IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1674 of 2006 (S/S) Smt. Poonam Verma W/o Shri Neel Kamal Verma ..……… Petitioner Versus Cantonment Board, Dehradun and others ……… Respondents. Mr. U.K. Uniyal, Senior Advocate assisted by Mr. Pankaj Purohit, Advocate for the petitioner. Mr. B.S. Adhikari, Advocate for respondent Nos. 1, 2 and 3. Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Vikas Pandey, Advocate for respondent No.4. Hon’ble Tarun Agarwala, J. This is the third round of litigation by the petitioner with regard to her promotion on the post of Principal. The facts leading to the filing of the writ petition is, that there is a Cantonment Board, Dehradun which has been constituted under the provision of the Cantonment Act, 1924 and has established an educational institution known as Saheed Mekh Bahadur Gurung Cantt., Girls Inter College in Garhri Cantt, in the District of Dehradun which was imparting education upto High School and was upgraded to an Inter College in the year 1995, pursuant to which, one post of Principal was created by an order of the G.O.C. General Command in the year 1997. The service conditions of the employees of the institution are governed by the provisions of the Cantonment Fund Servants Rules, 1937 (hereinafter referred to as the Rules of 1937) which have been framed u/S 280 of the Cantonments Act, 1924 (hereinafter referred to as the Act of 1924). The petitioner was appointed as a Junior Lecturer (Civics) in the institution on 13/10/1997 and was placed on probation for a period of two years and, upon completion of the said period, the petitioner is working continuously on the said post in a substantive 2 capacity. The respondent No.4, who is the present Principal of the institution, was appointed on the post of Junior Lecturer in English on 1st July, 1999 and, consequently, in that capacity, the petitioner is admittedly senior to the respondent No.4 by virtue of the fact that the petitioner was appointed at earlier point of time. Smt. Karuna Rana was the Principal of the institution and retired on 31st December, 2000 and, a controversy has arisen since then as to who would fill up the post of Principal. The petitioner alleging herself to be the senior most teacher in the institution contended that she is qualified and holds the requisite qualifications and capability for being promoted to the post of Principal. The petitioner contended that the post of Principal is a promotional post and is required to be filled up under Rule 5-B (8) of the Rules of 1937 subject to the rejection of the unfit and that there is nothing against her to pinpoint that she is unfit for holding the post of Principal. The petitioner, accordingly, contended that in the absence of being unfit, the petitioner was required to be promoted to the post of Principal since she was the senior most teacher in the institution. Inspite of this fact being admitted by the School Committee and the Cantonment Board, namely, that the petitioner was the senior most teacher in the institution, the School Committee issued a Resolution dated 8th January, 2001 appointing respondent No.4 Smt. Nidhi Khanduri as the Principal of the institution on a temporary post and further resolved that the Central Govt./Command Headquarter be requested to classify the post of Principal as a direct recruitment post under the Rule 5-B (5) of the Rules of 1937. It transpires that the Cantonment Board declined to accept the Resolution of the School Committee, in so far as it related to the post of Principal to be classified as a direct recruitment post 3 and contended that the post of Principal would be a promotional post. Accordingly, treating the post of Principal to be a promotional post, a resolution dated 24th January, 2002 was passed resolving to promote respondent No.4 as the Principal of the institution. The petitioner, being aggrieved by the aforesaid resolution, filed writ petition No.286 (S/B) of 2002. The petitioner contended that under the Rules, the promotion was to be made on the basis of seniority subject to the rejection of the unfit. The respondents contended that respondent No.4 had not been regularly promoted but was only asked to officiate on the post of Principal and, in view of such statement being made, the writ petition of the petitioner was disposed of by an order dated 30th October, 2002 directing the respondents to hold a regular selection on the post of Principal in accordance with the Rules. The Court further directed that till the holding of regular selection, the respondent No.4 would be allowed to continue to officiate on the post of Principal. It transpires that the petitioner filed a Review Application No. 7447 of 