IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 18397-CAT of 2007 Date of Decision: October 28, 2010 Ashok Kumar …Petitioner Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR. HON'BLE MS. JUSTICE RITU BAHRI. Present: Mr. Parveen Kumar Garg, Advocate, for the petitioner. Mr. Aman Chaudhary, Advocate, for respondent Nos. 2 to 5. Mr. V.K. Sharma, Advocate, for respondent No. 17. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This petition filed under Article 226 of the Constitution challenges order dated 6.7.2007 (P-1), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’), dismissing the Original Application filed by the applicant-petitioner. The applicant-petitioner has also questioned orders dated 12.7.189 and 28.8.1990 (P-6 & P-10) whereby he has not been selected for promotion to the post of Inspector allegedly in contravention of instructions dated 10.4.1989 (P-5). Still further, the applicant-petitioner has also challenged orders dated 17.11.1999 and 24.7.2001 (P-18 and P-25) passed by C.W.P. No. 18397-CAT of 2007 the official respondents rejecting his claim. A mandamus has been sought commanding the respondents to promote him to the post of Inspector with effect from 12.7.1989 along with all consequential benefits. 2. Facts may first be noticed. The applicant-petitioner joined the respondent department as Lower Division Clerk on 5.5.1977. After qualifying departmental examination he was promoted as Upper Division Clerk with effect from 25.8.1982 and further as Tax Assistant in the year 1988. The service of the applicant-petitioner is governed by the statutory rules, known as ‘The Central Excise and Land Customs Department Group ‘C’ Posts Recruitment Rules, 1979 (for brevity, ‘the Rules’). As per the Schedule attached with the Rules, the post of Inspector is a selection post and it can be filled in by direct recruitment and by promotion in the ratio of 75% : 25% respectively. As per column (12) of the Schedule in case of recruitment to the post of Inspector by promotion, the selection could be made in the following manner: “Promotion: By selection from amongst: (i) Upper Division Clerks/Steno Grade-III with 5 years service. (ii) Upper Division Clerks with 13 years of total service as Upper Division Clerk and Lower Division Clerk taken together subject to the condition that they should have put in a minimum of two years service in the grade of Upper Division Clerks; (iii) Stenographers (Gr. II) with 2 years service. (iv) Stenographers (Grade II) or Stenographers Grade III) with 12 years service as Stenographer/Upper Division Clerk and Lower Division Clerk if any taken together subject to the condition that they should have put in a minimum of two years service as 2 C.W.P. No. 18397-CAT of 2007 Gr. III Stenographer or Upper Division Clerk. (v) Women Searcher with 7 years service in the grade.” 3. The candidates are also required to possess certain physical standards and pass physical tests as also to pass through an interview before promotion. It is also conceded position that the post of Tax Assistant has equivalence to the cadre of Upper Division Clerk. It is claimed that the applicant-petitioner has passed the departmental examination held on 20.12.1984 and 21.12.1984 for the post of Inspector by obtaining 61 Marks in the First paper and 63 marks in the Second Paper (P-2). He also possessed more than 5 years of regular service in the cadre of UDC/Tax Assistant. In the seniority list of the ministerial staff of Chandigarh Branch as it stood on 1.1.1988, which was circulated on 20.1.1988, the name of the applicant-petitioner figures at Serial No. 50. 4. Government of India has been issuing instructions from time to time concerning the procedure to be adopted by the Departmental Promotion Committee (DPC). In that regard, instructions dated 30.12.1976, which were in force prior to 1989, have been placed on record as Annexure P-3. In the said instructions, under the heading of ‘Procedure to be observed by DPC’, following procedure has been stipulated where promotions were to be made by selection: “VI. Procedure to be observed by DPC 1. xxx xxx xxx 2. Selection Method:- Where promotions are to be made by selection method as prescribed in the recruitment rules, the field of choice viz., the number of officers to be considered should ordinarily extent to 5 or 6 times the number of vacancies expected to be filled within a year. The officers in the field of selection, excluding those considered unfit for promotion by the Departmental Promotion 3 C.W.P. No. 18397-CAT of 2007 Committee, should be classified by the Departmental Promotion Committee as Outstanding, Very Good and Good on the basis of their merits as assessed by the DPC after examination of their respective records of service. In other words, it is entirely left to the DPC to make its own classification of the officers being considered by them for promotion to selection posts, irrespective of the grading that may be shown in the CRs. The panel should, therefore, be drawn up to the extent necessary by placing the names of the Outstanding officers first, followed by the officers categorized as Very Good and followed by the officers categorized as Good. The inter-se-seniority of officers belonging to any one category would be the same as their seniority in the lower grade.” 