K.K. Parmar
& Ors Vs. H.C. of Gujarat Th. Registrar & Ors [2006] Insc
319 (12 May 2006)
S.B.
Sinha & P.P. Naolekar S.B. Sinha, J :
The
Appellants herein are assistants working in the High Court of Gujarat. Their
promotion to the post of Section Officer was due. There were 25 vacancies in
the post of Section Officer. A written examination was held for the said
purpose. All the assistants eligible therefor appeared at an written
examination. 29 employees did not obtain the requisite marks for appearing at
the viva-voce examination. They filed a writ petition before the Gujarat High
Court which was numbered as SCA No. 351 of 1998.
19 of
them although cleared the written test but did not do well in viva-voce. They
filed a writ petition before the High Court which was numbered as SCA No. 1298
of 1999.
The
post of Section Officer is a selection post. The terms and conditions of
service are governed by Gujarat (Recruitment and Conditions of
Service of Staff) Rules, 1964 (for short "the 1964 Rules"). Rule 38
of the 1964 Rules relates to promotion which is set out hereunder:
-
-
"Promotions
shall be made on merit, but seniority in the cadre shall be ordinarily taken
into account as far as possible. A person, however, may receive special
promotion for recognized merit irrespective of the grade to which he may belong
or irrespective of the seniority within the grade.
-
The post of
Superintendent and any higher post shall be considered as selection post and no
court servant shall have a claim to them merely by way of seniority." An
office order in the form of a 'resolution' was issued by the Government of
Gujarat on or about 20th
March, 1982 which is
in the following terms:
"In
Government Resolution, General Administration Department No. SLT 1177 G, DATED 20/05/1978 the principle of selectivity has been accepted for
the purpose of appointment by promotion to the post of Heads of Departments.
For
this purpose a selection committee is also set up under Government Resolution,
General Administration Department No. SLT 1177 G-2 dated 11/11/1980 consisting of
-
the Chief
Secretary
-
the Senior Most
Secretary to Government next to Administrative Department concerned.
The
Selection Committee will classify officers within the zone of consideration as
outstanding, very good, good and unfit for promotion. The Selection list will
then be prepared in the size equal to number of vacancies in the same order,
subject to maintenance of seniority of classification also. Government is
pleased to direct in consultation of Gujarat Public Service Commission zone of
consideration shall be as under:- No. of vacancies No. of officers to be
considered
-
5
-
8
-
10
-
or more three
times number of vacancies All Secretariat Departments should strictly ensure
that these instructions are in variable followed while considering promotion to
the post filled by promotion on selection basis." The High Court of
Gujarat also framed rules known as "The High Court of Gujarat (Recruitment
& Conditions of Service of Staff) Rules, 1992 (for short "the Rules").
Rule 47 of the said Rules relates to promotion. Sub- rule (2) of Rule 47,
sub-rule (1) of Rule 50 and sub-rule (1) of Rule 91 which are relevant for our
purpose are set out hereunder:
"47.(2)
(a) For promotion to the post of Section Officer from Assistant the promotion
will be effected strictly on consideration of efficiency and proved merits.
Merits shall be determined on the basis of the past performance and performance
at the written and oral to be taken by the Selection Committee as may be
appointed by the Chief Justice 50(1) In respect of all such matters regarding
the conditions of service of Court servants for which no provision or
insufficient provision has been made in these Rules, the rules and orders for
the time being in force and applicable to servants holding corresponding posts
in the Government of Gujarat, which are not inconsistent with these Rules,
shall regulate the conditions of service of Court servants subject to such
modifications, variations, and exceptions, if any, in the said rules and
orders, as the Chief Justice may, from time to time specify.
Provided
that no order containing modifications, variations or exceptions in Rules
relating to salaries, allowances, leave or pensions shall be made by the Chief
Justice except with the approval of the Governor.
-
Savings of the
powers of the Chief Justice:-
-
Nothing in these
Rules shall be construed to limit or abridge the powers of the Chief Justice to
deal with the case of any Court servant or any person to be appointed to the
service in such manner as may appear to him to be fit and proper.
