Mohan Dutt
Sharma Vs. Chief Justice, Punjab & Haryana
High Court [1997] INSC 627 (30 July 1997)
SUJATA
V. MANOHAR, G. B. PATTANAIK
ACT:
HEADNOTE:
The
appellant joined the services of the High Court of Punjab and Haryana as a
Clerk in the year 1966. In 1973 he was promoted as an Assistant From 1979 he
was a Senior Assistant within the cadre of Assistants. As Senior Assistant he
was entitled to a higher pay-scale. In or around 1978 On account of cases
relating, to defaulcation of finds in the subordinate courts coming to the
notice of the High Court, it was decided by the Chief Justice and other Judges
of the High Court, it was decided by the Chief Justice and other Judges of the
High Court, it was decided by the Chief Justice and other Judges of the High Court
that an agency should be created on the establishment of the High Court to
undertake audit of the subordinate courts. The office of the Accountant General
was not in a position to do this Work for the High Court. It was, therefore,
decided that the work of audit both in the High Court as well as in the
subordinate courts should be done by the High Court as well as in the
subordinate courts should be done by the High Court departmentally by posting
some experienced or properly qualified officers in charge of the work. The High
Court did not have any qualified staff members who had passed the Accounts
Services Examination. It, therefore, set up an Internal Audit Cell in 1978
which then consisted of two superintendents Grade II, two Assistants and a
clerk.
The
appellant worked in the internal Audit Cell from its inception.
In May
1981 the appellant passed the Subordinate Accounts Services (SAS) Examination
held by the Haryana Government Finance Department. According to the appellant
officials who have qualified in the SAS examination are usually posted as
Section Officers in the Central Government and as senior Auditors in the State
Governments. Their next avenue of promotion is to the post of Accounts officer.
On qualifying in the SAS examination appellant made a representation to the
Chief Justice of the Punjab and Haryana High Court in which he
pointed out that he was the first official of the court who had qualified in
the SAS examination. Keeping in view his qualification and experience, he
should be given an opportunity to serve as Superintendent for the purpose of
conducting audit of the accounts of the High Court as well as the subordinate
courts. He stated that he was the only official who was qualified to do this
work and requested that his qualification and experience should be recognised
by making him superintendent. This representation was considered by the Chief
Justice of the High Court. Bearing in view the qualification and the excellent
work which was being done by the appellant in the Internal Audit Cell, it was
decided to promote the appellant as officiating Superintendent Grade II,
against a newly created post although he was junior to several other officers
in the cadre of Assistants.
Accordingly
by an office order dated 9.2.1982 the appellant was promoted as officiating
Superintendent Grade II (on ad hoc basis) with effect from 3.2.1982. In the
" remarks" column it was stated as follows:- "Against a newly
created post w.e.f. 3.2.1982 (forenoon) by keeping in abeyance one post of
Senior Assistant held by him subject to the condition that on his promotion he
will not be deemed to have become senior Assistant held by him subject to the
condition that on his promotion he will not be deemed to have become senior to
those official who are otherwise senior to him in the general seniority and
that he will have no preferential claim for promotion as superintendent Gr. I
merely on account of his present promotion." In May 1982 the appellant
made a further representation to the Chief Justice of the High Court which id
dated 20th of May 1982 . The appellant requested that he should be promoted to
Superintendent Grade i. He pointed out that in the course of his duties, he had
to inspect the work and accounts of persons holding posts senior to him, which
was causing some embarrassment. He submitted that looking to the nature of the
work and his responsibilities. he should be promoted as Superintendent Grade I
so that he can effectively discharge his duties of carrying out the internal
audit of the High Court and the subordinate courts.
The
representation of the appellant was put up before the Chief Justice of the High
Court with an office note which said that his representation may be considered favourably
and a post of Superintendent Grade I Should be created for the appellant .
