Guman Singh Vs. State of Rajasthan
& Ors [1971] INSC 162 (26 July 1971)
[S. M. SIKRI, C. J., G. K. MITTER, C. A.
VAIDIALINGAM, P.JAGANMOHAN REDDY AND I. D. DUA, JJ.]
ACT:
Rajasthan Administrative Service Rules, 1954,
rr. 28B(2) and 32Validity of-Whether violative of Arts. 14 & 16 of
Constitution because of absence of guidelines in the matter of selection of
candidates by merit-Circular dated August 27, 1966 whether invalid on the
ground that the marking system laid down in it went against the Rules in regard
to selection by merit-Departmental Promotion Committee taking adverse remarks
in confidential report into account without these having been communicated to
the officer concernedEffect.
HEADNOTE:
The appellant G was a member of the Rajasthan
Administrative Service. Aggrieved by the order allotting seniority to him under
the Rajasthan Administrative Service Rules, 1954, he filed a writ petition
under Art. 226 in the High Court. A single Judge of the court allowed the
petition. However in appeal by the State the Division Bench decided against the
appellant who by special leave appealed to this Court. Two other members of the
Rajasthan Administrative Service, similarly aggrieved filed writ petitions
under Art. 32 before this Court. The common questions that fell for
consideration in the appeal and writ petitions were; (i) whether rr. 28B(2) and
32 of the Rajasthan Administrative Service Rules were violative of Arts. 14 and
16 of the Constitution because they did not contain any guidelines in the
matter of determining the merit of candidates; (ii) whether the circular dated
August 27, _ 1966 issued by the State Government laying down a system of
marking for the purpose of determining the merit of candidates was invalid
because it was contrary to the relevant Rules in this regard. The appellant G
also complained that adverse remarks in his confidential report which had not
been communicated to him had been taken into account against him by the
Departmental Promotion Committee.
HELD:(i) Rule 32 in essence adopts what is
stated in r. 28B. The latter rule provides for two methods of selection one
based on merit and the other based on seniority-cummerit. In other words, the
rule provides that the promotion based on merit in contradiction to that based
on senioritycum-merit shall strictly be on the basis of merit. The Selection
Committee and the Promotion Committee consist of very responsible and senior
officers of the State and being persons of experience they can be trusted to
evaluate the merits of a particular officer. No doubt the word merit' is not
capable of easy definition, but it can be safely said that merit is a sum total
of various questions and attributes of an employee such as his academic
qualifications, his distinction in the University, his character, integrity,
devotion to duty and the manner in which he discharges his official duties.
Allied to this may be various other matters or factors such as his punctuality
in work, the quality and out-turn of work done by him and the manner of his
dealing with his superiors and subordinate officers and the general public and
his rank in the service.
The various particulars in the annual
confidential reports of an officer is 901 carefully and properly noted, Will
also give a very broad and general indication regarding the merit of an
officer.
Therefore it cannot be stated that rr. 28B
and 32 are in any manner vague or do not give any guidelines for assessing the
merit of an officer. [921B-F] (ii)(a) The restriction contained in the proviso
to sub-r.
(2) of r. 28B is quite reasonable. Before an
officer in the junior scale can be considered as fit for promotion to the
senior scale it is necessary that he should have worked on a post in the
service at least for some period of time.
As to what the quantum of that period must be
is not for this Court to lay down. The Government has fixed this period as six
years. It cannot be said that it is an improper restriction. [922A-B] (b)The
provisions contained in sub-r. (2) confining the selection to senior-most
officers not exceeding 10 times the number of total, vacancies is also
reasonable. Such a provision will encourage the members of the service to
aspire for promotion for making themselves eligible by increasing their
efficiencies in the discharge of their duties. [922B-C] (iii)The object of the
impugned circular may be to bring about uniformity in the award of marks. But
the directions contained therein do offend the rules. This is not a case of the
Government filling up the gaps or of giving executive instructions not provided
for by or not inconsistent with the rules. No discretion is given to the
selection or promotion committee to adopt any method other than that indicated
in the circular. According to the principle laid down by this Court in Sant Ram
Sharma's case, if the circular dated August 27, 1966 or any part of it gives
instructions contrary to or opposed to any of the rules, the circular or that
part of the circular to that extent would be invalid. By this test the circular
in question was invalid and must be struck down. [928F-929F] Sant Ram Sharma v.
State of Rajasthan & Anr., [1968] 1 S.C.R. 111, applied.
(iv)Appellant G had made a specific grievance
in his writ petition before the High Court about the un-communicated adverse
remarks having been taken into account by the Departmental Promotion Committee.
The Division Bench of the High Court was wrong in holding that since the
Committee had not been made a party to the proceedings this question could not
be gone into. The Government which was the appointing authority was a party
before the High Court. It was the duty of the State Government to place before
the High Court all the materials available before it to enable the Court to
consider whether the grievance of the appellant was justified or not. The
appellant's case must therefore be reconsidered in the light of the Rules.
[932C-H]
CIVIL APPELTATE JURISDICTION : Civil Appeal
No. 1815 of 1970.
Appeal by special leave from the judgment and
order dated January 20, 1970 of the Rajasthan High Court in D. B.
Special Appeals Nos. 55 and 57 of 1968 and
Writ Petitions Nos. 76 and 139 of 1970.
Petitions under Art. 32 of the Constitution
of India for enforcement of fundamental rights.
902 R.K. Garg, S. C. Agarwala, D. P. Singh
and R. K. Jain, for the appellant (in C. A. No. 1815/1970) and the petitioners
(in both the petitions.).
Jagadish Swarup, Solicitor-General and K.
Baldev, Mehta, for respondent No. 1 (in C. A. No. 1815 of 1970).
S. M. Jain, for respondent No. 3 (in C. A.
No. 1815 of 1970).
B. Sen and K. Baldev Mehta, for respondent
No. 1 (in W. P.No. 76 of 1970) K. Baldev Mehta, for respondent Nos. 1, 32 and
33 (in W. P. No. 139/1970.).
The Judgment of the Court was delivered by
Vaidiyalingam.J,-In both the writ petitions under Art. 32 and the civil appeal,
by special leave, common questions that arise for consideration relate to the
validity of rr. 28B and 32 of the Rajasthan Administrative Service Rules, 1954
(hereinafter to be referred as the Rules) and the Circular No. F. 1. (6)
Apptts. D/50 dated August 27, 1966 issued by the Chief Secretary to the
Government of Rajasthan as well as the Order of the Government of Rajasthan No.
F. 2(24) Apptts. (A-IV)/66 dated January 4, 1967. In the two writ petitions the
Order No. F.
2(24) Apptts. (A-IV)/66 dated January 22, 1970
and in Writ Petition No. 139 of 1970 a further Order of the State Government
No. F. 27(24)A (A-4)/66 dated February 21, 1970 are also challenged. The nature
of the various Orders as well as the Rules and the Circular that are challenged
will be referred to later at the appropriate stage.
Civil Appeal No. 1815 of 1970 arises out of
the Division Bench Judgment of the Rajasthan High Court dated January 20, 1970
in D. B. Special Appeal No. 57 of 1968. The facts leading up to the Civil
Appeal may be stated: The appellant is an Arts Graduate having taken his degree
in 1947. He took his Law Degree in the year 1961 having been placed in the
First Division. He joined the service of the former Jaipur State as Inspector,
Customs and Excise, in 1948. On the formation of the United State of Rajasthan,
he was appointed in the, service of the State of Rajasthan as Inspector,
Customs and Excise. In 1950 the Rajasthan Administrative Service was
constituted for the State of Rajasthan and the Rules governing the 'conditions
of service of the members therein were framed in 1954 by the Rajpramukh under
the proviso to Art. 309 of the Constitution. Under the Rules the Adminisrative
Service Cadre has three cadres of pay, namely, Ordinary Time Scale, Senior
Scale and Selection Grade. The appointment to the service cadre was by direct
recruitment as well 903 as by promotion from other subordinate services in the
State of Rajasthan. The appointment to the Senior Scale and Selection Grade was
by promotion from amongst the members of the service. According to the
appellant ff. 27 and 32 of the Rules, as they stood originally provided for
promotion to be made only on the basis of seniority-cum-merit and that
sub-rule(2) of r. 27 laid down various criteria to be taken into account in the
matter of selection of candidates for promotion. It was his further case that
r. 28, as it originally stood, laid down the procedure for recruitment by
promotion to the service on the basis of seniority-cummerit. The appellant was
appointed in the year 1957 as member of the Rajasthan Administrative Service as
a result of the open competitive examination held by the State Public Service
Commission under the provisions of the Rajasthan Administrative Service
(Emergency) Rules, 1956. The appellant claimed that his seniority was higher
than that of respondents 2 to 5 as is evident from the seniority list published
on July 1, 1964. At this stage it may be mentioned that though under the Order
dated January 4, 1967 of the State Government fifteen officers in the junior
scale were promoted and appointed on an officiating basis to the senior scale
of the service, the appellant has made only four of them respondents 2 to 5 as
parties in these proceedings on the ground that though they were juniors to
him, promotion has been given to them superseding his claims. The other
officers so promoted, even according to the appellant were senior to him in
service. We may also mention that respondent No. 5 is since dead, but for
convenience he will be referred to by the rank occupied by him as respondent.
