SBCWP No. 4904/ 95. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B.CIVIL WRIT PETITION NO.4904/95. Sudhindra Gupta & Ors. VERSUS Raj.Scheduled Castes & Scheduled Tribes Finance Development Cooperative Corporation Ltd. & Ors. Date of order : September 8, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri N.K.Maloo for the petitioners. Shri J.K.Singhi for Corporation. Shri K.K.Sharma for private respondents. **** Reportable BY THE COURT :- This writ petition has been filed by the employees of the Rajasthan Scheduled Caste and Scheduled Tribes Finance SBCWP No. 4904/ 95. 2 Development Cooperative Corporation Ltd., who are working on the post of LDC challenging the promotion granted to private respondents No.2 to 8 on the post of Junior Accountant vide order dated 8/5/1995. During the pendency of the writ petition, originally impleaded respondent No.5 Ajay Kumar Grover resigned from services of the respondent- Corporation and therefore the petitioner sought to delete his name from the array of private respondents. There have thus remained only six private respondents. One of the originally impleaded private respondent No.8, Shri Satya Narain Joshi, now respondent No.7, decided to not to avail the benefit of promotion and SBCWP No. 4904/ 95. 3 did not join the post of Junior Accountant. His matter shall be separately dealt with at the appropriate place. 2) Shri N.K. Maloo, learned counsel for petitioners has argued that the Corporation vide letter dated 28/4/1995 invited applications for promotion to the post of Junior Accountant. Such applications were invited from LDCs and UDCs, working with the respondent-Corporation. 5/5/1995 was the last date for submission of the applications. All the petitioners, except petitioner No.2 applied pursuant to such notice. Three of the petitioners were having qualification of B.Com. whereas, one of them is M.Com. and yet another one is SBCWP No. 4904/ 95. 4 having qualification of M.A. Petitioner No.1 and 2 were at the relevant time were working as UDCs. Vide order dated 28/4/1995, Corporation merely sought to make posting of these employees on the post of Junior Accountant. Subsequently, however, without any process of selection, written test, screening test, interview etc., Corporation issued promotion order in favour of private respondents No.2 to 8 on the post of Junior Accountant in the pay scale of Rs.1400-2600. Promotion granted to respondent No.8 was later cancelled because he was then separately promoted on the post of Stenographer in the vacancy of different year and whose result was declared on SBCWP No. 4904/ 95. 5 different date. Citing from the letter dated 28/5/2999 (Ann.5), learned counsel submitted that five of the private respondents appeared in the written examination conducted by the RPSC for selection of the year 1992 but result was declared on 10/8/1994 whereas one of them appeared in the examination for selection of the year 1990, whose result was declared on 5/6/1993. One of the candidates appeared in the examination of the year 1983, whose result was declared on 25/6/1984. Yet, all of them were promoted on the basis of their appearance and clearance of such examination. Learned counsel submitted that some of the petitioners objected to such a SBCWP No. 4904/ 95. 6 course adopted by the respondent- Corporation. They submitted a detailed representation on 28/3/1995 which is on record as Annexure-4. On their instance, "Vikas Sangh" through its Joint Secretary submitted a representation and demanded that even if promotions are proposed to be made from the post of LDC to that of Junior Accountant, respondent-Corporation should hold a common examination and all the employees should be given opportnity to participate. It was also stated in the representation that Corporation did not proceed in accordance with the directions, employees shall have to approach the court. Learned counsel submitted that in the seniority SBCWP No. 4904/ 95. 7 list of LDC issued on 17/12/1993, names of petitioners appeared at Sr.Nos.4, 11, 15, 19 and 26 whereas names of private respondents No.2 to 7, who have been promoted vide impugned order dated 8/5/1995, appeared at Sr.No.14, 16, 17, 21, 23 and 25, respectively. It is therefore prayed that except petitioner No.5 Narendra Singh, all the private respondents are juniors to all other petitioners. It is contended that while in the impugned order, private respondents have been posted as Junior Accountant by way of promotion. In reply to the writ petition filed by the Corporation, this has been described as an appointment by way of the promotion. Learned counsel in this SBCWP No. 4904/ 95. 8 respect referred to paras 3, 4 & 5 of reply submitted by the Corporation. Learned counsel in this connection also referred to the subsequently filed note-sheet which the respondent-Corporation has produced on record with their subsequent application and argued that initially applications of the private-respondents were processed for the purpose of their posting but eventually they were granted promotion whereas in the letter, which was addressed to individual employees calling them to work, precisely was for their posting. 