SBCWP NO.137/96. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.137/1996. M.K. Gautam Versus Rajasthan Housing Board Date of order:- August 4, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri J.K. Yadav for the petitioner. Shri V.P. Mathur for the respondents. ***** BY THE COURT:- Reportable This writ petition has been filed by the petitioner aggrieved by his supersession by junior for promotion on the post of Assistant Housing Commissioner with the prayer that the respondents be directed to promote him on the said post w.e.f. 30/8/1986 against the vacancies of year 1986-87 with all consequential benefits when his juniors were so promoted. Further prayer is made that the punishment order dated 5/9/1986 by which petitioner was awarded penalty of censure was imposed upon the petitioner and the order dated 19/12/1986 by which his appeal against that order has been rejected, both be quashed and set-aside. Factual matrix of the case is that petitioner was awarded penalty of censure vide order dated 5/9/1986 on the allegation that he misplaced the original file. Petitioner was awarded SBCWP NO.137/96. 2 penalty of censure. He filed appeal thereagainst which was rejected. Petitioner was at the relevant time was working as Office Assistant with the respondent Rajasthan Housing Board. His name appeared at Sr.No.4 in the final seniority list issued on 17/4/1986. Departmental Promotion Committee (DPC) recommended the promotions of Nihal Singh Shekhawat, Niranjan Joshi and Uma Nand Sharma, whose names appear at Sr.No.5, 6 & 7, respectively in that seniority list whereas petitioner was at Sr.No.4 in the said seniority list so promulgated. According to the petitioner, criteria for promotion to the post of Assistant Housing Officer was through the feeder cadre of Office Assistant and only those who have experience of 5 years are eligible for such promotion. Source of recruitment to the post of Assistant Housing Officer is 100% by promotion. Criteria for promotion is seniority-cum-merit. Aggrieved by his supersession, petitioner initially filed a civil suit in Munsiff Court no.2 Jaipur City, Jaipur which was decreed in his favour by the court vide order dated 12/4/1983. During pendency of the said suit, however, petitioner was promoted to the post of Assistant Housing Commissioner against the vacancies of the years 1988-89 vide order dated 14/3/1988. Rajasthan Housing Board filed a first appeal against the said judgment before the court of District Judge, Jaipur City, Jaipur. Appeal was dismissed vide judgment & decree dated 8/9/1993. It SBCWP NO.137/96. 3 was thereafter that it filed second appeal before this Court being SBCSA No.553/1994 which was allowed in part vide judgment of this Court dated 8/12/1994. It was held that Munsiff Court should not straightway give direction to the respondents. The judgment and decree was accordingly modified and the respondent-Rajasthan Housing Board was directed to consider case of the petitioner for appointment on the basis of seniority cum merit in accordance with law and in event of his being found suitable, promote him with retrospective effect with all the consequential benefits. It was thereafter that the review DPC was convened which considered the case of the petitioner and reiterated the same decision by not recommending him for promotion. Aggrieved thereby, petitioner has again approached this court. Hence, this writ petition. 2) Shri J.P. Yadav, learned counsel for the petitioner argued that ulterior reason for which petitioner has not been judged suitable is penalty of censure and that the criteria of promotion being seniorty cum merit, penalty of censure by itself could not be a decision for withholding recommendation for promotion of the petitioner. DPC and for that matter respondents have misconstrued relevant provisions of law and have committed illegality in not promoting petitioner on the post of Assistant Housing Commissioner against the vacancies of the year 1986-87. Learned counsel in SBCWP NO.137/96. 4 support of his arguments relied on the judgment of this court in the case of Het Ram Dudi Vs. State of Rajasthan & Another : 1992(3) WLC (Raj.) 726 and G.S. Rajawat Vs. Rajasthan Financial Corporation and others : 1993(1) WLC (Raj.) 117. 3) Shri V.P. Mathur, learned counsel for the respondents has opposed the writ petition and argued that petitioner was rightly not judged suitable and not recommended for promotion on account of penalty of censure. DPC was entitled to take into consideration the entire service record of the petitioner including minor penalty of censure. Learned counsel relied on the judgment of Apex Court in Union of India Vs. K.V. Jankiraman : AIR 1991 SC 2010 and argued that it was held therein that even the minor penalty can be looked into for promotion. It was held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge- sheet is issued. The pendency preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. It was furtther held therein that it cannot be said that when an officer is found guilty in the discahrge of his duties, an imposition SBCWP NO.137/96. 5 of penalty is all that is necessary to improve his conduct and to enforce discipline and and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. The officer cannot be rewarded by promotion as a matter of course even if penalty is other than that of the reduction in rank. Learned counsel therefore submits that the writ petition be dismissed. 