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2011 DIGILAW 745 (JK)

Mohd. Shafi Zahid v. State

2011-12-30

Mansoor Ahmad Mir

body2011
1. It appears that petitioner has entered into series of litigation and is still in deadlock, knocking the doors of justice for redressal of his grievances. And as a corollary effect, and on the merits of the case, this court while disposing of the writ petition, SWP No. 1218/2010, vide order dated 30th of August, 2010, commanded the respondents to have resort to option No. 1, the elaborated mention of which is made in the said judgment, for filling up the post of Director, Archives, Archaeology and Museum, by promotion and cases of petitioner along with one Nasreena Khan had been ordered to be considered. Respondents, in compliance whereof, issued consideration order bearing No. 5 of 2011 dated 19th of July, 2011 which is also the subject matter of another writ petition SWP No. 385/2011. 2. In SWP No. 820/2010, petitioner has prayed that Govt. Order No. 09 Cul of 2010 dated 26th of February, 2010 be quashed and respondents be directed to promote petitioner to the post of Director, Archives, Archaeology and Museum and give him all consequential benefits of such promotion in accordance with law. 3. The prayer in writ petition, SWP No. 385/2011 seeks quashment of consideration order supra and direction to accord consideration to the petitioner's case to the post of Director, Archives Archaeology and Museum, as per the Rules, on the grounds taken in the writ petition. 4. In writ petition, SWP No. 905/2011, petitioner has questioned the Govt. Order No. 505-GAD of 2011 dated 27.04.2011, whereby respondent No. 2 was given additional charge of the post of Director, Archives Archaeology and Museum till further orders. 5. Petitioner was constrained to file contempt petition too bearing No. 196/2010, wherein, it is alleged that respondents have violated the direction passed by this court in writ petition, SWP No. 820/2010 by issuing the Govt. Order No. 633-GAD of 2010 dated 31st of May, 2010 whereby Shri Sonam Gyalson, Special Secretary to Government, Ladakh Affairs Department was posted as Director, Archives Archaeology and Museum, relieving respondent No. 2 of his additional charge. 6. Petitioner has alleged that Shri Atal Duloo & Khalid Bahsir, Respondent Nos. 1 and 3 respectively, have willfully and on purpose, violated the court directions. 7. 6. Petitioner has alleged that Shri Atal Duloo & Khalid Bahsir, Respondent Nos. 1 and 3 respectively, have willfully and on purpose, violated the court directions. 7. The main dispute, in all the petitions is, as to whether the respondents have rightly passed the consideration order and denied the promotion to petitioner to the post of Director, Archives, Archaeology and Museum? To have the question answered, the foundation of the petitioner's case needs little recounting, thus:- It appears that respondents have ignored the case of the petitioner on the ground that his Annual Performance Reports, hereinafter for short as APR's, for the relevant period were either found incomplete or have been un-initiated by the competent authority, besides his integrity was also not forthcoming which, according to them, was pre-requisite for according consideration for promotion to the post of Head of the Department. It is apt to reproduce Para (ii) of the Govt. Order No. 5 of 2011 dated 19th of January, 2011:- ii) Sh. Mohammad Shafi Zahid, Deputy Director, Archives, Archaeology and Museums had been placed under suspension vide Government Order No. 5-Cult of 2008 dated 19.6.2008 on the charges of having made stop gap arrangements and their subsequent continuation, attending of Rock Art Congress in New Delhi in Feb., 2006 without the approval of the competent authority and entering into direct correspondence with the Administrative Department bypassing his Director. Also an enquiry was instituted against him which established the charges. He was reinstated vide Government Order No. 33-Cult of 2009 dated 23.4.2009 and his period of suspension treated as period spent on duty. He was advised to be careful in future and ensure decorum in the office besides strictly following the rules while discharging his duties. The committee further noted that out of the five APRs which are normally taken into consideration for evaluation as per the terms and reference of the Establishment-cum-Selection Committee, none of the APRs of Sh. M. S. Zahid were found complete. The perusal of the APRs indicated that these have not been initiated by the considered initiating Authorities. While the APRs of the officer for the year 2003-04 and 2005-06 have been reviewed on 9.12.2010 by the Reviewing Authority, the APRs of 2006-07 and 2007-08 have been reviewed on 22.10.2010. Out of these APRs two APRs carried the grading "Good". The perusal of the APRs indicated that these have not been initiated by the considered initiating Authorities. While the APRs of the officer for the year 2003-04 and 2005-06 have been reviewed on 9.12.2010 by the Reviewing Authority, the APRs of 2006-07 and 2007-08 have been reviewed on 22.10.2010. Out of these APRs two APRs carried the grading "Good". The integrity of the officer is also not forthcoming which is a prerequisite for considering an officer for promotion to the post of an HOD. The Committee thus did not find Sh. Mohammad Shaft Zahid suitable for promotion as Director, Archives, Archaeology and Museums." 