5. On 10.3.1989 (P-5), the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi, further issued detailed guidelines clarifying/modifying certain aspects of the procedure to be followed by the DPC. The said guidelines were made effective from 1.4.1989. Thereafter, the Government of India further updated the guidelines on 10.4.1989 and 20.6.1989 (P-5/1 & P-5/2). 6. The primary grievance of the applicant-petitioner is that his case for promotion to the post of Inspector was considered by the DPC held on 26/27.6.1989 but erroneously without following the procedure prescribed by the instructions dated 10.4.1989, the DPC found him not fit for promotion, whereas certain handicapped candidates, who were not even eligible for the post of Inspector were promoted. The office order dated 12.7.1989, promoting the selected Tax Assistants, Stenographers Grade-II, Stenographers Grade-III and Upper Division Clerks has been placed on record (P-6). The applicant-petitioner 4 C.W.P. No. 18397-CAT of 2007 again appeared before the DPC held on 27.7.1990 and he was again ignored (P- 10). 7. Feeling aggrieved, the applicant-petitioner made representations on 16.10.1990, 3.12.1990 and 4.12.1990 seeking review of the DPC (P-11 to P-13 respectively). Eventually, vide order dated 17.11.1999, it was conveyed to the applicant-petitioner that in the DPC meetings held on 26/27.6.1989 and 27.7.1990 his case for promotion to the post of Inspector was considered but he was not found fit, accordingly, his representations were rejected (P-18). The applicant- petitioner after making representation dated 22.11.1999 and reminder dated 7.4.2000, filed O.A. No. 962/PB/2000 before the Tribunal seeking quashing of order dated 17.11.1999. The Tribunal disposed of the said OA directing the respondents to take a decision on the representation of the applicant-petitioner, vide order dated 29.1.2001 (P-22). On 24.7.2001, the respondents again rejected the claim of the applicant-petitioner (P-25). Thereafter the applicant-petitioner again filed OA No. 87/PB/2002. The Tribunal vide order dated 28.11.2002, dismissed the Original Application on the ground that it was hit by Section 21 of the Act and barred by limitation. Challenging the said order, the applicant- petitioner filed CWP No. 8143-CAT of 2003 in this Court and the Division Bench remanded the matter back to the Tribunal, vide order dated 28.7.2005 to reconsider the issue of limitation. The Tribunal again dismissed the OA vide order dated 6.7.2007, which is subject matter of challenge in the instant petition. The view of the Tribunal is discernible from para 15 of its order, which reads thus: “15. We find that the entire claim of the applicant is based on the procedure provided in the general instructions whereas in this case there are specific instructions of the department which have been followed by the respondents for quite some and have stood test of 5 C.W.P. No. 18397-CAT of 2007 time. In the face of availability of these specific instructions, the general instructions have no role to play, except where these specific instructions are silent. As already discussed above, under the instructions followed by the department, promotion of ministerial officers to the executive grades is not in their direct line of promotion and the nature of duties performed by the executive officers is also entirely different from that of ministerial officers. This requires that only such persons from ministerial side are selected for appointment who have the flair for executive type of work and to ensure this process of interviewing the candidates has been adopted. The usual practice adopted by the committee of perusing simultaneously the CCRS of the officers at the time of interview, was done away with indicating that the CCRS of the officers should not be seen by the members of the committee before or alongwith the interview and they should record their assessment on the candidates whether they are fit or unfit. The committee is to see the service record of only those officers whom they consider suitable for appointment as Inspector, after interview proceedings are over and grade them as ‘outstanding’, ‘very good’ and ‘good’ on the basis of their overall record of service as in the case of their promotion to ‘selection’ posts on the ministerial side. In this case all the aspects are seen i.e. eligibility of a candidate, performance in interview in which the fitness or otherwise of a particular candidate is recorded and if one is found fit only then his service record is seen. We do not find any fault if such action taken by the respondents. Moreover, the general instructions itself provide that each DPC has to evolve its own criteria. The DPC in this case 6 C.W.P. No. 18397-CAT of 2007 has followed its own criteria in terms of the instructions issued by the department and one cannot find any illegality in such course of action. Moreover, the applicant himself not stands promoted as inspector by application of the same criteria in 1991.” 