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2006 DIGILAW 2106 (DEL)

S. K. SONI v. UOI

2006-11-16

G.S.SISTANI, SWATANTER KUMAR

body2006
SWATANTER KUMAR, J. ( 1 ) THE petitioner completed his technical graduation from Punjab University, chandigarh in the year 1968. He then commenced his service career by working as apprentice Engineer with Haryana Public Works Department at Ambala where he worked for two and a half months. He then prepared for taking military engineering service and appeared in competitive examination. On 22. 11. 1968, he was selected and appointed as Superintendent (Building and Roads) Grade-I at amritsar Cantonment where he served for nearly five years and nine months. For better future prospectives, he joined Border Roads Organization (in short 'bro'), the respondents in this petition, as an Assistant Executive Engineer through an open selection by Union Public Service Commission (in short 'upsc' ). Having joined the service on 19. 8. 1974, the petitioner served in different areas and put in very hard work. He was posted to high altitudes where he served with sincerity and to the satisfaction of all concerned. On 29. 11. 1990, the petitioner was promoted as Executive Engineer and thereafter to the rank of superintending Engineer on 31. 7. 1997. Next promotion of the petitioner is to the rank of Chief Engineer and the Superintending Engineers with three years' service are entitled to be considered and promoted to the post of Chief Engineer as per the recruitment rules. The promotion is through selection which is effected as per the personnel policy approved by the Central Government from time to time. The respondents circulated an inter se seniority list of the superintending Engineers on 1. 1. 2002. As per that seniority list, Mr. Shiv dayal Bajaj is shown at Sr. No. 1, Mr. K. K. Arvindakshan is shown at Sr. No. 2, sh. Lakshmi Narayan Tiku is shown at Sr. No. 3, the petitioner is shown at Sr. No. 4, Sh. V. K. Venugopalan is shown at Sr. No. 5, Mr. Binod Behari Lal is shown at Sr. No. 6 and Dr. Virender Kumar Yadav is shown at Sr. No. 7. The respondents forwarded the names of all the seven persons to the Departmental Promotion committee (in short 'dpc') which recommended the names of Sh. V. K. Venugopalan, sh. B. B. Lal and Shri V. K. Yadav. However, the names of other three persons and the petitioner were not recommended by the Committee. No. 7. The respondents forwarded the names of all the seven persons to the Departmental Promotion committee (in short 'dpc') which recommended the names of Sh. V. K. Venugopalan, sh. B. B. Lal and Shri V. K. Yadav. However, the names of other three persons and the petitioner were not recommended by the Committee. The petitioner was surprised to learn about his non-recommendation by the DPC as he had never earned any adverse report in his service career. The petitioner, thus, is aggrieved from the action of the respondents in not promoting the petitioner to the rank of Chief Engineer and super-session of the petitioner while other juniors to him had been promoted to the rank of Chief Engineer. ( 2 ) THE case of the respondents, as pleaded in the counter affidavit, is that the promotion to the post of Chief Engineer is by a process of selection wherein merit plays the dominant role. Therefore, the concept of super-session is totally alien and inapplicable to such promotions. A DPC proposal for filling up three vacancies, later amended to two vacancies due to decadrement of post of 'adviser NEC' against vacancy year 2002-03, was submitted to the UPSC through Secretary, Border Roads Development Board. The DPC met on 28. 5. 2002. The name of the petitioner along with other eligible persons was considered by the DPC. The DPC did not recommend the name of the petitioner as he was not found fit for promotion by the Committee in terms of the recruitment rules. In terms of the 'procedure to be observed by DPCs - Revised guidelines' issued by the Ministry of Personnel, Public Grievances and Pensions dated 8. 2. 