (20). Mr. He therefore, has prayed that his case may be considered by taking into account the report submitted by his employer on deputation, namely, the Foreign Government, under which he was serving. (20). Mr. Johari, learned counsel for the respondent No. 2, at the first instance has urged that the appellant cannot be permitted to raise this ground as this ground he has not raised before the learned Single Judge and therefore, the judgment of the learned Single Judge cannot be considered to be erroneous for non-consideration of this ground and this is a ground based on question of fact, he may not be permitted to raise the ground for the first time here. Learned counsel for the respondent placed reliance on the Supreme Court decision in Daman Singh vs. State of Punjab (1), wherein the Court referring to Order 41 Rule 2 CPC has held that notwithstanding a ground has been taken in the petition and memo-of-Appeal, but if it has been not argued before the Court, it is not open for a party or Counsel to make as grievance that the grounds not argued are not considered by the Court below. The proper course in such case to be adopted on the ground, which was argued, but it was not considered by the Court, is to draw the attention of the Court making the order to it by filing a proper application for review or clarification. (21). There can be no dispute about it nor the principle can be doubted that so far as the court proceeding or as to what has happened in the Court, it must be borne out form the proceeding of the Court. If from the proceedings, it appears that something has not been argued before the Court or contention is raised that the proceedings do not record correctly as to what has happened, the appropriate course is only to invite the attention of the Court or making order or drawing the proceeding to correct those proceedings by making clarificatory order. In case, no such step is taken a party cannot in appeal be permitted to say that the record or proceedings made by the Court in orders or judgments is erroneous for non-consideration of any point, which has not been raised or argued before it by urging that such point has been argued, but has not been decided. (22). In case, no such step is taken a party cannot in appeal be permitted to say that the record or proceedings made by the Court in orders or judgments is erroneous for non-consideration of any point, which has not been raised or argued before it by urging that such point has been argued, but has not been decided. (22). However, on facts in this case, we are of the opinion that basis foundation for raising this preliminary objection from going into the merits of the contention raised by the appellant is missing. The petitioner had definitely raised a ground in the course of argument before the learned Single Judge that he was more meritorious than respondent No. 2 Dr. Alok Purohit. But, this question has not at all been adverted to by the learned Single Judge though, his contention in this behalf has been noticed. There question why the petitioner is more meritorious than Dr. Alok Purohit and whether such issue has any merit is matter of consideration by taking into account the material, which was before the Court and recording a finding thereon. But, when the contention to that effect has been recorded by the learned Single Judge, it cannot be urged that any fact of such contention was not argued when the contention in any of its aspect has not at all been considered. The petitioner in such circumstances can legitimately contend that learned Judge has not considered the question of merit raised by him at all and draw the attention of Court to any material that is already on record to support his contention that had the court below considered the contention raised by him, it was well substantiated. He cannot in such circumstances be shut out from supporting him contention on merits before appellate court in all its aspect, which contention was not at all been considered. Issue in this case is not that the petitioner wants to urge that learned Single Judge has recorded the proceedings about arguments wrongly, so as to invite operation of principles in Daman Singhs case. It is a case where from proceedings it is apparent that question was raised but was not answered by learned Single Judge. In such circumstances, the appellant cannot be precluded from supporting the contention in all its aspects before the appellate Court. (23). It is a case where from proceedings it is apparent that question was raised but was not answered by learned Single Judge. In such circumstances, the appellant cannot be precluded from supporting the contention in all its aspects before the appellate Court. (23). Moreover, where a question has multiple aspects and can be considered from many angles, the fact that one aspect has not been considered or argued before lower court, it cannot be considered as equivalent to issue not raised before lower court. The learned Single Judge has considered the argument, namely that the respondent was considered merely six months before the promotion to the post of Associate Professor, but was not found suitable on the ground of merit, and therefore, there was no material to found him meritorious within six months, but has not considered the question of comparative merit between the petitioner and the respondent No. 2 Dr. Alok Purohit. In that view of the matter, it cannot be said that the present is a case wherein the appellant-petitioner is seeking to urge something, which has not been argued before the learned Single Judge. (24). A similar question has arisen before the Honble Supreme Court in Commissioner of Income Tax, Bombay Sough, Bombay vs. Messers Ogale Glas Works Ltd. (2),. It was a case arising under the Income Tax Act. The question of law has been referred to by the Tribunal to the High Court and after the High Court has answered the question, the matter has reached the Supreme Court. It was urged before the Supreme Court that consideration of question of law must be confined to those facts