In 1965 the State decided to introduce the
system of making promotions to the service on the basis of merit alone in
addition to the existing system of making promotions on the basis of
seniority-cum-merit. With this end in view there were various amendments made
to the Rules by which certain additions were made and certain other provisions
deleted.
On December 14, 1965, r. 28B was incorporated
providing for appointment by promotion to posts in the service on the basis of
merit and on the basis of seniority-cum-merit in the proportion of 50:50 and
the number of eligible candidates to be considered for promotion is to be 10
times the total number of vacancies to be filled up on the basis of merit as
well as seniority-cum-merit. On the same date when r. 28B was incorporated
sub-rule (2) of r. 27 was deleted. On January 7, 1966 sub-rules(2) to (6) of r.
28 were also deleted. On December 14, 1965 a Circular was issued by the Chief
Secretary to the Government of Rajasthan. According to the appellant the said
Circular was a secret one issued without any authority directing the Selection
and Promotion Committees and the Appointing authorities to follow the
instructions given 904 therein when making selection, promotion or appointment
in the service. The said circular prescribed "merit formula for making
selection of persons to be appointed on the basis of merit alone and the
seniority-cum-merit formula for making selection of persons to be appointed on
the basis of seniority-cum-merit." The basis for both the types of
promotions was the marking system indicated in the circular.
We do not think it necessary to go more
elaborately into the details of this circular or the authority under which it
was issued because it is seen that this circular was superseded by the circular
dated August 27, 1966, which is under severe attack in all these proceedings.
The contents of the latter Circular as well as the authority under which it is
purported to have been issued will be dealt with by us in due course in the
latter part of the judgment. On August 26, 1966 r. 28B was further amended by
providing that the proportion of promotion to be made by selection on the basis
of merit and seniority merit is to be 1:2 instead of 50:50.
On the same day a proviso was also added to
sub-rule (2) of r. 28B providing that only officers who have been in service
for not less than six years in the lower grade of the cadre will be eligible
for being considered for the first promotion in the cadre. On August 27, 1966
the impugned circular was issued by the Chief Secretary to the State
Government. It is the case of the appellant that this circular was issued
without any authority and it was again a secret circular giving directions in
the matter of selection, promotion and appointment to the service to the
Committees or the Authorities in charge of the same. The circular again dealt
with the merit formula and the seniority-cum-merit formulae on the basis of
marking system indicated therein. On September 8, 1966 the State decided to
extend the principles of making selections on the basis of merit alone to
appointments to senior posts also. For this purpose the original r. 32 was
substituted by a new rule providing for appointments to senior scale and
selection grade posts on the basis of merit and senioritycum-merit in the ratio
of 1: 2 on the recommendation of the Committee constituted under the said rule.
It is the case of the appellant that prior to
the notification dated September 8, 1966 though many posts in the senior scale
of service had fallen vacant even during the years 1963-64 and 1964-65, those
posts were not filled up by making promotion on the basis of the principle of
seniority-cum-merit which was in force at the relevant time.
By the Order dated January, 1966, the State
Government created 26 new posts in the Senior Scale of Service and 14 posts in
the Selection Grade with effect from the date of the order. As a result of this
creation of new posts, about 44 vacancies became available for being filled up
by promotion to the Senior Scale of Service in 1965-66.
Nevertheless the vacancies 905 were not filed
up by the State. After the new r. 32 was incorporated on September 8, 1966 the
Government took steps to fill up the 44 vacancies in the Senior Scale of
Service and for this purpose a Departmental Promotion Committee was constituted
and the Committee met in the end of September, 1966 for considering the claims
of the officers for purposes of promotion. On the basis of the recommendations
made by the said Committee, the Government by the Order dated December 7, 1966
promoted 29 officers to the Senior Scale on the basis of seniority-cum-merit.
Again by the order dated January 4, 1967, which is another order under attack
in these proceedings, 15 officers including the respondents Nos. 2 to 5 were
promoted to the Senior Scale of Service on the basis of merit alone.
According to the appellant by the Orders
dated December 7, 1966 and January 4, 1967 promotions had been made quite
contrary to rr. 28B and 32 of the Rules. It is the grievance of the appellant
that under the Order dated January 4, 1967 a large number of officers who had
qualified for promotion on the basis of merit under the merit formula were
superseded by the officers junior to them. Though Rules 28B and 32 provided for
selection on the basis of merit gave no indication or guidance as to what are
the factors to be taken into account in assessing the merit of an officer. The
promotions had also been made by the Committee adopting the principle of
awarding marks as directed by the Circular dated August 27, 1966 which had been
issued without any authority of law. The appellant filed S.
B. Writ Petition No. 79 of 1967 in the High
Court challenging the vires of rr. 28B and 32 as violative of Arts. 14 and 16.
The appellant also challenged the validity and legality of the Circular dated
Angus 27, 1966 as well as the order dated January 4, 1967 giving promotions to
the respondents Nos. 2 to 5 to the senior Posts, In the writ petition the
appellant had alleged that the various amendments made to the rules from time
to time and the delay in making promotions to Senior Posts were all with a view
to show favourtism to the third respondent who was the son-inlaw of the Chief
Minister of Rajasthan and to the other respondents who are all near relations
of persons who were the favourites of the Chief Minister of the State.
According to the appellant, the Circular
dated August 27, 1966 was issued without any authority and in any event the
Government by execution instructions had no power to fetter the powers of the
Selection Committees which were functioning under the statutory rules. Even the
principles laid down in the Circular regarding the award of marks for assessing
the merit were arbitrary and vague. Rules 28B and 32 were challenged as
violative of Arts. 14 and 16 inasmuch as the basis of merit had not been
defined anywhere in the rules and no principles or guidelines had been laid
down in the rules for assessing the merit of an officer.
906 The provisions laying down the criteria
for judging the merit of an officer contained in sub-rule (2) of r. 27 as well
as the procedure for assessing the said merit contained in cls. 2 to 6 of r. 28
having disappeared by the deletion of those provisions, according to the
appellant, arbitrary powers had been conferred by the rules on the Committees
to select any person they liked on the ground of merit. Apart from the attack
levelled against rr. 28B and 32 that there were no principles laid down for
judging the merits of an officer, the appellant also attacked as discriminatory
and violative of Arts. 14 and 16, the provisions of r. 28B providing that the
number of eligible candidates to be considered was to be 10 times the total
number of vacancies to be filled up and that six years service was essential
for an officer to be eligible for being considered for first promotion.
The Order dated January 4, 1967 was attacked
on the ground that the promotions had been made on the basis of illegal rules
as well as the directions contained in the invalid Circular dated August 27,
1966. In particular the appellant contended that though his service record for
the year 196566 was quite good. nevertheless certain adverse remarks contained
in the confidential rolls which were not communicated to him, had been taken
into account by the Departmental Promotion Committee, which met in the last
week of September, 1966 and hence there has been no proper consideration of his
claims for being promoted to the Senior post. On all these grounds the
appellant attacked rules 28B and 32, the Circular dated August 27, 1966 and the
Order dated January 4, 1967. He also alleged mala fide against the State.
The respondents Nos. 2 to 5 do not appear to
have filed any counter-affidavit. But the State contended that rr. 28B and 32
were not invalid and did not violate the provisions either of Art. 14 or Art.
16. The requirement in the rules regarding promotion to be based on merit was
justified as such selection was necessary to achieve efficiency in service. The
State controverted the allegations of mala hides made by the appellant. Though
it was admitted that the third respondent was the son-in-law of the Chief
Minister of the State, it was denied that any favoritism was shown by the State
either to that respondent or to the other respondents in the matter giving
promotions to them. On the other hand, the Departmental Promotion Committee
considered the claims of the appellantand other officers and on assessment of
the various claims of the officers promotions were given to the officers
mentioned in theOrder dated January 4, 1967 by the State Government on thebasis
of the recommendation of the Departmental Promotion Committee which has also
recommended respondents 2 to 5. The State further contended that though
promotions 907 had not been made to the Senior Scale in the year 1963-64 and
1964-65, it was not with a view to favour any particular officer. Apart from
the fact that the State Government had the power either to fill up the posts or
keep them vacant, in this particular case the vacancies were not filled up as
an amendment of the rules was in contemplation of the State Government. It was
urged that the rules contained various principles for assessment of merit of an
officer.
Regarding the Circular dated August 27, 1966,
the State contended that the marking system laid down in the Circular for
assessment of merit of an officer was calculated to ensure objectivity of
approach on the part of the Selection Committee. As there were as many as 35
sets of service rules governing various services, the Circular was issued to
bring about uniformity in the procedure for assessment of merit and for making
selections on the basis of seniority cum-merit. The State claimed that it has
ample powers to issue such a Circular. Regarding the validity of the Circular
the State contended that the Circular dated August 27, 1966 was issued by the
Chief Secretary in his administrative capacity being the Head of the Service in
the State. It is within his competence to give guidance for the proper working of
any governmental machinery. The circular is not intended to be a piece of
legislation nor is it an order of the Government.
Regarding the confidential reports of the
appellant the plea of the State Government was that the confidential reports of
all the officers including that of the appellant were before the Departmental
Promotion Committee when it met for making selection in September, 1966 and
that there was nothing illegal in the said Committee considering the adverse
remarks, if any, made in those reports. The State finally prayed for dismissal
of the writ petition.
