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N.B. Kanungo Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1459 of 1971
Judge
Reported in1975(8)WLN219
AppellantN.B. Kanungo
RespondentUnion of India (Uoi) and ors.
DispositionPetition dismissed
Cases Referred and Union of India v. Bhim Singh and Ors.
Excerpt:
.....of selection posts, merit is the sole criteria for promotion while in the case of non-selection posts promotion is to be made on the basis of seniority cum-fitness or seniority-cum-merit.;if seniority was to be sole criteria for promotion in the case of non-selection posts, then a selection by departmental pre motion committee would not have been provided for in the schedule annexed to the rule, for the purpose of effecting promotion to the post of assistant. the very prevision for the recommendation by a departmental promotion committee, necessarily introduces the process of consideration and selection in making promotions to the post of assistant.;(b) civil services - promotion--selection made by departmental promotion committee--court cannot interfere with comparative assessment of..........case of selection posts, merit is the sole criteria for promotion while in the case non-selection posts promotion is to be made on the basis of seniority cum fitness or seniority cum merit. thus the contention of the learned counsel for the petitioner that the petitioner should have been promoted to the post of assistant merely because he was senior to respondent no. 3 to 6 cannot be accepted, because in the schedule annexed to the rules it has been specifically mentioned that the promotion was to be effected on the basis of the recommendation of the departmental promotion committee. if seniority was to be sole criteria for promotion in the case of non selection posts, then a selection by departmental promotion committee would not have been provided for in the schedule annexed to the.....
Judgment:

D.P. Gupta, J.

1. The petitioner by this writ petition seeks to challenge the order of promotion of the respondents No. to 3 to 6 to the posts of Assistant in the office of the Salt Commissioner and the petition arises in the following circumstances.

2. The petitioner was appointed as a Upper Division Clerk in the office of the Salt Commissioner by direct recruitment on July 5, 1961. He was confirmed in the aforesaid post by the order of the Salt Commissioner dated May 6, 1970 with effect from September 2, 1988. The petitioner was also allowed of cross the efficiency bar on September 5, 1970. According to the seniority list of Upper Division Clerks as on June 1, 1969 the petitioner was senior to the respondents No. 3 to 6 in the aforesaid cadre. The respondents No. 3 and 4 were promoted as Assistant by the order of the Salt Commissioner dated December 26, 1970 with effect from December 24, 1970 on probation for a period of two years. The respondent No. 5 was also promoted as Assistant on ad-hoc basis by the very same order dated December 26, 1971. By a later order dated May 26, 1971 the respondent No. 6. was also promoted as Assistant on 'purely' temporary and ad-hoc basis'. The grievance of the petitioner if that although the petitioner was senior in the cadre of Upper, Division Clerks to the respondents No. 3 to 6, yet they have been promoted to the higher post of Assistant but the petitioner was not so promoted. The petitioner has also staged that there were adverse remarks in the service records of the respondents No. 3 and 4 in the years 1969 and that the service record of the petitioner was 'better' than of all the four respondents No. 3 to 6 or at any rate it was 'in no manner inferior' to them.

3. The respondents No. 1 and 2 in their reply have stated that the post of Assistant in the Salt Commissioner's office was classified as a 'non-selection post' and that the promotion of respondents No. 3 to 6 to the post of Assistant was made on basis of seniority-cum-fitness, on the recommendation of a Departmental Promotion Committee. It has been stated by the aforesaid two respondents that the case of the petitioner was duly considered by the Departmental Promotion Committee and his service record and the confidential rolls were examined along with those of the respondents No. 3 to 6, but the Departmental Promotion Committee did not then consider the petitioner fit for promotion to the post of Assistant, while the other respondents No. 3 to 6 were found fit and were as such promoted to the post of Assistant. The respondents have also stated that the petitioner was also released by a subsequent Departmental Promotion Committee for the post of Assistant and that he has also thereafter been promoted to the post of Assistant and that in this manner no injustice has been done to the petitioner.

4. Learned Counsel for the petitioner raised two contentions before me. His first submission was that according to the Rules made by the President under the provision to Article 309 of the Constitution, known as the Salt Commissioner's Headquarters Office (Ministerial Posts) Recruitment Rules, 1959 thereinafter called 'the Rules' the post of Assistant is classified as a non-selection post and that promotion to the said post should be effected in accordance with seniority alone. His contention is that the petitioner being the senior most Upper Division Clerk he should have been automatically promoted as Assistant in preference to the respondents No. 3 to 6. The second contention of the learned Counsel for the petitioner is that besides being senior, the petitioner possessed better qualifications as compared to the respondents No. 3 to 6 and that the selection of the said respondents for promotion to the post of Assistant was absolutely arbitrary and was based on no reason or rhyme.