2002, the government had prescribed a higher selectivity in promotion to the revised pay scale of Rs. 12000-16500 and above. Post of Chief Engineer carries the pay scale of Rs. 18400-22400. The benchmark for promotion to the said post is, thus, 'very good'. The petitioner was not found fit based on the benchmark 'very good' in the last five years' ACRs and, therefore, was considered unfit for promotion. ( 3 ) INDISPUTABLY, the recruitment rules for promotion to the post of Chief engineer are as under:- BORDER ROADS ENGINEERING service (GROUP"a" (AUDIT) RULES 1989 SCHEDULE Name of Post Number of Post Classification Scale of pay (1) . . . (2) . . . (3) . . . (4) . . . ( 3 ) INDISPUTABLY, the recruitment rules for promotion to the post of Chief engineer are as under:- BORDER ROADS ENGINEERING service (GROUP"a" (AUDIT) RULES 1989 SCHEDULE Name of Post Number of Post Classification Scale of pay (1) . . . (2) . . . (3) . . . (4) . . . Chief Engineer/ Brigadier/ce BRES (C) 18 Subject to variation depending upon work load Border Roads Engineering Service Group "a" Rs. 5900-200-6700 (1988) Whether Selection post or non Selection Post Age Limit for direct recruit Whether benefit of added years of service admissible under Rule 34 of CCS (Pension) Rules 1972 Educational and other qualifica-tion required for direct recruit Whether age and educational qualification prescribed for direct recruits will apply in the case of promotion (5) (6) (7) (8) (9) Selection Not Applicable Not Applicable Not Applicable Not Applicable Period of probation if any Method of recruitment whether by direct recruit or by promotion or by deputation/transfer and percentage of the vacancies to be filled by various methods In case of recruitment by promotion/deputation/transfer, grades from which promotion/deputation/transfer to be made (10) (11) (12) Not applicable By promotion/by posting from the Army. Number of posts to be filled by each method to be decided as per personnel policy approved by the Central Government from time to time. Promotion: Border Roads engineering Service only: Superintending Engineer (C) with 3 years regular service in the grade, including service if any, in the non functional selection grade or 17 years of regular service in Group "a" or Border Roads Engineering Service (Civil) out of which 4 years should be in the Grade of Superintending Engineer, the officers should also have had 2 years experience as a Task Force Commander in the rank of Superintending Engineer (C) in order to be eligible for promotion. Posting from Army: Officers of the rank of brigadiers as per the personnel policy referred to in column 11. ( 4 ) THE revised guidelines which have been annexed by the respondents to their counter affidavit clearly provide as under:-The aforementioned guidelines which permit supersession in 'selection' promotion ('selection by merit') have been reviewed by the Government and after comprehensive/extensive examination of relevant issues it has been decided that there should be no supersession in matter of 'selection' (merit) promotion any any level. In keeping with the said decision, the following revised promotion norms/guidelines, in partial modification (to the extent relevant for the purpose of these instructions) of all existing instructions on the subject (as referred to in paragraph 1 above) are prescribed in the succeeding paragraphs for providing guidance to the Departmental Promotion Committees (DPCs ). 1. Mode of promotion in the case of 'selection' (merit) promotion, the hitherto existing distinction in the nomenclature ('selection by merit' and 'selection-cum-seniority') is dispensed with and the mode of promotion in all such cases is rechristened as 'selection' only. The element of selectivity (higher or lower) shall be determined with reference to the relevant bench-mark ("very Good" or "good") prescribed for promotion. 2. 'bench-mark' for promotion the DPC shall determine the merit of those being assessed for promotion with reference to the prescribed bench-mark and accordingly grade the officers as 'fit' or 'unfit' only. Only those who are graded 'fit' (i. e. who meet the prescribed bench-mark) by the DPC shall be included and arranged in the select panel in order to their inter-se seniority in the feeder grade. Those officers who are graded 'unfit' (in terms of the prescribed bench-mark) by the DPC shall not be included in the select panel. Thus, there shall be no supersession in promotion among those who are graded 'fit' ( in terms of the prescribed bench-mark) by the DPC. " ( 5 ) THE bare reading of the above recruitment rules shows that promotion to the post of Chief Engineer is by selection on merit and, thus, simplicitor seniority coupled with reasonably good service record would not satisfy the criteria for promotion to the post of Chief Engineer. The benchmark as postulated under the above guidelines was 'very good'. The DPC had examined the service record of the petitioner along with other senior candidates falling in the zone of consideration and thereafter the UPSC recommended two persons fit for promotion while the petitioner was declared unfit. This exercise was primarily based on the annual confidential reports of