1, COURT rCHHATTISGARHl Writ Pclilion No. 1514 /2005 Petitioner Respondent K.P. Patel, aged 59 years/ S/o Late Shri Ramshankar patet, Executive Engjneer (Civit) Water Resource Division, Jashpur Nagar, Chhattisgarh. :V^rajig:- 1. Stato of Chhattisgarh through Principal Secretary, Water Resources Department, D.K. Bhawan, Raipur, Chhattisgarh 2. Chief Engineer, Hasdeo Kachhar Water Resources Department, BiJaspur^ Chhattisgarh. WRTT PETmON UNDER ARTICLES 226/227 OF THE CONSTrrUTION OF INDIA R3R ISSUANCE OF WRTT OF MANDAMUS. CERTIORARI. OUO WARRANTO. PROHIBmON AND/OR ANY OTHER WRrr/ORDER/DIRECnON ON THE SAME NATURE IN THE CIRCUMSTANCES OFTHE CASE. A^^ ^<^ HIGH COURT OF CHHATTISGARHAT BILASPUR Writ Petition No. 1514 of2005 K. P. Patel -Versus- State of Chhattisgarh and anofher Post fbr order on 7th September, 2005. Sd/- Satish K. Agnihotri Judge ^) HIGH COURT OF CHHATTISQARH ATBILASPUR WritPetitionNo. 1514 of 2005 K. P. Patel -Versus- State ofChhatdsgarh and aaother Petitioner by Shri. Sajajay K. Agarwal, Advocate. Respondents by Shri V. V. S. Moorty, Deputy Advocate General. ORDER (^.9.2005) By Justice Satish K, Agmhotri, 1. The prcsent petition chaBen^es fhe order dated 1.4,2(X)5 passed by fhe Water Resources Department^ Govt of Chhattisgarh, Raipur, whereby fhe petitioner, who was working as Assistant Engmeer (Civi^ was piomoted to fhe post of Executive Engiaeer (Civfl) on ad hoc basis by order dated 9.9.2003 has not been cordSrmed on regular basis aad fhe petitbner has been rcverted back to his origmal post ie. Assistaat Engiaeer. 2< By amendment of fhe petition, fhe petitioner fiirfher seeks a direction agaiast the respondents to consider fhe petitioner for regular promotion on fhe post of Executive Engineer w.e.f. 1,4.2005 wifh all consequential benefits. The amendment ia fhe prayerwas allowed on 27*6,2005. 3. The undisputed facts, in brief, are fhat fhe petitioner was working as Assistant Engineer ia fbe Water Resources Department, Govt. of Chhattisgarh when by oider dated 9.9.2003 he was promoted to fhe post of Executive Engineer along wifh others on ad hoc basis. Subsequentiy by order dated 1.4.2005 the petitioner was not confirmed on reguJar basis on ^ fhe post of Executive Engiaeer as such fhe petitioner was reverted back to fhe original post of Assistaat Engmeer. The petitioner filed fhis petitibn chaUengmg fhe order dated 1.4.2005 Amaexurc P/l. Learaed counsel for the petitioner submitted fhat fhe petitioner has been denied regular promotion on fhe post of Executive Engiaeer ia vtolation of fhe Rule 6(5) and 7 offhe Chliattisgarh Public Sendces (Promotion) Rules, 2003 ( hereinafier <Ru]es,2003'). Leanied coiinsel for fhe petitioner submitted ftiat fhe petitioner was fit for proiaotion as no departiaental enquiiy and/or criminal case was pendiag agaiast fhe petitioner. There was no adverse entiy/remark m fhe confklenfial TGport offhe petitioner from fhe date of fhe ad hoc promotion tiU consideration by fhe Departmental Proniotion Coinmittee (hereinafter <D*P,C,j) for rcgular promotion to fhe post of Executive Engmeer as nofhing adverse was communicated to fhe petitioner. Learaed counsel further subinitted fhat fhe petitioner has made a comparative assessment of fhe inerits of fhe candidates to determine who is <veiy good', 'good' or 'does not have required criteria^ as stated by the respondents m its rcpty m para 2 to the effect ffaat SSIt is mos( respectjully submitied thal the confidentidJ report of5 years has been ODnsidered cmd as ihe petitionerfs Confidenlicd Report wcis notfulfining the criteria^ therefore^ petitioner faund ur^itfor regular promjotion9 , and m para-5 ofthe rcpty to (be effect that felt is pertinent to nusntion here that on the basis of Confidential Report^ each and every employee eam points and as alleged juraors to the petitioner were having better Confidential Reports ihen the petitioner, therefore, they haue ecxmed rrwre poinfs and on the basis of scune Departmenlal Pronwtion Comnnttee found .