The learned Single Judge who dealt with the
writ petition held that rr. 28B and 32 were not violative of either Arts.
14 or 16. The principle of merit embodied in
the rules was valid and the Committee charged with the duty under the rules of
considering the claims of various officers for promotion was quite competent to
take all the relevant factors when assessing the merits of an officer regarding
his suitability for promotion. The learned Judge further held that the
principle of merit of an officer being considered for promotion embodied in the
rules, was really based on the recommendation of the Administrative Reforms
Committee. However, the learned Judge held that the provision in sub-rule (2)
of r. 28B restricting the number of eligible candidates to be considered for
promotion to ten times the total number of vacancies, was violative of Art. 16
inasmuch as the claims 908 of various other eligible officers for being
considered for promotion was barred. The learned Judge further held that this
portion of sub-rule (2) of r. 28B is not easily severable from the remaining
portion of sub-rule(2) of r.
28B and in consequence be held that the whole
of sub-rule(2) of r. 28B was bad. After considering the relevant portions of
the Circular dated August 27, 1966, the learned Judge held that the
administrative instructions contained therein had to be adopted and followed by
these Committees. The directions contained therein did not leave any choice to the
Committees to ignore the same. The administrative directions contained in the
said Circular, according to the learned Judge, provided a rigid formula for
being adopted in the matter of selection for promotion and the directions
contained therein restricted the powers and functions of the Committees
functioning under the statutory rules. According to the learned Judge, even on
merits, cannot be considered to be reasonable. In this view the circular was
held to be bad as being repugnant to the rules. Regarding the promotions made
under order dated January 4, 1967, the learned Judge held that the directions
contained in the Circular must have been taken into account by the Selection
Committee and hence the promotions were not valid. On this reasoning, the learned
Judge, by his judgment and order dated November 7, 1968 held that sub-rule (1)
of r. 28B and r. 32 were valid and that sub-rule (2) of r. 28B was violative of
Art. 16 and hence that sub-rule was bad. The circular dated August 27, 1966 was
struck down and the promotions of respondents made under the order dated
January 4, 1967 were also struck down.
Aggrieved by the judgment and order of the
learned Single Judge, the first respondent, the State, filed D. D. Special
Appeal No. 57 of 1968 and the respondents Nos. 2 and 3 filed D. B. Special
Appeal No. 55 of 1968. The appellant herein filed cross-objections, in the
appeal filed by the State challenging the decision of the learned Single Judge
upholding the validity of sub-rule (1) or r. 28B and r. 32.
The Division Bench by its order and judgment
dated January 20, 1970 allowed the two appeals Nos. 55 and 57 of 1968 and
dismissed the cross-objections filed by the appellant. The Division Bench held
that the view of learned Single Judge that r. 28B(2) was bad was erroneous. On
the other hand, the Division Bench held that restricting the eligibility of
officers who have put in at least six years of service was quite reasonable and
the further provision in r. 28B(2) regarding the field of selection being
confined to senior most officers in the Junior Scale not exceeding 10 times the
total number of 'Vacancies was also 909 reasonable. Differing from the learned
Single Judge, the Division Bench held that no part of r. 28B(2) was invalid.
The Division Bench agreed with the views of
the learned Single Judge regarding the validity of sub-rule (1) of r.
28B and r. 32. Regarding the Circular dated
August 27, 1966, the learned Judges held that the marking system indicated
therein was really based upon the previous Circular dated August 31, 1960 under
which merit was to be evaluated by allotting marks on the previous record of an
officer. The said Circular of 1960 had been in operation in respect of the said
services except the Rajasthan Judicial Service or the Rajasthan Higher Judicial
Service, which were under the control of the High Court. It is the view of the
Division Bench that the Circular of 1966 was very elastic and gave wide
discretion to the Committees to assess the merit of an officer. The Circular
has done nothing except to lay down broad guidelines for the exercise of
discretion by the Promotion Committee. The system of marking indicated in the
Circular was quite good as it brought about uniformity in the procedure for
assessment of merit. On this reasoning the learned Judges held that the
Circular of 1966 was valid and it was in no way repugnant to the rules.
Regarding the authority for the Circular, the
learned Judges noted that there has been some confusion in the stand taken by
the State from time to time even when they made applications for amending their
counter-affidavit for making it clear that the Circular has been issued not by
the Chief Secretary in his individual capacity but by the State Government.
Ultimately, the Division Bench held that they had examined the cabinet file
produced before them along with the note sheets and that the Court was
satisfied that the Circular of 1966, has been issued with the approval of the
State Government. The learned Judges rejected the plea of mala fides raised by
the appellant herein. Regarding the allegation made by the appellant that the
adverse remarks which had not been communicated to him had been taken into
account by the Promotion Committee in September, 1966, the learned Judges held
that as the Departmental Promotion Committee had not been impleaded as a party,
the question whether the adverse remarks made against the appellant had been
taken into account by the said Committee cannot be gone into in these
proceedings. Regarding the promotions made under the Order dated January 14,
1967, the Division Bench upheld the same as it had already held that rules 28B
and 32 as well as the Circular of 1966 were all valid. Civil Appeal No. 1815 of
1970 is against the decision of the Division Bench, reiterating the objections
regarding the validity of the rules, the Circular, as well as the promotions
made.
Writ Petition No. 76 of 1970 is filed by
Motilal Kakkar, Apart from challenging rr. 28B and 32 and the Circular of 1966
910 and the promotions made under the order dated January 4, 1967, the writ
petitioner challenges also the order dated January 22, 1970 confirming the
promotions of respondents 2 to 16 in the Senior Scale. The facts leading up to
the writ petition are as follows :
The petitioner after obtaining his M. A. Degree
in History and the Law Degree from the Lucknow University joined service in the
erstwhile State of Jodhpur on August 1, 1943 as a Special Officer (Settlement).
He entered the Jodhpur State Civil Service on March 13, 1946 as a result of the
competitive examination held by the Public Service Commission of that State. At
the time of the formation of the Rajasthan Union, the petitioner was working as
Assistant Director, Civil ?Supplies, Jodhpur. Ultimately the petitioner was
appointed to the Rajasthan Administrative Service with effect from January 6,
1950. He has been serving in various capacities and he was also sent for higher
training to the United States of America by the Government of India during the
period March 23, 1958 to September 27, 1958. The petitioner thereafter was sent
on deputation to the Municipal Corporation of Delhi as an Assistant
Commissioner during the period June 17, 1963 to April 21, 1964. Later on he was
on deputation as Principal, Tribal Orientation and Study Centre during the period
May 22, 1964 to March 31, 1967. He became the District Manager of Food
Corporation of India and was holding that post since July 1, 1968. After giving
the history sheet of respondents Nos. 2 to 16, the petitioner claims that he
was the senior most amongst them and that his seniority has been so stated in
the relevant seniority list. After referring to the rules as originally framed
and the amendments made from time to time, the petitioner attacks the validity
of rr. 28B and 32 and the Circular dated August 27, 1966 on the same grounds as
those mentioned in Civil Appeal No. 1815 of 1970.
According to the petitioner respondent Nos. 2
to 16 were all his juniors and on the basis of the illegal rules and the
directions given in the Circular, officiating promotions have been given to
those respondents to the Senior Scale under the Order dated January 4, 1967.
The petitioner further states that after the
judgment of the Division Bench of the Rajasthan High Court, which is under
attack in the Civil Appeal, the State Government passed an order on January 22,
1970 confirming the promotions of respondents Nos. 2 to 16 in the Senior Scale.
According to the petitioner as the officiating promotions given to those
respondents under the Order dated January 4, 1967 were invalid. the order of
confirmation is also equally bad.
Therefore, he seeks to get that order; also
quashed.
911 The State Government has filed a very
elaborate counter affidavit. The stand taken by the State in respect of rr. 28B
and 32 as well as the Circular of 1966 and the Order dated January 4, 1967 is
the same as in the Civil Appeal.
The State has further contended that as the
rules are valid and the circular is also valid, the officiating promotions
given under the Order dated January 4, 1967 are also valid.
In consequence the State points out that the
order of confirmation dated January 22, 1970 is also valid. The State disputes
the allegation of mala fides and has also pointed out that the Departmental
Promotion Committee considered the claims of all the respondents including that
of the petitioner for promotion. Promotions were made by the Government on the
basis of the recommendation of the said Committee. The State finally prays for
the dismissal of the writ petition.
Coming to Writ Petition No. 139 of 1970, the
petitioner challenges the validity of the IT. 28B and 32, the Circular dated
August 27, 1966 and the Orders dated January 4, 1967 and January 22, 1970. The
officers covered by those orders are respondents Nos. 3 to 17. The petitioner
further challenges the order dated February 21, 1970 passed by the State
Government promoting and confirming in the Senior Scale the respondents Nos. 18
to 33. The facts leading up to this writ petition may be stated:
The petitioner after obtaining the B. Sc. (Hons.)
Agricultural Degree in the First Division from the Delhi University and the LL.