8. Petitioner has specifically averred in the writ petition that, he has submitted his APRs, and the competent authority had to initiate it and judge the grading. Failure of the initiating authority in doing so cannot make petitioner responsible for the same, he, as such, cannot be made to suffer. Further it is specifically averred that after knowing that respondents have not initiated the APRs, he submitted set of fresh APRs along with documents for taking necessary action. But despite of that respondents have deliberately and intentionally not recorded the APRs. 9. Petitioner has also annexed with the writ petition, SWP No. 385/2011, and rejoinder, all the copies of documents-APRs, certificates and other documents which do disclose that petitioner has submitted the APRs and Smt. Sonali Kumar, Principal Secretary to Govt. Higher and Technical Education Department on 9th of December, 2010 has graded the petitioner as "Outstanding". It is recorded by the said officer that petitioner is fit to head the department of Archaeology and he be given promotion as per his turn. Petitioner has also placed on record photostat copy of other documents which do disclose appreciation letters received from Indira Gandhi National Centre for Arts and Indian Archaeological Society. Ms. Tanveer Jahan, Reviewing Authority, has recorded that officer has written various paper books on his subject and as such that officer-petitioner is well versed with the job which is highly technical and has immense knowledge in his field. The photostat copy of the relevant documents are on record. 10. Respondents have filed reply and have tried to carve out a case for showing that petitioner was not entitled to promotion. The photostat copy of the relevant documents are on record. 10. Respondents have filed reply and have tried to carve out a case for showing that petitioner was not entitled to promotion. Further their case is that respondents were under legal obligation to accord consideration to the case of the petitioner, but he cannot claim promotion as a matter of right. 11. The grounds projected in opposition to all the writ petitions, by the respondents, appear to be unfounded, for, the respondents have not considered the same in terms of the relevant Rules because the denial is made on the ground that APRs of the petitioner were not forthcoming and have not been initiated, besides it is also recorded that integrity of the officer was not forthcoming, which appears to be nothing but a blatant lie, as the facts speak against it. The situation gets worsened, even more, for the reason that petitioner submitted fresh set of APRs to them which too has not been taken into consideration. In such a situation, how come the respondents afford to refuse promotion to the petitioner? 12. While going through the impugned orders, it appears that respondents have passed the impugned orders without application of mind and without any foundation. They were reasonable expected at least to defer it and ask the concerned authority to get the APRs recorded and also to make entry about his integrity. Having failed to do that, the respondents are not expected to even demonstrate, not to speak of substantiating the action they have taken. 13. Thus the entire exercise is vitiated. My view is fortified by the same judgment. It is apt to reproduce Para 40, & 57, of the said judgment herein. "40. Unless there is a strong case for applying the Wednesbury doctrine or there are malafides, Courts and Tribunal cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or fitness for promotion. My view is fortified by the same judgment. It is apt to reproduce Para 40, & 57, of the said judgment herein. "40. Unless there is a strong case for applying the Wednesbury doctrine or there are malafides, Courts and Tribunal cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be malafide or is found based on inadmissible or irrelevant or insignificant and trivial material-and if an attitude of ignoring or not giving weight to the positive aspects of one's career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of judicial review under Article 226 of the Constitution are not foreclosed. 57. Learned senior counsel for the State of Tamil Nadu, Sri C.S. Vaidyanathan has, however, relied upon the following observations of a two Judge Bench in D. Ramaswami v. State of Tamil Nadu, [1982] 1 SCC 510 (para 4): "The learned counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion. We do not say that the previous history of a government servant should be completely ignored, once he is promoted. Sometimes, past events may help to assess present conduct." The above-said observation cannot help the respondent inasmuch as, though such remarks need not be altogether omitted from consideration, they must be treated as sufficiently weakened and as having lost their sting. The case in D. Ramaswami's case on facts goes against Mr. Vaidyanathan's contentions. There the appeal of the officer was allowed by this Court. In that case, the officer started as Lower Division Clerk and rose to the position of a Dy. Commissioner of Commercial Taxes. His entire service record contained only one single adverse entry in 1969 which referred to taking money from business people. The inquiry into that complaint ended in his favour, the government dropping the charges in Nov. 1974. In May, 1975 he was offered the selection post of Dy. Commissioner. In September, 1975, he was compulsorily retired. Commissioner of Commercial Taxes. His entire service record contained only one single adverse entry in 1969 which referred to taking money from business people. The inquiry into that complaint ended in his favour, the government dropping the charges in Nov. 1974. In May, 1975 he was offered the selection post of Dy. Commissioner. In September, 1975, he was compulsorily retired. It was held that while his previous record should not be completely ignored, there was nothing in the present conduct casting any doubt on the wisdom of the promotion and there was therefore no justification for needless digging into the past. It was held that the basis of the adverse entry of 1969 was knocked out by the order of the government in November 1974 and the effect of the entry (of 1969) was blotted out by the promotion of the appellant in that case by his promotion as Deputy Commissioner. In the light of the other observations, the said ruling in fact supports the case of Sri Badrinath rather than go against him. Two other cases cited in this connection are not relevant on this aspect and we are not referring to them." 14. It appears that decision has been made on irrelevant factors and reasonably no sensitive person could have arrived at such a conclusion. In this respect, reference is made to the judgment delivered in case titled Union of India and another v. G. Ganayutham reported as 1997 SCC (7), 463. 