Amolak Singh Chhabra Vs. State of M.P. and ors. - Court Judgment

Excerpt:
- - 13. in the present case, the departmental promotion committee was held in the year 2006, and therefore, the relevant years start from 2001 to 2005. the departmental promotion committee found that suresh chandra pandey was graded as very good during all the five years. rawat who was an ias was excise commissioner has graded him outstanding while alka sirohi, who was excise commissioner from 1-4-05 to 27-12-05 has grade him 'very good'.as per the norms set up by the departmental promotion committee, for every outstanding years the candidate was entitled for getting four marks. in the present case, amolak singh chhabra was awarded four marks for all the five years and thus, his total came to 20 while petitioners suresh chandra pandey was graded as 'very good' in the last five years was awarded 14 marks. as per the norms set up by the departmental promotion committee, the persons acquiring marks from 14-19 were to be graded as very good and the persons acquiring 20 marks were to be graded as outstanding. the departmental promotion committee found amolak singh chhabra outstanding, and therefore, recommended for his promotion. however, for the year 2005, the writ court found that if he should have been granted three marks as his gradation for the part of that year was very good and part of the year was outstanding and thus, he should have been allotted 19 marks instead of 20 marks and if in case he was allotted 19 marks he would have been graded as 'very good' i. there is good reason for taking this view. in the present case, the petitioner was graded 'very good' for all the five years and thus he was rightly awarded 14 marks by the departmental promotion committee. the only contention of the petitioner is that the respondent amolak singh chhabra should have also been graded as 'very good' and not 'outstanding' and he should have also been awarded 19 marks. rawat was the accepting authority, he was graded as 'outstanding' while for the remaining part of the year he was graded as 'very good' by alka sirohi, the another accepting authority. thus, he was awarded 'outstanding' for more than four years' period and awarded 'very good' for the part of the year.subbash samvatsar, j.1. this writ appeal is preferred by the appellant [respondent no. 3 in the writ petition no. 3584/08 (s)] assailing the judgment dated 15-5-09 passed by the learned single judge of this court whereby the writ petition filed by suresh chandra pandey, i.e., the respondent no. 3 before the court is allowed.2. brief facts of the case are that petitioner suresh chandra pandey was appointed as district excise officer on 12-8-83 while amolak singh chhabra, appellant before this court and who was joined as respondent no. 3 before the writ court was appointed on the same post on 22-3-88. thus, admittedly, the suresh chandra pandey was senior to amolak singh chhabra, in the cadre of district excise officer.3. in the year 2002, a departmental promotion committee was held for considering the cases of district excise officers for promotion to the post of assistant commissioner (excise). the departmental promotion committee after considering the cases of suresh chandra pandey and amolak singh chhabra promoted them to the post of assistant commissioner (excise). the petitioner suresh chandra pandey being senior to the present appellant amolak singh chhabra was placed at serial no. 1 while the name of amolak singh chhabra was at serial no. 3. this shows that the petitioner suresh chandra pandey continued to be the senior to amolak singh chhabra in the cadre of assistant commissioner (excise).4. the departmental promotion committee again met in the year 2006 for considering the cases for promotion from the post of assistant commissioner (excise) to the post of deputy commissioner (excise). there is no dispute that the criteria for promotion to the post of deputy commissioner (excise) is merit-cum-seniority. the departmental promotion committee, after considering the cases of petitioner suresh chandra pandey and the appellant amolak singh chhabra, placed amolak singh chhabra at serial no. 1 in the merit list while suresh chandra pandey was placed at serial no. 1 in the wait-list. the selection committee after considering the acrs of amolak singh chhabra allotted 20 marks while the selection committee allotted 14 marks to the petitioner suresh chandra pandey.5. before the departmental promotion committee was held, a challan was filed against the amolak singh chhabra in the ratlam court on 28-3-06. in view of the fact that amolak singh chhabra was facing criminal proceedings, the result of the dpc in respect of amolak singh chhabra was kept in sealed cover and suresh chandra pandey, the petitioner, was promoted to the post of deputy commissioner (excise) vide order dated 26-5-06 (annexure p-4). from perusal of the said order, it is clear that the petitioner was promoted on officiating basis.6. the criminal proceedings initiated against amolak singh chhabra came to an end and he was discharged by the criminal court vide order dated 30-10-06 on the ground that the government has not granted any sanction to prosecute him under section 197 of code of criminal procedure. subsequently, by order dated 12-11-07, the government refused to grant sanction to prosecute amolak singh chhabra and thus