on which along reliance was placed in support of the argument actually advanced before the Tribunal and on which the Tribunals decision was founded, leaving out all other facts appearing on the record. (25). The Court repelled the contention by saying that:- There is no warrant for such suggestion. The learned of the question clearly indicates that the question of law has to be determined ``on the facts of this case. To accede to the contention of the assess, will involve the undue cutting down of the scope of the question by altering its language. (26). In the likeway, learned counsel has contended that the question of meritorious and comparative merit ought to be decided only on the ground that the respondent No. 2 Dr. To accede to the contention of the assess, will involve the undue cutting down of the scope of the question by altering its language. (26). In the likeway, learned counsel has contended that the question of meritorious and comparative merit ought to be decided only on the ground that the respondent No. 2 Dr. Alok Purohit has been considered merely six months before for promotion to the same post, who was found unsuitable and there was no new material, which has come on record to come to a different conclusion. (27). The contention, which the learned Single Judge has recorded, reads as under:- ``The petitioner was more meritorious than the respondent No.2 Dr. Alok Purohit and about six months before, the respondent No. 2 Dr. Alok Purohit was not found fit for promotion to the post of Assistant Professor and, therefore, he could not have been promoted in the merit quota only after a lapse of six months. (28). The language used by the learned Single Judge itself suggests that it was amalgamation of two questions. Firstly that the petitioner was more meritorious than the respondent No. 2 Dr. Alok Purohit and secondly, the respondent No. 2 Dr. Alok Purohit, who was not found fit form promotion to the post of Associate Professor and he could not have been promoted in merit quota only after a period of six months. There is no inter-relation between the two questions to suggest that the later is a reason, on which the first contention is founded. (29). The first question, namely the petitioner was more meritorious than the respondent No. 2 Dr. Alok Purohit pointedly referred to the consideration of comparative merit of the two competing claims, whereas the second question did not involve consideration of any competing claims between the tow. The second question merely deals with the non-existence of any material to come to a different conclusion merely six months after Dr. Alok Purohit was not found eligible in merit quota. (30). There, n our opinion, answering to the second question would not be an answer to the first question. Even, it be held that for Dr. The second question merely deals with the non-existence of any material to come to a different conclusion merely six months after Dr. Alok Purohit was not found eligible in merit quota. (30). There, n our opinion, answering to the second question would not be an answer to the first question. Even, it be held that for Dr. Alok Purohit, there had been additional material within six months to bring him within the category of merit, it would still not be a consideration of question of comperative merit, which is necessary element of consideration when the merit alone is the criteria for promotion. Seniority in such case comes into play only when both the found equal on merit. We, therefore, are unable to sustain the preliminary objection raised by the learned counsel for the respondent for dissuading us to entertain the main contention raised by the appellant. (31). We may add that the principle that proceedings of court speak for itself and a party is not entitled to urge in appellant forum that the proceedings have been wrongly recorded or there is some omission in recording of proceedings, does not affect the right of a party to urge new ground in support of his plea with the leave of court, nor does it in any way fetter the discretion of the court to permit a party to lis to raise new ground no raised before lower court or authorities. Subject, off course always to limitation which is always attached with exercise of any discretion, vç. such discretion ought to be exercised judiciously on well set guiding principles governing exercise of such discretion. (32). From the facts, it is apparent that on initial appointment, petitioner-appellant was from the reply submitted by the respondent No. 1, it is apparent that in the previous consideration immediately before the consideration for promotion in question when the promotion for vacancies for 1991-92 were considered on the basis of record, no-one was found to complete criteria for merit and therefore, two persons namely, Dr. S.L. Mandora and Dr. Sharda, who were senior to both, the petitioner and respondent No.2 Dr. Alok Purohit, were promoted on `seniority-cum-merit basis. This clearly indicates that Work Appraisal Report submitted by the Foreign Government, with whom petitioner was working on deputation had not been considered. S.L. Mandora and Dr. Sharda, who were senior to both, the petitioner and respondent No.2 Dr. Alok Purohit, were promoted on `seniority-cum-merit basis. This clearly indicates that Work Appraisal Report submitted by the Foreign Government, with whom petitioner was working on deputation had not been considered. While examining the schemes of Rules, we notice that in order to be considered on the basis of merit, a person must have 5 out of 7 Appraisal Reports of immediately preceding 7 years in the category of `very good or above. From the material placed on record Annex.4, if it is to be taken into consideration, the petitioner-appellant fulfils the criteria and if that be so, the contention that the D.P.C. could not consider anyone on merit against the vacancies of the year 1991-92, because they did not fulfil the requisite criteria for falling in the merit category, is without application of the mind to the relevant material. Since, promotion