However, in order to safeguard the interests of officials senior to him, it was
recommended that a condition should be imposed similar to the condition which
was earlier imposed when he was promoted as Superintendent Grade II as a special
case. The Chief Justice of the High Court accepted this recommendation. By an
office order dated 20.12.1982, the appellant was promoted from officiating
Superintendent Grade II to the post of Superintendent Grade I. In the
"remarks" column it was stated as follows:- "Against a newly
created post for him. His appointment is subject to the condition that on
account of his promotion he will not be deemed to have become senior to those
officials in general seniority and he will have no preferential claim merely on
account of his present post ." Therefore, both these promotions were
special promotion which were given to the appellant in view of his special
qualifications and for discharge of special duties for which he was suited, as
also on account of his excellent track record. It is necessary to note that
when the appellant was promoted from senior Assistant to Officiating
Superintendent Grade 1 he was the junior most in the list of Superintendents
Grade II.
In
1987 the appellant made a representation seeking waiver of the conditions which
were imposed upon him when he was promoted as superintendent Grade II ad
thereafter as Superintendent Grade II and as Superintendent Grade I. On that
basis he should also be given selection Grade as Superintendent Grade I. By an
order of "office Judge" dated 22.4.1987 this representation was
rejected and this rejection was endorsed by the Chief Justice of the High
Court. Thereupon the appellant filed a Civil Writ Petition No 5932 of 1987 in
the High Court praying that the conditions imposed at the time of granting
promotions to the appellant, denying him the benefit of seniority should be
deleted and that he should be granted seniority, confirmation and selection
Grade from the date his juniors have been conformed and granted selection Grade
in the said posts and for other reliefs. This Writ petition has been dismissed
by the High Court and hence the appellant has preferred the present appeal.
Rule 8
of the High Court (conditions of Service) rules at the material time prescribed,
inter alia, that for the post of Superintendent Grade I the method of promotion
was by "selection on the basis of seniority cum merit" from out of
Superintendents Grade II and Revisors in the ratio of 5.1.
Rule
12 prescribed, inter alia, that promotion to the post of Superintendent Grade
Ii was by " selection on the basis of seniority cum merit" from out
of the Assistants.
Rule
24 provided as follows :- "Promotion in the High Court Establishment from
one grade to the next higher one shall except in cases where competitive
examination is prescribed. be by selection and no one shall have a right to
claim promotion merely on the basis of seniority." Rule 30 which dealt
with seniority provided, inter alia, that seniority shall be determined
separately for each category of post sin the establishment and that up to the dat
of confirmation, seniority shall be determined by the length of continuous
service in the particular category of posts. Within the same category,
seniority shall be determined from the date of confirmation in the particular
category. Rule 38 provided as follows- "Where the Chief Justice is
satisfied that the operation of any rule causes undue hardship in any
particular case, he may by order dispense with or relax the requirements of that
rule to such extent and subject to such conditions as he may consider necessary
for dealing with the case in a just and equitable manner provided that the case
is not dealt with in a manner less favourable to the officer or official
concerned than in accordance with the rules." Ordinarily, therefore,
promotion to the posts in question is on the basis of seniority cum merit; and
a person is not entitled to claim promotion merely on the basis of his
seniority. Rule 30 which deals with seniority further provides that seniority
is based upon the length of continuous service in respect of employees who are
not confirmed; while it is based on the date of confirmation in the case of
employees who are confirmed in that post.
