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2013 DIGILAW 1420 (RAJ)

Kalu Ram Aseri v. State of Rajasthan

2013-08-06

SANGEET LODHA

body2013
JUDGMENT 1. - By way of this writ petition, the petitioner is seeking directions to the respondents to consider his candidature for promotion to the post of Superintending Engineer, by convening Review Departmental Promotion Committee (DPC) and to accord him promotion on the post of Superintending Engineer, with effect from the date, the person junior to him, the respondent No. 3 herein, has been accorded promotion. The petitioner entered the services of Public Works Department, Government of Rajasthan as Junior Engineer on 07.04.1979. He was promoted on the post of Assistant Engineer on ad hoc basis w.e.f. 15.04.1998. 2. The petitioner was selected for appointment on the post of Assistant Engineer by the Rajasthan Public Service Commission in the year 1991. In the year 2003, the petitioner was promoted on the post of Executive Engineer against the vacancies of the year 2001-02. 3. On 12.04.2006, the petitioner was served with a charge sheet under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeals) Rules, 1958 (for short 'the Rules of 1958'). The disciplinary proceedings initiated against the petitioner as aforesaid, culminated in imposition of penalty of withholding of on annual grade increment without cumulative effect vide order dated 09.04.2006 passed by the Disciplinary Authority. The Review Petition preferred by the petitioner was dismissed by the Reviewing Authority vide order dated 12.04.2008. Aggrieved thereby, the petitioner has preferred a Writ Petition No. 6048/08 before this Court, which is said to be pending till this date. 4. The candidature of eligible candidates for promotion from the post of Executive Engineer to the post of Superintending Engineer on the basis of criteria laid down under the Rajasthan Service of Engineers (Building & Road Branch), Rules, 1954 ('the Rules' hereinafter) i.e. seniority-cum-merit, was considered by the DPC. In the seniority list, the petitioner stands at Serial No. 94 and the name of respondent No. 3 finds mentioned at Serial No. 95. The petitioner stands at Serial No. 1 in the seniority list of Scheduled Caste category. However, ignoring the candidature of the petitioner, the respondent No. 3 was promoted to the post of Superintending Engineer, pursuant to the recommendations made by the DPC. The petitioner has been denied promotion taking into consideration the minor punishment of withholding one annual grade increment imposed upon him vide order dated 09.04.2007. 5. However, ignoring the candidature of the petitioner, the respondent No. 3 was promoted to the post of Superintending Engineer, pursuant to the recommendations made by the DPC. The petitioner has been denied promotion taking into consideration the minor punishment of withholding one annual grade increment imposed upon him vide order dated 09.04.2007. 5. Precisely, the case of the petitioner is that the DPC was under an obligation to consider the entire service record of the petitioner and thereafter analyzing the same remarks in relation to the suitability for promotion were required to be made. It is submitted that the petitioner has been denied promotion solely on the basis of minor punishment of withholding one annual grade increment without cumulative effect, which is ex facie illegal and arbitrary. 6. A reply to the writ petition has been filed on behalf of the respondents taking the stand that the candidature of eligible candidates for promotion to the post of Superintending Engineer against the vacancies of the year 2010-11 was considered by the DCP. It is submitted that out of the 18 posts, 2 posts were to be filled in from amongst the candidates belonging to the Scheduled Caste category. It is submitted that in the final seniority list of Scheduled Caste category, name of Shri Dungar Ram Meghwal stands at Serial No. 1 and the petitioner stands at Serial No. 2. However, it is not disputed that name of the respondent No. 3, Bhanwar Lal stands below the petitioner at Serial No. 3. It is submitted that the petitioner has been found not suitable for promotion by the DPC on account of penalty of withholding of one annual grade increment imposed upon him vide order dated 09.04.2007 and, therefore, the respondent No. 3, person junior to him, has been accorded promotion. 