to the year 1991-92 is not in consideration nor the same has been challenged, we are referring to above facts for the purpose of finding whether the petitioner was eligible for promotion in the year 1991-92 on merit criteria. The fact remains that the Appraisal Report submitted by the Foreign Government has not gone into consideration. (33). For the purpose of satisfying the Court about the fairness of the decision by the C.P.C., learned counsel for the State was directed to keep the record of D.P.C. convened in the year 1992- 93 for promotion to the post of Associate Professor in Paediatric against the vacancies of 1992-93 and the Annual Performance Appraisal Rolls of the two parties before the Court. We find that notwithstanding clear directives of the State to keep the report of Performance Appraisal during the period of deputation by the foreign employer of the employee on deputation with him in the record of Annual Performance Reports of such incumbent. Annex.4 does not find place in record of Annual Performance Appraisal Report of the petitioner-Appellant nor there is nay other performance appraisal report in the record of APAR. Apparently, the report of employer on deputation about performance of the petitioner has not gone into consideration. Annex.4 does not find place in record of Annual Performance Appraisal Report of the petitioner-Appellant nor there is nay other performance appraisal report in the record of APAR. Apparently, the report of employer on deputation about performance of the petitioner has not gone into consideration. Nor do we find any appraisal for the period the petitioner was on deputation made by the parent Department on the basis of his record of period immediately before he went on deputation in terms of Circular dated 28.12.1976. (34). With this background, if we examine the import of the two instructions referred to above in 1976, it is required in the case of employees on deputation to other departments/organisations which are controlled by the State Government, the Annual Performance Appraisal will be drawn up by the immediate superior officer in the department/organisation where the incumbent is on deputation and forwarded to the Secretary of the Administrative Departmental concerned with the department/organisation in the case of officers belonging to the State Services for adding his remarks, and they are to be sent to the parent Departmental for deposit, Simultaneously, in the case of employees on deputation to organisations/bodies which are not under the control of the State Government, the Annual Performance Appraisal reports by the employers on deputation has to be perused and to be placed on APAR of the incumbent. Without any other instructions, an employment under Foreign Government on deputation would fall in clause (2) and the Appraisal Report form the Foreign Government under whom the employee is working on deputation will be treated in like manner. It may be noticed that while Annual Performance Report from the department/organisation of deputation under State was subjected to remarks from Additional Secretary of parent department/organisation, no such revision of APAR of originals form the department or organisation not under the control of State is envisages. Such performance appraisal remain undiluted. (35). However, by Circular No. F.12(29) Karmik/ACR/73 dated 28.12.1976, a separate procedure was adopted for the purpose of urgent/temporary appointment and the D.P.C. of the performance of State Service officers for the period they are deputed for service under a foreign Government. According to these instructions, if the incumbent is to be considered for the urgent/temporary appointments as distinguished from promotion, the performance of the officer on deputation must be treated as satisfactory throughout. According to these instructions, if the incumbent is to be considered for the urgent/temporary appointments as distinguished from promotion, the performance of the officer on deputation must be treated as satisfactory throughout. However, where the Departmental Promotion Committee considers the case of promotion, the gradation of performance of the officer concerned should be treated as equivalent to the gradation of his performance in the previous seven years just before his deputation to a foreign Government. the illustration, which has been adopted shows that if an officer was sent on deputation in 1974 and he remained abroad upto 1977, the reports on him for 1967-68 to 1973-74 would be looked into and if he is graded as `very good for those years, the gradation for 1974-75, 1975-76 and 1976-77 when he remained abroad, would also be deemed to be `very good (36). However, it left a grey area, where the incumbent on deputation does not have 7 years service of immediate preceding period. Nor does not circular makes anyone any wiser how the one common gradation is to be arrived at for filling the annual appraisal report for each year of deputation. The circular in totality gives one clue that for entire period of deputation, there shall be common gradation of performance appraisal. (37). The scheme of the Rules and the instruction clearly indicates that in order to be eligible for promotion, person should be in service for a period of 7 years on the post, then he becomes eligible for consideration for promotion as per Rules, on `seniority-cum-merit basis or `merit-cum-seniority basis or merit basis as governed by the Rules. But, in each case, the service record of 7 years would be relevant. If seven years service record immediately before proceeding on deputation approach is to be taken into consideration in the case of a person on deputation under foreign government apparently result in anomalous situation as in the present case has arisen. (38). The first result of the aforesaid instructions is that APARs for the period, during which a person has remained on deputation under a foreign Government has to be filled by placing officer in appropriate grade on the basis of past performance for seven years. (38). The first