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2012 DIGILAW 890 (HP)

Bhoop Ram Verma v. State of Himachal Pradesh

2012-11-27

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. Petitioner was promoted to the post of Private Secretary on ad hoc basis on 22.11.1997. He was regularized as Private Secretary on 02.06.1998. The post of Private Secretary is in feeder category for promotion to the post of Senior Private Secretary. The State Government has notified the rules on 19.11.2001, called “The Himachal Pradesh Secretariat Services (Senior Private Secretary), Class-I (Gazetted), Recruitment and Promotion Rules, 2001. The DPC for promotion to the post of Senior Private Secretary was convened on 08.03.2007. One Shri Prakash Chand was promoted to the post of Senior Private Secretary on regular basis on 15.03.2007 and Shri Lokinder Sharma was promoted as Senior Private Secretary on ad hoc basis on 05.07.2007. Sh. Keshav Ram was also promoted as Senior Private Secretary on 17.07.2007 on ad hoc basis. Thereafter, the Departmental Promotion Committee was convened on 26.07.2007, whereby one Kamla Devi was promoted as Senior Private Secretary vide notification, dated 30th July, 2007. The respondent No. 3 was declared fail in the departmental examination on 05.10.2007. He applied for reevaluation and the result thereof was declared on 29.12.2007. He was declared pass. The respondent No. 3 was also promoted as Senior Private Secretary on 19th April, 2008. The petitioner was promoted as Senior Private Secretary on ad hoc basis on 19.04.2008. The DPC was again convened on 23.12.2010 for filling up the posts of Senior Private Secretaries against the vacancies which have become available in the year 2007 till 2010. The name of the petitioner was not recommended for promotion against any of the vacancies for the year 2007 to 2010. In fact, the petitioner was reverted to the post of Private Secretary vide letter, dated 05.01.2011. He submitted a representation for the redressal of his grievance. The same was rejected on 29.04.2011. The DPC again met on 29.09.2011 for considering promotion of Private Secretaries to the post of Senior Private Secretaries for the vacancies which have become available in the year 2011 (one clear vacancy w.e.f. 01.09.2011, two anticipated vacancies on 01.10.2011 and 01.12.2011). The petitioner’s name was not recommended. However, he was subsequently promoted to the post of Senior Private Secretary vide notification, dated 26.06.2012. 2. Mr. The petitioner’s name was not recommended. However, he was subsequently promoted to the post of Senior Private Secretary vide notification, dated 26.06.2012. 2. Mr. Dilip Sharma, learned Senior Counsel for the petitioner has strenuously argued that respondents No. 1 and 2 could not ignore the petitioner for promotion to the post of Senior Private Secretary in the DPC convened on 26.07.2007. According to him, the respondent No. 3 was not eligible, since he has not qualified the departmental examination. He has passed the departmental examination subsequently, as noticed above, on 29.12.2007. He also contended that the action of respondents No. 1 and 2 to revert the petitioner from the post of Senior Private Secretary to the post of Private Secretary vide order, dated 05.01.2011 was bad in law. He lastly contended that no reasons have been assigned while up-grading and down-grading the ACRs. of petitioner and similarly situate persons while considering their cases for promotion to the posts of Senior Private Secretaries. 3. Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that the petitioner has not been found suitable for promotion in the DPCs. held on 08.03.2007, 26.07.2007, 23.12.2010 and 29.09.2011. He also contended that the DPC has made recommendations strictly as per Chapter 16.25 (g)(iii) of the Hand Book on Personnel Matters Volume-I. He also contended that there is no illegality in the promotions of respondents No. 3 to 5. 4. The respondents No. 3 to 5, though served, but are not represented. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. The respondent-State has framed the rules called “The Himachal Pradesh Secretariat Services (Senior Private Secretary), Class-I (Gazetted), Recruitment and Promotion, Rules, 2001. The post of Senior Private Secretary is a selection post. It is to be filled up 100% by promotion from amongst the Private Secretaries, who possess five years regular service or regular combined with continuous ad hoc (rendered upto 31.3.1998) service, if any, in the grade, failing which, by promotion from amongst the Private Secretaties, who possess eight years regular service or regular combined with continuous ad hoc (rendered upto 31.3.98) service combined as Private Secretary and Personal Assistant which shall also include essential service of three years as Private Secretary. 7. 7. It is evident from the record placed on record that in the DPC held on 08.03.2007, the name of one Shri Prakash Chand was recommended, which led to order, dated 15.03.2007. Similarly, Shri Lokinder Sharma and Shri Keshav Ram were also promoted as Senior Private Secretaries on ad hoc basis. In the DPC held on 26.07.2007, though the case of petitioner was considered, but his name was not recommended. The name of Smt. Kamla Devi was recommended and she stood promoted on 30.07.2007. It would be appropriate at this stage to take into consideration the relevant portion of the memorandum, which was prepared for consideration of the Departmental Promotion Committee for promotion of Private Secretaries to the posts of Senior Private Secretaries, which reads thus: “Two posts i.e. one each of Sr. Spl. Private Secretary and Special Private Secretary have been created on 16.07.2007. The post of Special Private Secretary has been filled up after making promotion from the panel prepared by the DPC against the resultant vacancy which was likely to occur on 01.10.2007. The post of Sr. Special Private Secretary cannot be filled up for the present due to pending litigation as well as formulation of seniority list. In addition to one newly created post of Sr. Special Private Secretary one post in this cadre is also lying vacant on retirement of Shri I.D. Pal, Sr. Special Private Secretary on 30.06.2007 (AN). Thus there are 2 posts of Sr. Special Private Secretary which are lying vacant for the present and against these two posts one Officer namely Shri Keshav Ram, Private Secretary has already been promoted as Sr. Private Secretary, on adhoc basis. Now against one higher post of Sr. Special Private Secretary promotion in the lower cadre of Sr. Private Secretary can be made in the light of provision of Rule 6.2 of HPFR, 1971 (Vol.-1). In addition to this one resultant post on retirement of Shri R.C. Bhardwaj, Special Private Secretary will also be available on 1.10.2007 for drawing panel for promotion to the post of Sr. Private Secretary but certain Officers who are ineligible for the present due to non passing of departmental examination can become eligible after passing of the departmental examination likely to be held in August, 2007 and to draw panel against this post may invite review of DPC as the vacancy will be available after declaration of result. Private Secretary but certain Officers who are ineligible for the present due to non passing of departmental examination can become eligible after passing of the departmental examination likely to be held in August, 2007 and to draw panel against this post may invite review of DPC as the vacancy will be available after declaration of result. Therefore at this point of time the DPC is required to prepare a panel only for one post.” 8. It is evident from the excerpt quoted hereinabove that certain Officers who were ineligible at the time of convening of DPC due to non-passing of departmental examination, could become eligible after passing of the departmental examination which was supposed to be held in August, 2007. Thus, it was proposed to prepare a panel only for one post. One post was also to be come available on 01.10.2007 after the retirement of Shri R.C. Bhardwaj, Special Private Secretary. Thus, instead of filling up two posts, only one post was filled up by promoting Smt. Kamla Devi. The result of the departmental examination, which was undertaken by respondent No. 3, was declared on 05.10.2007. He was declared fail. He was declared pass