he was acquitted of the criminal case.7. in spite of his discharge from criminal case, the sealed cover of amolak singh chhabra was not opened. hence, he filed a writ petition before this court bearing w.p. (s) no. 469/08. this writ petition was allowed by this court on 1-5-08 and the single judge of this court after hearing the writ petition directed to open the sealed cover and give effect to the same. this order was challenged by suresh chandra pandey by filing writ appeal bearing w.a. no. 364/08, which was decided on 24-7-08, vide exh. p-16.8. the main contention of the petitioner, i.e., suresh chandra pandey in the aforesaid writ petition was that he was necessary party in the writ petition filed by amolak singh chhabra and the writ petition was filed without impleading him as a party. this argument was negatived by the division bench of this court by holding that amolak singh chhabra had filed the writ petition only for the relief of opening of the sealed cover and giving effect to it. thus, suresh chandra pandey was not a necessary party in the said petition. in para 12 of its judgment, the division bench after referring the order dated 26-5-06 whereby suresh chandra pandey was promoted has held that the said order is an order promoting suresh chandra pandey on officiating basis, and therefore, he has no right to hold the post. in such circumstances, the question of impleading him a party does not arise. this judgment has attained finality as the same was not assailed before the apex court.9. after the judgment of the division bench, the sealed cover was opened on 24-7-08 and consequently by order dated 30-7-08 it was decided by the state government to promote amolak singh chhabra to the post of deputy commissioner (excise) and as a consequence of the promotion of amolak singh chhabra reverted suresh chandra pandey to the post of assistant commissioner (excise). this order was challenged by suresh chandra pandey by filing writ petition bearing w.p. no. 3584/08 (s). the said writ petition is allowed by the impugned judgment. hence, this appeal.10. the contention of shri k.n. gupta, senior counsel appearing alongwith shri mps raghuvanshi, advocate, is that the writ court has committed grave error in interfering in the assessment of the departmental promotion committee. according to him, the high court cannot sit as an appellate court over the assessment of the dpc and set aside the same. on the other hand, shri ravindra shrivastava, senior counsel, appearing alongwith smt. nandita dubey, advocate, supported the judgment and contended that the assessment of the dpc was apparently arbitrary, and therefore, the writ court has rightly interfered with the same after perusing the original acrs and allowed the writ petition filed by suresh chandra pandey.11. in the present case, the service conditions of the petitioner and the respondent are governed by the rules namely madhya pradesh public services (promotion) rules, 2002. as per rule 7, the criteria for promotion from the post of assistant commissioner (excise) to the post of deputy commissioner (excise) is merit-cum-seniority.12. sub-rule (5) of rule 7 further provides that the meeting of the departmental promotion/screening committee shall be held every year and shall consider the suitability of the public servant to the vacancy. sub-rule (6) further provides that the dpc shall assess the suitability of the public servants for promotion on the basis of their service record and with particular reference to the annual confidential reports (acrs) for 5 preceding years. the sub-rule (7) further provides that when one or more acrs are not available for any reason for the relevant period, the departmental promotion/screening committee shall consider the acrs of the years preceding the period in question.13. in the present case, the departmental promotion committee was held in the year 2006, and therefore, the relevant years start from 2001 to 2005. the departmental promotion committee found that suresh chandra pandey was graded as very good during all the five years. so far as amolak singh chhabra is concerned, he was graded outstanding for four years, i.e., for the year 00-01, 01-02, 02-03 and 03-04. so far as year 2005 is concerned, it appears from the acr that during this year two persons, i.e., o.p. rawat who was an ias was excise commissioner has graded him outstanding while alka sirohi, who was excise commissioner from 1-4-05 to 27-12-05 has grade him 'very good'. as per the norms set up by the departmental promotion committee, for every outstanding years the candidate was entitled for getting four marks. in the present case, amolak singh chhabra was awarded four marks for all the five years and thus, his total came to 20 while petitioners suresh chandra pandey was graded as 'very good' in the last five years was awarded 14 marks. as per the norms set up by the departmental promotion committee, the persons acquiring marks from 14-19 were to be graded as very good and the persons acquiring 20 marks were to be graded as outstanding. the departmental promotion committee found amolak singh chhabra outstanding, and therefore, recommended for his promotion.14. the writ court found that out of five years amolak singh chhabra was graded outstanding and was rightly awarded four marks for each of the year. however, for the year 2005, the writ court found that if