-
The Chief
Justice may from time to time alter, amend or repeal any of these Rules and
make such further Rules or pass such orders as he may deem fit in regard to all
matters herein provided or matters incidental or ancillary to these Rules or in
regard to matters which have not been provided or sufficiently provided for in
these Rules.
Provided
that if such orders relate to pay, salaries, allowances, leave or pension of
the servants of the High Court such orders shall be made with the approval of
the Governor." The writ petitioners Appellants principally raised two
contentions:
-
The High Court
committed an illegality in allowing all the 91 candidates to appear at the
viva-voce test although the zone of consideration therefor as envisaged under
the Resolution dated 20th March, 1982 was confined to the three times number of
vacancies and, thus, not more than 75 persons could have been allowed to be
brought within the zone of consideration.
-
There had been a
gross violation of sub-rule (2) of Rule 47 of the Rules in terms whereof merit
was to be determined on the basis of
-
past
performance,
-
written test,
-
oral test, but
as no criteria was fixed relating to past performance of the candidate, the
entire selection process was vitiated in law.
The
said contentions found favour with the learned Single Judge of the High Court.
The
said learned Single Judge repelled the contentions raised on behalf of the High
Court that the Acting Chief Justice had exercised his power to modify the
rules, stating:
-
"There is
distinction between the exercise of powers by the Chief Justice in framing the
rules with respect to the condition of service of Officers and servants of the
High Court under Article 229, including the power of modification and
variations of the rules of the State Government applicable to the High Court
employees by virtue of power preserved under Rule 50(1) of the Rule of 1992 and
the exercise of powers by the Chief Justice as Executive Head of the High Court
establishment under the rules, framed by him. The Chief Justice as well has to
follow the rules framed by him punctually and faithfully as others are to
follow.
Any
breach of rule by the Chief Justice cannot be construed as exercise of power of
modification of rules. Reverting to the direction dated 2.9.1997, in my view,
the Hon'ble the then Acting Chief Justice was in error in considering that the
12 persons against whom there were adverse remarks, could be excluded from the
zone of consideration.
What
is the effect of adverse remarks in the A.C.R., was a matter for the Selection
Committee to consider. A person cannot be excluded from the zone of
consideration for the reason that there is adverse entry. Similarly, it was
wrong to consider that six persons against whom departmental inquiry was
pending, could be excluded from the zone of consideration. If the departmental
inquiry is pending against a person in the eligibility list, the Selection
Committee is required to follow a known procedure of "sealed cover".
Thus, the very premises on which the zone of consideration has been extended is
contrary to law." However, having regard to the fact that only 14
candidates were selected against 25 vacancies, it was directed:
"Thus,
it is only the consideration of candidates beyond the zone of consideration,
i.e., beyond Sr. No. 75 in eligibility list being in violation and breach of
G.R. dated 20.3.1982 which can held to be illegal. Consequently, it is held
that selection of respondents No. 10 to 15 namely, Mr. G.S.
Marapally,
whose name appears at Sr. No. 76, Mrs. N P Tekani, whose name appears at Sr.
No. 77 in the list of eligible candidates, respondent No. 12 Mr. V.K. Pathak,
at Sr. No. 85, respondent No. 13 Mrs. Sujitra Rajan at Sr. No. 88, respondent
No. 14 Mr. A.S. Raghupathy at Sr. No. 89 and respondent No. 15, Mrs. Gracy ST. at Sr. No. 90 is illegal and bad in
law." In regard to the contention of violation of Rule 47, the learned
Single Judge opined:
"It
is stated that upto 1979, promotions were given on the basis of
seniority-cum-merit. The merit was considered on the basis of Confidential
Reports and other service record. However, thereafter, a method of judging the
capacity of the Senior Assistants due for promotion to hold the Supervisory
post of Section Officer from their performance on the tables on which they were
working was not found adequate and, therefore, it became necessary to evolve
some method in addition to the consideration of the Confidential Reports and
other service record whereby the suitability or otherwise of the candidate can
be assessed properly in the interest of office efficiency. It is also submitted
that the system of taking written and oral test to assess suitability or
otherwise on a comparative evaluation of the eligible candidates thus came into
existence after 1979. In November 1979, the Hon'ble the then Chief Justice
directed to take interview of the Assistants concerned and prepare select list
in the order of merit. They were also tested by asking them to prepare some
submissions. Thereafter, in the year 1981, written test and oral interview were
taken on 31.7.82, 22.2.83, 31.12.83, 24.8.85, 7.3.87, 20.2.88, 2.3.96 and
27.7.97. In para 14, it is stated that the Selection Committee also considered
the Adverse Reports recorded in the ACR against the candidates. This fact does
not find confirmation from the proceedings of oral test." Noticing that no
mark was allotted for the past performance, which played a significant role, it
was opined that the High Court did not take cognizance of the mandate given by
the Chief Justice as contained in Rule 47 opining:
"In
fact the new mechanism ought to have been evolved immediately after coming into
force of Rules of 1992, in conformity with the mandate of Rule 47. Thus, it is
not only wrong on the part of the High Court to continue with the old procedure
of selection, even after coming into force of the Rules of 1992, but it is in
utter disregard of the Rule 47. Thus, the unreported decision cited on behalf
of the High Court has no relevance in the context of the Rules of 1992."
