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2006 DIGILAW 8 (DEL)

D. B. MATHUR v. CEMENT CORPN. OF INDIA

2006-01-02

S.RAVINDRA BHAT

body2006
S. RAVINDRA BHAT, J. ( 1 ) THE Petitioner has sought for a mandatory order to the Respondent No. 1 (hereafter called as `the CCI ) that he ought to be promoted as Joint Senior manager (Electrical) from 1. 7. 1990 he; also seeks quashing of an order transferring him to Charkhi Dadri Unit, on 15. 6. 1992. ( 2 ) THE Petitioner joined the services of CCI as a Senior Electrical engineer on 24. 9. 1994. He was promoted as Deputy Manager (Electrical) on 28. 1. 1983 and subsequently as Manger (Electrical) on 24. 10. 1986. The promotion from the post of Manger (Electrical) is to the post of Joint Senior Manager (Electrical ). Pursuant to a selection process held in 1990, the names of several candidates, including the petitioner, were considered; they were also interviewed. The petitioner was not promoted. Later in another selection process held by the DPC in November, 1991 the Petitioner s name was considered once again. However, he was overlooked for promotion. The Petitioner alleges that he had an outstanding record and received several commendations; his super- session is alleged to be illegal and arbitrary. He claims that the promotion of respondents No. 3 to 6 overlooking his legitimate claims is contrary to the rules. ( 3 ) THE Petitioner has also challenged the order dated 11/15. 6. 1992 by which he was posted to Charkhi Dadri Unit of CCI. Earlier, on 27. 3. 1992 he had been posted to the Tandur Unit; by the Order dated 11/15. 6. 1992 that order was rescinded and he was asked to report at Charkhi Dadri. ( 4 ) IT is claimed that the transfer to Tandur was a direct consequence of the wrath incurred by the Petitioner at the hands of the second Respondent who at that time was the Managing Director of CCI. It is alleged that the purchase and procurement in respect of DG sets had been actively pursued and dictated by said respondent No. 2 who had pressurized the Chief Manager (Electrical) to fall in line with his whims. It is alleged that the procurement process was irregular and that the only expert in the field was one Shri S. M. Sharma, Senior Manger who had objected to the procedure but who had also lost favor with the second respondent. It is alleged that the procurement process was irregular and that the only expert in the field was one Shri S. M. Sharma, Senior Manger who had objected to the procedure but who had also lost favor with the second respondent. The Petitioner claims that as an electrical expert he had prepared a note in respect of rejection of the bid by BHEL, which he did not support. Consequently, the axe fell on him and he was transferred by the second impugned order. It is alleged that the transfer order is a consequence of the mala fides by the second Respondent who manipulated the same and ensured that the petitioner was posted away from headquarters. ( 5 ) THE second Respondent has not filed any affidavit even though notice was served upon him. The CCI in its counter affidavit has refuted the allegations in respect of illegality in promotion, issuance in transfer orders as also the averments as to mala fides. It claims that the criterion for promotion of executive management cadres up to level E4 to the senior management cadre that (level E5 as in the present case) is merit-cum-seniority. The CCI has relied upon Para 3 of the guidelines and principles applicable to promotion which prescribes that promotion from one group/cadre to another group/cadre will be on the basis of merit-cum-seniority, assessed through a selection process that would include test and/or interview designed to determine the employees? aptitude for effectiveness in the higher group/cadre. ( 6 ) IT is averred that as on 30. 6. 1990 the Petitioner was within the zone of consideration; his name was one among the 38 executives who were considered, and interviewed. The Petitioner participated in the interview and on the basis of performance, qualifications, experience and other records 9 executive including third and fourth Respondents were found fit for promotion to E5. In a subsequent process by which the DPC met on 13/14. 11. 1991 the suitability of executives falling within the zone of consideration, was taken into account. This DPC found 10 persons including Respondents No. 5 to 6 suitable; the Petitioner was not however deemed suitable and not recommended to the post though he was considered and interviewed. In a subsequent process by which the DPC met on 13/14. 11. 