3) Shri N.K. Maloo, learned counsel for petitioners has also referred to the letter of the Managing Director dated 28/5/1999 which was addressed to Special SBCWP No. 4904/ 95. 9 Secretary to the Government of Rajasthan and argued that in that letter, Managing Director has clearly stated that the criteria adopted by the Corporation at that time was tailor made to suit the private respondents. Rule of reservation and the roster point were not followed. Many of the senior employees were ignored in the matter of promotion whereas junior secured promotion. In that letter, learned counsel submitted that Managing Director also stated that although Corporation does not have its own service rules but for such promotions, it had been adopting the rules applicable to the government servants which have completely been given a go-bye. The candidates who who passed the SBCWP No. 4904/ 95. 10 examination conducted by the RPSC in different years were clubbed together for being promoted. Learned counsel referred to the Resolution passed by the Board of Directors of the respondent- Corporation which is on record as Ann.R/7 with the application subsequently filed by the respondent-Corporation and submitted that Board has subsequently granted its approval to the promotion of the private- respondents and that Managing Director lateron proposed to withdraw the promotion order describing the same as illegal. Learned counsel submitted that the criteria adopted by the Corporation was wholly illegal and arbitrary and if at all SBCWP No. 4904/ 95. 11 Corporation described the promotion order of the private respondents as Junior Accountant as direct recruitment, then also Corporation could not confine opportuunity to participate in the competition for such appointment to the existing employees only. The Corporation in that case ought to have afforded opportunity to the open market candidates as also to the petitioners on equal footings and on the basis of the criteria on which they were required to compete for direct recruitment, a common competitive examination should have been held which would form the basis for their appointment. This was demanded by the petitioners in their representation (Ann.4). It SBCWP No. 4904/ 95. 12 is submitted that unlike in other cases of this nature, petitioners did not apply for appointment without any objection. They merely submitted their applications and were called upon to appear in the written examination, screening test or interview on the basis of such an illegal method adopted by the Corporation. Promotion orders granted to the private-respondents are wholly arbitrary and violative of right to equality of consideration for appointment as Junior Accountant and otherwise also, discriminatory being violative of Articles 14 and 16 of the Constitution of India. Impunged-order of promotion be therefore quashed and set-aside. SBCWP No. 4904/ 95. 13 4) Shri N.K. Maloo relied on the judgment of Supreme Court in Babulal Yadav Vs. High Court of Rajasthan & Ors. : (1998) 6 SCC 621 and Secretary State of Karnataka & Ors. Vs. Umadevi (3) & Ors. : (2006)4 SCC 1. 5) Shri J.K. Singhi, learned counsel appearing for the respondent-Corporation submitted that there were 34 posts of Junior Accountants at the relevant time. Only 18 posts were meant for deputationists from the government, 13 posts were vacant. Despite availability of Junior Accountants with the Government, Junior Accountants were not provided. It was therefore decided to fill in such posts by way of appointment amongst the available SBCWP No. 4904/ 95. 14 employees of the Corporation. Learned counsel submitted that criteria was re-notified, which would be evident from the performa of applications forwarded to each of the employees including the petitioners with their letter dated 28/4/1995. Learned counsel referred to clause 10 of that application form and submitted that 5 of the employees appeared in the competitive examination held by RPSC and as such, whether they have applied for such appointment to the RPSC, if so, in which year and when did appear in examination whether they obtained prior permission of the Corporation to appear in the examination and if they appeared in the examination, whether they SBCWP No. 4904/ 95. 15 qualified in the preliminary and final examination and if so, indicate the marks secured by them and also forward the attested copy of the mark-sheets. Learned counsel submitted that this decision was taken by the Corporation to save the unnecessary burden of paying salary and deputation allowance to the Junior Accountants. Moreover, criteria was adopted which was applied to the case of the petitioners, the petitioners could not be selected because they were not found to clear the examinations conducted by the RPSC for appointment on the post of Junior Accountant or if they appeared, they failed, in those circumstances, petitioners cannot SBCWP No. 4904/ 95. 