7. Learned counsel for the petitioner reiterating the stand taken in the writ petition submitted that the criteria for promotion from the post of Executive Engineer to the post of Superintending Engineer being seniority-cum-merit, the petitioner could not have been denied promotion solely taking into consideration the minor punishment of withholding of one annual grade increment without cumulative effect imposed upon him. Learned counsel urged that as a matter of fact the petitioner has been denied consideration by the DPC on account of a circular dated 26.07.2006 issued by the Government or Rajasthan, which provides that if a Government servant has suffered penalty of withholding of annual grade increments, he shall not be entitled to be considered for promotion as many times as for the years, the increment has been withheld. Learned counsel submitted that the circular issued by the State Government in its Administrative side prescribing guidelines for not considering the candidature of the Government servants, who have suffered penalties is illegal and cannot be taken into consideration by the DPC while considering the candidature of eligible candidates in accordance with the criteria laid down under the Rules. In this regard, learned counsel has relied upon decisions of this Court rendered in the matters of Kishore Chand Chandawat v. State of Rajasthan & Ors., (S.B. Civil Writ Petition No. 8441/2008) decided on 19.11.2012; Dr. Ashok Singhvi v. State of Rajasthan, (S.B. Civil Writ Petition No. 10978/2010) decided on 04.01.2013 , Mangat Lal Sidana v. State of Rajasthan & Anr., (S.B. Civil Writ Petition No. 3705/2004) decided on 29.05.2007 and a Bench decision of this Court in the matter of Ram Khilari Meena v. State of Rajasthan & Ors., 2011(1) WLC (Raj.) 220. Learned counsel submitted that where the criteria for promotion is seniority-cum-merit, there cannot be comparative assessment of merit amongst the eligible candidates and the person senior possessing the minimum merit required for efficiency of service, has to be promoted on the post. Learned counsel submitted that when bare minimum merit of a candidate is determined, promotion has to be made on the basis of seniority, irrespective of better performance of junior candidate. In this regard, learned counsel has relied upon a decision of Hon'ble Supreme Court in the matter of Sarva Uttar Pradesh Gramin Bank and Others v. Manoj Kumar Chak, (2013) 6 SCC 287 . Learned counsel submitted that the petitioner has been deprived from promotion solely on the basis of minor punishment of withholding of grade increment without cumulative effect, ignoring his entire service record of the relevant years altogether and, therefore, the action of the respondents is not sustainable in the eyes of law. Learned counsel submitted that the petitioner has been deprived from promotion solely on the basis of minor punishment of withholding of grade increment without cumulative effect, ignoring his entire service record of the relevant years altogether and, therefore, the action of the respondents is not sustainable in the eyes of law. Learned counsel submitted that the petitioner's candidature deserves to be considered afresh by holding review DPC in accordance with the criteria laid down. 8. On the other hand, learned counsel appearing for the respondents submitted that while adjudging the suitability of eligible candidates for promotion on the basis of criteria of seniority-cum-merit, the adverse entries in the service record and the punishment imposed can always be considered by the DPC and, therefore, the decision of the DPC in adjudging the petitioner as not suitable for promotion on account of penalty of withholding of one annual grade increment imposed upon him during the relevant years, cannot be faulted with. Learned counsel submitted that nobody can claim promotion as a matter of right and, therefore, the policy decision taken by the Government in directing deferment of promotion of an employee on account of the penalties being imposed, consequent to the finding of guilt recorded against him in the disciplinary proceedings, cannot be said to be illegal and the same does not infringe any of his legal right. Accordingly, it is submitted that the DPC has committed no error in recommending that the petitioner is not found suitable for the promotion to the post of Superintending Engineer on account of penalty imposed. In support of the contention, learned counsel relied upon a decision of the Hon'ble Supreme in the matter of A. Satyanarayana and Anr. v. S. Purushotham and Ors., 2008 (6) SRJ 253 and a decision of this Court in the matter of Mohan Singh v. State of Rajasthan and Anr., 2002 (5) WLC 691. Learned counsel submitted that the circular issued by the State Government providing for withholding of promotion of the Government servant on the basis of penalty imposed for specific times, cannot be said to have been issued without authority of law. Learned counsel submitted that the circular issued by the State Government providing for withholding of promotion of the Government servant on the basis of penalty imposed for specific times, cannot be said to have been issued without authority of law. Learned counsel submitted that a similar circular issued by the State Government regarding deferment of grant of first, second and third selection grade to the Government servant on completion of 9, 18 & 27 years of service, on account of penalties being imposed, has been upheld by the Hon'ble Supreme Court in the matter of State of Rajasthan v. Shankar Lal Parmar, AIR 2012 SC 1913 and, therefore, for the parity of reasons, the circular issued by the Government with regard to the promotions to be accorded on the basis of seniority-cum-merit also deserves to be upheld. 9. I have considered the rival submissions and perused the material on record. 