<^^ theni suitable for regular promotion to the post of Executive Engineer andjurtherfound that the petitioner herein is not cd all fit for regular pronwiion to the post of Executive Engmeer^ The criteria of fhe promotion fix>m fhe post of Assistant Engmeer to fhe post of Executive Engmeer as per Rule 4 of fhe Riiles, 2003 is 'seniority subject to fitness', It was further contended fhat Rule 6(7) of fhe Rules, 2003 clearly provides fhat the D.P.C. shaU consider fhe case ofeach pubUc servant separately on fhe basis of fheir own merit, and that there shaU be 110 need to make a comparative assessment of fhe merits of pubMc servant separatety aad shall categorize fheia as €6tfor <not fit\ Learaed counsel for the petitioner furfher coatended that smce fhe D,P.C. has considercd fhe case of the petitioner along wifh other candidates on ffcie basis of fhe comparative assessinent, £he said proceedings be quashed and fhe respondeo.ts be directed to make a fi^esh consideration stncfty ia accordairce wifh fhe Rule 6 ofthe Rules, 2003. Learaed coxinsel for fhe petitioner riled on fhe decisions of titie Supreme Court m Dharamveer Singh Tomar Vs. Dettd Admmistcatfon & others, (1991) Supp. 2 SCC 635 and Union of India & othera Vs. Ltd. Gen. Rajendra Smgh Khadyan & anofher, (20001 6 SCC 698, Leamed counsel furtfier relied on fhe decision in fhe case of Gurdial Siagh Pijiji Vs/ State of Punjab & others, f19791 2 SCC 368 and Union of India & others Vs. E.G. Nambudiri, (1991) 3 SCC 38. and Karaail Singti Vs. State of Punjab & others f19941 SUDD. 3 SCC 724 to support his contention fhat if there is aay adverse entiy/rmark which affects r^hts of fhe Govt. servaat relating to fhe confirmation, crossing of efiBciency bar, prom.otion and retention in service, B ^ ^ 4 s: 8. fhe principles of natural justice require fhe reportiag authority to comniunicate fhe same to fhe Govt. Servant Siace fhere was no commiinication of aay adverse entry/rexnark which has affected the case ofthe petitioner for fhe purpose ofcategonzing him 'fit' under Rule 6(7) of fhe Rules, 2003, categorization of fhe ^titioner as <not fit' was bad and violative of Rule 6 (5) aiid (7) of fhe Rules 2003. The petitioner ought to have been categorized as €fit^ on fhe basis of fhe individual xnerit and to have been selected on fhe basis ofseniority list. Shri V. V, S, Moorfhy, leamed Deputy Advocate General submitted fhat fhe D.P.C. has considered fhe records ofaU fhe iadividual candidates, individually, aad fhe awaxdiag of poiats was for assessiag fheia to categorize as <fit> or €aot&t\ Sm.ee the petitioner was found <not fit' on the basis of his confidential reports as anot haviag fhe required criteria", is not entitied to promotion to fhe post of Executive Engiaeer on rcgular basis. Accordingly, the petitioner was reverted back to fhe post of Assistaat Engmeer fix>m fhe post of Executive Engiaeer as he was pronioted on ad hoc basise It was fiuther contended fhat fhe criteria for prom.otk>n to fhe post of Executive Enguieer is one and fhe saiae for (ad hoc? as weU as for <rcgulary proinotion. The D.P.C. found the petitioner <fit> whUe considering him for promotion to fhe post of Executive Engmeer on 'ad hoc basis? aad after about two years whUe considermg for fhe promotion on ^regular basis? fhe petitioner was found <not fit? because he did not fuljfiU fhe required criteria, Learaed counsel next contended fhat fhe Courts ia exercise of its jurisdiction under Article 226 of fhe Constitution of India should be extremely careful whfle dealiag with the assessment s^ made by the Departmental Promotion Committee. The High Court should exercise its jurisdiction only ia exceptional cases whereia the Departmental Promotion Coinmittee has committed gross irregulanties or assessDient is based on iaadixiissible or irrclevant or insignificaiit material, Learned counsel rclies on the decision of Supreme Court ia the case of Badrinafh Vs, Govemment ofTamil Nadu & othere, AIR 2000 S.C. 3243. 