2002 in the aforesaid writ petition contending that respondent No.4 had been given a regular promotion vide a resolution dated 24th January, 2002. The Review Application was disposed of by an order dated 19/04/2003 observing that the resolution dated 24th January, 2002 did not indicate the nature of promotion of respondent No.4 and, consequently, the Court directed the respondents to make a regular promotion according to Rule 5-B of the Rules of 1937 from amongst the eligible candidates. For facility, the order of the Court dated 19th April, 2003 passed in review petition No.7447 of 2002 is quoted hereunder:- “This review petition has been filed by the petitioner to review the order dated 30.10.2002 passed in Writ 4 Petition No.286 (S/B) of 2002, Poonam Verma V. Cantonment Board, Dehradun and others. This review petition has been filed by the petitioner on the ground that vide resolution dated 24.01.2002 contained in Annexure-7 to the writ petition respondent No.4 has been given regular promotion and the statement made by the learned counsel for the respondent no.4 that the promotion of the respondent is adhoc one, was not correct which was the basis of the passing of the order sought to be reviewed. We have perused the resolution dated 24.01.2002 which was before us at the time of the passing of the order sought to be reviewed. The perusal of the resolution shows that the respondent no.4 has been given promotion but the nature of promotion is not indicated in the resolution. The promotion to the post of Principal is to be made according to Rule 5-B of C.F.S. Rules, 1937 which provides that the promotion on the post of Principal shall be made on the basis of seniority subject to rejection of unfit. Since by resolution dated 24.01.2002 the promotion of the respondent no.4 has not been made according to this rule, therefore the promotion made by this rule was officiating promotion. Therefore, no good ground is made out to review the order dated 30.10.2002. The learned counsel for the petitioner submits that in the writ petition a prayer was made by the petitioner to direct the respondents to make the regular promotion according to Rule 5-B of C.F.S. Rules, 1937. It was incumbent on the Management-respondent to have made regular promotion from amongst the eligible candidates to fill up the post of Principal of the institution according to Rule 5-B, but the chose to make a promotion ignoring the provisions of Rule 5-B. Therefore, respondents are directed to proceed to make regular promotion from amongst the eligible candidates and the exercise shall be completed within a period of one month from the date of production of certified copy of this order. With this observation, the review petition is disposed of accordingly.” It further transpires that the Cantonment Board also filed a Review Application No. 3091 of 2003 which was rejected by an order dated 6th June, 2003. Pursuant to the direction of the Court dated 30th October 2002 and 19th April, 2003, the Cantonment 5 Board considered the matter afresh and, by a resolution dated 14th July, 2002 found that the petitioner was unfit for the post of Principal and, further resolved that respondent No.4 was fit for the said post and, therefore, resolved to promote respondent No.4 on a regular basis on the post of Principal in the institution concerned. The petitioner, being aggrieved by the said resolution dated 14th July, 2002, again approached the doors of the High Court by filing writ petition No. 1392 of 2003 questioning the legality of the resolution of the Cantonment Board dated 14th July, 2002. The petitioner contended that the post of Principal is a promotional post and that the promotion was required to be made from the post of lecturer in the institution according to seniority subject to the rejection of unfit as provided under Rule 5-B (8) of the Rules, 1937. The petitioner contended that she is the senior most lecturer and that there was nothing against her to declare her as unfit and, therefore, she was entitled to be promoted to the post of Principal and that the resolution of the Board promoting respondent No.4 was wholly illegal and against the Rules. The said writ petition was disposed of by an order dated 28th June, 2006 permitting the petitioner to file a fresh representation before the Cantonment Board and the Board was directed to decide the same by a reasoned order. Accordingly, the petitioner filed an appropriate representation before the Cantonment Board. The Board by a resolution dated 13th September, 2006 rejected the representation of the petitioner and re-confirmed the appointment of respondent No.4 as the Principal of the institution. The Board in its resolution