B. Degree from the Agra University joined service in the Delhi Administration
on February 6, 1954 as Extension Officer, Agriculture. On January 12, 1959 he
was promoted as Block Development Officer in the Delhi Administration, in which
capacity he continued till September 30, 1960. The petitioner joined the
Rajasthan Administrative Service on October 1, 1960 after having passed the
competitive examination held by the State Public Service Commission. After the
probationary period of one year, he was confirmed in the service with effect
from October 1, 1961. His rank has been given as Nos. 332 in the Seniority List
of the Rajasthan Administrative Officers issued in 1964. The petitioner gives
the rank of some of the respondents. After referring to the rules as well as
the amendments made from time to time and the Circular of 1966, the petitioner
levels the same attack as against them similar to those in the civil appeal.
The petitioner then refers to the officiating promotions to the Senior Scale
given to the respondents Nos. 3 to 17 by the Order dated January 4, 1967 as
well as to the Order dated January 22, 1970, confirming their promotions.
According to the petitioner these orders are illegal and invalid for the same
reasons urged in the civil appeal. The petitioner further says that several
officers were selected on probationary basis and given promotions, but only
respondents 91 2 Nos. 18 to 33 were confirmed by the order dated February 21, 1
970. These orders, according to the petitioner, are illegal and tile
petitioner's claim for promotion has not been properly considered.
The stand taken by the State Government in
this writ petition is also similar to the stand taken in Writ Petition No.
76 of 1970, which, we have already pointed
out, again is similar to the stand taken in the civil appeal. According to the
State Government the claim of the petitioner is not sustainable as he was
ineligible for consideration for promotion under the rules. The State further
contends that the petitioner has not put in the minimum period of six years of
service which is a condition precedent for consideration for promotion to the
Senior Scale under r. 32 read with r. 28(2) of the. Rules. The State further
contends that the respondents Nos. 18 to 33 were selected by the Promotion
Committee for likely vacancies and their selections were in accordance with the
Rules. Their promotions were delayed because of the orders of stay granted by
the Rajasthan High Court in certain writ petitions filed before it. As soon as
stay was vacated, the State Government decided to promote those officers, who
had been duly selected. Therefore, according to the State Government the orders
dated January 22, and 21st February, 1970 are legal and valid.
From the statement of facts mentioned above,
it will be seen that the main questions that arises for consideration relate to
the validity of rr. 28B and 32 and the Circular dated August 27, 1966. The
decision regarding the orders dated January 4, 1967, January 22, 1970 and
February 21, 1970 will largely depend upon the opinion expressed on the
validity of the Rules and the Circular.
We will first take up for consideration the
attack levelled against rr. 28B and 32 as being violative of Arts. 14 and
16. We have already referred to the fact that
this attack is made on these rules on the ground that there is no criteria laid
down in the rules for assessing the merit of the officers concerned when their
claims are being considered for promotion to the Senior Scale. The further
ground on which this attack is made is that the Rules give arbitrary powers to
the Promotion Committees in the matter of assessing the merits of an officer.
According to the State, on the other hand,
the Rules are valid and the promotions on the basis of merit are also valid.
It is now necessary to refer to the relevant
rules as they originally stood as well as to the amendments made thereto from
time to time. In 1954 the rules were framed by the Rajpramukh 913 under the
proviso to Art. 309 of the Constitution to regulate conditions of service of
the officers in the Rajasthan Administrative Service. We have already referred
to the fact that the Rajasthan Administrative Set-vice was fanned in the year
1950. There were three Grades in the Service :
(i)Ordinary Time Scale Rs. 285-800 (herein
after to be referred as the Junior Scale);
(ii) Senior Scale Rs. 500-1150;
(iii)Selection Grade Rs. 900-1500.
In the Civil Appeal and the two writ
petitions we are concerned with the promotions from junior scale to the senior
scale. Rule 7 relates to the sources of recruitment to the Service. They are,
(a) by competitive examination;
(b) by promotion of administrative
subordinate service, (c) by selection from amongst the prescribed categories of
Extension Officers and (d) by special selection from amongst the persons other
than the administrative subordinate service in condition with the affairs of
the State.
Part IV of the Rules deals with the procedure
for direct recruitment. The procedure for recruitment by promotion is dealt
with in Part V, Rule 27, as originally framed dealing with the criterion for
selection was as follows "Rules 27. Criterion for selection : (1) For
purposes of recruitment by promotion/selection/special selection shall be. made
an the, basis of 'seniority-cum merit' from among all-the administrative
subordinates Extension officers and others who are eligible for promolion,
selection and special selection respectively under the provisions of the Rules
(2)In selecting the candidates for promotion, regard shall be had to their;
(a) personality and character;
(b) tact and energy (including ability to
undertake extensive tours);
(c)intelligence and ability to express
themselves in English and Hindi clearly, (d) court and other work-, (e)
integrity; and (f) previous record of service." 58-1 S. C. India/71 914
The procedure for promotion was laid down in r. 28 as it onginally stood. Under
sub-rule(1) when a decision is taken that a certain number of vacancies in the
service are to be filled up by promotion, the Appointment Department has to
inform the Board and the latter has to call upon all Collectors to submit their
recommendations by a prescribed date. It was further provided that the
Appointment Department should also call upon the Heads of the Department
concerned to submit their recommendations through their respective
Administrative Secretaries by a prescribed date.
Sub-rules (2) to (6) dealt with the various
details regarding the submission of the list by the District Collector, the
various particulars to be mentioned by the Collector, to the Board,
scrutinising the list furnished by the Collector and preparing a list in the
order of seniority of candidates considered suitable for promotion. Those sub rules
also dealt with the Head of the Department preparing a list of candidates,
eligible for promotion in the order of seniority and. recording. this remarks
in respect of those officers. Sub-rule (7) provided for the Committee consisting
of the, officers mentioned therein considering the cases of all the candidates
recommended by the Board and the Administrative Secretaries and interviewing
them, if necessary. It also provided for the Committee selecting the requisite
number of candidates equal to the number of vacancies likely to occur in the
Service and to be filled up by promotion and to the list being prepared in the
order of seniority. The Committee has also to make another supplementary list
in the manner mentioned therein in the said sub-rule. Under sub-rule (8) both
the lists prepared by the Committee are to be submitted to the Government, who
after scrutinising the same have to forward them to the Public Service
Commission along with the character rolls, personal files and other particulars
relating to the officers mentioned therein. Under sub-rule (9) the names of the
candidates considered to be suitable by the Commission are to be reported to
the Government for final selection.
Under sub-rule (10) it is provided that the
final selection is to be made by the Government and against of candidates
considered suitable for promotion is to be arranged in the order of their
seniority.
Rule 32 of the Rules as it originally stood
made provision for appointment to the Senior scale in the Cadre and it was as
follows "Rule 32, Appointments to Senior Posts:
Appointments (including in an
officiating/temporary capacity) to senior posts shall be made by the Government
from amongst members of the Service on the basis of seniority915 cum-merit on
the. recommendations of a Committee which shall consist of the following
officers : (1) Chairman, Rajasthan Public service Chairman Commission Or a
Member nominated by him.
(2)Chairman, Board of Revenue Member (3)
Commissioner, Development DepartMember ment (4) Special Secretary to the
Government Member in the Appointments Department Secretary The Committee shall
consider the cases of the persons eligible for promotion by examining their
confidential rolls and personal files interviewing such of them as they deem
necessary and shall select a number of candidates equal to the number of
vacancies likely to be filled by promotion.
Provided that Government may fill a vacancy
in the senior grade temporarily by appointing thereto for a period not
exceeding six months in an officiating capacity, any member of the Service who
is eligible for such appointment under these Rules." It will be seen by a
reference to the rules extracted above that promotion was to be on the basis of
seniority-cum merit. Under sub-rule (7) of r. 28 and r. 32 a committee has been
constituted and it is on the basis of the recommendation made by the said
Committee that the promotion is ultimately made by the Government.
In 1965 the State Government took a decision
to introduce the system of recruitment to the service by promotion on the basis
of merit alone. On December 14, 1965 a notification was issued amending the
Rules. A new rule 28B dealing with the promotion by selection on the basis of
merit was incorporated, The said rule as originally framed was as follows :
"28-B Promotion by selection on basis of
merit" (1) Appointment by promotion to posts in the Service shall be made
by selection strictly on the basis of merit and on the basis of
seniority-cum-merit in proportion of 50:50.
Provided that if the appointing authority is
satisfied that suitable persons are not available for appointment by promotion
strictly on the basis of merit in a particular year appointment by promotion on
the basis of seniority-cum-merit may be made in the same manner as specified in
these rules.
916 (2) Selection strictly on the basis of
merit shall be made from amongst persons who are otherwise eligible for
promotion under these rules; the number of eligible candidates to be considered
for the purpose shall be ten times the total number of vacancies to be filled
in on the basis of merit and seniority un-merit provided such number is
available; where the number of eligible candidates exceeds ten times the number
of vacancies, the requisite number of senior-most persons shall be considered
for the purpose.
(3) Except as otherwise expressly provided in
this rule the procedure prescribed for selection to the post on the basis of
seniority-cum-merit shall, so far as may be, be followed in making selection
strictly on the basis of merit.
(4) The Committee shall prepare a separate
list of candidates selected by it on the basis of merit and shall arrange their
names in order of preference.
(5) Where consultation with the Commission is
necessary the list prepared by the Committee shall be forwarded to the
Commission by the appointing authority along with the personal files and
confidential rolls of all, persons whose names have been considered by the
Committee.