result of the aforesaid instructions is that APARs for the period, during which a person has remained on deputation under a foreign Government has to be filled by placing officer in appropriate grade on the basis of past performance for seven years. However Notwithstanding, person, who has more than seven years service to his credit and is otherwise eligible for consideration on the basis of merit criteria provided under the Rules as a result of the aforesaid instructions, if a person does not have seven years service immediately prior to his going on deputation under foreign Government, the gradation for the period during which the officer is on deputation, cannot be evaluated as per formulae. The instruction also leave no room of doubt that gradation for the entire period during deputation shall be in one category. For the purpose of appointment on urgent/temporary basis, the instructions itself provide the gradation to be satisfactory through out. The gradation of officer has to be made for the purpose of consideration by D.P.C. by considering seven years APARs immediately prior to the date, officer goes on deputation; and as per illustration on the basis of determining the grade, gradation to be awarded to the officer on deputation. (39). His categorisation in such grade has to be made for the period during which he remained on deputation under foreign Government, which does not give any clue as to how the singular gradation has to be determined for categorising the officer for the period during deputation on the basis of his performance which on deputation. It also does not give any clue where a person has less than seven years service prior to the date of his going or deputation, how his performance to be evaluated for the purpose of considering his performance during the period he is on deputation. If the criteria laid for the purpose of merit is to be applied, then it is necessary that it can apply to a case of such officer only, who has at least seven years to his credit immediately before he leaves on deputation under the foreign Government. If the merit criteria is not to be applied, then how his performance is to be averaged for the purpose of considering his APAR for the period during the deputation to be considered by D.P.C. is in dark area. If the merit criteria is not to be applied, then how his performance is to be averaged for the purpose of considering his APAR for the period during the deputation to be considered by D.P.C. is in dark area. If the first position is taken, the notwithstanding a person is eligible to be considered for merit quota having more seven years service to his credit by executive instructions gets out of consideration, which is not permissible. (40). Be that as it may, the subsequent instructions issued in 1985 referred to above makes a change for the better that envisages securing Performance Appraisal Report from the foreign employer for the period, the officer remains under the foreign Government and to be placed on APAR record. It also prohibits recording of entry by parent department in the APAR form. It is therefore, reasonable to infer that placing such APAR with or without comments from the concerned officer from the parent Department, is only for the purpose of its being taken into consideration while examining the case of the officer for promotion by DPC so that the period, during which a person has remained on deputation is not ignored altogether. Rules do not warrant exclusion of period on deputation with departments which are not under State while considering case of an officer, who has lien in the Department for the purpose of considering him for promotion when his turn comes, nor doe the Rules exclude consideration of such officer from merit quota. (41). From the record of DPC and the APARs produced before us, we find that for the entire period of deputation, the APARs of the petitioner-appellant has been left blank by the parent Department. It has neither been filed bin accordance with instructions issued on 29.12.1976 nor Annexure 4, the Performance Report by the foreign employer sent through Indian Embassy at Libiya, finds place in that record. Therefore, a clear case is made out so far as the petitioner-appellant is concerned that his case has been considered by the D.P.C. without any Appraisal Report for the period from 1985-86 to 1990-1991. Therefore, a clear case is made out so far as the petitioner-appellant is concerned that his case has been considered by the D.P.C. without any Appraisal Report for the period from 1985-86 to 1990-1991. In that event, the consideration of comparative merit for the promotion between the petitioner, who was undisputedly senior to the respondent No.2 and in the zone of consideration and the respondent No. 2 apparently has not been made by treating the petitioner as not fulfilling the minimum criterion of merit by considering his performance under foreign Government as `satisfactory only. (42). It suffers from apparent arbitrariness in as much as while the record of the respondent No. 2 has been considered for 7 years, during which he was served under the parent Department. The petitioners record has been considered only for two years and the five years record, during which he has served under the foreign Government has either been not considered at all or being considered as satisfactory, which is two grade below `very goods as no appraisal has been made by DPC also of the grade in which petitioner is to be placed as per instructions dated 28.10.1976 thus, keeping him out of consideration for merit criteria, for which, neither there is a mandate under the Rules nor under instructions of 1976 nor under instructions of 1985. This unequal treatment in the matter of considering the comparative merit has resulted in treating the petitioner arbitrarily and discriminatory in the matter of considering his case for promotion, which results in violation of Articles 14 and 16 of the Constitution. (43). In the absence of any material to the contrary on the basis of available instructions, the