only on re-evaluation on 29.12.2007. The Departmental Promotion Committee has erred in law by not preparing panel for the anticipated vacancies, only on the pretext that certain ineligible Officers would become eligible after passing the departmental examination, supposed to be held in August, 2007. The Departmental Promotion Committee should have prepared the panel and if the petitioner was found suitable, his name was to be recommended. The respondent No. 3 was promoted, as noticed above, on 19.04.2008, though he was not eligible on the date of convening of the DPC. Thereafter, the Departmental Promotion Committee met on 23.12.2010. The petitioner was not found suitable, rather he was reverted on 05.01.2011 and the representation made by him was also rejected on 29.04.2011. The name of the petitioner, though considered, but was not found suitable by the Departmental Promotion Committee which met on 29.09.2011. In the DPC held on 23.12.2010, the name of respondent No. 4 was recommended for promotion to the post of Senior Private Secretary for the vacancies which have become available in the year 2007 till 2010 and respondent No. 5 was recommended by the DPC in its meeting held on 29.09.2011 for the post of Senior Private Secretary. In the DPC held on 23.12.2010, the name of respondent No. 4 was recommended for promotion to the post of Senior Private Secretary for the vacancies which have become available in the year 2007 till 2010 and respondent No. 5 was recommended by the DPC in its meeting held on 29.09.2011 for the post of Senior Private Secretary. The respondents No. 4 and 5, though junior to the petitioner, but they have been promoted before him. 9. It would be apt at this stage to take note of the grading of the petitioner in the four DPCs. held on 08.03.2007, 26.07.2007, 23.12.2010 and 29.09.2011, which reads as under: “(A) DPC, dated 08.03.2007: Sr. No. 2000-01 2001-02 2002-03 2003-04 2004-05 2005-06 5. Good Good Average Good Good Good (B) DPC, dated 26.07.2007: Sr. No. 2000-01 2001-02 2002-03 2003-04 2004-05 2005-06 2. Good Good Very Good NA Very Good NA (C) DPC, dated 23.12.2010: In this DPC panels were prepared for promotion of Private Secretaries to the post of Senior Private Secretaries for the year 2007 to 2010 by following year-wise vacancies: 2007 3 2008 2 2009 2 2010 4 The position of grading of petitioner for different years in the aforesaid DPC is as follows: (i) 2007 Sr. No. 2002-03 2003-04 2004-05 2005-06 2006-07 Overall grading 3. Good NA 2001 Very Good NA 2000- Good Good -02 01 Good Average (ii) 2008 Sr. No. 2003-04 2004-05 2005-06 2006-07 2007-08 Overall grading 2. NA 2002 Very Good NA 2000- Good Good Good -03 Good 01 Good (iii) 2009 Sr. No. 2004-05 2005-06 2006-07 2007-08 2008-09 Overall grading 1. Very NA 2002 Good Good NA 2000 Good Good -03 Good -02 Average (iv) 2010 Sr. No. 2005-06 2005-07 2007-08 2008-09 2009-10 Overall grading 1. NA 2002 Good Good NA 2001 NA 2000 Good -03 Good -02 Good -01 Good (D) DPC, dated 29.09.2011 2011 Sr. No. 2005-06 2005-07 2007-08 2008-09 2009-10 Overall grading 2. NA 2004 Very Good Very Very Very -03 Good Good Good Good Good 10. Now, the Court would compare the manner in which the ACRs. of the petitioner for a particular year have been graded in the four DPC proceedings when his case was considered from 2007 onwards. 11. The ACRs. No. 2005-06 2005-07 2007-08 2008-09 2009-10 Overall grading 2. NA 2004 Very Good Very Very Very -03 Good Good Good Good Good 10. Now, the Court would compare the manner in which the ACRs. of the petitioner for a particular year have been graded in the four DPC proceedings when his case was considered from 2007 onwards. 11. The ACRs. of the petitioner for the year 2002-03, in the DPC which was held on 08.03.2007, have been graded as “Average”, in the DPC held on 26.07.2007, it was graded “Very Good” and in the DPC held on 23.12.2010 for the year 2007, it was graded as “Good”, for the year 2008, it was “Good” (ACRs of 2003-04 were not available). For 2009 and 2010, it was “Good” (ACRs. for 2005-06 were not available). In DPC held on 29.09.2011, the ACRs. for the year 2002-03 were not taken into consideration. No reasons have been assigned by the DPC how the petitioner for the same ACRs. of 2002-03, has been graded “Average”, “Very Good” and “Good”. There has to be objectivity in the deliberations of the DPC. It cannot be subjective. In the reply, it has not been stated how there could be variations in the ACRs. reported for a particular year in three DPCs. held on 08.03.2007, 26.07.2007 and 23.12.2010. 