(6) The Commission shall consider the lists
prepared by the Committee along with other documents received from the
appointing authority and unless any change is considered necessary, shall
approve the lists, and if the Commission considers it necessary to make any
change in the lists received from the appointing authority the Commission shall
inform the appointing authority of the changes proposed and the appointing
authority, after taking into account the commences, if, any, may approve the
lists finally with such modifications, as may in his opinion, be just and
proper.
(7) Appointment shall be made by the
appointing authority taking persons out of the list finally approved under the
proceeding sub-rule in the order in which they have been placed in the list.
(8) Among persons appointed in the same
class,. category or grade of posts during the same year, persons appointed on
the basis of seniority-cum-merit shall rank senior to those appointed by
promotion on the basis of merit;
the seniority inter se of persons appointed
in the 917 same class, category or grade of posts by promotion strictly on
merit, shall, without regard to the order of preference, be determined as if
such persons had been appointed by promotion on the seniority-cum merit.
(9) The provisions of this rule shall have
effect notwithstanding anything to the contrary contained in any other
provisions of these rules.
Explanation :-For the purpose of determining
the number of vacancies to be filled on either basis under sub-rule (1), the
following cyclic order shall be followed from year to year.
"The first by merit.
The next by seniority-cum-merit.
The next by merit.
The next by one by Seniority-cum-Merit The
cycle to be repeated." By the same notification of December 14, 1965
sub-rule (2) of r. 27 was deleted. On January 7, 1966, a further amendment was
made to the rules by deleting sub-rules (2) to (6) of r. 28. It will be seen
that under the new r. 28B, promotion to posts in the service is to be made by
selection on the basis of merit and on the basis of seniority-cum merit in the
proportion of 50:50. Sub-rule (2) provided for the manner of selection on the
basis of merit. Under sub rule (3) procedure prescribed for selection to the
posts on the basis of seniority-cum merit has to be followed as far as possible
in making selection strictly on the-basis of merit.
On August 26, 1966 by a notification certain
amendments were made in r. 28B. Under sub rule (1) of r. 28B, the original
proportion of selection on the basis of merit and on the basis of
seniority-cum-merit was altered and the proportion was fixed as 1:2. A proviso
was also added to sub-rule (2) of r. 28B, which is as follows :
"Provided that for the first Promotion
in the same cadre (from a lower grade to higher grade) against the merit only
such of the persons shall unless a higher period is prescribed elsewhere in
these rules be eligible who have put in not less than six years of service in
the lower grade of the cadre." 918 On September 8, 1966, the old r. 32 was
substituted by a, new rule dealing with the appointment to Senior Posts. The
said new rule 32 runs as follows :
"32(1) Appointment to senior posts
Appointment to Senior scale and selection grade posts shall be made by
Government from amongst the members of the service on the basis of merit and
seniority-cum-merit in the ratio of 1:2 on the recommendations of a Committee
which shall consists of the following :"(1) Chairman, Rajasthan Public
Service Commission, or a Member nominated by him.
Chairman.
(2) Chairman, Board of Revenue Member.
(3) Commissioner. Development Department.
Member.
(4) Special Secretary to Government in the
Appointments Department.
Member.
Secretary.
(2) Except as provided in this rule, the
procedure and the principles for selection by merit, shall, in so far as it may
apply, be the same as provided in rule 28B. For selection by
seniority-cum-merit, the Committee shall consider the cases of all the persons
eligible for promotion by examining their confidential Rolls and Personal files
and interviewing such of them as may deem necessary, and shall select a number
of candidates equal to the number of vacancies likely to be filled by promotion
by seniority cum-merit:
Provided that Government may MI a vacancy in
the Senior scale or selection grade posts temporarily by appointment thereto
for a period not exceeding six months in an officiating capacity, any member of
the service who is eligible for such appointment under the rules." This
new rule was also incorporated to give effect to the Government's decision
taken in 1965 to introduce the system of recruitment to the service by promotion
on the basis of merit, as a result of which r. 28B was earlier incorporated.
Rule 32 really deals with appointments to
Senior Posts; and under the old rule the promotion was to be on the basis of
seniority-cum-merit. That is altered under the new rule to promotion on the
basis of merit and seniority-cum-merit and the proportion is also 1:2 as
already laid down, by the amendment made on August 26, 1966. Sub-rule (2) of
new r.
32, as will be seen, provides for the
procedure and 919 the principles for selection by merit being the same as
provided in r. 28B. Therefore, it will be seen that the position as it stood at
the time when promotions of the various respondents in the appeal and in the
writ petitions were made was :
(1) the promotions had to be made on the
basis of merit and seniority-cum-merit in the ratio of 1:2 as provided by Rule
32 read with r. 28B;
(2) under the proviso to sub-rule 2 of r.
28B the minimum period of eligibility for
being considered for the first promotion is six years of service in the lower
grade of the cadre;
(3) under sub-rule 2 of r. 28B the selection
for promotion is restricted only to officers eligible for promotion under the
rules coming within ten times the total number of vacancies to be filled up on
the basis of merit and seniority-cum-merit;
(4) under r. 32 appointments to Senior scale
and Selection cadre posts are also on the basis of merit and
seniority-cum-merit in the ratio of 1:2, and (5) recommendations for
appointments and promotions are to be made by the Committees concerned.
It is the grievance of the appellant and the
writ petitioners that the combined effect of the addition of r.
28B and the deletion of sub-rule (2) of r. 27
and sub-rules (2) to (6) of r. 2B is that although a provision has been made
for recruitment to the service by promotion on the basis of "merit
alone" no criteria) for assessing the merit and suitability of the
candidates have been provided in the rules as they stand. In fact their further
contention is that sub-rule (2) of r. 27 had laid down the various criteria for
considering the suitability of a candidate and sub-rules (2) to (6) of r. 28
had dealt with the procedure for selection of such candidates. When once these
sub-rules have been deleted there is no guidance whatsoever furnished by the
rules, as they now stand, for assessing the merit.
Further, the restriction placed under r. 28B
that only candidates coming within 10 times the number of vacancies that have
to be filled up will be considered for selection and the further restriction
therein that for the first promotion six years' service is essential, are
violative of Arts. 14 and 16. Rule 32, according to Mr. Garg, (toes not also
lay down any guidance or principle for assessing the merit of candidates for
promotion to Senior posts.
We are not inclined to accept these
contentions of Mr. Garg.
We have already referred to the fact that the
learned Single Judge, in the writ petition leading up to the civil appeal, is
of the view that rr. 28B and 32 do not offend either Art.
14 or 16. But the 920 learned Judge is of the
view that as there is a restriction placed upon the number of officers whose
claims could be considered, under sub-rule (2) of r. 28B, that part of the
sub-rule was invalid as offending Art. 16. As the said part cannot be
separated, according to the learned Judge, from the other parts of the
sub-rule, the whole of sub-rule (2) of r. 28B was struck down. The Division
Bench, on the other hand, has disagreed with this view of the learned Single
Judge and has upheld the validity of the entire subrule (2) of r. 28B. We are
in agreement with the views expressed by the Division Bench that rr. 28B and 32
do not offend either Art. 14 or 16.
Nor are we impressed with the contention of
Mr. Garg that there is no principle laid down in the rules for assessing the
merit of an officer especially after the deletion of sub-rule (2) of r. 27 and
sub-rules (2) to (6) of r. 28. No doubt sub-rule (2) of r. 27 enumerated
certain factors or matters to be taken into account in selecting candidates for
promotion. Sub-rules (2) to (6) of r. 28, no doubt also dealt with certain
aspects of procedure to be adopted for promotion. The deletion of the
sub-rules, in our opinion, does not make the rules 28B and 32 in any manner
invalid.
We have already extracted the relevant rules
and also pointed out that the selection or promotion is to be considered by the
Committees referred to therein. It is no doubt argued by Mr. Garg that
introduction of the idea of merit in the procedure of promotion brings in an
element of personal evaluation and such personal evaluation opens the door to
the abuse of nepotism and favouritism. Hence it is argued that there is a
violation of the constitutional guarantee under Arts. 14 and 16.
We-are unable to accept this contention. The
State Government has taken a decision in 1965 that selection to the service and
promotion have to be on the basis of merit and seniority cum-merit. There can
be no controversy that the main object in such matters is to serve public
interest and not the personal interest of the members of the official -roup
concerned. As stated by Leonard D. White in his Introduction to the Study of
Public Administration, 4th Edition p. 380: "The Public interest is best
secured when reasonable opportunities for promotion exist for all qualified
employees, when really superior civil servants, are enabled to move as rapidly
up the promotion ladder as their merits deserve and as vacancies occur, and
when selection for promotion is made on the sole basis of merit.
For the merit system ought to apply as
specifically in making promotions as in original recruitment." The above
statement has been quoted with approval by this Court in Sant Ram Sharma v.
State of Rajasthan and Another(1) We may also point out that the Administrative
Reforms (1) [1968] 1 S. C. R. 1 1 1.
921 Committee has also emphasised that merit
should be given adequate weightage in the matter of promotion especially for
senior appointments to ensure greater efficiency in government functioning and
also to provide adequate incentive to government servants to give their best.
