Bikkar Singh vs The State of Punjab and others

P.C. Pandit, J.—This order will dispose of two connected civil writ petitions Nos. 2476 and 2809 of 1966. It was conceded by the Learned Counsel for the parties in C.W. 2609 of 1966 that the decision in Civil Writ No. 2476 of 1966 will cover their case as well. I would, therefore, only deal with the facts of civil writ No. 24/6 of 1966.

This petition under Articles 226 and 227 of the Constitution has been filed by Bikkar Singh and he seeks to quash the promotions of Ved Parkash, Ram Nath and Qimat Rai, respondents 4-6, to the posts of Superintendents in the Education Department of the Government of Punjab.

The petitioner had originally joined the Education Department on 1st of July, 1945 as a clerk in the Government High School, Kot Kapura in the erstwhile Faridkot State. Subsequently, he was promoted as a Head Clerk with effect from 3rd August, 1954. Respondents 4-6 were promoted as Head Clerks on 30th December, 1955, 1st January, 1956 and 21st March. 1960. According to the petitioner, he was senior to all the three respondents. They were promoted as Superintendents on 8th May, 1963, 16th December, 1963 and 21st October, 1966 respectively, without his case being considered for promotion by the Education Department. His seniority was, thus, affected and that is why he filed the present writ petition on 21st of November, 1966 challenging these promotions and restoring his seniority.

It was conceded by the Learned Counsel for the petitioner that no Government servant had a right to promotion. His only tight was to have his case considered for promotion along with others and this right was guaranteed to him under Article 16 of the Constitution. His grievance was that when respondents 4 to 6, who were admittedly junior to him, had been promoted as Superintendents in the Department, his case was not considered by the authorities concerned. The Director of Public Instruction, who is the Head of the Education Department, has filed his affidavit to the effect that the petitioners case was duly considered whenever the promotions were made to the posts of Superintendents. According to him, some persons junior to the petitioner had earned promotions on the basis of their merit and overall assessment. The petitioner was not entitled to promotion as a matter of right, but had to earn it on the basis of his performance. Though the petitioner could net be promoted so far due to overall assessments of his personal file, there was, according to the Director of Public Instruction, no bar to his being considered again for promotion on merits. Even after the return filed by the State, when the counsel insisted that the petitioner''s case was not considered at the time of promotion, I asked the Learned Counsel appearing for the State to show me from the record that the grievance of the petitioner was incorrect. As I have already said, Ved Parkash, respondent No. 4 was promoted on 8th of May 1963. Counsel for the State pointed out from the file that the petitioner''s case was considered at that time and about him it was stated that he would not be eligible to be included in the list for the purpose of selection, as he had earned more than two adverse reports and otherwise also his record was not satisfactory. On 16th of December, 1983, Ram Nath, respondent No. 5, was promoted 35 a Superintendent and at to it time also, the petitioner''s name was considered and since his personal file had been classified as ''C and that of Ram Nath as "+B", the latter was promoted. So far as Qimat Rai, respondent No. 6, was concerned, the Director of Public Instruction had stated that he was selected and temporarily promoted as a Superintendent from 29th June, 1983 to 14th May, 1964 against the post meant for a direct recruit. He was, thereafter, reverted as an approved candidate from outside the. Department joined the said post. As his claim against the post of Superintendent had been established earlier, he had, therefore, been given preference over others in terms of the advice given by the Chief Secretary to Government Punjab, in his letter dated 18th of December, 1965 and that is why he was promoted on 21st October, 1966. The Chief Secretary, in his letter, had referred to the clarification under point III issued with Punjab Government circular letter No. S401 4GS-6I/33117, dated the 8th/llth September, 1961 and had then advised that the official, who officiated as Superintendent from 29th June, l963 to 14th May 1964. would get preference over others. The clarification under point III reads as under :

Point III. Official A is considered unsuitable and official B is suitable for promotion B is promoted but later on, has to revert for want of a vacancy. By the time a vacancy arises, again A too has become suitable. Will this vacancy go to B ?

Clarification :-As the claim B for the vacancy has been established earlier and he has also officiated in the higher post for some time. B should normally get the vacancy in preference to A.

It was contended by the Learned Counsel for the petitioner that when respondent No. 6 was selected and temporarily promoted on 29th June l963. the petitioner''s name was not considered along with him. There is no merit in this contention, because, as I have already mentioned above, when respondent No. 4 was promoted on 8th of May, 196 5, the petitioner''s name was considered and it was said about him that he had learned more than two adverse reports and his record otherwise was also not satisfactory. Similarly when respondent No, 5 was promoted on 16th December, 5963, the petitioner''s name was again considered and he was not found suitable for promotion. Obviously, on 29th of June, 1963, it cannot be held that he was suitable for being promoted in the adhoc-vacancy for which respondent No. 6 had been selected.

It was then contended by the Learned Counsel that the petitioner had been ruled out of consideration on irrelevant and extraneous grounds. This contention again is without any substance. Learned Counsel for the State invited my attention to the personal file of the petitioner where at one place it was mentioned that the petitioner needed improvement in drafting and at another place, it was stated that he did not keep any accounts. It cannot be said that these defects are such which can be called irrelevant or extraneous for considering the promotion of a Head Clerk to the post of a Superintendent in the Education Department. The defects pointed out may or may not be very serious, but one cannot lose sight of the fact that in making selections for promotion, one has to compare the qualifications and the overall assessments of all the candidates.

It is note-worthy that respondent No. 6 was temporarily selected for promotion as Superintendent on 29th June, 1968. This promotion was not challenged by the petitioner and subsequently it was this very promotion which had given respondent No. 6 a superior right for being permanently promoted on 21st October, 1966 according to the advice of the Chief Secretary to Government, Punjab, based on the Government instructions dated 8th/11th September, 1961. No mala fide or bias was alleged against the Chief Secretary in the present case.

Admittedly, no service rules had been framed under Article 309 of the Constitution for regulating the appointments to the posts of Superintends in the office of the Director of Public Instruction. In the absence of such rules, the head of the Department, namely, the Director of Public Instruction is entitled to apply his own judicious mind in making selections to higher posts. The petitioner has not made any allegation of bias or mala fides against the said official. The Government, in order to have a uniform standard in making these selections, had issued instructions from time to time. In the instant case, the Director of Public Instruction along with the Deputy Director, Schools Administration and the Establishment Officer of the Department held a meeting and considered the cases of the petitioner and other candidates. When the selection is made, it is obviously the subjective satisfaction of the Director of Public Instruction and the same is not justifiable and not subject to the judicial review of this Court under Article 226 of the Constitution, unless such selection is either mala fide or based on irrelevant or extraneous considerations. A comparative assessment of the various candidates based on their personal files and overall assessment of their work and conduct, has to be made by the said officer. Even if this Court was inclined to take a different view, it could not substitute its own opinion in place of that of the officer concerned. In my view, it would be difficult to run any administration if one were to hold otherwise. It is undisputed that no Government servant has a right to promotion. All that he can claim is that his case should also be considered along with the others at the time of promotions. When once this Court comes to the conclusion that his case was so considered, he has no right to come to this Court under Article 226 of the Constitution and get the selection made by the appropriate authority quashed by asking this Court to substitute its own opinion for that of the officer concerned, unless, as I have said, he could prove that the officer concerned was baised against him and he had made the selection on extraneous considerations. No such thing has been proved in the instant case.

The result is that this petition fails and is dismissed, but with no order as to costs.