10. Indisputably, the criteria for promotion from the post of Executive Engineer to the post of Superintending Engineer as provided for under the Rules is seniority-cum-merit. It is well settled that where promotion is on the basis of seniority-cum-merit, there cannot be any comparative assessment of merit and a senior person has to be promoted if he possesses minimum necessary merit requisite for efficiency of Administration. Obviously, the candidates who are found to possess the minimum necessary merit are required to be promoted strictly in order of seniority. 11. In State of Kerala & Anr. v. N.M. Thomas & Ors., AIR 1976 SC 490 , the Hon'ble Supreme Court observed:- "Seniority cum merit" means that given the minimum necessary merit requisite for efficiency of Administration, the senior, though the less meritorious, shall have right. This will not violate Articles 14, 16(1) and 16(2) of the Constitution of India." 12. In Balkishan v. District & Sessions Judge, Pali & Anr., (1998) 2 WLC, 756, this Court while relying upon the decision of Hon'ble Supreme Court in N.M. Thomas's case (supra), observed that it was not permissible to reject the candidature of the petitioner therein for promotion only on the ground that APAR in respect of one year was not satisfactory. 13. In the matter of Rajendra Kumar Srivastava v. Samyut Kshetriya Gramin Bank, (2010) 1 SCC 335 , the Hon'ble Supreme Court observed:- "8. 13. In the matter of Rajendra Kumar Srivastava v. Samyut Kshetriya Gramin Bank, (2010) 1 SCC 335 , the Hon'ble Supreme Court observed:- "8. It is also well settled that the principle of seniority-cum-merit, for promotion, is different from the principle of 'seniority' and principle of 'merit-cum-seniority'. Where promotion is on the basis of seniority alone, merit will not play any part at all. But where promotion is on the principle of seniority-cum-merit, promotion is not automatic with reference to seniority alone. Merit will also play a significant role. The standard method of seniority-cum-merit is to subject all the eligible candidates in the feeder grade (possessing the prescribed of assessment of a specified minimum necessary merit and then promote the candidates who are found to possess the minimum necessary merit strictly in the order of seniority. The minimum merit necessary for the post may be assessed either by subjecting the candidates to a written examination or an interview or by assessment of their work performance during the previous 8 years, or by a combination of either two or all the three of the aforesaid methods. There is no hard and fast rule as to how the minimum merit is to be ascertained. So long as the ultimate promotions are based on seniority, any process for ascertaining the minimum necessary merit, as a basic requirement, will not militate against the principle of seniority-cum-merit." (emphasis added) 14. In Kishore Chand Chandawat's case (supra), this Court, while considering the applicability of the instructions issued by the Government vide circular dated 26.07.2006 in the matter of promotion on the basis of seniority-cum-merit, the Court observed: "The promotion to the post of Assistant Commercial Taxes Officer is required to be made in accordance with Part--IV of the Rules of 1971. Rule 17 of the Rules aforesaid provides that a certain number of posts shall be filled by promotion, and for that the Commissioner shall prepare a correct and complete list containing names not exceeding five times the number of vacancies from among the senior-most persons who are qualified under the rules and who have passed the qualifying examination for promotion to the service as prescribed in Schedule II. The list so prepared shall be forwarded to the Secretary to the Government of Rajasthan, Incharge of Commercial Taxes Department with necessary confidential rolls and personal files of the enlisted persons. The list so prepared shall be forwarded to the Secretary to the Government of Rajasthan, Incharge of Commercial Taxes Department with necessary confidential rolls and personal files of the enlisted persons. A committee consisting of the Chairman of the Rajasthan Public Service Commission or any other Member of the Commission nominated by the Chairman, Secretary to the Government, Incharge of the Commercial Taxes Department or the Special Secretary concerned nominated by the Government of Rajasthan, Incharge of the Commercial Taxes Department and Commissioner, Commercial Taxes Department shall consider cases of all persons enlisted and if necessary interview them. After such process, a list containing name of the suitable candidates upto twice the number of existing posts shall be prepared. Promotion then is required to be accorded as per the criteria of seniority-cum-merit. The procedure prescribed under the Rules of 1971 gives an exclusive jurisdiction to the Committee commonly known as the Departmental Promotion Committee (DPC) to consider cases of the eligible persons for promotion to next higher post. The criteria for promotion is also prescribed under the Rules of 1971 and in the instant matter i.e. seniority-cum-merit. As per the Rules, the entire personal file of eligible persons is required to be sent to the Departmental