Rule 32 in essence adopts what is stated in
rule 28B. The latter rule provides for two methods of selection: one based on
merit and the other based on seniority-cum-merit. In other words, the rule provides
that the promotion based on merit in contradistinction to that based on
seniority-cum merit shall strictly be on the basis of merit. The Selection
Committee and the Promotion Committee consist of very responsible and senior
officers of the 'State and being persons of experience they can be trusted to
evaluate the merits of a particular officer. No doubt the term 'merit' is not
capable of an easy definition, but it can be safely said that merit is a sum
total of various qualities and attributes of an employee such as his academic
qualifications, his distinction in the University, his Character, integrity,
devotion to duty and the manner in which he discharges his official duties.
Allied to this may be various other matters, or factors such as his punctuality
in work, the quality and outturn of work done by him and the manner of his
dealings with his superiors and ,subordinate officers and the general public
and his rank in the service.
We are only indicating some of the broad
aspects that may be taken into account in assessing the merits of an officer.
In this connection it may be stated that the
various particulars in the annual confidential reports of an officer, if
carefully and properly noted, will also give a very broad and general
indication regarding the merit of an officer. Therefore, it cannot be stated
that rr. 28B and 32 are in any manner vague ,or do not give any guide line for
assessing the merit of an officer. No doubt sub-rule (2) of r. 27 dealt with
certain factors which are to be taken into account for considering the claims
for promotion, but when it comes to a, question of merit, not only those
factors but also certain additional factors and circumstances will have to be
taken into account and such an evaluation of merit has been left under the
rules to a Committee consisting of responsible, senior and experienced officers
of the State.
We are also not impressed with the contention
that Rule 28B(2) and its proviso confining the selection to senior most
officers not exceeding ten times the number of total vacancies to be filled up
and the further restriction regarding the eligibility of officers who have put
in at least six years of service for first promotion offend Art.
16 of the Constitution. In this respect also
we agree with the views expressed by the Division Bench of the Rajasthan High
Court in D. B. Special Appeal 922 No. 57 of 1968, The restriction contained in
the proviso to sub rule (2) of r. 28B in our opinion, is quite reasonable.
Before an officer in the Junior scale can be
considered as fit for promotion to the Senior scale, it is necessary that he
should have worked on a post in the Service at least for some period of time.
As to what quantum of that period must be is not for this Court to lay down.
The Government has fixed this period as six years. We are not in a position to
say that it is an improper restriction. The provisions contained in sub-rule
(2) confining the selection to senior most officers not exceeding 10 times the
number of total vacancies is also, in our opinion, reasonable. Such a provision
will encourage the members of the service to aspire for promotion for making
themselves eligible by increasing their efficiency in the discharge of their
duties. We are of the view that rr. 28B and 32 do not offend either Art. 14 or
16 of the Constitution.
Now coming to the Circular dated August 27,
1966, we find it difficult to agree with the view of the Division Bench of the
Rajasthan High Court. On the other hand, we are inclined to agree with the
decision of the learned Single Judge in Writ Petition No. 79 of 67. The
contention of Mr. Gang is that the Circular by executive instructions has
abridged or curtailed drastically the exercise of discretion by the
Departmental Promotion Committee constituted under the rules. In fact his plea
is that the circular has superseded the statutory rules framed under the
proviso to Art. 309. On the other hand, it is the contention of the learned
Solicitor-General, appearing for the State and of Mr. B. Sen, learned counsel
appearing for some of' the respondents, that the Circular has not in any manner
interfered with the powers of the Committees constituted under the Rules. On
the other hand, in order to bring about uniformity in the application of the
principles for assessing the merit the marking system which has been in vague
from 1960 has been adopted with slight modifications in the Circular of 1966.
The instructions contained in the Circular only provide guidance to the
Committees concerned and those instructions do not in any way contravene any of
the rules.
Before we deal with this aspect, we can
dispose of a subsidiary contention that has been raised by Mr. Garg.
According to him the circular has been issued
by the Chief Secretary as the Head of the Service and it is not an order of the
Government. This has been accepted by the State Government. If so, it follows
that the Circular is illegal and void. We have already referred to the stand
taken by the State Government in this regard. They have specifically taken the
stand that the circular has been issued by the Chief Secretary as the Head of
the Service. Before the Division Bench in the High Court when this matter was
again 923 raised by the appellant, it is seen that an application for amending
their counter-affidavit was made by the State to make the position clear that
the Circular was issued with the approval of the Government. As pointed out by
the Division Bench there is some confusion in this regard. But ultimately the
Division Bench has stated that they themselves have gone through the Cabinet
file and the notes and satisfied themselves that the Circular has been issued
with the approval of the Government. Therefore it follows that the Circular is
an order of the Government and not of the Chief Secretary alone.
Then the question is whether the Government
is competent to issue the said Circular and whether the Circular in any manner
effects the discretion and powers of the Committee functioning under the
statutory rules. The position is clear, as laid down by this Court in Sant Ram
Sharma v.
State of Rajasthan and another(1):
"It is true that the Government cannot
amend or supersede statutory rules by administrative instructions, but it the
rules are silent on any particular point Government can fill up the gaps and
supplement the rules and issue instructions not inconsistent with the rules
already framed." Having due regard to the principles stated above, we will
now examine the scope and contents of the Circular. The Circular contains
administrative instructions and it does not profess to lay down anything else.
The Government have issued those instructions "for the guidance of all
selection/promotion committee and appointing authorities mentioned in the
statutory service Rules. These administrative instructions and the statutory
service Rules should together be taken as a complete code on the subject."
From the above extract it is clear that in the matter of selection or promotion
the Committees concerned are enjoined not only to have regard to the statutory
rules under which they function, but also to the administrative instructions
given in the Circular. This makes it very clear that it is not open to the
Committee concerned to ignore the instructions contained in the Circular or to
act contrary to the directions contained therein. Therefore, it will be seen
that if the Circular or any part of it gives instructions contrary to or
opposed to any of the rules, the Circular or that part of the Circular to that
extent will be in-. valid. In particular we may refer to paragraphs 3 and 5 of
the Circular. Paragraph 3 deals with the merit formula and is as follows :
(1) [1968]1 S. C. R. 111.
924 3(a) "Merit formula" means that
out of 75 marks (marking system has been defined in paragraph 5), a person
should get a minimum of 65 marks for consideration of his case for promotion
among those who have secured 65 or more marks, the person who gets highest
marks will be the first to be promoted, and the person who comes next in the
range of marks will be the second to be promoted, and so on.
The inter-se seniority of persons had been
appointed in the same class, category or grade of posts by promotion strictly
on merit shall without regard to the order of preference, be determined as if
such persons had been appointed by promotion on the basis of
seniority-cum-merit. This is illustrated by the following example Name of the
No. of Seniority in the Officer Marks. next below grade.
A 75 8 B 73 9 c 70 4 D 69 3 E 65 1 That if
there are 5 vacant posts to be filled by promotion on the basis of 'merit'
formula the inter-se seniority of these 5 selected persons will be the same as
in next below grade, but if only 3 posts are to be filled then those who have
secured 75, 73 and 70 marks respectively will be selected and the remaining
left out. The inter-se seniority amongst these selected shall be the same as
the next below grade.
(b)The eligible candidates for promotion on
the basis of 'merit' formula shall be 10 times the total number of vacancies to
be filled by way of promotion provided such number is available and they should
be holding the post in the next below cadre in substantive capacity. As for
example, if there are twelve posts to be filled by way of promotion on the
basis of both the formula (viz. four posts for merit and eight for seniority-cum-merit)
the total number of eligible candidates for promotion on the basis of merit
formula shall be 120. If available, if an officer could not secure 65 marks
continuously for 5 years he will not be included in this list of eligible
candidates.
(c) Notwithstanding anything contained in
sub-para (b) above, for first promotion by merit, only such of the candidates
shall be eligible who have put in six years service in the cadre on the date of
selection." 925 Paragraph 4 of the Circular lays down what is
"seniority cum merit" formula. The marking system which is applicable
both to the selection based on 'merit' as well as to the selection based on
"seniority-cum-merit" is contained in paragraph 5. That paragraph
reads as follows :
"Para-5 The marking system will be as
follows (a)Confidential Rolls for the 5 calendar years immediately 'preceding
the date of selection will be examined. 5 marks will be ear-marked for each
year's confidential Roll, and the marking will be:-Excellent report-5 marks,
Very good report-4 marks; Good report -3 marks; Satisfactory report-2-1/2
marks;
Unsatisfactory report-2 marks-, Adverse
report-1-1/2 marks; Adverse report with punishment 1 mark. If a person has been
awarded either 'Merit Pay' or 'Cash award' by the Government, then the
Committee may award him upto 5 more marks in addition to the marks already
obtained by him. These additional marks will not be taken into consideration at
the time of the next selection.
(b)The record of service, which means service
book, personal file, and Confidential Rolls other than the Confidential Rolls
of the 5 years immediately preceding the selection maintained after the
formation of Rajasthan, will be allotted 50 marks, and the marking will be (a)
average or satisfactory record 50 marks, and (b) deduction upto 2 marks for
each punishment according to gravity may be made (no deduction will be made for
mere warning, but where warning has been recorded in Confidential Roll, it
should be considered as punishment and marks should be deducted).
'Recorded warning' means censure given by way
of punishment under the C.C.A. Rules. If some marks have been deducted for any
punishment out of 50 marks in any year of selection, then that deduction should
not be repeated or counted in the next selection. Also if some marks have been
deducted from the Confidential Roll of a particular year, then that deduction
should not be repeated or counted next time.