5. As regards the first contention, it would be sufficient to mention here that the post coveted under the Rules have been classified as 'selection' and non-selection' posts and appointments are effected to the various categories of posts in accordance with the conditions mentioned in the Schedule annexed to the Rules. In accordance with the aforesaid Schedule, the post of Assistant has been classified as 'non-selection poet' and the same has to be filled in 60% by direct recruitment and 50% by promotion. The promotion is to be effected out of the categories of Stones and Upper Division Clerks in the ratio of 1:5 after selection by the Departmental Promotion Committee. It has not been provided in the Rules that the promotion to the post of Assistant was to be made solely on the basis of seniority alone from the cadre of Upper Division Clerks. According to the respondents No. 1 and 2 the appointments to the non-selection posts are to be made on the basis of seniority-cum-fitness. That appears to be quite proper, because in the case of selection posts, merit is the sole criteria for promotion while in the case non-selection posts promotion is to be made on the basis of seniority cum fitness or seniority cum merit. Thus the contention of the learned Counsel for the petitioner that the petitioner should have been promoted to the post of Assistant merely because he was senior to respondent No. 3 to 6 cannot be accepted, because in the Schedule annexed to the Rules it has been specifically mentioned that the promotion was to be effected on the basis of the recommendation of the Departmental Promotion Committee. If seniority was to be sole criteria for promotion in the case of non selection posts, then a selection by Departmental Promotion Committee would not have been provided for in the Schedule annexed to the Rules, for the purpose of effecting promotion to the post of Assistant. The very provision for the recommendation by a Departmental Promotion Committee, necessarily introduces the process of consideration and selection in making promotions to the post of Assistant. According to the return of the respondents, the principle for promotion for the post of Assistant is seniority, subject to the rejection of unfit. Thus the Departmental Promotion Committee is required to consider as to whether a particular person holding the post of Upper Division Clerk is suitable for promotion or is unfit for such promotion, besides his seniority.

6. In respect of the second contention, the learned Counsel for the petitioner submitted that besides being senior, the petitioner possessed better educational qualifications and that his work was also satisfactory in as much as he was not only confirmed on the post of Upper Division Clerks, but be was also allowed to cross the efficiency bar and that his service record was better or at least not inferior to that of the respondents No. 3 to 6. It was also pointed out that the respondents No. 3 to 6 were officiating Upper Division Clerks, while the petitioner was a confirmed Upper Division Clerk. Learned Counsel argued that in these circumstances, the petitioner was suitable for promotion as compared to the respondents No. 3 to 6 and that the Departmental Promotion Committee acted in an arbitrary manner in rejecting the petitioner, while selecting the respondents, No. 3 to 6 for promotion to the post of Assistant. Learned Counsel in this context relied upon Durga Dass v. Union of India 1969 S.L.R. 278, Satish Chandra Mital v. State of U.P. and Ors. 1975 (1) S.L.R. 65, Govt. of India and Anr. v. C.A. Balakrishnan and Ors. 1974 S.L.W.R. 791 and Ramsagar Roy v. State of Bihar and Ors. 1970 S.L.R. 606.

7. Learned Additional Government Advocate placed the record of the proceedings of the Departmental Promotion Committee before me and I have perused the same. It appears that the petitioner vas considered by two consecutive Departmental Promotion Committees and the record of his service including confidential rolls was considered. It also appears from a perusal of the proceedings of the Departmental Promotion Committee, which met in the year 1970, that there was an adverse entry made in the service record of the petitioner during the year 1970, itself. It also appears from the record produced before me that the said adverse entry was duly communicated to the petitioner. The petitioner failed to make any mention of this important fact in the writ petition. The petitioner should have approached this Court with clean hands and should have candidly stated in the writ petition that an adverse entry was made in his service record during the year 1970 It appears that probably on account of the existence of this adverse entry in his service record, the petitioner has out stated in his writ petition that he had a unblemished record. However, what the petitioner stated in para 6 of the writ petition was that his service record was 'better' thin that of the respondents No. 3 to 6 or at any rate it was 'in no manner inferior' to them. From this submission, it appears that the petitioner was quite aware, at the time when he filed the writ petition in July, 1971 that there was an adverse remark entered in his service record during the year 1970, but he intentionally appears to have omitted to make a mention of this fact The Departmental Promotion Committee considered the existence of this adverse entry along with the other entries in the service record of the petitioner and the adjudged that the petitioner was unfit for promotion to the post of Assistant at that time. Learned Additional Government Advocate relied upon Ramgopal v. Union of India and Ors. 1972 S.L.R. 258 and Union of India v. Bhim Singh and Ors. 1971 (11) S.L.R. 111, and submitted that this Court should not ordinarily interfere with the discretion exercised by the Departmental Promotion Committee in matter of selection of candidates for promotion unless was malafide and that the proceedings of the Departmental Promotion Committee in the present case disclosed that the said Committee fairly considered the case of the petitioner and the respondents and if in the opinion of the Committee, the petitioner was not fit for promotion at that time, no injustice was done to him if persons who were found fit and were promoted even though junior to the petitioner.

8. In Durgadass's case 1969 S.L.R. 278 the Court found that there was no understandable method adopted by the Departmental Promotion Committee and that the Committee categorized the candidates according to its own no ions, which could not be justified in any reasonable basis. In these circumstances it was held that the selection by the Departmental Promotion Committee was arbitrary.