12. Now, the Court will advert to the ACRs. for the year 2003-04 of the petitioner and how the same have been graded in four DPCs. In the DPC held on 08.03.2007, it was graded as “Good”. However, surprisingly, in the DPC held on 26.07.2007, it was stated that the ACRs. were not available and in the DPC held on 23.12.2010, for the post which became available for the year 2007, it was stated that the ACRs. were not available and thus it was graded “Average”. Again it is stated that the ACRs. were not available for 2008 and it was graded as “Good” by referring to ACRs of 2002-03. It was not considered for the year 2009 and 2010 and in the DPC, dated 29.09.2011. It has thus not been explained why the ACRs. which has been recorded as “Good” in the DPC held on 08.03.2007, was not available on 26.07.2007 and how it was graded “Average” and “Good” for the year 2007 and 2008 in the DPC held on 23.12.2010. 13. The ACRs. It has thus not been explained why the ACRs. which has been recorded as “Good” in the DPC held on 08.03.2007, was not available on 26.07.2007 and how it was graded “Average” and “Good” for the year 2007 and 2008 in the DPC held on 23.12.2010. 13. The ACRs. of the petitioner for the year 2004-05 were graded as “Good” in the DPC held on 08.03.2007, “Very Good” in the DPC held on 26.07.2007 and in the DPC held on 23.12.2010 for the year 2007, 2008, 2009, it was graded as “Very Good”. How the “Good” is changed to “Very Good” in the subsequent DPCs held on 26.07.2007, 23.12.2010 and “Outstanding” in the DPC held on 29.09.2011, has not been explained. 14. The ACR of the petitioner for the year 2005-06 was graded as “Good” in the DPC held on 08.03.2007, on 26.07.2007, it is stated that it was not available and in the DPC held on 23.12.2010 for the year 2007, 2008, 2009 and 2010, what is stated is that the ACRs. were not available and graded as “Good” by referring to old ACRs. 15. The ACR of the petitioner for 2006-07 was not considered in the DPCs held on 08.03.2007 and 26.07.2007. In the DPC held on 23.12.2010, for the years 2007, 2008, 2009 and 2010, the same has been graded as “Good”. It has been graded as “Very Good” in the DPC held on 29.09.2011. The ACRs. of the petitioner for 2007-08 were not considered in the DPCs. held on 08.03.2007 and 26.07.2007. In the DPC held on 23.12.2010 for 2008, 2009 and 2010, it was graded as “Good” and in the DPC held on 29.09.2011, it was graded as “Good”. The ACRs. of the petitioner for 2008-09 were not taken into consideration in the DPCs held on 08.03.2007 and 26.07.2007. In the DPC held on 23.12.2010, it was not considered for the vacancies which were available for 2007, 2008. However, for the year 2009 and 2010, it was graded “Average” by referring to the ACRs. of 2001-02. In the DPC, dated 29.09.2011, it was graded as “Very Good”. 16. The ACRs. of the petitioner for the year 2009-10 were not considered in the DPCs. held on 08.03.2007, 26.07.2007. It was not considered in the DPC held on 23.12.2010 for the posts which became available in 2007, 2008 and 2009. of 2001-02. In the DPC, dated 29.09.2011, it was graded as “Very Good”. 16. The ACRs. of the petitioner for the year 2009-10 were not considered in the DPCs. held on 08.03.2007, 26.07.2007. It was not considered in the DPC held on 23.12.2010 for the posts which became available in 2007, 2008 and 2009. It was graded as “Good” by referring to the ACR of 2000-2001 for the vacancies which became available in 2010. However, again surprisingly, the same has been graded as “Very Good” by the DPC held on 29.09.2011. 17. It is clear from the facts enumerated hereinabove, that there was no objectivity in the grading undertaken by the DPC. The entire exercise was arbitrary. In case one ACR has been considered for a particular year, then for subsequent year, it cannot be stated to be not available. There is variation in the grading of the ACRs. by the same DPC for different years, without assigning any reasons. 