That Confidential Roll should be considered
satisfactory, and marks awarded accordingly, with a view to ensure
implementation of this, it would be necessary for the promotion Committee to
keep a record of such deductions and additional marks as the case may be.
926 (c)On the basis of above marking, only
such persons who have secured a minimum of 6-1/2 marks out of the total of 75
marks will be considered for promotion on the basis of 'Seniority-cum-merit'
formula. Thus, as has been mentioned earlier, even if a junior person secures
more than 621 marks, the senior will not be superseded if he has secured 621/2
marks. Under the 'merit' formula those who have secured 65 marks or more will
only be considered for promotion." Paragraph 6 dealing with officers, who
can be called for interview provides that a person who has secured less than
62-1/2 marks shall be called for interview.. But persons who get less than 61
marks, should not. be called for interview.
It further provides that those persons whose
confidential Rolls were missing or whose confidential Rolls could not be
prepared in their absence for study or training outside India should also be
called for interview.
Para 7 of the circular lays down that adverse
remarks recorded in the Confidential Rolls should be communicated to the person
concerned in time, so that he may get an opportunity to represent his case to
the authority concerned. However, if by chance, adverse remarks have not been
communicated to him, or if the adverse remarks have been communicated but his
representation had not been decided by the appropriate authority, then in that
event the person concerned should be called for interview by the selection or
the promotion committee and before he is asked to appear for interview adverse
remark should be communicated to-him so that he could come prepared with what
he has to say in the matter. It was left open to the selection or promotion
committee to treat the adverse remarks as expunged and then award marks if it
felt that the adverse remarks were not justified. It was clearly emphasised
that normally efforts should be made to communicate the adverse remarks and to
decide the representations before the selection committee meets.
In para 9 of the circular it was pointed out
to all selection committees and appointing authorities that the assessment of
confidential rolls and the awarding of remarks thereon should be rational,
judiciously liberal and objective, the reason being that at times a
confidential roll may have been written with a greater sense of responsibility
and at other times it may not have been given due care. It was also observed by
way of illustration that one officer might be liberal in the assessment of his
subordinates while another may be a bit miserly or sometimes indicative. It
was, in order to have a balanced approach in the matter it might at time be
worthwhile for the selection committee as also 927 for the appointing authority
to consider whether the reporting officers themselves enjoyed reputation for
efficiency, impartiality and integrity.
Finally the circular pointed out that the
instructions contained therein should be strictly kept in view while persons
are being considered for promotion, the reason being that evaluation and
assessment of confidential rolls make or mar the service prospects of
,government employees.
One gets a fairly good picture of the nature
of the instructions contained in the circular issued by the Government.
No doubt a properly evaluated marking system
may be helpful for assessing the merit of persons who are already in service.
But the instructions given in the circular are so rigid that they are ,opposed
to the selection to be made strictly on merit as provided under rr. 28B and 32.For
instance the marking system provides 50 marks for the record prior to 5 years
and for the five years preceding the selection the marking of 25 is to be on
the basis of confidential rolls. From this it is clear that an officer who has
rendered less than five years of service will not be eligible to get a single
mark ,out of 50 which is provided for the record for the period preceding five
years for the simple reason that he will have no such record. The officer who
has put in less than five years of service has been straightaway denied 50
marks out of 75 marks and he has to establish his worth within the small range
of 25 marks on the basis of his confidential rolls which will be available for
a period of less than five years. This formula of marking is certainly opposed
to r. 28B and r. 32, the object of which is to ensure that merit and merit
alone is to form the basis for promotion, as against the quota fixed for merit,
in contradistinction to seniority-cum-merit.
Similarly, when one considers the question of
first selection, the position is still more anamolous. An officer Who has put
in just six years of service will get 50 marks for his record of previous
service which just exceeds five years by one year. Another officer will have to
face the situation with a longer period of service. There can be no comparison
of the claims of the two officers on merits.
While the rules give a wide discretion to the
Committee for judging merit, paragraphs 3 and 5 of the circular place undue,
restrictions and limitations on the exercise of discretion and thus fetter the
powers of the Committee. That is opposed to rr. 28B and 32.
928 Similarly, in the matter of giving marks
for excellent report, very good report, good report, satisfactory report,
unsatisfactory report, adverse report and adverse report with punishment, the
circular is arbitrary. It will be seen that an officer who has satisfactory
report gets 2-1/2 marks, and another officer with an unsatisfactory report gets
2 marks. The officer with an adverse report gets 1-1\2 marks. , We fail to see
any rhyme or reason in this marking system.
Again, under the Rules the Committee
concerned, has a discretion if it deems necessary to call for interview any
person, whose claims are being considered by it. But this exercise of
discretion is drastically curtailed by paragraph 6 of the circular laying down
the circumstances under which a person, should or should not be called for
interview. The Committee under the said paragraph has only to mechanically
apply the directions contained therein. This provision is again a serious
inroad on the powers conferred on the Committees by the Rules.
We are not inclined to accept the view of the
learned Judges of the Division Bench that the circular merely gives a broad
guidance to the Committees concerned and that the instructions contained
therein are elastic. Nor are we inclined to accept their reasoning that the
Committees have still got discretion to ignore the directions contained in the
circular and assess the merit of an officer by independent evaluation. No such
indication is available, so far as we could see, in the circular. On the other
hand, the indications axe to the contrary. The circular enjoins the Committees
to treat the administrative instructions and the statutory Service Rules
together as a complete Code.
The object of the circular may be to bring
about uniformity in the award of marks. But the directions contained therein
do' offend the rules. This is not a case of the government filling up the gaps
or of giving executive instructions on matters not provided for by or not
inconsistent with the rules. 'Me learned Judges of the Division Bench of the
High Court, have by and large, upheld the validity of the marking system as
well as the other instructions contained in the circular of 1966 on the ground
that the marking system as pointed out by the State has been in vogue from
1960, on the basis of a previous circular, dated August 31, 1960 issued by the
State Government. Reliance placed upon this circular of 1960 by the High Court,
in our opinion, is not justified.
We have gone through the circular of 1960
which is No. F. 1(6) Apptts. (D)160 dated 31-8-1960. That circular was issued
by the State to clarify the misapprehension that appears to have been caused in
the application, for promotion of the principle of merit-cum-seniority or
seniority-cum-merit. For the 929 purpose of having uniformity, the State
Government had laid down certain principles in the said circular to be borne in
mind by the Promotion Committees. No doubt there is a marking system indicated
therein. But there are two features which distinguish the circular of 1960 from
that of the 1966 circular. In paragraph 3 of the former circular, it is
specifically laid down that the principles mentioned therein are only in the
nature of executive instructions to be kept in view by the Committees when
making promotions.
It is made clear that those Committees
should, however, exercise their own discretion while applying the above
principles in view of the fact that occasionally the Confidential Rolls may not
have been written with full sense of responsibility. Moreover, some of the
rules permit interview before selection and in such cases the Selection
Committee will have to assess suitability of the officer as a result of the
interview also." Under the circular of 1966, we have already indicated, no
such discretion is left to the Selection or Promotion Committees to adopt any
method other than that indicated in the circular. In fact it is emphasised that
the statutory service rules and the instructions contained in the circular are
to be treated as a complete code by the Committees. Another point to be noted
is that in 1960 the question of promotion on the basis of merit alone had no
place. That principle was adopted only, as pointed out by us earlier, in1965
which led to the amendment of the rules. Therefore, the principles mentioned in
the circular of 1960 cannot be relied on when considering the validity of the
present circular, when promotion by merit alone has been recognised by the
rules from 1965. We have already indicated that the instructions in the 1966
circular contravene the Rules. Therefore, we are of the opinion that the circular
dated 27-8-1966 is bad and accordingly it is struck down. We make it clear that
we express no opinion on the validity or otherwise of the circular of
31-8-1960. We have only referred to that circular to show that the High Court
has committed an error in placing reliance on the same.
Now, coming to the promotions and
confirmations made, under the orders dated January 4, 1967, January 22, 1970
and February 21, 1970, we are not inclined to disturb those orders except to
the extent indicated below in respect of the promotions of respondents Nos. 2
to 4 in Civil Appeal No. 1815 of 1970 under the first order dated January 4,
1967 and their confirmation, by the second order dated January 22, 1970.
Writ Petitions Nos. 76 and 139 of 1970 have
been filed in this Court. only after the judgment dated January 20, 1970 of the
High Court in D. B. Special Appeal No. 57 of 1968.
The petitioners must have been aware that the
appellant was challenging only the promotions of four officers in his writ
petition 59-1 S.C.R. India/71 930 in the High Court. Nevertheless, they kept
quite and allowed the officiating promotions of all the officers to stand from
1967 and even kept quiet till the government confirmed the promotion of those
officers on January 22, 1970. So far as the writ petitioners are concerned, the
State must be considered to be justified in passing the order dated January
22,,1970, on which date the High Court's judgment was in its favour. We are
entitled to take this circumstance into account for denying the larger reliefs
claimed by the writ petitioners when they attack the orders dated January 4,
1970 and January 22, 1970.
We have referred earlier to the various
orders that are being challenged in these writ petitions, apart from the attack
on rr. 28B and 32. Under the order dated January 22, 1970, the officers who had
been promoted to officiating posts in the senior scale in January 4, 1967 have
been confirmed. We have held earlier that these orders cannot be reopened at
the instance of these writ petitions. Another set of officers, who had been
selected earlier, were appointed by promotion to the senior scale post by the
order dated February 21, 1970. We are holding later that no relief can be
granted to the concerned writ petitioner even regarding this order.