16 be allowed to question the appointment of the private respondents as Junior Accountant. Learned counsel submitted that word “promotion” was erroneously mentioned in the impugned-order dated 8/5/1995. In fact, it was an appointment. Although, candidates, who came within time were allowed to compete for such appointment. There is no allegation of malafides against any of the officials of the respondent- Corporation. Cases of the petitioners were considered and they were not found eligible for appointment. There cannot be any reason to question the appointment of the private respondents. 6) Shri K.K. Sharma, learned counsel for private respondents SBCWP No. 4904/ 95. 17 adopted the arguments raised by Shri J.K. Singhi, learned counsel for Corporation and further argued that the private respondents, who had already cleared examination conducted by the RPSC, submitted a representation to the respondent- Corporation for their posting as Junior Accountant on the premise that a large number of posts of Junior Accountants were lying vacant and Government was not making Junior Accounts available on deputation to the Corporation. Learned counsel referring from the note-sheet produced by the Corporation before this Court especially paras 9 to 13 of the note-sheet of the Corporation to this Court, submitted that the Corporation after having SBCWP No. 4904/ 95. 18 thoroughly examined their representations, decided to invite applications from not only the candidates having appeared in the examination conducted by the RPSC but also, those who possess qualification of B.Sc./M.Com. or equivalent thereto. Learned counsel referred to audit para contained in para 10 of the aforesaid note sheet and submitted that even the officials of the respondent-Corporation suggested that instead of sending Junior Accounts on deputation, why the Corporation, should not on its own, appoint the Junior Accountants which would save all the unnecessary burden of paying the deputation allowance. It was denied that the criteria was not SBCWP No. 4904/ 95. 19 pre-decided. Learned counsel submitted that the criteria was in fact duly notified to all the candidates when the proforma application was forwarded to each one of them vide letter dated 28/4/1995. Learned counsel submitted that petitioners are estopped from questioning the correctness of the appointment of the private respondents because they themselves participated in the process of selection and failed to qualify. It is contended that there was no illegality in utilizing services of existing employees of the Corporation, who were found qualified for the post of Junior Accountant. Candidates were appointed because Board of Directors resolved to approve SBCWP No. 4904/ 95. 20 their appointment subject to their qualifying therein. Shri K.K. Sharma, learned counsel submitted that criteria adopted by the Corporation was just, fair and reasonable and was applied equally to all concerned. The allegation of discrimination and violation of Articles 14 and 16 of the Constitution of India is therefore totally baseless. It is contended that when there are no rules, Corporation could evolve a suitable criteria and there is no impediment in law in laying down such criteria for appointment by way of executive orders. Learned counsel submitted that arguments that if the post was to be filled in from direct recruitment, process should have been thrown SBCWP No. 4904/ 95. 21 open for all the eligible candidates, cannot be entertained because no one has come forward to challenge the appointment of the private respondents. In fact, respondent-Corporation required the private respondents to give a bond atleast for a period of 5 years which they submitted. As regards the comments made by the Managing Director in the letter addressed to the Government dated 28/5/1999 is concerned, learned counsel submitted that the then Managing Director Shri Yadram Gaur was biased against the private respondents because they made complaint against him to the Chief Minister for which reason, they were subjected harassment at his instance. Being annoyed therefore, SBCWP No. 4904/ 95. 22 he sent an adverse report. Learned counsel submitted that when the appointments of the private respondents were approved by the Board of Directors, matter ought to have been brought before the Board and therefore views expressed by the Managing Director on 28/5/1999 were his personal views and not of the respondent- Corporation. It was contended that petitioners have now secured promotion to the higher post and that their seniority shall be maintained accordingly whereas private respondents Junior Accounts would have a separate seniority. There can be now no question of comparison between them at this belated stage. No interference should be made with SBCWP No. 4904/ 95. 23 the order of appointment of the private respondents on the post of Junior Accountant. 