the petitioner. ( 6 ) LEARNED counsel appearing for the petitioner contended that if the ACRs of the petitioner were not meeting the benchmark, then it was obligatory upon the part of the respondents even to communicate good confidential reports as being comparatively adverse to the petitioner. This exercise was primarily based on the annual confidential reports of the petitioner. ( 6 ) LEARNED counsel appearing for the petitioner contended that if the ACRs of the petitioner were not meeting the benchmark, then it was obligatory upon the part of the respondents even to communicate good confidential reports as being comparatively adverse to the petitioner. As the respondents have failed to communicate such entries, the entire process of selection is vitiated. In support of his argument, the counsel for the petitioner relied upon the judgment of the Supreme Court in the case of U. P. Jal Nigam and Others v. Prabhat Chandra jain and Others JT 1996 (1) SC 641. ( 7 ) LEARNED counsel appearing for the respondents, however, relied upon the judgment in the case of Badrinath v. Government of Tamil Nadu and Others (2000)8 SCC 395 to contend that it is only right of an employee to claim consideration for promotion but he has no legal indefeasible right to be promoted. Of course, the process of selection has to be fair and according to the established principles of service jurisprudence. He also relied upon the dictum of the supreme Court that even the un-communicated adverse remarks can be relied upon to pass an order like compulsory retirement. In the present case, there was no occasion for communicating any remarks as the reports of the petitioner were not adverse. Learned counsel for the respondents also relied upon the judgments of the Supreme Court in the cases of Union of India and Anr. v. Major Bahadur singh, C. A. No. 4482/2003, decided on 22. 11. 2005, Lt. Col. K. D. Gupta v. Union of India and others AIR 1989 SC 1393 , Ramrao and others v. All India Backward class Bank Employes Welfare Association and others V-2004 (2)AISLJ 52, Syed T. A. Naqshbandi and others v. State of Jammu and Kashmir and others X-2003 (3)AILSJ 139 and UPSC v. K. Rajaiah and others JT 2005 (11) SC 1 in support of his contention and also to argue that once the fair selection process is followed in terms of the guidelines, then the jurisdiction of the court to interfere in such cases is very limited one. The selection committee was also not required to record any reasons in support of its recommendations once they had followed and adopted the classification of the persons in accordance with the guidelines based upon their service record. ( 8 ) WE cannot lose sight of the fact that under Article 226 of the constitution of India, this court does not sit as an appellate authority over the process of selection but it has to examine it from the point of its limited jurisdiction whether the process of selection was just and fair and was in accordance with the rules. As already noticed, the recruitment rules read in conjunction with the relevant guidelines clearly provide for a criteria which has been uniformally applied by the selecting authority with reference to the service records of the candidates falling within the zone of consideration. ( 9 ) WE may also notice that during the course of hearing, the respondents had produced the original records. As per the records out of the concerned five years' period, the petitioner has four 'above average' or 'good' and only one 'very good'. The benchmark was stated to be 'very good' and consequently the selecting authority found the petitioner unfit for promotion to the rank of chief Engineer. We have also perused the ACRs of the petitioner which were produced before the court and it is clear that the petitioner was considered for promotion in the year 2002. For the year 2002-03, his ACR was graded as 'good'; for the year 2001-02, it was 'very good'; for the year 2000-2001, it was 'average' while for the year 1999-2000, it was 'average' and for the year 1998-99 it was 'good'. We may also mention here that the remarks recorded by his reporting officers are quite fair and they have appreciated certain aspects of working of the petitioner while they have also pointed out certain drawbacks. These remarks were, in no way, adverse. It is only on competitive comparison of the service records that the petitioner could not make the benchmark 'very Good' and consequently was not recommended for promotion. ( 10 ) THUS, we find no arbitrariness in the action of the respondents and dismiss this writ petition while leaving the parties to bear their own costs.