So far as respondents Nos. 2 to 4 in the
Civil Appeal No. 1815 of 1970 are concerned, we are giving separate directions,
regarding the reconsideration of their promotion and confirmation, along with
the appellant in the appeal.
The fact that the respondents Nos. 2 to 4 in
the civil appeal have been confirmed on January 22, 1970 after the decision of
the High Court in favour of the State and those officers is of no consequence,
so far as the appellant is concerned, if their original officiating promotion
on January 4, 1967 requires reconsideration by the Government.
Their confirmation will stand or fall
depending on the final decision of this Court regarding the order dated January
4, 1967.
The appellant in the civil appeal is not
challenging the officiating promotions or confirmation made of the officers
other than respondents Nos. 2 to 4 in the appeal. Hence the promotions given
and confirmations made of the other officers under orders dated January 4, 1967
and January 22, 1970 respectively should be allowed to stand. It is also seen
that the order dated February 21, 1970 was passed by the State Government,
after the order of stay was vacated by the High Court. The State Government, as
pointed out earlier, was justified in passing the order dated January 22, 1970
except regarding respondents Nos. 2 to 4 in the appeal, on the basis of the
Division Bench judgment of the 931 High Court which had upheld the validity of
the rules and the circular. The same reasoning will apply to the order of
February 21, 1970 also. Therefore, the petitioner in writ petition No. 139 of
1970, who alone is challenging this order, will not be entitled to have that
order reopened.
Thus both the writ petitioners will be only
entitled to have a declaration that the circular dated August 27, 1966 is
invalid and that it is struck down. They are' not entitled to any further
reliefs in the writ petitions.
In the civil appeal Guman Singh, the
appellant has raised a contention that promotions of respondents Nos. 2 to 4
were made on January 4, 1967 on the basis of illegal rules and invalid
circular. He has further contended that the Promotion Committee which met in
September, 1966 has taken into account the adverse remarks made against him
which were not justified and which were not communicated to him. We have
already expressed our views upholding the validity of the rules and the
invalidity of the circular. In support of the contention that adverse remarks
were taken into consideration by the Committee, he relied upon the following
circumstances : The Deputy Commissioner has written a letter dated April 28,
1966 strongly appreciating his services as an officer. While so, it is a matter
of surprise that adverse remarks came to be made in September, 1966. The nature
of the adverse remarks has been referred to by the Division Bench. It is
admitted by the State that the Promotion Committee had met in the end of
September, 1966 and made recommendations regarding the officers who are to be
promoted. It is also admitted by the State Government that the confidential
rolls of all the officers were before the Selection Committees They have not
denied that the circular was not taking into account by the Committee. On the
other hand, they have impliedly accepted that the circular was before the
Committee at the time of considering the promotions. According to the appellant
adverse remarks were communicated to him only on May 11, 1967, long after the
decision of the Promotion Committee. Hence the Committee has illegally taken
into consideration the adverse remarks made against him and has denied him
promotion on that account. His contention is that after the adverse remarks
were communicated to him, long, afterwards he made representations and the
adverse remarks were directed to be expunged. In this connection, learned
counsel relied upon the counter-affidavit filed in this Court on behalf of the
State in writ petition No. 76 of 1970 to the effect that the adverse entries in
the confidential rolls of Shri Guman Singh, the appellant, were expunged on his
representations.
Therefore, according to the appellant, his
claims for promotion have not been properly dealt. with by the promotion
Committee.
932 The allegation of the appellant in his
writ petition that the promotion Committee had taken into consideration the
adverse remarks, when it met in September, 1966, does not appear to be
unfounded, however, as we are giving directions for reconsideration of the
appellant's claims for promotion, if otherwise he is eligible under the Rules,
we do not express any opinion on this aspect as facts have to be investigated.
The learned Judges of the 'Division Bench
have brushed aside the grievance of the appellant regarding This matter by
observing that as the Departmental Promotion Committee is not a, party to the
proceedings, the question whether the Committee took into account the adverse
remarks said to have been made against the appellant, cannot be gone into in
these proceedings. This approach made by the learned Judges does not appeal to
us. The Government, which is the appointing authority, was a party before the
High Court. It must have had before it, when it passed the orders on January 4,
1967, all the records regarding promotion. It was the duty of the State
Government to place before the High Court all the materials available before it
to enable the Court to consider whether the grievance of the appellant was
justified or not. The appellant had made a specific grievance in his writ
petition about the un communicated adverse remarks having been taken into
account by the Committee. The Government could have obtained a report or an
affidavit regarding the true facts from a responsible officer of the Committee
and placed it before the High Court. Anyhow, as mentioned earlier, it is not
necessary for us to pursue this aspect further except to point out that we do
not agree with the reasoning of the High Court in this regard. The High Court
has also declined to interfere with the order dated January 4, 1967 as it
upheld the validity of rr. 28B and 32 as well as the circular of August 27,
1966. Though we are upholding the validity of the two rifles, we disagree from
the High Court's view regarding the validity of the circular. We are also
giving separate directions regarding the order dated January 4, 1967.
We are, accordingly of the opinion that so
far as the appellant (in the civil appeal) and respondents Nos. 2 to 4 are
concerned, the officiating promotions made of the latter officers on January 4,
1967 as well as their confirmation by order dated January 22, 1970 will have to
be reviewed and reconsidered by the Departmental Promotion Committee and the
Government. It is needless to state that the circular dated August 27, 1966
should not be taken into consideration. The claims of the appellant and
respondents Nos. 2 to 4 in the appeal will have to be considered only on the
basis of the Rules. We also make it clear that a reconsideration of the claims
of the appellant and respondents Nos. 2 to 4 will be necessary, only if the
appellant, is found, in the first instance, to be eligible as per the Rules for
being considered for promotion. His eligibility is to be decided with reference
to the date when the Departmental promotion Committee met in September, 1966
for considering promotion. This direction becomes necessary as we are upholding
the validity of Rules 28B and 32. If ultimately, respondents Nos. 2 to 4 are
found eligible for promotion under the rules, they will retain their rank on
the basis of promotion given to them on January 4, 1967. If not, suitable
alterations will have to be made both in this order as well as in the order of
January 22, 1970. Once again we are emphasising that the fact that the
respondents Nos. 2 to 4 have been confirmed on January 22, 1970, is of no
consequence because if their original promotion on January 4, 1967 is not
valid, their confirmation on January 22, 1970 will not have any greater
sanctity. Of course, if on reconsideration they are found eligible for
promotion, their confirmation and rank given to them win stand.
The allegations of mala fides made by the
appellant against the State have been, in our opinion, rightly rejected by the
Division Bench. Mala fides were alleged against the State in amending the
Service Rules from time to time and the delay in making promotions on the
ground that they were all done with a view to help the son-in-law of the Chief
Minister and the other officers who were relations of persons in the good books
of the Chief Minister. The same allegations have been repeated in the two writ
petitions also. Those allegations have been denied by the State. For the
reasons given by the Division Bench, with which we agree, we have no hesitation
in rejecting the allegations of mala fides made by the appellant in the appeal
and in the writ petitions.
In the appeal and the writ petitions we hold
that rr. 28B and 32 are valid and that the circular dated August 27, 1966 is
struck down as illegal and invalid. In the writ petitions there will be only a
declaration that the circular dated August 27, 1966 is invalid and that it is
struck down.
In other respect both the writ petitions will
stand dismissed. There will be no order as to costs.
So far as the appeal is concerned there will
be a further order at subject to the observations contained in this judgment a
direction will issue to the first respondent, the State to instruct the
Departmental Promotion Committee to review and reconsider the promotions
already given to respondents Nos. 2 to 4 in the appeal under the order dated
January 4, 1967 and 934 to decide their claims afresh only on the basis of the
Rules. If the appellant is found eligible for being considered for promotion
under the Rules, his claim also will have to be considered along with that of
the respondents Nos. 2 to 4. No directions are necessary regarding respondent
No. 5 as he is already dead. Depending on the fresh recommendations, any, made
by the Departmental Promotion Committee, the first respondent, will also make
any modifications that may be found necessary in the orders dated January 4,
1967 and January 21, 1970. The modifications, if any, will be confirmed only to
the appellant and the respondents Nos. 2 to 4 as the appellant is not
challenging the promotions given to other officers under the said two orders.
If ultimately respondents Nos. 2 to 4 are found eligible for promotion and the
appellant is not found eligible, the rank given to those respondents will
remain the same as is now due to them as per the orders dated January 4, 1967
and January 21, 1970. Otherwise, suitable alterations will have to be made.
Pending the review and reconsideration,
ordered as above, and which must be done as expeditiously as possible, and
depending upon the result of the same, the promotion already given to
respondents Nos. 2 to 4 to the senior scale will continue to be in force.
In the result the order and judgment of the
Division Bench of the High Court upholding the validity of the circular dated
August 27, 1966 and declining to interfere with the order dated January 4, 1967
so far as the appellant and respondents Nos. 2 to 4 are concerned are hereby
set aside and the appeal allowed to that extent.
Parties will bear their own costs throughout.
G. C.
Appeal allowed in part.
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