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2012 DIGILAW 470 (UTT)

BHAJAN SINGH v. STATE OF UTTARAKHAND

2012-08-09

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT Barin Ghosh, C.J. (Oral) The subject matter of challenge in the instant writ petition is selection for promotion to the post of Managing Director of the respondent Authority. The challenge is on two counts, namely, the Selection Committee was prevented, for no just reason, to consider the fact that the respondent Authority has issued three charge-sheets against the selected candidate and, in terms of the Rules, Selection Committee had no other option, but to select the petitioner. The second contention is on the basis that the criteria for promotion was seniority-cum-merit and the statutory Rules prescribed the benchmark of ‘8’, which, in any event, petitioner was entitled to get and, if the petitioner had crossed the benchmark, having regard to the fact that he is senior most Chief Engineer Level II, he, alone, could be selected for promotion. 2. In exercise of powers conferred by Section 96, read with Sub-Section (2-A) of Section 4, of the Uttar Pradesh Water Supply and Sewerage Act (as applicable to the State of Uttarakhand) and in supersession of the existing orders on the subject, the State Government made The Uttarakhand Pey Jal Sansadhan Vikas Evam Nirman Nigam (The Post of the Managing Director) Rules, 2011. Rule 3 thereof provided that, in order to be appointed to the post of Managing Director, the person concerned is required to be selected by a Selection Committee comprising of those mentioned in the said Rule. Rule 4 says, the person, so to be appointed, must, before his appointment, hold the post of Chief Engineer Level II in the respondent Authority and, in addition to that, must have completed 25 years of continuous service as Assistant Engineer, Executive Engineer, Superintendent Engineer and Chief Engineer Level II in the respondent Authority. Therefore, in order to be eligible to appear before the Selection Committee, the candidate must have had served for 25 years in the respondent Authority in the capacities from Assistant Engineer to Chief Engineer Level II and must, at the time of presenting himself, be a Chief Engineer Level II. Rule 5 of the said Rules provides what the Selection Committee would look at to determine the merit. A great emphasis has been given to look at the integrity of the candidate concerned. Rule 5 of the said Rules provides what the Selection Committee would look at to determine the merit. A great emphasis has been given to look at the integrity of the candidate concerned. It was contended that, inasmuch as the Selection Committee was not in the know that three charge-sheets have been issued against the person selected, the Selection Committee was not given an appropriate opportunity to determine the integrity of the selected candidate. 3. The first charge-sheet was issued on 5th December, 2011, the second on 3rd March, 2012 and the third on 9th April, 2012. According to the Rules, the Principal Secretary / Secretary to the State Government in the Drinking Water Department was required to prepare a list of eligible people and to place the same before the Selection Committee, along with their character rolls and other records pertaining to them. The Principal Secretary / Secretary to the State Government, who was dealing with the matter, felt that those charge-sheets are not charge-sheets issued in departmental proceedings, but were mere show-cause notices issued to find out the responses thereto. We think, it has been rightly submitted by the counsel for the petitioner that the Principal Secretary / Secretary erred in construing the same to be not departmental charge-sheets, as all the ingredients of a departmental charge-sheet are present in the subject charge-sheets. However, from the charge-sheets, it appears that, though they were approved by the Chairman of the respondent Authority, but were not issued by him. A disciplinary action can only be initiated by the disciplinary authority. In the instant case, there is no dispute that the Chairman was the disciplinary authority. The charge-sheets in question, therefore, were required to be issued by the Chairman. Be that as it may, even assuming that the charge-sheets were appropriately issued, the question is, what would be the effect of non-consideration of the same by the Selection Committee? It is true that, if the selectors had looked into those charge-sheets, they may have had reacted in some other manner, other than the manner in which they have reacted. But there is no certainty that they could not react in the manner they acted. As aforesaid, the Rules directed the selectors to give emphasis on integrity of the person to be selected. Mere issuance of a charge-sheet does not affect integrity of an employee of a statutory authority. But there is no certainty that they could not react in the manner they acted. As aforesaid, the Rules directed the selectors to give emphasis on integrity of the person to be selected. Mere issuance of a charge-sheet does not affect integrity of an employee of a statutory authority. Law requires selectors to ignore altogether a charge-sheet issued against a Government employee, inasmuch as, the same bears only an accusation against him and integrity of a person cannot be questioned only on the basis of an allegation or insinuation against him. The Rules, it was not contended, debarred consideration of a candidate for promotion against whom a disciplinary proceeding is pending. 