9. From a perusal of the proceeding of the Departmental Promotion Committee, I do not find that any arbitrary selection has been made in the present case by the said Committee.

10. In Satish Chandra Mital's case 1975 (1) S.L.R. 65 a learned Single Judge of the Allahabad High Court observed that the various kinds of entries in the service record of the employees may be examined to find out an intelligible differentia for a valid classification. However, in that care the learned Judge went on to examine the number of adverse entries earned by each one of the candidates. With great respect to the learned Judge, in my humble opinion, it would be going too far if this Court were to examine the proceedings of the Departmental Proton Committee with that view and to hold the selection held by it as invalid, in case a person, who obtained lesser number of adverse entries than others, is left out. Really speaking such a course would amount to adjudging the correctness of the selection made by the Promotion or Selection Committee. But this Court cannot interfere with the selection made by a competent body so long as there is some material on the basis of which it could come to the conclusion to which it did come. A proper evaluation of the comparative merits of the candidates is a matter which lies solely within the jurisdiction of the Promotion or Selection Committee and this Court cannot enter into an assessment of the comparative himself or merit of the various candidates. One single adverse entry relating to the integrity of an employee may be sufficient to out way a far larger number of adverse entries of minor nature in the case of other employees. Moreover, in the present case there in no allegation of malafides against the Committee. It has not been pleaded by the petitioner that the Departmental Promotion Committee did not act in a bona-fide manner in selecting persons junior to the petitioner, while keeping him out therefrom. The petitioner's grievance is that the selection was arbitrary and was not based on any criteria. In the above mentioned Allahabad case the main ground urged was that the petitioner in that case was reverted on account of the annoyance of certain M.L.As. Thus the Allahabad case has no bearing on the facts of the present case.

11. In C.A. Balakrishanan's case 1974 S.L.W.R. 791 a wrong criteria was applied for promotion in as much as the post to which the promotion was to be made was a senior-cum-fitness post and not a selection post. In view of these facts their Lordship of the Supreme Court held that the selection was invalid as the criteria applied in making such selection was illegal.

12. In Ramsagar Ray's case 1970 S.L.R. 606 their Lordships of the Patna High Court found that on the record there was no mention of any adverse remark against the petitioner in that case nor there was any noting of comparative merit of the petitioner and the respondents on the file nor there was any finding recorded on the file by the Commissioner that on a consideration of the respective merits, the respondent was found superior to the petitioner. In these circumstances, their Lordships held that there was no basis for the recommendation of the name of the respondent No. 2 by the Commission, particularly when there was nothing to show that there was any adverse remark against the petitioner. The facts of this care are also distinguishable in view of what I have mentioned above that the Departmental Promotion Committee took into consideration the adverse remark entered in the service record of the petitioner during the year 1970 and also noticed the fact that he was always merely an average employee an dafter considering all the relevant entries in his service record, the Committee came to the conclusion that the petitioner was not fit for promotion at hat time. Of course, as I have already mentioned above, the petitioner was selected by a subsequent Department Promotion Committee and was also promoted the post of Assistant.

13. In Ram Gopal's case 1972 S.L.R. 258 it was held that it should be appreciated that the: High Court could not sit as a Court of appeal in respect of the deliberations and recommendations of the Departmental Promotion Committee or Selection Committee and in the absence of any malafides or violation of the rules, the decision of the Departmental Promotion committee in recommending the appointment of some persons was not upon to scrutiny by the High Court. Their Lordships of the Delhi High Court also looked into the proceedings of the Departmental Promotion Committee and came to the conclusion that it could not be said that the Committee did not apply its mind to the record and that there was breach of the Rules.

14. Similarly in Bhim Singh's case 1971 (II) S.L.R. III it was held that it was not for the Court to probe into the mental processes of the Members of the Selection Committee in order to discover as to what weighed with them in making the selection. It was observed by their Lordships of the Delhi High Court in that case that the right to select included the right not to select and that what the person concerned could legitimately claim was to be considered for selection and that be could not insist upon his being selected.

15. As I have already observed above that the petitioner's case was duly considered by the Departmental Promotion Committee and after looking into service record if the Committee thought that he was unfit for promotion at the relevant time, then the decision of the Departmental Promotion Committee could not be characterised as arbitrary. The Departmental Promotion Committee considered the case of the petitioner and those of the respondents No. 3 to 6 and although the petitioner was found unfit, respondents No. 3 to 6 were found fit and consequently the respondents No. 3 to 6 were promoted to the post of Assistant, though they were junior to the petitioner. There is no illegality in the selections made by the Departmental Promotion Committee, on the recommendation on which the respondents No. 4 to 6 were promoted The petitioner has neither complained of malafides nor he has alleged the breach of any service rules in the matter of his promotion. No other punt was argued before me. The writ petition is consequently dismissed. However the parties are left to bear their own costs.


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