held that under the proviso to Rule 5-B (8), the petitioner and respondent No.4 were again interviewed and a comparative assessment on merit of their performance was considered and after ascertaining the inter se merit, the Board found that respondent 6 No.4 was a better and more suitable candidate by virtue of merit and, accordingly, ratified the earlier decision of the Board dated 14th July, 2003. The petitioner, being aggrieved by the said resolution of the Board and, rejection of her representation, has again preferred the writ petition for the quashing of all the resolutions and for a writ of mandamus commanding the respondents to give promotion to the petitioner on the post of Principal. Heard Shri U.K. Uniyal, the learned senior counsel duly assisted by Shri Pankaj Purohit, the learned counsel petitioner, Shri B.S. Adhikari, the learned counsel for respondent Nos. 1, 2 and 3 and Shri Rajendra Dobhal, the learned senior counsel duly assisted by Shri Vikas Pandey, the learned counsel for the respondent No.4. The learned Senior Counsel, Shri U.K. Uniyal, vehemently contended that the Cantonment Board is adopting a dual standard and is in hand in gloves with respondent No.4 and that the respondents-Cantonment Board and the School Committee is bent upon in granting undue favour and advantage to respondent No.4 in gross violation of Rule 5-B (8) of the Rules of 1937. The learned Senior Counsel contended that the post of Principal is a promotional post and the criteria as provided in the 1st part in Rule 5-B (8) of the Rules, 1937 is the seniority subject to the rejection of the unfit and, accordingly, in the light of this provision, the petitioner, admittedly, being the senior most teacher in the institution was required to be promoted as the Principal unless the petitioner was found to be unfit, which in the present case, was none. The learned Senior Counsel contended that the arbitrary attitude of respondents was writ large and, in this regard, the learned counsel urged the Court to peruse the earlier resolution 7 which would show that in the earlier round of litigation, the stand of the Cantonment Board was promotion subject to the rejection of the unfit and, now by the impugned order, the petitioner has been non-suited under the proviso to Rule 5-B (8) which provides for promotion on selection post to be made on the basis of seniority cum merit. The learned counsel submitted that this was a clear indication of the dual standard as well as the arbitrary attitude being adopted by the respondents-Cantonment Board. The learned counsel submitted that promotion on the post of Principal was to be made on the basis of seniority subject to the rejection of unfit and not on the basis of seniority cum merit. On the other hand, Shri B.S. Adhikari, the learned counsel for respondent Nos. 1 to 3-Cantonment Board submitted that the post of Principal in the Cantonment Board of Dehradun has not been classified as a direct recruitment post or a promotional post as required under Rule 5-B (5) nor has it been sub classified as a selection post or non-selection post under Rule 5-B (6). The said post has not been classified or sub classified under the aforesaid provisions in Annexure ‘C’ or ‘E’ in the Rules of 1937 and, that the Cantonment Board is treating the post of Principal as a promotional post and a selection post. The learned counsel pointed out that the reason for the post of Principal not being specified under Rule 5-B (5) and 5-B (6) is on account of the fact that the post of Principal is required in an intermediate college and that the institution was upgraded as an intermediate college only in the year 1995 and that the post of Principal was created in the year 1997 but, unfortunately, the authorities contemplated under Rule 5-B (5) and 5-B (6) of the Rules of 1937 has not classified the post of Principal as yet either as a direct recruitment post or a promotional post nor has sub classified it as a selection post or non selection post. In the light of the aforesaid and, in the absence of 8 post being classified under the Rules, the post was treated as a promotional post and a selection post and a comparative assessment of merit was taken into consideration. Since respondent No.4 was found to be more meritorious, the earlier resolution of the Cantonment Board was accordingly ratified and that the respondent No.4 was allowed to continue. Shri Rajendra Dobhal, the learned senior counsel for respondent No.4 supported the arguments of Shri B.S. Adhikari, the learned counsel for the Cantonment Board and placed reliance upon a decision of the Supreme Court in the case of S.B. Bhattacharjee Vs. S.D. Majumdar and others, (2007) 10 SCC 