Promotion Committee with the annual confidential records to be considered for promotion. The Committee is supposed to consider the entire record available with it objectively. The Government of Rajasthan in its Administrative side issued a circular prescribing guidelines for not considering candidature of the certain persons who suffered penalties. The Scheme of the Rules of 1971 - nowhere empowers the State Government to provide instructions to a statutory Departmental Promotion Committee to act in a specific manner. The effect and impact of a specific punishment to a Government servant under consideration for promotion is required to be examined by that Committee only. The Government is not supposed to provide Administrative instructions to a Statutory Committee to act or to mold its consideration in a specific manner. As a matter of fact, the instructions issued under the circular dated 26.07.2006 are nothing but an extraneous interference with the authority available to the Departmental Promotion Committee under the Rules of 1971." (emphasis added) 15. In Dr. As a matter of fact, the instructions issued under the circular dated 26.07.2006 are nothing but an extraneous interference with the authority available to the Departmental Promotion Committee under the Rules of 1971." (emphasis added) 15. In Dr. Ashok Singhvi's case (supra), this Court while relying upon the ratio of decision in Kishore Chand Chandawat's care (supra) held: "Suffice to mention here that the Departmental Promotion Committee is having all authority to examine conduct of a person while considering his candidature for promotion and the committee can very well arrive at the conclusion about non-suitability of such person for promotion after assessing his candidature, but such eligible person cannot be kept out from the zone of consideration by prescribing Administrative instructions. The non-availability of any provision in the Rules of 1963 to keep a penalised person out of the consideration for promotion depicts intention of the law framing authority to have consideration of such person for promotion and to get such person's candidature scrutinised by the competent committee by taking into consideration his entire service record including the penalty imposed. As such, the denial of consideration for promotion of the petitioner in light of the Government of Rajasthan circular dated 26.07.2006 is lacking authority of law. It is further pertinent to note that the promotion to the post of Junior Specialist from the post of Medical Officer is first promotion under the Rules of 1963 and the criteria prescribed to do so is seniority-cum-merit. Under the criteria of seniority-cum-merit the authority competent to make promotions is having all authority to examine entire service record of the persons under scrutiny, however, the authority competent while doing so is required to keep in mind that it is the seniority that will prevail as the term "merit" under the criteria concerned means the minimum merit necessary for efficiency of Administration. If the authority arrives at the conclusion that the penalty imposed adversely effects minimum merit necessary for efficiency of Administration, then it can treat such person unfit for promotion by recording necessary reasons, but in no case the consideration for promotion can be denied." (emphasis added) 16. If the authority arrives at the conclusion that the penalty imposed adversely effects minimum merit necessary for efficiency of Administration, then it can treat such person unfit for promotion by recording necessary reasons, but in no case the consideration for promotion can be denied." (emphasis added) 16. In Ram Khilari Meena's case (supra), a Bench of this Court, while relying upon the decision of Hon'ble Supreme Court in B.V. Slvaiah and Others v. Kaddanki Babu and Others, (1998) 6 SCC 720 , held: "In view of settled position of law as noticed above, even if there existed any minor penalty or some minor adverse remark here and there, promotion could not be denied to the appellant because the criteria for promotion in this case was not entirely merit based but was on seniority-cum-merit where seniority has to be given more weightage as compared to merit. In that criteria, even penalty of censure could not be a ground to deny promotion to the appellant because what is to be seen is minimum necessary merit requisite for efficiency of Administration and in that view of the matter, a senior person, even though less meritorious, shall have primacy in the matter of promotion and comparative assessment of merit is not required to be made." 17. In Mohan Singh's case (supra), this Court held that promotion of a person can be withheld on account of imposition of some minor penalties under Rule 17 of the CCA Rules, 1958 and accordingly, the denial for promotion to the petitioner therein on the basis of penalty of censure was found to be not infringing any of his fundamental or legal right. 