IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No. 1984/2008 Decided on:12.7.2010 _____________________________________________ M.S. Jaryal. …Petitioner. Versus Director of Economics and Statistics Himachal Pradesh and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the petitioner : Mrs. Ranjana Parmar, Advocate. For the Respondents: Mr. Vikas Rathore, Dy. Advocate General for respondents No. 1 and 2. None for respondents No.3 to 11. ____________________________________________________ Rajiv Sharma, Judge (oral). Respondents No. 3 to 6 and 8 to 11 were duly served, however, they are unrepresented. Respondent No.7 was also duly served, however, he was proceeded ex parte. The grievance of the petitioner, in a nutshell, is that his case for confirmation as well as promotion to the post of Field Investigator Grade-I has not been considered in accordance with law by the Departmental Promotion Committee held on 28.5.1988 and 21.9.1988. In order to ascertain whether the petitioner’s case has been considered in accordance with law or not, the records were summoned. A bare perusal of the proceedings of the Departmental Promotion Committee held on 28.5.1988 reveals 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 that there is non-application of mind by the Members of the Departmental Promotion Committee while considering the case of the petitioner for confirmation. The Departmental Promotion Committee has recorded that the petitioner did not fulfill the requisite requirements and his case was to be considered during the next meeting. The Departmental Promotion Committee has not applied its mind properly. It was necessary for the Members of the Committee to spell out what were the parameters for considering the case of the petitioner and how the petitioner was not fulfilling the same. Merely stating that the petitioner did not fulfill the requisite requirement was not sufficient compliance of law. In case there was any material adverse to the petitioner, it was required to be discussed by the Members of the Committee and thereafter after applying their independent minds, the conclusions were to be drawn. Similarly, the Departmental Promotion Committee while considering the case of the petitioner for promotion to the post of Field Investigator Grade-I on 21.1.1988 has held that he was not yet fit for promotion. No reason has been assigned why the petitioner was not found fit for promotion. It is settled law that Departmental Promotion Committee need not give detailed reasons while considering the case of incumbents for promotion/confirmation etc. However, it is equally settled that proceedings must reflect the due application of mind. 3 Their Lordships of the Hon’ble Supreme Court in Badrinath versus Government of Tamil Nadu and others, (2000) 8 SCC 395 have held that normally the Court does not enter into the question of correctness of assessment made by DPCs (or Joint Screening Committees), however, their Lordships have further held that in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspects of one’s career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of judicial review under Article 226 of the Constitution are not foreclosed. Their Lordships have held as under: “37. These points raise certain important issues relating to 'fairness' in the matter of consideration of an officer for promotion under Article 16 and as to the manner in which 'adverse remarks' can be taken into consideration. 38. Normally, this Court does not enter into question of the correctness of assessment made by Departmental Promotion Committees (or Joint Screening Committees). 39. But the case before us appears to be a very exceptional one as it has serious overtones of legal bias (to which we shall refer in detail when we come to Points 4 and 5). 40. Unless there is a strong case for applying the Wednesbury doctrine or there are malafides, Courts and Tribunal cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or 4 fitness for promotion. But in rare cases, if the assessment is either proved to be malafide or is found based on inadmissible or irrelevant or insignificant and trivial material - and if an attitude of ignoring or not giving weight to the positive aspects of one's career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, - then the powers of judicial review under Article 226 of the Constitution are not foreclosed. 41. While the courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committees, the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to be scrutinised by courts, within the narrow Wednesday principles or on the ground of malafides. The judicial power remains but its use is restricted to rare and exceptional situations. We are not - by quoting this case as an easy precedent - interfere with assessment of merit in every case. Courts and Tribunals cannot sit as appellate authorities nor substitute their own views to the views of Departmental Promotion Committees. Undue interference by the Courts or Tribunals will result in paralysing recommendations of Departmental Committees and promotions. The case on hand can be precedent only in rare cases.” The right of consideration has now virtually been considered as a fundamental right by the Hon’ble Supreme Court. Their Lordships of the Hon’ble Supreme Court in Union of India and another versus Hemraj Singh Chauhan and others, AIR 2010 SC 1682 have held that right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. Their Lordships have further held that the guarantee 5 of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution. Their Lordships have held as under: “38.It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.” In view of the observations made hereinabove, the petition is disposed of with the direction to the respondents to consider the case of the petitioner for confirmation and promotion from the date his juniors have been promoted. In case the petitioner is found fit suitable for promotion, he will be held entitled to all the consequential benefits. Needful be done within a period of ten weeks from the date of production of certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma), Judge 12.7.2010 *awasthi*