The learned Single Judge further held:
"Thus,
the Hon'ble Chief Justice, in his wisdom, while exercising the powers under
Article 229 of the Constitution of India, in framing rule 47 of the Rules of
1992, provided combination of three components, i.e., past performance, written
test and oral test for determination of merit in the matter of promotion on
selection post. However, the mechanism evolved prior to 1992 has been carried
forward, unmindful of the fact that it does not contain the important component
of "past performance". Without over-emphasizing the importance of
"past performance", it cannot be disputed that for recruitment from
among the persons of matured personality, appraisal of past performance is the
basic and essential requirement.
It is
also not in dispute that the system of writing Annual Confidential Report is in
existence in the High Court establishment. It is of course true that it has
been subject to criticism to certain extent, but for that efforts can be made
to bring change therein by substituting a new and more open Participatory
Appraisal system. The comparative merit could be assessed by taking into
consideration, the Annual Confidential Reports.
Dealing
with seniority in judging the merit, it is true that seniority occupies the
back seat in case of selection purely by merit, still, it cannot be ignored
completely" The High Court noticed the marks obtained by the 15 employees
in the written examination and held that in adopting the selection process,
merit has taken a back seat, in the following terms:
"It
is indeed a travesty of selection that persons of average merit have superseded
large number of employees in the cadre of Assistants in the name of merit. Most
of the selected candidates scored minimum marks i.e. 40% which is just above
1/3 of the maximum i.e. III Division marks. Fixing qualifying mark as 40% and
ultimate selection on merit are two different things. A person in scoring total
40% marks, by no stretch of imagination can said to be a person of proven
merit. In Janki Prasad's case (supra), the Apex Court, with respect to scoring of just 1/3 of maximum marks, i.e., 30%
observed, "it would be absurd to make selection with such a cutting
score." The Division Bench of the High Court, on the other hand, was of
the opinion that the said Resolution dated 20th March, 1982 will have no application
whatsoever. As regard alleged violation of Rule 56, the Division Bench held:
"The
fact that service records were called for and were placed before the selection
committee is not in dispute and, therefore, it would be reasonable to presume
that service records were considered by the selection committee. However,
non-assignment of marks would not indicate that the selection was made by the
selection committee in an arbitrary manner. Rule-47(2) of the Rules is, in our
view, complied with and there has been no material indicating irregularity or
illegality committed by the selection committee when it did not indicate
separate marks for past performance.
As
pointed out earlier, merits has to be assessed on the basis of past
performance, written test and oral test. When a candidate has to appear at
written and oral test his merits can be ascertained with reference to marks
obtained by him at the tests.