9. After havmg heard learaed counsel for the pardes aad perusing fhe records of fhe proceediags, as produced by learaed counsel for fhe respondents for perusal of fhe Court, it is found fhat the petitioner was considered <fit> for 'ad hoc promotion^ to fhe post of Executive Engiaeer after considenng the confidentiial reports ofthe precediag five years, whercia fhe petitioner was graded as A, A, B, C, C, up to the year 2001-2002 aad was categorized as tffit\ Subsequenfly, whfle considering for pioinotlon on <regular basis>, fhe D.P.C. on consideration recorded fhat the petitioner did not meet fhe requircd criteria an^d ofher caxididates were marked <veiy good> or <good>, On the basis of this valuation the petitioner was categorized as {not Qt\ However, ffae select Ust was prepared stdctiy ia accordance wifh ftie seniorily. The rccord of fhe proceedings of fhe D.P.C. for consideration of fhe petitioner along with ofher cao^didates did not indicate the gradiag of confidential reports so as to coine to the conclusion fhat the petitioner did not possess fhe rcquired criteria. 10. Rule 4 offhe Rules 2003 provides for Detenxiination ofbasis for proniotion. In fhe present case fhe basis for proxnotion is 'seniority subject to fitaess^. 11. Rule 6 of fhe Rules, 2003 provides F>romotion on fhe basis of seniority subject to fitness, which reads as uxider:- "6. Promotion on the basis of seniority aubject to fltnewi.- (1) In such cases where fhe proHiotion is to be niade on fhe basis of seiiiority subject to fitaess, there shaU be no zone of consideration for aU categories, (2) The names of onfy such pubUc servant shall be considered for promotion, who have completed fhe prescribed qualfcfyiag sendce ia fheir feeder cadre / part of the service / pay scale of post accordiag to the Recruitoient Riiles. It is, however, not necessary to consider all fhe names of pubUc servant who have coiapleted fhe prcscribed minimiim lengfh. of sendce but onfy such nuuiber of cases of pubUc seryant shall be considered accorduig to fhe seniority, which shall be sufScieiit to cover fhe number of exitiag and anticipated vacancies due to retirement during fhe year under each categoiy. In addition to fhis, wifh a view of mclusion, ia fhe select Ust, fhe names of two public seryants or 25 percent of fhe num.ber of fhe public servante iacluded in select Ust whichever is more, fhe names of fhe rcquired nuiaber of fhe pubUc servaats shaU be considered for each categoiy to fill up the unforeseen vacaacies occumng diirictg fhe course of the aforesaid period. Bxplanation.- Maoiier of computation for eligibilily for piomotion.- Period of qualifyiag sendce on 1st Januaxy of fhe relevant year io. which Departniental Proinotion Coixumttee is convened shaU be couated fix>ni fhe calendar year ia which the pubUc seryaat has joiaed fhe feedmg cadre / part of fhe sendce / pay scale of fhe post and not froia the date of joiaiag of fhe cadre / part offhe seryice / pay scale ofpost (3) The number of vacaacies for promotion during flie course of fhe year Le, froni lBt Jaauary to 3l®tDeceniber shaU be worked out after takuig into accoiiiit the existmg and anticipated vacancies on account of retirement, aad promotions to higher cadres / part of the seryice / higher pay scale of posts. Vacancies arising out of deputatton for periods exceeding one year shaU also be taken iato account The num.ber ofvacancies to be reserved for pubUc seryaats belongmg to Scheduled Castes aoid Scheduled Tribes shaU be worked out on fhe basis of fhe roster which is required to be niaiataiaed in accordance wifh fhe provisions of Rule 9 offhese Rules. (4) The meetuig of fhe Departmental PTomotion Committee shaU be held every year. It shaU consider fhe suitability of fhe pubUc servants for proinotion separately wifh reference to fhe vacaacies of each year startmg wifh fhe earUest year onwards. The Departniental Proinotion Conunittee shaU consider ffae suitability of fhe pubUc servants for promotion to j5U up the unfiUed vacaacies of fhe earlier year or years separately aiid prcpare fhe select Ust for fhe relevaat year accordmgly. Thereafter, fhe Departniental Promotion Comndttee shaU consider fhe suitabitity of fhe pubUc servaats for promotion to