1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2546/1996 Ramesh Chandra Sharma vs. State & Ors. Date of order : 9/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rajendra Prasad ) Shri Madhu Sudhan Shiromani Sharma )for the petitioner. Shri S.D. Khaspuria, Addl. Govt. Counsel for the respondents. ****** Heard learned counsel for the parties. In this writ petition, the petitioner seeks to challenge two orders passed by Rajasthan Civil Services Appellate Tribunal, Jaipur dated 30.5.1995 and 2.6.1995 by which his two appeals were dismissed. In appeal no.386/1988, petitioner prayed that the order Annexures 21, 22, 24 and 26 by which he was conveyed adverse remarks and his representation thereagainst was rejected, be quashed and set aside and two orders namely Annexures-14 and 19 dated 13.4.1982 and 31.12.1981 by which he was granted 143 and 8 days leave, be quashed and set aside. The Tribunal rejected the first appeal of the appellant on the ground that 2 the challenge to the adverse entries in the APAR or rejection of the representation thereagainst, cannot be entertained by it as these issues do not fall within the purview of service matter defined under Section 2(f) of Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976. By the impugned order dated 2.6.1995, the appeal no.449/1988 filed by the petitioner was dismissed. In that appeal, the petitioner had challenged the order dated 30.7.1988 whereby he was superseded by his juniors, who were promoted as Assistant Engineer. Shri Rajendra Prasad, learned counsel for the petitioner has argued that Tribunal having rejected his first appeal regarding challenge to the adverse remarks in the APAR, being not maintainable, could not have dismissed another appeal on the ground that challenge to the APAR was belatedly made. Learned counsel submitted that the full bench judgement of this Court in Tayyab Ali vs. State of Rajasthan- RLR 1988 (2) page 1 was not correctly appreciated by the 3 Tribunal wherein it is clearly held that even though adverse entries in APAR or an order rejecting representation is not included within the ambit of clause (f) of section 2 of the Act and therefore the appeal against such orders would not be maintainable, but correctness of those orders could be assailed by a government servant while challenging the consequential order. Learned counsel submitted that the Tribunal rejected the appeal against the order dated 30.7.1988 by which he was superseded primarily on the premise that the petitioner did not timely challenge the adverse remarks in the year 1986 when they were retained by rejection of his representation. It was argued that mere rejection of representation would not bring the matter within the purview of service matter as defined under Section 2(f) and this was what was held by the full bench that the government servant would be entitled to challenge correctness of the same while assailing any consequential order 4 based on or influenced thereby was passed namely the order of supersession. Learned counsel argued that it were these two adverse remarks which had affected his promotion and supersession of the petitioner by his juniors. Secondly, the Tribunal was also influenced by the fact that a disciplinary enquiry was pending against the petitioner under Rule 16 of the CCA Rules and mere pendency of the enquiry would not be a reason to deny him right to consideration for promotion because in that case, the respondents were required to invoke the sealed cover procedure. Shri S.D. Khaspuria, learned Additional Government Counsel opposed the writ petition and submitted that in para 24 of the reply, the respondents have in detailed shown that the petitioner's name was considered each time whenever the DPC made deliberations for recommending promotions against the vacancies of the year 1986-87, 1987-88 and 1988-1989 but he was not adjudged suitable for promotion despite the criteria being 5 seniority cum merit, therefore, there is no irregularity in the impugned order. Upon hearing the learned counsel for the parties and perusing the impugned orders passed by the Tribunal, I find that in so far as the order dated 30.5.1995 is concerned, no exception can be taken thereto because for the first part i.e. the order by which he was conveyed the adverse remarks and the rejection of the representation, the petitioner became entitled to challenge them independently when he questioned the order of supersession, which issue was dealt with in the subsequent appeal filed by the petitioner. However, second part with regard to leave is concerned, those orders were favourable to petitioner because thereby his absence was regularised and secondly the issue had become final even before the civil court, validity of it could not be then questioned again. However, the subsequent appeal filed by the petitioner has not received proper consideration by the Tribunal. When the judgement of Full Bench 6 of this Court was cited before the Tribunal, the Tribunal in my view has not correctly appreciated the ratio of that judgement because in that very judgement it is held that the adverse entires or an order rejecting a representation thereagainst could be assailed by a government servant when an order is passed against him influenced thereby. In other words, the petitioner was fully justified in questioning correctness of those orders when he was superseded by his juniors. The delay in challenging the adverse remarks/rejection of representation could not therefore come in the way of the Tribunal in considering the matter on merits. Secondly, the Tribunal committed another illegality by taking an influence from the pending disciplinary enquiry against the petitioner under Rule 16 of the CCA Rules, although it was not informed of the fact whether or not on account of pendency of such enquiry, sealed cover procedure was adopted by the respondents. 7 In any case, as the respondents themselves in so far as vacancies of the year 1987-88 and 1988-89 are concerned, have in their reply to para 24 maintained that despite the criteria of seniority-cum-merit and petitioner's name being sufficiently high in the seniority list namely at S.No.2 in so far as his consideration for promotion against 5 vacancies of the year 1987-88 and at S.No.1 for consideration of his case against 4 vacancies of the year 1988-89, yet he was adjudged not suitable. Mere adverse remarks in the APAR of two years by themselves could not be a reason to adjudge the petitioner not suitable for promotion, because if the criteria was seniority cum merit, the adverse remarks in two APARs could not be a reason to adjudge the petitioner not suitable in view of the law laid down by the Supreme Court in B.V. Sivaiah and others Vs. K.Addanki Babu and others : (1998) 6 SCC 720 wherein the same question fell for consideration before the 8 Supreme Court as to how the criterion of seniority cum merit criteria vis-a-vis merit cum seniority has to be understood. Their Lordships in Paras 17 and 18 of the judgment, held as under:- “17. On behalf of the promoted officers, it 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 he 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- 9 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.” In the result, this writ petition is allowed to the extent of the order dated 2.6.1995 passed by the Tribunal. The aforesaid order is set aside. The matter is remanded back to the Tribunal for its consideration on merits in the light of the observations made above. The Tribunal is expected to give priority to this matter as the appeal that would be restored as a result of this order, was filed before it in the year 1988. The record of the Tribunal be sent back. (MOHAMMAD RAFIQ), J. 10 RS/