7) Shri K.K. Sharma, learned counsel submitted that in so far as originally impleaded respondent No.7 (now respondent No.8) is concerned, respondent-Corporation has misconstrued the order of this Court dated 18/8/2008 which was made on the application of private respondents No.1 to 5 and not of private respondent No.7. In that order, this Court merely allowed the application of the applicants for payment of salary. While allowing the said application, Corporation was directed to pay salary of LDCs which is being paid to the persons holding that posts including fixation/revision of pay SBCWP No. 4904/ 95. 24 scale etc. Shri Satya Narain Joshi, respondent No.7 had forgone his appointment on the post of Junior Accountant. He was later separately promoted by another order dated 31/5/1995 and appointed on the post of Stenographer. That order was not challenged by any one and is not a subject-matter of challenge in the present writ petition. He had not only received his salary of the post of Stenographer but also his pay was revised from time to time on that post. On the basis of the pay scale of that post, he was also granted benefit of Selection Scale on completion of 9 years of service on 22/6/2005. At this stage, respondent Corporation committed gross illegality by SBCWP No. 4904/ 95. 25 reversing his appointment order and withdrawing the benefits which were already made available to Shri Satya Narain Joshi, respondent No.7 on the post of Stenographer and posting him again on the post of LDC, which was never intention of the order passed by this Court. It is therefore prayed that writ petition be dismissed. 8) I have examined the rival submissions of the parties and perused the material on record. 9) I shall first deal with the argument raised by the respondents that since petitioners themselves have applied in response to the notice dated 28/4/1995 with which the proforma of application was enclosed and wherein it was SBCWP No. 4904/ 95. 26 clearly stipulated that appointment was confined to only those who have either passed the recruitment examination held by the RPSC or who possess the degree of B.Com and/order M.Com. and therefore petitioners having applied in response to the said letter and admitted terms of eligibility so indicated, are now estopped from questioning the correctness of the appointment granted to the private respondents. Petitioners have set up a categorical plea that they submitted representation prior to participation in the process of selection. They submitted representation through Union, which is on record as Annexure-4 dated 28/3/1995. In that SBCWP No. 4904/ 95. 27 representation, it was clearly stated that there was no such procedure whereby respondent- Corporation could grant promotion to the LDCs working with them straightway to the post of Junior Accountant. In the past also, former M.D. promoted one LDC to the post of Junior Accountant and when objections were raised, he was reverted to the original post of LDC. It was demanded that if at all the Corporation intended to make promotion on the post of Junior Accountant, they should hold departmental examination and allow all the existing employees in the Corporation to participate. Unlike other cases of this nature, where plea raised by the respondents would have been SBCWP No. 4904/ 95. 28 upheld, here in the instant case, it is not that the petitioners have participated in the process of selection without any objection or murmur. Except petitioner No.2, others have applied with the said reservation. By reason of fact of mere applying, they are not precluded to question the correctness of the promotion granted to the private respondents. One of the petitioners, Shri N.K. Sharma did not apply as he says that he did not receive communication dated 28/4/1995. This objection raised by the respondents is peculiar fact of the case therefore is liable to be rejected and it is accordingly over ruled. SBCWP No. 4904/ 95. 29 10) The arguments of the parties noticed above and the documents which have been produced by them reveal another significant contradiction in the stand of respondents which is whether; the posting of the private respondents as Junior Accounts was fresh appointment or promotion? Letter dated 28/4/1995 was addressed to all the LDCs working with the Corporation. It was a typed letter in which, names of LDCs were filled in. This letter shows that originally when this typed document was prepared, posting was described as by way of 'promotion' but lateron it was described as 'posting' by over-writing. But when respondent-Corporation issued the order dated 8/5/1995, they SBCWP No. 4904/ 95. 