1991 the suitability of executives falling within the zone of consideration, was taken into account. This DPC found 10 persons including Respondents No. 5 to 6 suitable; the Petitioner was not however deemed suitable and not recommended to the post though he was considered and interviewed. ( 7 ) IT is claimed that seniority is no doubt one factor for promotions up to a certain level but in the case of promotion to higher and senior management posts such as E5, seniority alone is not the guiding criteria; merit predominates and wherever DPC finds a suitable candidate, irrespective of seniority he is preferred over the claims of an eligible senior employee, but with lesser merit. ( 8 ) AS far as the transfer order is concerned, CCI avers that transfer is an incidence of public service including within its organization. The Petitioner was posted to the Tandur Unit for administrative reasons. He did not report there and proceeded on leave. Although he had given inconsistent stands about absence, nevertheless in view of his request that he had to look after his ailing father, it was decided to transfer him to Charkhi Dadri Unit, where his services could be utilized to look after major rehabilitation work. This was on account of administrative reasons; as also having regard to the circumstance that the unit was located nearer Delhi and the Petitioner could attend to his ailing father. It is alleged that the Petitioner did not comply with the transfer order. As far as the allegation of mala fides in regard to the procurement of DG sets is concerned, the CCI has averred that despite clearance by the Board of Directors, no order was placed on any venture for the intended purchase of DG sets of any type. It has further averred that pre-qualification tender notices were advertised for the purchase of DG sets. Three parties had made applications. At that time the process procuring 3 DG sets for different units was in progress and the bidders were informed about the need of CCI for purchasing two more sets, for which their confirmation and techno-commercial terms and price was elicited. It is stated that the price bids of the 3 pre- qualified parties were open on 26. 2. 1992. At that time the process procuring 3 DG sets for different units was in progress and the bidders were informed about the need of CCI for purchasing two more sets, for which their confirmation and techno-commercial terms and price was elicited. It is stated that the price bids of the 3 pre- qualified parties were open on 26. 2. 1992. During this period; the power position in Assam had worsened leading to need for acquiring DG sets. This was also indicated during the price negotiations held by the Directors Committee; the tenderers were asked to give further discount. It was claimed that M/s kirloskar and M/s WDIL were L1 and L2 respectively and later the Board unanimously sanctioned 3 sets of DG sets to those bidders; 3 each of KOEL and m/s WDIL. The lowest bidder was of KOEL and it was also resolved that in case wdil did not agree to match its price, all the orders would be placed on M/s koel. ( 9 ) MR. J. P. Sengh, learned counsel submitted that the denial of promotion to the petitioner was unlawful. He relied upon several commendation letters and also the averment that the Petitioner possessed an outstanding record and was admittedly senior to Respondents No. 3 to 6. In these circumstances, his super- session was arbitrary and unjustified. ( 10 ) LEARNED counsel also submitted that the transfer order was passed as a direct consequence of vindictiveness of the Respondents. The Petitioner had objected to the method adopted for procurement of DG sets, which resulted in two directors refusing to sign the minutes of a meeting on 10. 7. 1990. From that time onwards the second Respondent had started viewing him with an inimical and hostile attitude. It is claimed that the second Respondent involvement s in procurement of the DG sets; and other glaring irregularities surfaced, resulting in a vigilance enquiry. It is submitted that in the teeth of such allegations, the defense of CCI that due to financial crunch only a letter of intent was placed for the DG sets is false. He relies upon two affidavits of members of the procurement committee filed in these proceedings, to bring home his submission of mala fides. It is submitted that in the teeth of such allegations, the defense of CCI that due to financial crunch only a letter of intent was placed for the DG sets is false. He relies upon two affidavits of members of the procurement committee filed in these proceedings, to bring home his submission of mala fides. Those affidavits, filed by Shri Grotra, who was assistant Manager in the Department and Shri S. Sukumar, who had worked as Senior manager (Electrical) are to the effect that the Petitioner had been associated with the procurement exercise by way of technical discussions. ( 11 ) MR. Sengh had also placed reliance on certain documents filed on the record such as a cost benefit analysis in respect of the equipment as also the copies of letters of intent dated 7. 7. 