fiU up fhe existing aad anticipated vacaacies of the current year, (5) The Departmental Promotion Coiamittee shatl assess fhe suitability of fhe public seryants for promotion on fhe basis of fheir service record and wifh pardcular reference to fhe Annual Confidential Reports (ACRs) for 5 prcceding yeare. However, ia cases where the rcqiiured quatifyinig service is niorc fhan 5 years, fhe Departinental Proaiotion Committee shall see fhe rccord wifh particular reference to fhe ACRs for fhe years equal to fhe required quaUfying service. (6) When one or inore ACRs are not available for any reasons for fhe relevaat period, the Departmental Promotion Committee shaU consider fhe ACRs of fhe years precediag fhe period in question. (7) For fiUiag up the posts by fhis niefhod, fhe Departxnental Proxiiotion Conunittee shafl consider fhe case of each pubUc servant separately on fhe basis of fheir own merit^ fhat is to say, that there shall be no need to make a comparative assessment of fhe merits of pubUc servaiit The Departmental Promotion Committee shaU consider fhe recoids of each public servaat separately and shaU categorise fhem. as <fif or{ not fit', (8) Separate select Usts shaU be prepared for fhe public servaiite ofuiireserved categoiy, Scheduled Castes and Scheduled Tribes category m which fhe names of such niimber ofpubUc servaats belongiag to unrcsewed categoiy, Scheduled Castes and Scheduled Tribes categoiy shatl be iacluded which is equal to ^ •/v, 8 fhe number of posts rcserved for each of fhese cagtegories. In addition to fhis, names of two pubUc ser^ants or ti^enty five percent of the number of public sewante iacluded m the select list whichever is morc, will also be iacluded in fhe select list of each categoiy as prcscnbed in sub-rule(2), (9) The names of pubUc servants iacluded m each Ust shaU be arranged in fhe same order of their seniority, as fhey exteted ia fhe cadre / part of fhe service / pay scale of post fix>m which proniotion is to be made. (10) The proinotion of pubUc servants shall be xnade J&x)m fhese separate select Usts according to fheir seniority in the feeder cadre / part of fhe sendce / pay scale of post aad accordir^ to fhe prcscribed order shown ia fhe roster. (11) In order to determme the inter-se seniority of fhe public seryaats belonging to fhe fhrce categories in the cadrc / part of the sendce / pay scale of post to which promotion is to be niade, a conibixied select Ust of the above fhree categories of pubUc servaats shall be preparcd ia tibie sarae order m which their names appear ia the seniority Ust offhe cadre / part ofthe service / pay scale of post firoxn which fhe promotion is being niade, (12) The naxaes ofpublic servaats proiaoted on the basis of above combiaed select Ust shaU be placed enblock below fhe name of last pubUc servant promoted on fhe basis of the iounediately preceding year's combiaed select Ust. (13) The reseryed posts which remaia unfifled due to aon- avaUabiUty of suitabk pubUc servants of fhe categoxy for which the post is reserved despite consideration of fhe names of aU pubUc servants eUgible for consideration as per fhe Recruitment Rules shall be carried forward, fhat is to say, shaU be kept vacant xintil fhe suitable pubUc sewant belonging to fhat reseryed categoiy is avaBable. In no circuxnstances any vacaacy of reserved categoiy shaU be fiUed-up by proniotion fix>Di fhe pubUc sewaat belonging to any ofher category. (14) Wherever fhe reserved vacaacies for Scheduled Castes aiid Scheduled Tribes in all cases of promotion have rcinained unfiUed in fbs earUer year or years, fhe backlog and/or carded forward vacaacies would be trcated as a separate aad distinct h '*?. ^ and wiU not be considercd togefher wifh. the reserved vacancies of fhe year ia which they are being JSUed up for detenniniag fhe ceitmg of fiifty percent reservation on total nuniber ofvacaacies of that year. In other words, the ceilmg of fifity percent on fiUing up of rcserved vacancies wouM apply oialy on fhe reseryed vacancies which arise iii fhe current year and fhe bacKlog /carried forwaid rcserved vacancies for Scheduled Castes or Scheduled Tribes of earUer year or years would be trcated as a separate aad distinct group and would not be subject to ceitmg offifly percent: Provided fhat the appointmg aufhority shaU convene a special meetiag of Departmental Promotion Cominittee withia six xnonfhs to fiU up backlog vacancies and if such vacaacies stiU rcmaui unfitted, fhey shall not be de-reserved ia aay manner for filling up by the pubUc sewants uot belongmg to the categoiy for whoin fhe post or posts are reserved. (15) When a public servant, whose name is iacluded m fhe select list, wants to rcfuse promotion, he may make a written rcquest fhat he may not be promoted. The Appomtmg Auth.ority takiag relevaat aspects io.to consideration shall consider such rcquest. If the reasons adduced for refusal of proinotion arc acceptable to fhe Appointiag Aufhonly, the next public seryaat m. fhe select list m.ay be promoted. However, siace it niay not be admioisteatively possible or desirable to offer appointinent to fhe public servaats who initiaUy refused promotion, on evexy occasion on which a vacancy arises during fhe period ofvaUdity ofthe panel^ no fresh ofiTer of appoiataient on proiciotion shaU be made ia such cases for a period of one year fix)ia fhe date of refusal of first proniotion or tffl a next vacancy arises, whichever is later. On fhe eventual promiotion to fhe higher cadre / part of the seryice / pay scale of post, such public sewant shall lose seniorily vis-a-vis his jimiors promoted in fhe preceding year to the higher cadre / part of the service / pay scale of post. In cases wherc fhe rcasons adduced by the public servaiit for his refusal for promotion are not acceptable to fhe Appointuig Aufhority then he shall eiiforce tihe promotion on the pubUc sewaiit aad ia case fhe public servaat stiU refuses to be ^ 10 pronioted, fhen even discipUnary action niay be taken against him for refusing to obey his order." 12. Under sub-rule (5) of Rule 6 of fhe Rules 2003 the D.P.C. is required to assess the suitabflily of the pubKc servaats for promotion on the basis of fheir sendce records and wifh particular reference to the Annual Confidential Reports for five precediag years. Under sub-nile (7) of Rule 6 offhe Rules 2003 the D.P,C, is obUged to consider case of each public servant separately on the basis offheir own Dierit and fherc shaU be no need to niake a coinparative assessnient offhe mierits ofpubUc sewaat. The D.P.C. is furfher required to consider the rccords of each public servant separatefy aad shall categorize fhexa as (fif or 'not fit'. 13. On carcful perusal of fhe rccords, I foiuid fhat the D,P.C. has considered the comparative assessnient by rccordiag <vexy good>, <good> and <not nieet fhe rcquired criteria^ before categorizir^ fS€or <not fit\ 14. Adiaittedly, fherc is no criminal case or departmental enquiry pendiag against fhe petitioner. The petitioner has also not been commiinicated with any adverse entry or reniark which affects his right for promotion, if this is fhe case, fhe petitioner ought to have been categorized as 'fit' beforc considering for promotfon on fhe basis ofseniority. 15. In the case of Dharam Vir Siagh Tomar (supra^ cited by the petitioner fhe Suprcme Court has considercd fhe criteria of seniority subject to fitaess as under: para-2 <t2.Heard oounselfor the appellant^ the coniesting respondent 5 and the Delhi AdmimstratiorL The grievance of the appeUant is that although he was senior to respondent 5 Vcusu Clwmwm, he wcus not placed in the selection grade while Hs juniar was 11 /.' 