However,
no test is being held for past performance and what is required to be done is
to scrutinise and examine the past record for which assignment of marks may not
be necessary in all cases. What procedure should be adopted for assessing
merits while considering, three criterions has to be left to the selection
committee and it is not open to the Court hearing a petition under Article 226
of the Constitution to lay down that a particular procedure ought to have been
adopted by the selection committee. No conclusion is possible that in absence
of allotment of separate marks for past performance, Rule 47(2) stands breached"
Taking note of an unreported judgment of the said High Court, the Division
Bench stated:
"The
selection committee had followed the procedure of holding written test of 60
marks followed by oral test of 20 marks and the criteria adopted for the
selection was that the candidate who scored 40% marks in aggregate should be
considered eligible for section. Therefore, to be eligible for selection a
candidate was required to obtain minimum 32 marks out of 80 in aggregate at the
written as well as oral tests. However, it was found that several candidates
had obtained less than 11 marks at the written test and on submission being
made, the selection committee directed that those who had secured less than 11
marks at the written test should not be called for oral test because even if 20
marks were secured at the oral test by those candidates, the total would not be
40% marks. We find that since the oral test was of 20 marks, even if a
candidate securing 11 marks at the written test was given full 20 marks, he
would not reach the qualifying standard of 32 marks out of 80 and, therefore,
only such of the candidates who had secured 12 or more marks at the written
test, were called for oral test. In our view, this cannot be said to be illegal
at all. It would have been an exercise in futility to call those candidates for
interview who had secured less than 12 marks at the written test..." Mr.
Sanjay Kapur, learned counsel appearing on behalf of the Appellants submitted
that the High Court on its administrative side, committed a manifest illegality
in promoting some Assistants to the posts of Section Officers in violation of
the aforementioned Resolution of the State dated 20th March, 1982 as also in
flagrant violation of Rule 47 of the said Rules.
Ms. Hemantika
Wahi and Ms. Meenakshi Arora, learned counsel appearing on behalf of the
Respondents, however, supported the judgment of the Division Bench.
A bare
perusal of the purported Resolution adopted by the Government of Gujarat on 20th March, 1982 clearly shows that the same was
applicable only in relation to the Head of the Departments. A rule framed by
the State in exercise of its power under proviso appended to Article 309 of the
Constitution of India may be applicable to the employees of the High Court but
the executive instructions issued would not be and in particular when the same
is contrary to or inconsistent with the Rules framed by the Chief Justice of
the High Court in terms of Article 229 of the Constitution of India. The
Resolution dated 20th
March, 1982 ex facie
applies to the cases of appointment by promotion to the posts of Head of the
Department. It, therefore, had no application to promotion to the post of
Section Officers, who are not Head of the Department.
In
terms of the said Resolution, the selection committee itself was required to
classify officers within the zone of consideration as 'outstanding', 'very
good', 'good' and 'unfit for promotion'. Such a procedure is not adopted in the
matter of appointment to the posts pertaining to the administrative side of the
High Court. It is the Chief Justice of the High Court who is concerned with the
performance of the officers. The said Resolution dated 20th March, 1982 provides that the Public Service
Commission was to be consulted so far as the appointment of the employees is
concerned. The Public Service Commission does not come into picture at all in
the matter of promotion of the assistants to the posts of Section Officers. We,
therefore, have no hesitation to hold that the said Resolution has rightly been
held to be inapplicable by the Division Bench of the High Court.
The
Registry of the High Court brought the said Resolution to the notice of the
then Acting Chief Justice that only 75 eligible Assistants fall within the zone
of consideration but it was directed that as 91 employees included 12 such
employees against whom adverse remarks were made and 6 out of such employees
against whom enquiries were pending and, thus, restricting 75 employees within
the zone of consideration, it would mean that only 75 18 = 57 would be
considered. It was, therefore, directed:
"There
is no reason to exclude 76 to 91 (16) eligible persons when 18 persons also
being considered." Mr. Kapur may be right in his submission that
applicability of the said Resolution had never been questioned. The High Court
on its administrative side admittedly proceeded on the basis that the said
Resolution of the State was applicable and only on the said premise placed the
matter before the then Acting Chief Justice for his direction as to whether
only 75 Assistants should be invited to appear before the Selection Committee
being within the zone of consideration in terms of the said Resolution. Even
applicability of the said Resolution was not questioned before the learned
Single Judge, but the same would not, in our considered view, mean that only
because at one point of time the High Court committed a mistake in proceeding
on the basis that the said Resolution of the State was applicable to its own
employees, the said contention cannot be permitted to be raised at all. If, per
se, no illegality has been committed by the then Acting Chief Justice of the
High Court in allowing all the 91 eligible employees to be brought within the
zone of consideration, only because the Registry thought that the said
resolution would be applicable, the same by itself, in our considered opinion,
would not render the selection process invalid.