1992 issued to M/s WDIL and M/s KOEL. ( 12 ) MR. Sengh, has relied upon the judgments reported as Arvind Dattatraya dhande Vs. State of Mahrashtra and Others, (1997) 6 SCC 169 and Kumaon Mandal vikas Nigam Ltd. Vs. Girja Shankar Pant and Ors. , JT 2000 (Supp. 2) SC 206, to say that mala fides vitiate the order of transfer. He also submitted that the participation of the second respondent, who has not chosen to even file any affidavit, tainted the DPC proceedings, and consequently the orders promoting respondents No. 3 to 6. ( 13 ) MR. Raj Birbal, learned senior counsel submitted that the denial of promotion to the Petitioner was on the basis of his performance, and records. The promotion to the grade E5, a senior management level post is guided by the principle of merit-cum-seniority. This would imply that seniority would play a dominant role only if the merit of both the candidates is identical. In the first selection process 38 candidates were considered in interview; the petitioner could not meet the grade. Likewise, in the second process also several candidates were interviewed including the Petitioner but only 10 could be accommodated and promoted. The Petitioner cannot make any grievance on this aspect since admittedly he did not raise any issue when he was overlooked in october and November, 1990. He has come forward only after the second DPC was held. Likewise, in the second process also several candidates were interviewed including the Petitioner but only 10 could be accommodated and promoted. The Petitioner cannot make any grievance on this aspect since admittedly he did not raise any issue when he was overlooked in october and November, 1990. He has come forward only after the second DPC was held. ( 14 ) LEARNED counsel submitted that having participated and consciously chosen to subject himself to the interview process, and run the risk of not being selected, the Petitioner cannot now turn around and claim to be aggrieved. He relied upon the judgments of the Supreme Court reported as Utkal University Vs. Dr. Nrusingha Charan Sarangi and Others, (1999) 2 SCC 193 ; Madan Lal and others vs. State of Jammu and Kashmir and others, AIR 1995 SC 1088 and University of cochin Vs. N. S. Kanjoonjamma and others, (1997) 4 SCC 426 . ( 15 ) AS far as transfer is concerned, learned counsel submitted that there is no illegality or infirmity in the order. He submitted that it is well established that transfers are a part of the normal incidence of service and that every public employee is bound to comply with such orders. The scope of judicial review is confined to examination whether the order is vitiated by express provisions of law, or proven mala fides. ( 16 ) LEARNED counsel submitted that there is apart from the allegations leveled, there is no material to substantiate the contention that the transfer was a result of mala fides of the second Respondent. The decision to procure DG sets from particular parties was not individually taken by the second Respondent; it was a collective resolution of the Board of Directors. Eventually, in spite of the decision, the DG sets was not procured as has been averred in the counter affidavit. Apart from this, there is no other allegation of mala fides or motivated conduct alleged against the second Respondent, which could undermine the transfer order. ( 17 ) THE two points which assess for consideration are : a)whether the denial of promotion to the Petitioner is justified; b)whether the order of transfer is illegal and tainted by mala fides. ( 18 ) THE Petitioner admittedly is senior to Respondents No. 3 to 6. All of them were holding the post of Middle Management Grade, E4 level. ( 18 ) THE Petitioner admittedly is senior to Respondents No. 3 to 6. All of them were holding the post of Middle Management Grade, E4 level. The next promotion from that grade/group is to level E5, which falls in the senior management category. The Respondent has averred that promotion is not on the basis of seniority alone, the relevant criterion is merit-cum-seniority. Rule 3 of the recruitment Promotion and Seniority Rules, govern the career progression from one group/cadre to another group/cadre as in the present case. The Rule, inter alia reads as follows :" (ii) Promotion from one Group/cadre to another Group/cadre. Promotion from one Group/cadre to another Group/cadre will be on the basis of merit-cum-seniority as assessed through a selection process, which will include test and/or interview designed to determine the employee s skill, aptitude and abilities for effective functioning in the higher group/cadre. Employees will be eligible for consideration for promotion to a higher group/cadre on completion of a specified number of years of service (to be referred to herein-after as eligibility period ) in the highest grade in the lower group/cadre, subject to organisational needs. This eligibility period will be notified by the Management from time to time keeping in view the requirements of the organisation". ( 19 ) IT has been held that the criterion of merit-cum-seniority is an approved method of selection. Promotion to posts on which such a rule applies, is not automatic on the basis of gradation list or as per seniority; it is primarily based on merit. It has been held by a Constitution Bench of the Supreme Court in State of Orissa Vs. Durga Charan Dass, AIR 1966 1547, that promotion based on such considerations is not premised on the right of a candidate assessed purely on account of his seniority. In Union of India Vs. Mohan Lal Capoor and Others, (1973) 2 SCC 836 , it