4) Having heard learned counsel for the parties and perusing the documents available on record, I find that undisputedly, criteria of promotion in the relevant rules is seniority cum merit and yet, as the facts of the case show, DPC has judged the petitioner not suitable for promotion on account of the penalty of censure. I do not agree with the arguments that adversity in the service record such as the minor penalties cannot be taken into consideration by the DPC and that this would amount to withholding of promotion which is separately prescribed as one of the penalties in one of the rules. As rightly argued by the learned counsel for the respondents, the entire service record of an employee will have to be exhausted by the DPC while considering his case for promotion and the fact that it has taken effect from the order of penalty, is only necessary consequence of misconduct. This therefore cannot be said to be another penalty but then question raised in this SBCWP NO.137/96. 6 writ petition will have to be answered on the first argument raised by the petitioner that whether recommendation for promotion withheld by the DPC on the basis of censure is justified and if the first argument of the petitioner is upheld, despite negation of his second argument, petition deserves to succeed. A co-ordinate bench of this court in B.S. Rajawat considering the similar controversy whether promotion was denied to the petitioner on account of the penalty of stoppage of one annual grade increment without cumulative effect and the criteria for promotion therein was seniority subject to suitability. In those facts, this court held that when the criteria was based on scrutiny of those falling within the zone of consideration all who fuulfill the yardstick for merit shall have to be promoted. When however the criteria is seniority- cum-merit, more weightage has to be given to a person who is senior and he cannot be denied promotion merely because his junior is more meritorious. When the criteria is seniority cum suitability then senior person can be ignored only if it is found that he is unfit. In Hetram Gudi, the co-ordinate bench of this Court again had the occasion to consider a case where on account of penalty of withholding of one annual grade increment without cumulative effect, petitioner was not granted promotion and was superseded by his junior. Criteria of promotion in that case too was seniority SBCWP NO.137/96. 7 cum merit. It was held that although, DPC is entitled to take into consideration the entire relevant record including the penalty order but ordinarily a person has right to be promoted. Supreme Court in Sant Ram Sharma Vs. State of Rajasthan and ors. : AIR 1967 SC 1910 held that it is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority and if a post falls vacant, it is filled by the person, who has served longest in the post immediately below. The criteria of merit, on the other hand, stands on meritorious performance irrespective of seniority and even person, who is though junior but more meritorious, can be selected for promotion. The Supreme Court however observed that there should be characteristics in a proper promotion policy, criteria of seniority cum merit and merit cum seniority which taken into account by seniority as well as merit. 5) In B.V. Sivaiah and others Vs. Kaddanki Babu and others : (1998) 6 SCC 720 again same question fell for consideration before the Supreme Court as to what would be the impact of seniority cum merit criteria vis-a-vis merit cum seniority criteria. Their Lordships in paras 17 and 18 of the judgment, held as under:- “On behalf of the promoted officers, it SBCWP NO.137/96. 8 was urged that for the purpose of promotion on the basis of seniority-cum- merit, seniority means the length of service and that among officers who were appointed on the same date and have the same length of service, seniority can have no bearing and promotion has to be made on a comparative assessment of merit of such officers. We are unable to agree. While applying the principle of seniority-cum- merit for the purpose of promotion, what is required to be considered is the inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the select list for appointment. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion on the basis of seniority-cum-merit, seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service. 18. We thus arrive at the conclusion that the criterion of “seniority-cum-merit” in the matter of promotion postulates that even the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment or merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum- merit.” 6) Same view was reiterated by the Supreme SBCWP NO.137/96. 9 Court in recently pronounced judgment in Harigovind Yadav Vs. Rewa Sidhi Gramin Bank andothers : (2006) 6 SCC 145 in which judgment, Supreme reiterated all the previous views. 7) In view of what has been discussed above, action of the DPC in judging the petitioner not suitable for promotion solely on the ground that he was awarded penalty of censure despite criteria of promotion being seniority cum merit cannot be said to be legal and justified because in the criteria of seniority cum merit for promotion, what is to be seen is the minimum necessary merit requisite for efficiency of administration and the senior even though less meritorious, shall have primacy in the matter of promotion and comparative assessment of merit is not required to be made. 8) In the result, the writ petition deserves to be allowed and is accordingly allowed. Petitioner is held entitled for promotion against the vacancies of the year 1986-87 w.e.f. 31/8/1987 when his juniors were promoted. Petitioner is also held entitled to consequential benefits with interest @6% p.a. Compliance of the judgment shall be made within three months from the date copy of this order is produced before the respondents. (MOHAMMAD RAFIQ), J. anil