4. We think that integrity of the officer, to be looked at by the selectors, is such integrity, which is reflected in the records of the candidate appearing before the selectors. Issuance of a charge-sheet may be reflected in the record, but the substance of the charge-sheet cannot be treated as part of the record. As aforesaid, mere issuance of a charge-sheet does not prevent the selectors from selecting a candidate against whom the charge-sheet has been issued. 5. We, accordingly, find no scope of interference with the selection under challenge merely on the basis that the charge-sheets, thus issued, were not placed before the selectors. 6. There is no dispute that benchmark for determining the merit is ‘8’. There is also no dispute that Rules specifically mentioned that, after candidates have crossed the benchmark, their merit will not count, but their seniority will count. In the counter affidavit filed by the State, it has brought on record that the petitioner obtained 7.97 marks. From the chart annexed to their counter affidavit, showing the details of the marks awarded to the petitioner, it appears that the petitioner was given, during the years 2002-2003, 2004-2005 and 2005-2006, ‘Good’ remark in his confidential reports. There is no dispute that, unless a person gets ‘Very Good’, he does not get equal to the minimum required benchmark specified in the Rules for promotion. Therefore, when the petitioner received less than the benchmark in his confidential reports, for the years 2002-2003, 2004-2005 and 2005-2006, it was obligatory on the part of the employer to make the petitioner aware of the fact that he has received less than the benchmark. Therefore, when the petitioner received less than the benchmark in his confidential reports, for the years 2002-2003, 2004-2005 and 2005-2006, it was obligatory on the part of the employer to make the petitioner aware of the fact that he has received less than the benchmark. The fact remains that the confidential reports for those years were not communicated to the petitioner, thereby depriving the petitioner of an opportunity to make a representation against those gradings, as were made during those years. In the normal circumstances, when the selectors are aware that such adverse confidential reports were not served upon the candidate, the marks obtained during the relevant years are not taken note of, instead, average obtained during the remaining years is marked for those years. We would have taken recourse to the same, but, in the instant case, we need not do so, inasmuch as, it appears that, on 8th February, 2005, ACR entry for 2004-2005 was entered giving ‘Good’ remark. In the chart, mentioned above, it has been indicated that the said remark was for 12 months and, at the same time, there is no dispute that, for obtaining ‘Good’, one is entitled to 5 marks under the Rules, but, for the said year, petitioner was given only 4.17 marks. There is no just reason for not giving him the remaining 0.83 marks. No attempt has been made to explain why the petitioner should be deprived of those 0.83 marks. We, accordingly, proceed to hold that, for the year 2004-2005, petitioner obtained, as a matter of right, 5 marks instead of 4.17 marks and, on the basis thereof, he has crossed the benchmark of 8 marks. 7. The only contention remains to be considered is, whether in view of the petitioner, on the facts as above, crossing the benchmark, can it be said that anyone else, but the petitioner, could be selected on the basis of seniority. 8. There appears to be no dispute that, by Notification dated 13th August, 2002, respondent Authority adopted The Uttaranchal Government Servants Seniority Rules, 2002. Therefore, in the matter of determining the seniority of employees of the respondent Authority, one is to look only at The Uttaranchal Government Servants Seniority Rules, 2002. 9. 8. There appears to be no dispute that, by Notification dated 13th August, 2002, respondent Authority adopted The Uttaranchal Government Servants Seniority Rules, 2002. Therefore, in the matter of determining the seniority of employees of the respondent Authority, one is to look only at The Uttaranchal Government Servants Seniority Rules, 2002. 9. Rule 6 of the said Rules is as follows: “Seniority where appointment by promotion only from a single feeding cadre – Where according to the service rules, appointments are to be made only by promotion from a single feeding cadre, seniority inter se of persons so appointed shall be the same as it was in the feeding cadre. Explanation. – A person senior in the feeding cadre shall even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre.” 10. There appears to be no dispute that, on 8th February, 2005, petitioner was promoted to the post of Chief Engineer Level II; at the same time, there is no dispute that the petitioner was promoted to the post of Superintending Engineer on 4th July, 2002. It was, accordingly, submitted by the learned counsel for the petitioner that the seniority of the petitioner in the post of Chief Engineer Level II shall be deemed to be from 4th July, 2002. It was contended that, even according to the respondents, no Chief Engineer Level II had seniority from any day prior to 4th July, 2002. Alternatively, it was submitted that the person, who has been selected, was promoted to the post of Superintending Engineer only on 30th June, 2008 and the petitioner left the cadre of Superintending Engineer on 8th February, 2005. Under the circumstances, the person, who has been selected, cannot claim to be senior to the petitioner and, if his claim of seniority is accepted, the same will permit extreme catch-up, which is not permissible, as propounded by the Hon’ble Supreme Court in the case of Ajit Singh and others (II) vs. State of Punjab and others, reported in (1999) 7 SCC 209 . 