was held as follows:"for inclusion in the list merit and suitability" is the governing consideration and that seniority should play only a secondary role. It is only when merit and suitability are roughly equal that seniority will be the detriment factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and came to a firm conclusion, seniority would tilt the scale. "similarly in B. V. Sivaiah and Others Vs. It is only when merit and suitability are roughly equal that seniority will be the detriment factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and came to a firm conclusion, seniority would tilt the scale. "similarly in B. V. Sivaiah and Others Vs. K. Addanki Babu, (1998) 6 SCC 720 , the supreme Court held that the principle of merit-cum-seniority lays greater emphasis on merit and ability and seniority plays a secondary role. All these principles have been noticed and approved in the judgment reported as Central council for Research in Ayurveda and Siddha and Another Vs. Dr. K. Santhakumari, (2001) 5 SCC 60 . ( 20 ) THE minutes of proceedings held in October 1990 as also on 13. 11. 1991 and 14. 11. 1991 were produced. The minutes of the DPC held on 23/24. 10. 1990 assessed the suitability of 38 candidates eligible as on 30. 6. 1990. The petitioner s name was also considered. He was interviewed along with the others. The interview committee consisted inter alia of the second Respondent and 3 director level officers of the CCI and an officer from the Ministry of industry. Likewise, the minutes of meeting of 13. 11. 1991 and 14. 11. 1991 considered all the eligible candidates including the Petitioner. 10 names were recommended and the Petitioner was again overlooked. The composition of the committee was similar to the one that had held its proceedings in October 1990. ( 21 ) LEARNED counsel for the Petitioner had endeavored to place reliance on the service record to say that the Petitioner had received several commendations and had an unblemished track of service; his super-session therefore was contrary to law. He also sought to submit that in the absence of relevant supporting documents such as ACRs of all the candidates, the minutes of meeting by themselves do not lead to any conclusion; therefore the Court has to infer that cci deliberately ignored the Petitioner s claim while preferring that of respondents No. 3 to 6. ( 22 ) A writ court in judicial review under Article 226 of the Constitution cannot act as a super-selection committee or sit in appeal over the choice of a dpc. ( 22 ) A writ court in judicial review under Article 226 of the Constitution cannot act as a super-selection committee or sit in appeal over the choice of a dpc. In this case the criterion for promotion is not seniority, it is based on merit-cum-seniority having regard to the needs of the higher post. The documents and minutes produced do not show any infirmity or glaring irregularity as far as procedural requirements were concerned. Indeed, there is no denial of the fact that the Petitioner participated in the process and was interviewed in both the DPC. He made no grievance on the score of his being overlooked in the year 1990. He has approached only when the second DPC did not recommend his name. In these conspectus of facts, I am of the opinion that the first relief claimed namely a direction that the Petitioner ought to be promoted with effect from the date his juniors were promoted in 1990, cannot be granted. ( 23 ) THE Petitioner was initially transferred in March 1992 to the Tandur unit of CCI. Later this order was rescinded and he was posted to the Charkhi dadri Unit. The defense of the Respondents is that order was necessitated by administrative considerations, even though the Petitioner did not report to tandur Unit and gave contradictory reasons, it nevertheless recalled the order and posted him to Charkhi Dadri unit, which is nearer to Delhi, to enable him to tend to his ailing father. The transfer order has been attacked mainly on the ground of mala fides. It has been settled in a long line of decisions that transfer is an incidence of service and ought not to be interdicted by the courts unless the aggrieved person establishes it to be vitiated by mala fides or arbitrariness, or violation of any prescribed norms or principles governing transfer. (Ref Union of India and others Vs. S. L. Abbas AIR 1993 2444, Abani kanta Ray Vs. State of Orissa and others, 1995 Supp. (4) SCC 169 and Kendriya vidyalaya Sangathan Vs. Damodar Prasad Pandey and Others, (2004) 12 SCC 299 ). ( 24 ) THE allegations of mala fides in this case have been leveled against respondent No. 2. The Petitioner avers that the said Respondent acquired a malevolent and hostile attitude in view of his objections on certain parameters set for the acquisition of DG sets. Damodar Prasad Pandey and Others, (2004) 12 SCC 299 ). ( 24 ) THE allegations of mala fides in this case have been leveled against respondent No. 2. The Petitioner avers that the said Respondent acquired a malevolent and hostile attitude in view of his objections on certain parameters set for the acquisition of DG sets. All these allegations are premised upon two directors refusing to sign the minutes of a board meeting. The Petitioner has also alleged that the procedure for acquiring the DG sets was manipulated with a motivated manner, to oust one particular bidder and favour others. He has also relied upon a letter of intent issued by CCI on 7. 