15. All said and done, I am conscious that court cannot sit as an appellate court and evaluate the factum of, department concerned Committee, having rightly or wrongly passed the order, but court is within its powers to see, as to whether the same has been passed arbitrarily, and without any record. My view is fortified by the Apex Court Judgment delivered in case titled State Bank of India and others v. Mohd. Mynuddin reported as 1987 (4) SCC 486 . 16. It is worthwhile to mention herein, that the officers who have examined the case of the petitioner and structured the foundation of the impugned orders, are respondents in contempt petition No. 196/2010 also and it is specifically pleaded therein that, they have violated the court directions with malafide, underhanded, oblique motives and with intent. 16. It is worthwhile to mention herein, that the officers who have examined the case of the petitioner and structured the foundation of the impugned orders, are respondents in contempt petition No. 196/2010 also and it is specifically pleaded therein that, they have violated the court directions with malafide, underhanded, oblique motives and with intent. It is a fact that, Court Order dated 30th of April, 2010, was in force, when the respondents issued the order No. 633-GAD of 2010 dated 31st of May, 2010. 17. Thus the officers, who are facing contempt, should not have passed the consideration order. This view is fortified by Apex Court judgment titled Badrinath v. Govt. of Tamil Nadu 2000 (8) SCC 395 . It is apt to reproduce Para 73 herein:- 73. Two cases directly in point may now be referred to. In Mahadevan v. D.C. Agarwal, [1993] Suppl. 4 SCC 4 the respondent was seeking promotion. He had filed a contempt case against certain senior officers of the State Bank of India for denying him promotion. But the Bank Constituted a Selection Committee in which the two persons against whom the contempt case was filed were members and the Committee did not find the respondent fit for promotion. It was held that the said two persons ought not to have been members of the Selection Committee and the Committee's decision was invalid...." 18. It is profitable to mention herein that placement of petitioner under suspension does not make things worse for petitioner rather it implies of him, having committed no fault, as it turned out to be later on, for, no punishment was imposed upon him, rather he was reinstated while treating the period of suspension as on duty. Article 108, 108 (b) and 108 (c) of Civil Service Regulations provides; how to treat the period of suspension of an employee, how to pay him the subsistence allowance and if he is reinstated afterwards, how to deal with his period of suspension and other relevant aspects. Explanation 2 to Article 108 (c) provides that if an employee is exonerated it is for the competent authority to treat the entire period on duty. In the instant case the petitioner has been treated on duty. It is apt to reproduce Govt. Explanation 2 to Article 108 (c) provides that if an employee is exonerated it is for the competent authority to treat the entire period on duty. In the instant case the petitioner has been treated on duty. It is apt to reproduce Govt. instructions on the subject:- "In the case of persons who are not fully exonerated, the conversion of the period of suspension into leave with or without allowances has the effect of removing the stigma of suspension and all the adverse consequences following therefrom. 19. The reproduced text provides if a person is not fully exonerated, the period of suspension is to be converted into leave with or without allowance and it has the effect of removing stigma of suspension and all the consequences following therefrom. In the instant case the petitioner was exonerated fully, his entire period was treated on duty, leaving no scope for stigma or any adverse effect. 20. Keeping all the aspects in mind, I am of the considered view that impugned order has been passed without basis and is illegal. The petitioner has been deprived of right of proper consideration without any justification. Accordingly, I deem it proper to allow writ petition SWP No. 385/2011 and quash the impugned order with the direction to respondents to consider the case of the petitioner afresh and pass appropriate orders while taking into consideration the entire APRs and the other factors the reference of which has been made hereinabove viz. the certificates of appreciation etc. Ordered accordingly. The entire exercise be completed in such a way that the consideration order is made within two months from the date copy of the judgment is served upon them. 21. Writ Petitions, SWP Nos. 820/2010 and 905/2011 have become infructuous by lapse of time and are disposed of as such. However, the interim arrangement made in terms of order impugned in SWP No. 905/2011 shall remain in force till consideration order is passed i.e. period of two months as indicated above. 22. The orders questioned in the writ petition SWP Nos. 820/2010 and 905/2011 have lost efficacy by lapse of time. In the given circumstances, the contempt petition is disposed of. 23. All the writ petitions and contempt petition along with all CMPs are disposed of accordingly.