30 categorically described this posting of the private respondents as by way of promotion and stated that after completion of training by them, they would be treated as regular Junior Accountant. Relevant note-sheet in which case of the respondents for promotion was dealt with has been produced by the learned counsel for respondent Corporation. In para 13 of the note sheet, administrative officer proposed this case to be an appointment. In para 19 however, they were merely posted against the post of Junior Accountant by the M.D. which received approval of the Chairman. However, Board of Directors described appointment of the private respondents as by way of SBCWP No. 4904/ 95. 31 promotion. In the impugned-order dated 8/5/1995, as already noticed above, posting of the private respondents as Junior Accountant was clearly described as by way of promotion. In the counter affidavit which, the respondent Corporation has filed before this Court, they have been taking shifting stand. In para 4 thereof, it is submitted that the private respondents were not promoted but simply appointed after inviting applications. Use of word “promotion” according to the respondent-Corporation in the impugned-order was only a misnomer and this happened due to inadvertent mistake. Whether it is taken a case of promotion or direct recruitment, either way, SBCWP No. 4904/ 95. 32 respondent-Corporation could not justify its action in law. It is evident that the respondent- Corporation, when it passed the impugned-order describing posting of the private-respondents as Junior Accountant by way of promotion and if it is taken as a case of promotion then also it is further evident from the facts, which are not disputed that in the last seniority list of LDC issued on 17/12/1993, names of petitioners appeared at Sr.Nos.4, 11, 15, 19 and 26 whereas names of respondents No.2 to 7 appeared at Sr.No.14, 16, 17, 21, 23 and 25, respectively. It would thus be evident that except petitioner No.5 Narendra Singh, whose placement in the seniority list SBCWP No. 4904/ 95. 33 dated 17/12/1993 was at Sr.No.26, all the four petitioners have been superseded in the matter of promotion. 11) While private respondents were found to be fit for promotion, the method and the manner in which the promotion has been granted to them, leave much to be desired. There can be no justification for the respondent- Corporation whatsoever to adopt the criteria of passing the recruitment examination held by the RPSC in different year and therein also the respondent- Corporation has gone to the extent of considering candidates eligible who passed such examination held as far as back as 1983. Some of the private-respondents have SBCWP No. 4904/ 95. 34 qualified the recruitment examination held in 1990 and 1992. Respondent-Corporation attempted to justify their action by pleading that this was a reasonable criteria, which was uniformarly applied to all the candidates and if the Corporation wanted to make excuse of non- availability of staff, no exception can be taken to such a criteria so long as it is not shown that one who was eligible even accoding to this criteria was ignored and that according to respondents, in the absence of rule to the contrary. But according to note-sheet, case of the private-respondents was processed for their promotion, no such orders/instructions have been SBCWP No. 4904/ 95. 35 produced. In the normal course, as has been conveyed to the government by the Managing Director of the Corporation vide letter dated 28/5/1999, rules which are applicable to the government servants are applied to the employees of the Corporation also. There is no denial of the fact that promotion on such post from the post of LDC to that of the Junior Accountant, which is an altogether a separate cadre/source of recruitment for this cadre in the government is 100% by direct recruitment. If plea of the respondents is accepted that it was a case of direct recruitment, then also, action of the respondents cannot be approved of. Being a case of direct SBCWP No. 4904/ 95. 36 recruitment, respondents could not confine process of selection to its own employees alone. In that case, in keeping with the principle of equality in the matter of appointment as enshrined in Article 16 of the Constitution of India, all eligible candidates from open market should have also been allowed to participate in the process of direct recruitment. 12) Contention that since no one has come forward to question the correctness of the appointment granted to the private respondents therefore this argument raised at the behest of the petitioners cannot be entertained and has to be rejected as being wholly misconceived and cannot be therefor countenanced. When matter SBCWP No. 4904/ 95. 37 is brought before this court questioning correctness of action of an authority and in doing so, arguments raised, it would be immaterial as to at whose instance such argument is raised, in case it can otherwise be shown that argument if upheld would result in holding the action of the authority concerned as absolutely illegal and arbitrary. In fact, learned counsel for petitioners has shown that even the Managing Director of the respondent- Corporation at a later point of time has recommended government to cancel entire process in question upholding such contention.