513, wherein the Supreme Court held that in the absence of the rules, the Departmental Promotion Committee was justified in taking into consideration the merit of the candidates. Having heard the learned counsel for the parties at some length and, having pondered over the matter, the crucial question which is required to be answered to this vexed problem is, whether the post of Principal in the institution managed by the Cantonment Board, Dehradun is a direct recruit post or a promotional post and, in the event, the post is a promotional post, whether the said post has been classified as a selection post or a non selection post? For facility, the rules relating to appointment in promotion are required to be considered, namely, Rule 5-B (4), (5), (6) and (8). For facility, the said rules are extracted hereunder:- “5-B (4) Appointments to all posts under a Board shall be either by direct recruitment or by promotion or as provided under Rule 5-C. (5) The Central Government or such other authority as may be authorized by it in this behalf shall classify all posts under a Board into direct recruitment 9 posts or promotion posts and specify the post or posts from which appointment shall be made to each such promotion post. (6) The Officer Commanding-in-Chief, the Command, shall subject to such directions, if any, as may be issued by the Central Government, classify all promotion posts into selection and non-selection posts. (8) Appointments to promotion posts shall be made [by the appointing authority] on the basis of seniority lists maintained for this purpose by the Board, subject to rejection of those considered unfit: Provided that promotion to selection posts shall be made on the basis of seniority cum merit.” Under sub-clause (4) of Rule 5-B, all appointments are to be made either by direct recruitment or by promotion. It has been stated that the provision relating to appointment under Rule 5-C has been declared as ultra vires. Under sub-clause (5) of Rule 5-B, the Central Govt. or such authority authorized as may be by it would classify all the posts either as a direct recruitment post or as a promotion post. Such classification of posts are made and specified in Annexure ‘C’ to the rules appended thereto. Under sub-clause (6), the Officer Commanding-in-Chief, the command, shall further classify all promotion posts into a selection or non selection posts which have been specified and such selection and non selection posts have been specified in Annexure ‘E’ to the Rules. Under sub-clause (8), the appointments to promotion posts will be made on the basis of a seniority list maintained for this purpose by the Board which would be subject to rejection of those considered unfit. The proviso to this sub-section indicates that the promotion to selection posts would be made on the basis of seniority cum merit. 10 The common contention of all the parties, namely, the petitioner, Cantonment Board as well as respondent No.4 is, that the post of Principal is a promotional post and is not a direct recruitment post and, to this effect, there is no controversy. However, to put the matter at rest, under Rule 5-B (5), posts are required to be classified in Annexure ‘C’. Annexure ‘C’ to the Rules indicates which posts should be filled up by direct recruitment and which posts are required to be filled by way of promotion in each and every Cantonment Board in India and an exhaustive list has been prepared. The court, upon a perusal of Annexure ‘C’, under the heading Cantonment Board, Dehradun, finds that the post of Principal has not been classified as a post to be filled up by way of direct recruitment or by way of promotion and the reason could be that when the said classification was made, the post of Principal was not in existence in the institution and was only notified in the year 1997 but, unfortunately, the authorities did not make the necessary amendments in Annexure ‘C’ or ‘E’ as a case may be. The Court finds from a perusal of Annexure ‘C’ to the Rules of 1937 that the post of Principal has not been classified as a post to be filled up by direct recruitment. The question now to be seen is whether the post of Principal is required to be filled up by way of promotion. Under sub-clause (8) of Rule 5-B, appointments to promotion posts is to be made on the basis of seniority list maintained by the Board subject to the rejection of those considered unfit and that promotion to selection posts is to be made on the basis of seniority cum merit. Under the 1st part of sub-rule (8) of Rule 5-B, the promotion posts has been classified in Annexure ‘C’ and if promotion has been made under the proviso to a selection post, the post is required to be