18. In A. Satyanarayana's case (supra), relied upon by the learned counsel for the respondents, the Hon'ble Supreme Court observed that nobody has right to be promoted, his right being confined to right to be considered therefor. The Court further observed that the power of the State to take policy decision as a result whereof an employee's chance to promotion is diminished cannot be a subject matter of judicial review as no legal right is infringed thereby. 19. The Court further observed that the power of the State to take policy decision as a result whereof an employee's chance to promotion is diminished cannot be a subject matter of judicial review as no legal right is infringed thereby. 19. In Manoj Kumar Chak's case (supra), the Hon'ble Supreme Court observed that where the criteria for promotion is seniority-cum-merit no doubt that the punishment and adverse service record are relevant to determine by minimum merit by the DPC but to debar a candidate to be considered for promotion on the basis of punishment or unsatisfactory record would require necessary provisions in the statutory service rules. The Court observed that the determination of bare minimum merit criteria is function of DPC and cannot be taken over by the management at the time of determining the eligibility of a candidate de hors the statutory rules. 20. Thus, in the backdrop of the position of law settled by various decisions referred as above, it can be safely concluded that where the promotions are accorded on the basis of seniority-cum-merit, the promotions are required to be made on the basis of seniority, but those who have adverse entries in their APAR or have been awarded punishment as a result of disciplinary proceedings during the relevant period and on that account if they are found to be not possessing the minimum merit for efficiency of the Administration, can be superseded. But then, while considering the suitability of a candidate for promotion to the higher post on the basis of seniority-cum-merit, the DPC is under an obligation to take into consideration the entire service record of the candidate including Annual Confidential Report, APARs, Penalties imposed, Award, Commendation Certificates etc. during the relevant period. In other words, the DPC on the basis of the service record of the employee during the relevant period good or bad, has to arrive at a definite conclusion as to whether he possesses the minimum necessary merit required for efficiency of Administration. As laid down by the Hon'ble Supreme Court in Manoj Kumar Chak's case (supra) and by this Court in Kishore Chand Chandawat's case (supra) and Dr. As laid down by the Hon'ble Supreme Court in Manoj Kumar Chak's case (supra) and by this Court in Kishore Chand Chandawat's case (supra) and Dr. Ashok Singhvi's case (supra), when the promotions are governed by the criteria laid down under the statutory Rules, the circular issued by the Government in the Administrative capacity debarring the employees from being considered for promotion by the DPC would be clearly contrary to the statutory Rules. The matter with regard to consideration of the candidature of the eligible candidates for promotion on the basis of the criteria laid down exclusively falls within the domain of the DPC which is under an obligation to adjudge the suitability of the candidate independently after due consideration of his service record in its entirety and objectivity. 21. Indisputably, in the instant case, the petitioner has been denied promotion solely on the ground of imposition of penalty of withholding one annual grade increment relying upon the circular issued by the Government and there was no independent overall consideration and application of mind by the DPC regarding the suitability of the petitioner on the basis of his service record of the relevant years and therefore, the recommendation made by the DPC adjudging the petitioner as not suitable for promotion, cannot be sustained. In the result, the writ petition succeeds, it is hereby allowed. The recommendations made by the DPC holding the petitioner unsuitable for promotion solely on the basis of penalty of withholding one grade increment without cumulative effect imposed upon him, is held to be illegal. The respondents are directed to convene the review DPC for consideration of the candidature of the petitioner for promotion to the post of Superintending Engineer keeping in view the settled position of law, as discussed above. Needless to say that while considering the candidature of the petitioner for promotion afresh, the DPC is not precluded from considering the penalty of withholding one grade increment imposed upon the petitioner as well. The consideration of the petitioner for promotion in terms of this order shall be made within a period of one month from the date of receipt of certified copy of this order. The consideration of the petitioner for promotion in terms of this order shall be made within a period of one month from the date of receipt of certified copy of this order. The petitioner, if found, suitable for promotion to the post of Superintending Engineer against the vacancies of the year 2010-11, he shall be accorded promotion with effect from the date person junior to him i.e. respondent No. 3 herein, was accorded promotion. No order as to costs.Petition Allowed. *******