16. granted that very scale. To support his coniention of semority, our attention was drawn to Anrvexure 4Af appended to the cffidavit of January 4, 1982 ^age 21). That document shows that the appettant was appointed onNovember J, 1972, whereas respondent 5 was appointed on May 1, 1973. This would show that he was semor to respondent 5. It is obviaus from the dctrifioation issued by the Director of Education dated April ^ 1973, Annexure <AAf (page 22) that Selection Grade to teadwrs wcvs to be given on the basis of seruority^ subject to fitness. The expression 'fitness' means that there shcyuld not be any adverse entry in the character rolls of the concemed person at least for the lcust three years and no disdpUnary proceedings shoudd be pending agcdnst Hm. So far as ihe appellant is conoemed indisputably there was rw adverse entry in his CRs nor was any disdplinary prooeeding pending against him ctt the relevant point ojf time. Therefore^ he was dearlyfii to be placed in the Selection Grade and since he was senior to respondent 5, it is dtfficult to understand how his daini was bywpassed,9 In fhe case of Union of India Vs, Ltd. General Rajendra Siagh Kadyaa (supra) the Suprcme Court has further clarified aad iaterprcted fhe criteria of seniority subject to fitness as under - para-12 ttl2. Wherever jztness is stipulaied as ihe bcusis ofselectior^ it is regarded as a rwn-selection post to be filled on the basis of semority subject to rejection ofthe unfit Fitness meansjttness in all respects. ICSenwrity^umrmerit39 posfulates the requirement of certain minimvnt merit or satisfying a benchmark previously fixed. Subjecl tofulfilUng this requirement ihe prorrwtion is based on semority. There is no recjuirement of assessment of oomparative merit both in the oase of semority-cwn-fitness cmd semority'cumrmerit Merit'-cumrsuitahility with due regard to seruority as prescribed in the oase of pronwtion to AlHndia Services neoessarily involves assessment of oomparative merit of all eligible candidcUes, and selecting the best aut ofthem." 12 ^ V 17. It is fherefore evident that fhe serdorily subject to fitaess does not contemplate assessment of coniparative merit of fhe caiididates as fhe fitaess is fhe basis of selection to categorize <fit? on fhe basis of uidividual merits, considered separately. The select Ust is prepared fhereafter on the basis of seniority for promotion to fhe post ofExecutive Engineer. In fhe present case fhe respondents have clearly assessed fhe criteria on fhe basis of fhe coniparative assessinent by recordiag fheir performance as <veiy good', <good> aad <does not meet fhe criteria^ not on their own raerit separatety. 18. In ftie case of Gurdial Singh Fqji (Supra) cited by fhe petitioner, fhe Supreme Court has held as under-para 17 <fl7. The prindple is well-settled that in accordaywe with the rules of natural justice, an aduerse report in a oonfidentidl roll oamwt be acted upon fo deny pronwtional opportumties unless ii is communicated to the person oonoemed so that he has an opportunity to improve his work and conduct or to explcdn the drcumstances lecuSing to the report. Such an opportumty is not an empty formality, its object^ partiaUy^ being to enable the superior authorities to dedde on a consideration ofthe explcmation offered by the person concemedy whether the adverse report is justified Unfortunately^ for one reason or cmjoiher^ not arising out of cmy fauli on the part of the appeUant^ though the adverse report was conunumoated to him, the Govemment has not been able to consider lus explcmation cmd dedde whether the report was justified.v 19. In fhe case of Union of India Vs. E.G.Nambudui (Supra), cited by fhe petitioner, fhe Suprcine Court approves fhe ratio laid down in fhe case of Giudial Siagh Fij|ji (Supr^. 20. Learaed counsel for fhe respondents has relied upon a decision of Supreme Court in. fhe case of U,P.S,C. Vs. K. Rajaiah aiid ofhers, 2005 AIR SCW 3275 for the purpose that the D.P.C. is -^) 13 competent to grade the candidates on fhe basis of ffaeir over aU l^rfomiance, The case ofU.P.S.C. (Supra) was not a case where Rules are speci&c wifh regard to fhe selection of candidates for promotion to the lugher post Le. Executive Engmeer on the basis of<seniority subject to fitaess^ aad as such fhe sanie is not appUcable to fhe facts offhe present case, 21. In fhe case of Badrinafh (Supra), cited by fhe respondents, the Supreme Court has considercd fhe assessment made by fhe Deparfanental PToniotfon Coiainittee ia regard to fhe