sub classified in Annexure ‘E’ of the Rules, 1937. The Court has 11 already perused Annexure ‘C’ and found that the post of Principal has not been classified either as a direct recruitment post or a promotional post. From a perusal of Annexure ‘E’, the post of Principal is also not sub classified either as a selection post or a non selection post. In the light of the aforesaid that the post of Principal has not been classified either under sub-rule (5) or sub-rule (6) of the Rule 5-B, the question which comes up for consideration now is, how the Cantonment Board should make an appointment on the post of Principal. According to Shri U.K. Uniyal, the learned Senior Counsel, it is his vehement contention that the Cantonment Board had accepted earlier that the post of Principal was required to be filled up by way of promotion on the basis of seniority subject to the rejection of unfit and that this fact had been noticed by the Court while disposing of the review application by an order dated 19/04/2003, wherein the Court observed that the promotion to the post of Principal was required to be made according to Rule 5-B of the Rules of 1937 which provides that the promotion on the post of Principal would be made on the basis of seniority subject to the rejection of unfit. The learned counsel submitted that this observation made by the Court was binding upon the Cantonment Board and, even otherwise, as per their own resolution, the petitioner’s claim for promotion was rejected by a resolution dated 24th January, 2002 on the ground that the petitioner was found unfit. The learned counsel, consequently, submitted that in the light of the observation made by the Court by an order dated 19/04/2003, the Cantonment Board could not turn around and contend that the post of Principal is now required to be made on the basis of seniority cum merit and not on the basis of seniority subject to the rejection of the unfit. 12 Having pondered over the matter, the Court finds that the petitioner cannot get the benefit of any observation being made in the order of the Court dated 19/04/2003. From a perusal of the resolution dated 8th January, 2001, 24th January, 2002 and 14th July, 2003, an irresistible conclusion is drawn that the post of Principal has been filled up by way of promotion and that the Board has considered the most suitable candidate for the post of Principal. The Board has not considered the criteria of seniority cum rejection of unfit as provided under the 1st part of sub-rule (8) of Rule 5-B but has considered the proviso to sub-rule (8) of the Rule 5-B, namely, seniority cum merit. The resolution of 8th January, 2001 only indicated that respondent No.4 is to look after the duties of Principal on a purely temporary basis. The resolution of 24th January, 2002 indicates that the Board considered that respondent No.4 was eligible and a suitable candidate and that her work was found satisfactory and also she had managed the administration and discipline of the college during the short period that she had worked as an officiating Principal and further the Board further resolved that in the interest of college administration, respondent No.4 should be promoted to the existing post of Principal. This resolution can be culled out to have been passed under the proviso to sub-rule (8) of Rules 5-B of the Rules of 1937. Similarly, in the resolution dated 14th July, 2002, a comparative assessment was made under Rule 5-B between the petitioner and respondent No.4 and, the Board found that the petitioner was unfit and that respondent No.4 was fit for the post. This resolution also, in my opinion, falls under the proviso to sub-rule (8) of Rule 5-B, namely, that the Board had made a comparative assessment on merit between two persons. Ultimately, by the impugned order dated 13th September, 2006, the Board again made a comparative assessment of the two persons, namely, the petitioner and respondent No.4 on merit and found 13 that respondent No.4 was a better and a more suitable candidate and, therefore, ratified the earlier decision to promote respondent No.4 on the post of Principal. In the light of the aforesaid, the contention of the learned counsel for the petitioner that the Cantonment Board is adopting a dual standard and is considering the post of promotion, sometimes, on the basis of seniority subject to the rejection of unfit and, sometimes, on the basis of seniority cum merit is patently erroneous and bereft of merit. As stated earlier, the consistent stand of the Board as culled out from the aforesaid resolutions is, that the post of Principal has been filled up by way of promotion on the basis of seniority cum merit as provided under the