18. Mr. Vikas Rathore, learned Deputy Advocate General has placed strong reliance on Chapter 16.25 (g)(iii) of the Hand Book on Personnel Matters Volume-I. 19. It is for the Departmental Promotion Committee to assign grading to the ACRs. However, the Committee has to assign reasons while up-grading and down-grading the ACRs. and assessing the suitability of the candidate. The Departmental Promotion Committee need not to give any elaborate reasons, but there has to be due application of mind to shun arbitrariness and subjectivity. It is nowhere mentioned in the proceedings of the Departmental Promotion Committee that the length of service in the feeder grade, arduous nature of duties and higher job responsibilities were taken into consideration by the Departmental Promotion Committee. The petitioner was performing the same duties which were being discharged by respondents No. 3 to 5, who have been promoted before the petitioner to the post of Senior Private Secretary. It has also been noticed by the Court that the petitioner now stands promoted to the post of Senior Private Secretary w.e.f. 01.12.2011 vide notification, dated 26.06.2012. 20. Their Lordships of the Hon’ble Supreme Court in Kranti Associates Private Limited and another Vs. Masood Ahmed Khan and others (2010) 9 Supreme Court Cases 496 have culled out the following principles on the recording of the reasons: “41. In England there was no common law duty of recording of reasons. 20. Their Lordships of the Hon’ble Supreme Court in Kranti Associates Private Limited and another Vs. Masood Ahmed Khan and others (2010) 9 Supreme Court Cases 496 have culled out the following principles on the recording of the reasons: “41. In England there was no common law duty of recording of reasons. In Marta Stefan vs. General Medical Council, (1999) 1 WLR 1293, it has been held, "the established position of the common law is that there is no general duty imposed on our decision makers to record reasons". It has been acknowledged in the Justice Report, Administration Under Law (1971) at page 23 that "No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions". 44. But, however, the present trend of the law has been towards an increasing recognition of the duty of Court to give reasons (See North Range Shipping Limited vs. Seatrans Shipping Corporation, (2002) 1 WLR 2397). It has been acknowledged that this trend is consistent with the development towards openness in Government and judicial administration. 46. The position in the United States has been indicated by this Court in S.N. Mukherjee (supra) in paragraph 11 at page 1988 of the judgment. This Court held that in the United States the Courts have always insisted on the recording of reasons by administrative authorities in exercise of their powers. It was further held that such recording of reasons is required as "the Court cannot exercise their duty of review unless they are advised of the considerations underlying the action under review". In S.N. Mukherjee (supra) this court relied on the decisions of the U.S. Court in Securities and Exchange Commission vs. Chenery Corporation, (1942) 87 Law Ed 626 and John T. Dunlop vs. Walter Bachowski, (1975) 44 Law Ed 377 in support of its opinion discussed above. 47. Summarizing the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process". 21. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. The promotion orders of respondents No. 3 to 5 are quashed and set aside. The respondents No. 1 and 2 are directed to hold a fresh DPC and to consider the case of petitioner alongwith other similarly situate persons by objectively assessing the ACRs of various years for the vacancies which had become available from 2007 onwards for the posts of Senior Private Secretary, within a period of eight weeks from today. Though the promotion orders of respondents No. 3 to 5 have been quashed, but they would be permitted to discharge their duties of the posts of Senior Private Secretary for eight weeks. The pending application(s), if any, also stands disposed of. No costs.