he should have been granted three marks as his gradation for the part of that year was very good and part of the year was outstanding and thus, he should have been allotted 19 marks instead of 20 marks and if in case he was allotted 19 marks he would have been graded as 'very good' i.e., in the same category to which suresh chandra pandey was placed and hence suresh chandra pandey being a senior should have been promoted.15. the question in the present case is whether the writ court should have interfered in the grading of the departmental promotion committee in such a manner? the scope of judicial review in dpc in such matters has been considered by the apex court.16. the apex court in the case of union of india and anr. v. s.k. goel and ors. reported in (2007) 14 scc 641, has considered the scope of judicial review under article 226 of the constitution of india in dpc proceedings and held that ordinarily dpc proceedings should not be interfered by the courts of law unless such dpc meetings are conducted illegally or in gross-violation of the standing government instructions or there is mis-grading of confidential reports.17. in another judgment, i.e., dilip kumar garg and anr. v. state of uttar pradesh and ors. reported in : (2009) 4 scc 753, while dealing with the scope of interference in the departmental promotion committee, the apex court has held that the courts must respect the decision of the administrative authorities who have experience in administration and should not interfere readily with the administrative decisions unless there is clear violation of some constitutional provision or statute.18. the apex court in the case of state bank of india and ors. v. mohd. mynuddin reported in : air 1987 sc 1889, has held in para 5 that whenever promotion to a higher post is to be made on the basis of merit no officer can claim promotion to the higher post as a matter of right by virtue of seniority alone with effect from the date on which his juniors are promoted. it is not sufficient that in his confidential reports it is recorded that his services are 'satisfactory'. an officer may be capable of discharging the duties of the post of held by him satisfactorily but he may not be fit for the higher post. before any such promotion can be effected it is the duty of the management to consider the case of the officer concerned on the basis of the relevant materials. if promotion has been denied arbitrarily or without any reason ordinarily the court can issue a direction to the management to consider the case of the officer concerned for promotion but it cannot issue a direction to promote the officer concerned to the higher post without giving opportunity to the management to consider the question of promotion. there is good reason for taking this view. the court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. the duties of such posts may need skills of different kinds--scientific, technical, financial, industrial, commercial, administrative, educational etc. the methods of evaluation of the abilities or the competence of persons to be selected for such posts have also become now-a-days very much refined and sophisticated and such evaluation should, therefore, in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post to be nominated by the employer. of course, the process of selection adopted by them should always be honest and fair. it is only when the process o[ selection is vitiated on the ground of bias, malafides or any other similar vitiating circumstance other consideration will arise.19. the another judgment on this point is in case of indian airlines corporation v. capt. k.c. shukla and ors. reported in : (1993) 1 scc 17, in which the apex court has held that the high court was anxious to be fair and just to those others who had been selected by reducing the interview percentage then working out proportionally the marks obtained by respondent on acr evaluation and interview and directing to promote him as by this method he would secure the minimum required cannot be accepted as proper exercise of jurisdiction under article 226 of the constitution of india. adjusting equities in exercise of extra-ordinary jurisdiction is one thing but assuming the role of selection committee is another. the court cannot substitute its opinion and devise its own method of evaluating fitness of a candidate for a particular post. not that it is powerless to do so and in a case where after removing the illegal part it is found that the officer was not promoted or selected contrary to law it can issue necessary direction. for instance a candidate denied selection because of certain entries in his character roll which either could not be taken into account or had been illegally considered because they had been expunged the court would be within jurisdiction to issue necessary direction. but it would be going too far if the court itself evaluates fitness or otherwise of a candidate, as in this case.20. thus, in the aforesaid case, the apex court has laid down that the high court cannot, in exercise of powers under article 226 of the constitution of india, sit as an appellate court over the decision of the selection committee and interfere in the same.21. in the case of state of bihar and ors. v. bateshwar sharma reported in : (1997) 4 scc 424, the apex court has again considered the scope of judicial review and held