SBCWP5715/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.5715/1997 {Harbhajan Meena Vs. The State of Rajasthan and Others} Date of Order ::: 04.02.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri S.N. Meena with Ms. Madhu Meena, Counsel for petitioner Shri Hari Bareth, Deputy Government Counsel, for respondents #### //Reportable// By the Court:- Petitioner Harbhajan Meena has filed this writ petition challenging order dated 12.09.1996, by which he was awarded penalty of stoppage of two grade increments with cumulative effect, and order dated 21.01.1997, by which his appeal was partly allowed and instead he was awarded penalty of censure. Petitioner also challenged order dated 04.08.1997, by which his review petition was rejected by the Governor of the State. Further prayer has been made by petitioner that respondents be directed to convene review DPC and consider his case for SBCWP5715/1997 // 2 // promotion on the post of Assistant Engineer against vacancies of the years 1995-96 and 1996-97, on the criteria of seniority-cum- merit and merit alone, and promote him with effect from the date his juniors i.e. the respondents No.6 and 7, were promoted. Petitioner was appointed as Junior Engineer with the respondent Department on 11.12.1980; a charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, 'the CCA Rules') was served upon him on 06.09.1993; petitioner filed reply thereto denying the charges. The Superintending Engineer, Public Works Department (Division- VII), was appointed as Enquiry Officer, who, in his enquiry report, found the charges proved, therefore, the disciplinary authority, by order dated 12.09.1996, awarded him penalty of stoppage of two grade increments with cumulative effect. Petitioner filed appeal, which was allowed in part and aforesaid penalty was substituted by penalty of censure. Review petition filed by petitioner against both aforesaid orders, was also rejected by the Governor of the State. Shri S.N. Meena, learned counsel for SBCWP5715/1997 // 3 // petitioner has argued that the enquiry was not conducted in accordance with the provisions of the CCA Rules. The enquiry officer has based his report on the earlier preliminary enquiry report. He held the petitioner guilty of negligence. The enquiry officer proposed the penalty of warning, which was outside of his jurisdiction. The appellate authority, though reduced the penalty, yet did not consider all arguments raised in appeal. The order of appellate authority as well as reviewing authority, thus, are liable to be set-aside. Petitioner was adjudged not suitable for promotion against vacancies of the year 1995-96 on account of pendency of disciplinary enquiry against him, whereas sealed cover procedure ought to have been invoked, which, as per the Government instructions, was not done by respondents. DPC again met on 10.01.1997 to recommend promotions against quota of the year 1996-97, but the petitioner was not promoted whereas many of his juniors were promoted, and reference in this regard is made to pleadings in Para 10 of writ petition. Such juniors were promoted against SBCWP5715/1997 // 4 // both type of vacancies required to be filled in on criteria of seniority-cum-merit as well as merit alone. It is, therefore, prayed that writ petition may be allowed. Learned counsel for petitioner further argued that penalty of censure does not come in the way of promotion and, therefore, the case of petitioner should have been considered ignoring the penalty of censure. Shri Hari Bareth, learned counsel for respondents, opposed the writ petition and submitted that the enquiry officer had conducted the enquiry strictly in accordance with the provisions contained in Rule 16 of the CCA Rules. In fact the petitioner admitted that the work was recorded in the measurement book without being actually inspected and believing the Sarpanch and, therefore, charge against the petitioner were proved, yet the appellate authority took a lenient view of the matter and reduced the penalty of stoppage of two grade increments with cumulative effect to that of penalty of cesure alone. In so far as non-consideration of case of petitioner for promotion against vacancies SBCWP5715/1997 // 5 // of year 1995-96 is concerned, petitioner could not be considered against the vacancies of that year because he did not fall within zone of consideration. However, his case was considered by DPC against vacancies of year 1996-97, but he was not adjudged suitable for promotion and, therefore, he was not promoted. Petitioner therefore cannot complain of his supersession because that was happened on account of his poor service record. Learned counsel, in support of his argument, relied on the judgment of this Court in Het Ram Dudu Vs. State of Rajasthan & Another – 1992 (3) WLC (Raj.) 726 and G.S. Rajawat Vs. Rajsthan Financial Corporation & Others – 1993 (1) WLC (Raj. 117. Similar view was reiterated by the Supreme Court in recently pronounced decision in Harigovind Yadav Vs. Rewa Sidhi Gramin Bank and Others : (2006) 6 SCC 145. Upon hearing learned counsel for parties and perusing material on record, I find that so far challenge made by petitioner to penalty of censure is concerned, same cannot be interfered with because petitioner SBCWP5715/1997 // 6 // has not been able to point out any procedural irregularity, contained in Rule 16 of the CCA Rules in conduct of enquiry. Originally, disciplinary authority awarded penalty of stoppage of two grade increments with cumulative effect, whereas appellate authority substantially reduced the penalty to that of censure. What is actually to be examined is whether penalty of censure can have the effect of denying him promotion against vacancies of year 1996-97, both on the criteria of seniority-cum-merit and merit alone. While, in the case of promotion on seniority-cum-merit basis, seniority has to be given due weightage over merit, whereas in the case of promotion on criteria of merit alone, merit would prevail over seniority. In the present case, respondents have not asserted that there was any other penalty imposed on petitioner or that his service record was otherwise not good; in other words, when respondents do not allege any other adversity in service record of petitioner except penalty of censure, his record has to be accepted otherwise unblemished. Even if case of petitioner could SBCWP5715/1997 // 7 // not be considered for promotion against vacancies of merit quota, he could not be by- passed for vacancies to be filled in by promotion on the criteria of seniority-cum- merit. In other words, on the basis penalty of censure imposed on petitioner, his promotion could not be withheld at-least against vacancies to be filled in on the criteria of seniority-cum-merit. A co-ordinate bench of this court in B.S. Rajawat's case while considering the similar controversy where promotion was denied to 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, held that when criteria was based on merit of those falling within zone of consideration, those who fulfill the yardstick for merit shall have to be promoted. However, when 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 SBCWP5715/1997 // 8 // 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 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. SBCWP5715/1997 // 9 // 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. In B.V. Sivaiash and Others Vs. Kaddanki Babu & 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 Para 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 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 SBCWP5715/1997 // 10 // 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.” In view of what has been discussed above, action of the Respondents/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 for considering the case for promotion on the criteria of SBCWP5715/1997 // 11 // 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. In the result, this writ petition deserves to be partly allowed and it is accordingly partly allowed. The petitioner is held entitled to promotion against the vacancy of the year 1995-96, if his juniors were promoted on the criteria of seniority- cum-merit from such date. The petitioner shall also be entitled to get all the consequential benefits with interest at the rate of 6% per annum. Compliance of this judgment be made within a period of three months from the date its copy is produced before the respondents. (Mohammad Rafiq) J. //Jaiman//