8. The Tribunal also rejected the argument raised on behalf of the petitioner that his service record has been either Good or Very Good as he was never conveyed any adverse entry holding that he was denied promotion on the ground that he did not secure enough marks in the interview. Once the petitioner did not qualify in the viva-voce, he could not be regarded to have reached the bench mark fixed by the Selection Committee as per the instructions. The Tribunal also rejected the argument that Shri G.S. Bir, who was Administrative Officer, was sought to be protected by respondent No. 4. The aforesaid plea having been specifically denied by respondent No. 4, the Tribunal found that the allegation has remained unsubstantiated, especially when he was not found fit for promotion by the Departmental Promotion Committee. Likewise, the argument that respondent No. 4 should not have participated in the DPC proceedings, has also been rejected because the composition of DPC has been found to be in accordance with the Central Excise and Land Custom Department Group ‘C’ Recruitment Rules, 1979. According to the Rules, Deputy Collector (Headquarters) [now re-designated as Additional Commissioner (P&V)] has to be one of the members of the DPC for promoting the officer to the post of Inspector. 9. The argument that the instructions did not provide for personal interview as a necessary feature of the selection process has also been rejected by the Tribunal by holding that the opening line of the para itself provides that each DPC should decided its own method and procedure for objective assessment of the suitability of the candidates. The Tribunal also noticed the explanation tendered 7 C.W.P. No. 18397-CAT of 2007 by the respondents that promotion to the post of Inspector is not in direct line from ministerial cadre and that it was required to be ensured that only those persons from ministerial side are selected for appointment who have the requisite flair for executive work. In order to achieve the aforesaid purpose an assessment in regard to the characteristics which go into making of assessment of an executive could go only by interview the candidates. The Tribunal has opined that such an element would fall within the term ‘extra ordinary’. 10. We have heard learned counsel for the parties at considerable length. It is undisputed that the promotion from the post of Tax Assistant to the grade of Inspector is on the basis of selection and not on the basis of seniority alone or on the basis of confidential record alone. By virtue of instructions dated 10.3.1989 (P-5/1), the Selection Committee is empowered to devise its own criteria so as to ensure that the executive posts are manned by those ministerial officers who have flair to discharge the nature of duties attached to the post of Inspector. Therefore the Tribunal has rightly held that allocation of marks for interview was a necessary feature of the selection process. The selection criteria is comprised of written test, physical test, interview and CCR. The DPC was convened in accordance with the instructions dated 10.4.1989 (P-5) and 10.3.1989 (P-5/1). 11. It has come on record that the petitioner stand promoted on the post of Inspector in accordance with the procedure envisaged by the instructions which were prevalent at the time of meeting of DPC, held on 27.6.1989 and on 26.7.1990. In the selection process held in 1989, the names of 77 candidates to fill up 41 vacancies in the grade of Inspector were considered. The name of the petitioner had appeared at Sr. No. 49 of the consideration list and he was not found fit by the DPC for selection to the post of Inspector. The DPC again met in 1990 and considered the name of 24 candidates for 10 vacancies of Inspector. The 8 C.W.P. No. 18397-CAT of 2007 name of the petitioner again was considered and was not found it during the interview. However, he was found fit in the DPC held on 5.9.1991 and was promoted on 9.9.1991. 12. The argument raised by the learned counsel for the petitioner based on the instructions dated 13.12.1976 (P-3) would not require any detailed consideration because these instructions issued by the Department of Personnel are general instructions, which would not have any application in the face of the specific instructions regulating the selection in the Department of Excise and Customs, which are dated 10.4.1989 and 10.3.1989 (P-5 & P-5/1). Therefore, the argument that the selection method provided by general instructions should have been followed, has to be rejected because such instructions cannot take the place of specific instructions issued by the Department of Excise and Customs governing the selection of Inspectors. Moreover, it is on the basis of the instructions dated 10.3.1989 and 10.4.1989 that the petitioner has eventually been selected and promoted as Inspector on 9.9.1991. Therefore, we find no merit in the aforesaid argument. 13. As a sequel to the above discussion, this petition fails and the same is dismissed. The view taken by the Tribunal is affirmed. (M.M. KUMAR) JUDGE (RITU BAHRI) October 28, 2010 JUDGE Pkapoor 9