7. 1992, to bidders. ( 25 ) THE second Respondent has chosen to keep away from the proceedings. He has not filed any affidavit. That circumstance would reflect to a certain extent on the merits and elicit an adverse inference about his conduct. Nevertheless, the totality of pleadings and documents on record have to be considered while judging the plea of mala fides has been established. ( 26 ) THE defense of CCI is that initial only three DG sets were tendered for; however on account of certain exigencies three more had to be acquired and the first two tenderers were asked to indicate their discounts on that premise. What is most significant is that after the process was completed, the Board of directors resolved, to place orders on the two parties. The controversy however is whether the DG sets were actually acquired or not. The stand of the petitioner is that the DG sets were indeed acquired; he placed reliance upon the letters of intent. The CCI, on the other hand, positively asserts that even though the Board of Directors resolved to purchase the equipment and letters of intent were issued, no orders were placed, due to financial crunch. This assertion has been made at least twice in the counter affidavit. The other material relied upon by the Petitioner are two affidavits filed by non-parties. They state that he was associated with the tendering process as an Electrical expert. ( 27 ) ALLEGATIONS of mala fides are often made but seldom established. This assertion has been made at least twice in the counter affidavit. The other material relied upon by the Petitioner are two affidavits filed by non-parties. They state that he was associated with the tendering process as an Electrical expert. ( 27 ) ALLEGATIONS of mala fides are often made but seldom established. It has been held that when the Court is called upon to resolve the question as to whether an administrative order is motivated by mala fides, what is necessary to be enquired into and found is whether the basis of the order is what is stated or is it a mere camouflage. It is also been held that there cannot be possibly any guidelines regarding proof of mala fides, which would depend upon the peculiar facts of each case. There must be objective materials in support of the allegations and the mere use of the expression would not by itself amount to proof of mala fides. It has been also held that the burden of establishing mala fides is very heavy on the person who is making it and the seriousness of such allegations would require proof of a high order of credibility. (E. P. Royappa vs. State of Tamil Nadu and another, AIR 1974, SC 555; A. Periakaruppan Vs. State of Tamil Nadu, AIR 1971 SC 2303 and Delhi Development Authority and another Vs. M/s UEE Electricals Engg. (P) Ltd. And another, AIR 2004, SC 2100 ). ( 28 ) IN this case undoubtedly the absence of any affidavit or denial of the allegations mala fides by the second Respondent, is a relevant factor. However, that alone does not warrant or justify a conclusion about mala fides. All other circumstances have to be gone into. It is undisputed that the CCI sought at one time to acquire DG sets and in all probability the Petitioner was involved at some stage in the variation of technical parameters. Beyond this, there is in my opinion no sufficient material to lead to a conclusion on mala fides so as to vitiate the transfer orders. This aspect assumes some importance on account of two factors. One, admittedly the Petitioner s initial transfer to Tandur, which is at a considerable distance from Delhi, was not complied with and he sought for its recall on the ground of illness of his father. This aspect assumes some importance on account of two factors. One, admittedly the Petitioner s initial transfer to Tandur, which is at a considerable distance from Delhi, was not complied with and he sought for its recall on the ground of illness of his father. The second transfer partially relieved him in that the posting was to Charkhi Dadri, which is nearer delhi. If the Respondents, particularly the second Respondent were of the state of mind as is alleged, possibly such course of action would never have occurred. The second factual aspect is that at the end of the tender process, apparently no order was placed on the DG sets. I am, therefore, of the opinion that existing facts of and documents, the Petitioner has not been able to establish that the transfer was motivated by personal malice or mala fides of the second respondent. ( 29 ) IN view of the conclusions on both the issues, the reliefs claimed in these proceedings cannot be granted. The writ petition and all interlocutory applications are accordingly dismissed. Rule discharged. No costs. .