The
promotion of the appellant was not in the normal course. This is quite clear
from the representations made and from the fact that a post was specially
created for the appellant first, in the cadre of Superintendent Grade ii, and t
he in the cadre of Superintendent Grade I. This was done because of the special
requirements of the High Court and the fact that the appellant as the only
qualified person who was in a position to meet these special requirements of
the High Court and carry out the special responsibilities and duties of
internal audit in a proper manner. Looking to the seniority of the appellant in
the cadre of Assistants it was also obvious that the promotion which was given
to the appellant would cause prejudice to a number of persons who were senior
to the appellant in the cadre of Assistants and who would have probably been
selected for promotion on the basis of seniority cum merit prior to the
appellant. It was in these circumstances that the Chief Justice, in exercise of
his powers under Rule 38, directed that the normal rule as to seniority should
not be applied in the case of the appellant and that his said two promotions
would not make him senior to those officials who were otherwise senior to him
in "the general seniority". The appellant has pleaded for deletion of
this condition as contrary to the High Court Rules. Rule 38, however, empowers
the chief justice to impost a special condition when the application of a rule
may cause undue headship in particular case. The condition was imposed in the
case of the appellant because the chief Justice felt that in order to deal in a
just manner with the promotion in question and with those who were senior to
the appellant in the lower cadre, it was necessary to impose such a condition
protecting the seniority of those in the lower cadre. The promotion was subject
to this condition and , therefore. the promotion and the condition attached
cannot be de-linked. There is no doubt that it was in very special
circumstances that the appellant was given these two promotions which he would
not have otherwise got.
Undoubtedly,
the appellant had discharged his duties in a very able manner and had exerted
himself to earn the qualification of passing the SAS examination which enabled
him to discharge which were entrusted to him by the high Court. The promotion
that was given to him was in recognition of his ability and his qualification.
At the same time, if the Chief Justice thought it edit to impose a condition
protecting the seniority of other officers in the lower cadre in view of this
out of turn promotion, that condition cannot be considered as unjust and
unreasonable.
It
cannot, therefore, be struck down in the manner claimed by the appellant.
What
are the implications of the condition which was so imposed twice in succession?
At the time when the appellant was promoted as superintendent Grade Ii the
appellant was 95th in the seniority list of the Assistants. Therefore, the
condition that on his promotion, he will not be deemed or have become senior to
those officials who are otherwise senior to him in " the general
seniority" would be referable to all those officials who were senior to
the appellant in the seniority list of Assistants. These Assistants would, as
and when promoted as Superintendents Grade II, rank above the appellant
although the appellant was promoted as Superintendent Grade II prior to them.
Obviously, the conditions will operate so long as the appellant remains in the
cadre of Superintendent Grade II. Otherwise the question of inter se seniority
between the appellant and others in the said cadre would not arise and as per
rule 30, there is separate seniority for each cadre.
Thereafter,
in December 1982 the appellant was promoted as Superintendent Grade I. This
promotion was also subject to the condition that he will not be deemed to have
become senior to those officials senior to him in " the general
seniority". In this instance, the appellant was being promoted from
Superintendent Grade Ii to Superintendent Grade I. The condition, therefore,
has a reference to the seniority of the appellant in the cadre of
Superintendent Grade II from which he was promoted as Superintendent Grade I.
The appellant was the junior most in the cadre of Superintendent Grade II.
Therefore, all those persons who were senior to the appellant in the cadre of
Superintendents Grade II there being a separate seniority list for each cadre
would, on promotion as Superintendents Grade I, rank in seniority above the
appellant although he was promoted earlier to them as Superintendent Grade I.
For the promotional post of Superintendent grade I, for the purpose of
protecting the seniority of others, one has to look to the position of the
officials who are in the same cadre along with the appellant in the lower grade
of Superintendents Grade II which promotion is made. Therefore, in the case of
promotion to the post Superintendent grade i, one has to look to the seniority
list of Superintendents Grade Ii. All those persons who ranked above the
appellant in the cadre of Superintendents Grade II at the time when he was
promoted as Superintendent Grade i would, on their promotion as Superintendents
Grade i, retain their seniority above the appellant. The respondents are,
therefore not right in contending that even for the purpose of seniority in the
cadre of Superintendent Grade i, the appellant will rank below all those
assistants who were senior to him at the time when he was promotes as
Superintendent Grade II.