that the view taken by the high court is palpably illegal for the reason that once the dpc had found that the respondent was unfit for promotion up to a date, the only course that requires to be adopted by the high court was to remit the matter to the government for constitution of the dpc to consider respondent's fitness for promotion in the later period. in that event, the dpc would go into the merits afresh and find out whether the respondent would be fit for promotion. if he would be found to be fit and recommendation is made in that behalf, the government would appoint him on regular basis and he would give him necessary seniority. the dpc is the only competent authority to decide the merits.22. in the case of durga devi and anr. v. state of h.p. and ors. reported in : (1997) 4 scc 575, the apex court has held that the tribunal fell in error in arrogating to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for appointment. that was the function of the selection committee. the order of the tribunal under the circumstances cannot be sustained.23. in the case of dalpat abasaheb solunke v. dr. b.s. mahajan reported in : (1990) 1 scc 305, the apex court has held as under:.it is needless to emphasize that it is not the function of the court to hear appeals over the decision of the selection committees and to scrutinize the relative merits of the candidates. whether a candidate it fit for a particular post or not has to be decided by the duly constituted selection committee which has the expertise on the subject. the court has no such expertise. the decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved malafides affecting the selection etc. it is not disputed that in the present case the university had constituted the committee in due compliance with the relevant statutes. the committee consisted of experts and it selected the candidates after going through all the relevant material before it. in sitting in appeal over the selection so made and in setting it aside on the ground of the so-called comparative merits of the candidates as assessed by the court, the high court went wrong and exceeded its jurisdiction.24. in the case of joginder singh and ors. v. roshan lal and ors. reported in : (2002) 9 scc 765, the apex court has held that the high court in exercise of its jurisdiction under article 226 of the constitution is not supposed to act as an appellate authority over the decision of the departmental selection committee. if the committee has been properly constituted, as in this case, and the post is advertised and a selection process known to law which is fair to all, is followed, then the high court could have no jurisdiction to go into a question whether the departmental selection committee conducted the test properly or not when there is no allegation of malafides or bias against any members of the committee.25. thus, the gist of the principle laid down by the apex court, in various cases, is that normally high court or the tribunal should not sit as an appellate court over the decision of the selection committee and should not take the task of selection on itself by considering the fitness of the candidates unless there are malafides or the selection is arbitrary. in the present case, the petitioner was graded 'very good' for all the five years and thus he was rightly awarded 14 marks by the departmental promotion committee. this position is not at all disputed by the petitioner himself. the only contention of the petitioner is that the respondent amolak singh chhabra should have also been graded as 'very good' and not 'outstanding' and he should have also been awarded 19 marks. the single judge was of the view that instead of 20 marks he should have been awarded 19 marks.26. the question is whether this exercise can be done by the high court in exercise of powers under article 226 of the constitution of india. in the present case, there are no allegations aimalafides. so far as the service record is concerned, it is undisputed that amolak singh chhabra secured 'outstanding' grading in first four years. as far as the last year is concerned, for part of the year during which shri o.p. rawat was the accepting authority, he was graded as 'outstanding' while for the remaining part of the year he was graded as 'very good' by alka sirohi, the another accepting authority. thus, he was awarded 'outstanding' for more than four years' period and awarded 'very good' for the part of the year. considering the overall scenario, if the dpc had graded him as 'outstanding' for the entire five years then it cannot be said that the said action of the dpc was arbitrary particularly when as per circular no. 3-18/2001/1/3/1, dated 11-6-02 and memo of the same number dated 12-6-02, the dpc has power to increase one mark to any of the candidates. this power is exercised by the dpc and awarded him 20 marks which cannot be said to be arbitrary.27. in such a situation, the learned judge has certainly exceeded in its jurisdiction in interfering in the grading of the petitioner and holding that instead of 20 marks, 19 marks should have been awarded to amolak singh chhabra and in such circumstances the impugned order cannot be sustained in the eyes of law and hence, the same is set aside.28. resultantly, the appeal stands allowed and the petition filed by suresh chandra pandey stands dismissed with no order as to costs.