The superior
court exercising its power of judicial review is not concerned as to whether a
wrong provision of law has been taken recourse to, but is only concerned with
the question as to whether the authority passing the order had the requisite
jurisdiction under the law to do so or not.
In the
event, it is found that the impugned order is not ultra vires or illegal or
without jurisdiction, the same would not be interfered with only because it at
one point of time proceeded on a wrong premise. A jurisdictional question, in
our opinion, can always be permitted to be raised. We, therefore, do not find
any substance in the said contention of Mr. Kapur.
In so
far as the second contention raised on behalf of the Appellants is concerned,
apparently the same has merit. Merit was the only consideration for promotion
to the post of Section Officer. They were selection posts.
Selection
was, therefore, required to be made strictly on the basis of respective merit
of the candidates as also on the basis of their past performance. No employee
had a claim to those posts only on the basis of their seniority.
Sub-rule
(2) of Rule 47 of the Rules categorically provides for the mode and manner as
to how the merit should be determined. In terms thereof, merit of a candidate
was to be determined on the basis of:
-
past
performance,
-
performance at
the written test and
-
performance at
the oral test to be taken by the selection committee.
Whereas
60 marks were fixed for the written test and 20 marks for the oral, no mark
whatsoever was allotted towards past performance. An endeavour has been made by
the learned counsel for the Respondents to contend that as the Appellants were
aware that no marks had been allotted in regard to the past performance but
despite the same, they, having taken part in the examination, were estopped and
precluded from questioning the same.
We do
not agree.
Sub-rule
(2) of Rule 47 of the Rules specifies the mode and manner in which respective
merit of the candidate is to be determined. The High Court or for that matter
the selection committee could not have ignored the same.
In any
event, it was for the members of the selection committee, in absence of any
marks having been allotted under the rules for judging the past performance of
the candidates, to devise a mode therefor. The candidates had no say in the
matter. Annual Confidential Reports of the employees concerned must have been
placed before the selection committee with a view to enable it to prepare a
select list. If they had not adopted any criteria in that regard, the concerned
employees cannot be blamed therefor.
The
same, however, may not by itself be sufficient to set aside the entire
selection process. The records have not been placed before us. The Appellants
might not have obtained the requisite marks for passing the examination either
in the written test or at the oral test or both. If any of the Appellants,
failed to obtain qualifying marks fixed in terms of the Rules, viz., 40 marks, the
question as to whether their past performance was otherwise better than the
candidates who had been selected would take a back seat. However, only such
candidates who had not only passed both written and oral tests, their past
performances were required to be taken into consideration.
Merit
of a candidate is not his academic qualification. It is sum total of various
qualities. It reflects the attributes of an employee. It may be his academic
qualification. He might have achieved certain distinction in the University. It
may involve the character, integrity and devotion to duty of the employee. The
manner in which he discharges his final duties would also be relevant factor.
[See Guman Singh v. State of Rajasthan and
Others, (1971) 2 SCC 452] For the purpose of judging the merit, thus, past
performance was a relevant factor. There was no reason as to why the same had
been kept out of consideration by the Selection Committee. If a selection is
based on the merit and suitability, seniority may have to be given due weight
but it would only be one of the several factors affecting assessment of merit
as comparative experience in service should be.
In
Union of India v. M.L. Capoor and Others, [AIR 1974 SC 87], this Court opined:
"The
Selection Committee has an unrestricted choice of the best available talent,
from amongst eligible candidates, determined by reference to reasonable
criteria applied in assessing the facts revealed by service records of all
eligible candidates so that merit and not mere seniority is the governing
factor" Our attention has further been drawn to the fact that out of 29
Assistants, 4 have already retired and 17 have already been promoted. Only the
cases of 8 Assistants are pending promotion.
In
view of the principles laid down by this Court, therefore, the cases of those 8
Assistants who had not been promoted, in our opinion, should be directed to be
considered afresh. We do so. In the event, they are found to be suitable for
promotion, having regard to the fact that the Chief Justice of the High Court
is the appointing authority, the High Court may consider the question as to
whether such promotion, if any, should be given retrospective effect or not.
These
appeals are allowed to the aforementioned extent. There shall be no order as to
costs.
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