11. In the instant case, Rules, which are not under challenge, give direction for determination of seniority. As aforesaid, according to the Rules, the seniority in the feeding cadre is the seniority in the promotional cadre. 11. In the instant case, Rules, which are not under challenge, give direction for determination of seniority. As aforesaid, according to the Rules, the seniority in the feeding cadre is the seniority in the promotional cadre. The Explanation to the Rules makes it clear that the person would regain his seniority as it was in the feeding cadre no sooner he is promoted, although such promotion has been effected after juniors to him have been promoted. In such circumstances, on the first blush, it appears that the submission of the learned counsel for the petitioner is correct, as the petitioner would get seniority in the post of Chief Engineer Level II w.e.f. 4th July, 2002 and he, accordingly, should be adjudged the senior most as, admittedly, under the Rules, no one else could get such seniority. However, the calculation in the instant case is being made from the reverse. That cannot be made. It has to be made from the beginning. Person, who has been selected, was appointed as Assistant Engineer on 15th October, 1977. He was promoted to the post of Executive Engineer on 7th November, 2000. Insofar as his seniority in the post of Executive Engineer is concerned, having regard to the Rules governing the field, his date of promotion loses significance. He, according to the Rules, should be deemed to be having his seniority in the post of Executive Engineer, though promoted on 7th November, 2000, from 15th October, 1977. The said person was promoted to the post of Superintending Engineer on 30th June, 2008. Having regard to the mandate of the Rules, his date of promotion goes in oblivion. He, in the post of Superintending Engineer, must be deemed to be having seniority w.e.f. 15th October, 1977. Similarly, the said person was promoted to the post of Chief Engineer Level II on 20th January, 2011 and, again, at this time, the date of promotion should be ignored for the purpose of seniority and, in accordance with the mandate of the Rules, his seniority in the post of Chief Engineer Level II must be counted from 15th October, 1977, as that was his seniority in the feeding cadre. Petitioner having been appointed as Assistant Engineer only on 13th September, 1984, his seniority, in September, 1984 and not prior thereto. Petitioner having been appointed as Assistant Engineer only on 13th September, 1984, his seniority, in September, 1984 and not prior thereto. In the circumstances, on and from 20 January, 2011, until when the person selected was promoted to the post of Chief Engineer Level II, it must be deemed that, for the said post, he had seniority from 15 October, 1977; whereas, at the same time, the seniority of the petitioner, though he was promoted to the post of Chief Engineer Level II on 8February, 2005, shall be counted from 13September, 1984. In the circumstances, it cannot be contended that, in accordance with the Rules, it was the petitioner, who was senior to the person, who had been selected and, as such, the selection impugned is interferable. accordance with the Rules, for the post of Chief Engineer Level II, can be counted only from 13th 12. It is true that, on 30th June, 2008, when the person selected was promoted to the post of Superintending Engineer, petitioner was already holding the post of Chief Engineer Level II and, accordingly, the person selected could not be compared with the petitioner. But the question is, until when? It is true that, until 19th January, 2011, the person so selected could not be compared with the petitioner, but the moment, on 20th January, 2011, the person selected became Chief Engineer Level II, he acquired a right to be compared with another Chief Engineer Level II and, accordingly, with the petitioner too. At that stage, as aforesaid, in terms of the mandate of the Rules, whereas the seniority in the post of Chief Engineer Level II of that person was to be counted from 15th October, 1977, the seniority of the petitioner in the post of Chief Engineer Level II was to be counted from 13th September, 1984. In those circumstances, the person selected should be deemed to be senior to the petitioner. 13. The submission that permitting the person selected for promotion to catch-up the petitioner at the stage of Chief Engineer Level II would be a rule of extreme catch-up, is not acceptable. In the judgment of the Hon’ble Supreme Court, referred to above, a question of the nature, as is being considered here, was not considered. 13. The submission that permitting the person selected for promotion to catch-up the petitioner at the stage of Chief Engineer Level II would be a rule of extreme catch-up, is not acceptable. In the judgment of the Hon’ble Supreme Court, referred to above, a question of the nature, as is being considered here, was not considered. The Hon’ble Supreme Court had no occasion to pronounce that, despite the Rules providing for determination of adjudgment of seniority, without interfering with the 8 Rules, any other method can be adopted for the purpose of adjudging seniority. In the instant case, if the consideration of the petitioner for promotion was made before 19th January, 2011, then the petitioner could not be compared with the person who has been selected. But the fact remains, the selection in the instant case took place after 20th January, 2011, when the person selected for the post of Chief Engineer Level II, in accordance with the Rules, acquired seniority w.e.f. 15th October, 1977; whereas, petitioner acquired such seniority w.e.f. 13th September, 1984. 14. In the circumstances, we find no reason to interfere with the impugned selection. The writ petition fails and the same is dismissed.