petitioners service for the period during which he has served under the foreign Government, has to be taken as per the Performance Appraisal Report by the employer, under whom he has worked on deputation as per the instructions issued on 8.4.1985, which were very much in force at the time when the petitioners case was considered. As a matter of fact, it is only a modification of the earlier circular that instead of averaging the past performance, the Appraisal Performance Report from the employer, under whom he has worked on deputation, is to form part of the APAR, which is in all case of deputation, whether under the Department of Government of under a Organisation, which is not under the control of the Government. While in the case of appraisal by Department In the absence of any specific instructions governing the case of the deputation under foreign Government, the petitioners case was governed by clause (2) of the first Circular referred to above. The Circular dated 28.12.1976 was issued apparently for the reason of difficulty in obtaining Performance Appraisal from the Foreign Government, under whom the officer is working on deputation. A mechanism was devised for filling the APAR for the period, during which he has remained on deputation. but, in no case, it was envisaged that the officers APAR shall be blank for the period, during which he has remained on deputation under instruction dated 28.12.1976. To do away with this difficulty in 1985, the Government issued instructions to obtain reports from the foreign Government under whom the officer has been on deputation and to be placed on the APARs of the incumbent. The harmonious construction is where Performance Appraisal Report has been received from the foreign Government, under whom the officer is on deputation, it should be treated to be the performance appraisal of the officer for the period during deputation and in case of non-availability of such report, the past performance should be taken as a criteria for the purpose of filling the APAR for the period, during which the officer has remained on deputation for filling the Annual Performance Appraisal reports for such period. It is on the basis of such record of such past seven years immediately before the date of consideration, the merit criteria has to be applied and the comparative merit to be determined. In case, the past seven years APAR is not made available by the foreign Government, then APAR be filled on the basis of instructions dated 28.12.1976 on the basis of available material for the years during which the incumbent has remained in services before proceeding on deputation. (44). In case, the past seven years APAR is not made available by the foreign Government, then APAR be filled on the basis of instructions dated 28.12.1976 on the basis of available material for the years during which the incumbent has remained in services before proceeding on deputation. (44). As we have come to the conclusion that the petitioners case for comparative merit has not been examined on the basis of record made available to us and keeping in view that the averments made in that regard about the APAR during the deputation from foreign Government and authenticity of Annexure 4 has not been disputed by the respondent - State nor any denial of averments as to treating the petitioners performance during the period on deputation as satisfactory, leaves further no room of doubt that the petitioners case of comparative merits has not received attention in accordance with the provisions of the Rules and instructions issued by government which has resulted in gross miscarriage of justice by not placing the material relevant for consideration before D.P.C. in its true perspective. Such a consideration by the D.P.C. of merit promotion in our opinion cannot be sustained. (45). To what relief then the petitioner-appellant is entitled? (46). We find that since the consideration of filling the vacancies by promotion in 1992-93, the petitioner-appellant has also been promoted subsequently in 1993-94 and respondent No. 2 as well as the petitioner-appellant are continuing on the post of Associate Professors, Paediatric, it would serve no purpose to quash the appointment of respondent No. 2 at this juncture. However, the ends of justice would be meet if the D.P.C. is required to review the consideration for promotion on merit quota to the post of Associate Professor, Paediatric against the vacancies of 1992-93 by considering the petitioners APAR for the period, during which he remained on deputation, in the light of aforesaid observations. The comparative merit of the petitioner and the respondent No.2 will be determined afresh by a speaking order. In case, the petitioner is found more meritorious in 1992- 93 on the basis of a comparative service record, his appointment on the post of Associate Professor, Paediatric be related back to the date Dr. Alok Purohit has been promoted by creating super humor part so as to restore inter-se seniority between the two on the post of Associate Professor. In case, the petitioner is found more meritorious in 1992- 93 on the basis of a comparative service record, his appointment on the post of Associate Professor, Paediatric be related back to the date Dr. Alok Purohit has been promoted by creating super humor part so as to restore inter-se seniority between the two on the post of Associate Professor. This will not entitle the petitioner to any arrears or emoluments for the post prior to the date of his actual appointment on the post by promotion. However, in case such predating of the appointment, his case shall be considered for granting notional fixation of pay scale and seniority and any other consequential benefits that may flow from giving effect to this direction. The fixation of the petitioner- appellant in the pay scale applicable to Associate Professor, Paediatric shall be made with effect from the date he is so promoted and the monetary benefit should be given on that account from the date of this order. There shall be no order as to costs.