The
general seniority which is referred to in the condition imposed at each step is
the general seniority in the cadre from which promotion is made to the post in
question. It cannot go beyond the general seniority in the cadre from which the
promotion is made. Any previous seniority in the cadre from which the promotion
is made. Any previous seniority in a lower cadre beyond the cadre from which
promotion is made may be different or conflicting and would be irrelevant for
this purpose. therefore, the only persons who are entitled to claim seniority
above the appellant in the cadre of Superintendents Grade I are those persons
who were holding the post of Superintendents Grade II along with the appellant
at the time when the appellant was promoted as Superintendent Grade I and who
were senior to the appellant in the cadre of Superintendents Grade Ii. it is
their seniority which is protected by the condition which is imposed in the
order of promotion by respondent no 1.
The
justification for this special condition and for the exercise of power under
rule 38 lies in the especial requirements of the High Court at the material time
and the fact that the appellant was, by virtue of his ability and
qualification. Specially suited to meet these requirements.
Such a
special condition can be imposed only when they are special circumstances which
warrant a special promotion. The condition so imposed not be understood as
continuing after all times in respect of all future promotions of the
appellant. Such an interpretation would make the condition onerous and also
beyond the powers conferred by rule 38.
This
is because rule 38 has a proviso to the effect that the case cannot be dealt
with in a manner less favourable to the officer concerned than in accordance
with the rules. Future promotions which are made in the normal course by
applying the principle of selection as set out in the relevant rules would not
warrant the imposition of any such condition. One must bear in mind that when
promotions are by selection on the basis of merit as well as seniority, it is
possible that a junior who is more meritorious than his senior may be promoted
in preference to his senior. in such a situation the junior who is promoted
will rank as senior in the promotional post to his erstwhile senior who may be
promoted at a later date. Simply because that person was senior in the lower
cadre,. a junior who is more meritorious and who secured an earlier promotion
cannot be deprived of his seniority under the normal rules of seniority. In
fact, for higher posts carrying heavy responsibilities, merit is a very
important consideration. The efficiency and proper functioning of any
institution depends upon able and responsible people being selected for
positions of responsibility. The promotional process must be conducive to such
person reaching positions of authority in the institution.
The
appeal of the appellant, therefore, in so far as the appellant seeks the
removal of condition imposed relating to his seniority at the time when he was
promoted as Superintendent Grade II and Superintendent Grade I fails.
Seniority
of the appellant as Superintendent Grade Ii will be determined in accordance
with the condition imposed.
Therefore,
all those persons who are promoted as Superintendent grade Ii from the cadre of
Assistants will rank in seniority above the appellant in the cadre of
superintendents Grade Ii if they were senior to the appellant in the cadre of
Assistants. This is, of course, provided that at the time of the promotion of
such seniors, the appellant is also in the cadre of Superintendents Grade Ii.
Otherwise the question of their being placed above the appellant in the cadre
of Superintendents Grade Ii does not arise. Similarly, in the cadre of
Superintendents Grade I all those persons who are promoted as superintendents
Grade I from the cadre of Superintendents Grade II who were senior to the
appellant in the cadre of Superintendents Grade Ii will rank above the
appellant in the cadre of Superintendent Grade I as and when such seniors are
promoted to the cadre of Superintendents Grade I. Once again this contingency
will arise only in the case of promotions was made while he appellant is in the
cadre of Superintendents Grade i. If for any reason the appellant is no longer
in the cadre of Superintendents Grade I at the time when his seniors in the
cadre of Superintendents Grade Ii are promoted, the question of their being
placed above the appellant does not arise. if on the basis of determination of
appellants seniority in this fashion in the cadre of Superintendent Grade Ii as
well as Superintendent Grade I, the appellant becomes entitled to Selection
Grade i, the appellant becomes entitled to Selection Grade by virtue of his
Seniority so determined, he will be granted Selection. grade. This position in
the seniority list does not warrant the grant of Selection Grade, the same will
not be granted to the appellant. We are informed that the grant of selection
grade depends entirely on the position in the seniority list of the cadre
concerned. With these directions, the appeal is disposed of There will however,
be no order as to costs.
Back