Lal Chand Pargal vs Director CD and MES and others

S.M. Fazl Ali, C.J.—A number of writ petitions challenging the promotion of the respondents had been filed in this Court which were

referred to a Full Bench for the purpose of deciding the considerations which should govern the appointing authority in making promotion under R.

25(2) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. The matter was decided by a Full Bench

consisting of myself, Bhat and Anant Singh, JJ. by our decision dated 24th April, 1969 in Writ Petns. Nos. 61, 87, 88, 126 and 127 reported in

Lal Chand Pargal and Others Vs. Director NES and Others, . After deciding the point we sent the writ petitions back to the single Judge for

disposal on merits in the light of the opinion given by the Full Bench. When these cases went back to Bhat, J. for decision on merits, the Advocate

General raised a preliminary point before him that our later Full Bench decision could not take precedence over a previous Full Bench decision of

the same strength. The learned Judge felt himself unable to decide this question because both the Full Benches consisted of three Judges.

The only point on which the reference has been made to us is regarding the answer given by the Full Bench to Question No. 2 which was

formulated by the Bench thus:-

Whether or not the appointing authority is required to give reasons for making a promotion, and if so, to what extent?

The Full Bench in the present case was of the opinion that in view of the explicit language of Rule 25(2) it was incumbent on the appointing

authority to give reasons and record the grounds for making promotion when a senior employee had been superseded. In this connexion the Full

Bench made the following observations:-

The words 'shall be made on the ground of merit and ability' clearly postulate that the order of the appointing authority must show ex facie that the

considerations mentioned in the rule were present in the mind of the appointing authority at the time of making promotions and the word 'ground'

implies that these considerations should be stated in the order so that anybody reading the order may know that action has been taken under Rule

25(2) of the Rules.

x x x x x x x x

Where the order of promotion specifies the grounds mentioned in Rule 25(2), there can be no confusion on this account and the order of

promotion being a speaking order would apprise the Government servant of the actual situation.

It is true that in the earlier Full Bench decision of this Court in Dr. Shanker Nath Ganju Vs. State of Jammu and Kashmir, it was held that it was

not necessary for the appointing authority to record any reasons at the time of making promotions when a senior person was superseded by a

Junior employee. Our later Full Bench, however, considered the previous Full Bench decision and pointed out that some of the important aspects

which had been considered by this Full Bench were overlooked by the previous Full Bench decision in Dr. Shanker Nath Ganju Vs. State of

Jammu and Kashmir, , Since the present Bench is of a larger strength than the Full Bench in Lal Chand Pargal and Others Vs. Director NES and

Others, or the Full Bench constituted in Dr. Shanker Nath Ganju Vs. State of Jammu and Kashmir, , it is not disputed that we can overrule the

previous Full Bench decision of three Judges. After having heard arguments of the parties and having gone through the Full Bench Judgment in this

very case, we find ourselves in agreement with the view taken by us in Lal Chand Pargal and Others Vs. Director NES and Others, , but the view

expressed by us needs some clarification. The reason that impelled us for holding that the language of Rule 25(2) implies that reasons for by

passing a senior employee must be given by the appointing authority was that the appointing authority must apply its mind to the promotion of a

Government servant in a given case and the record must show that the authority had actually applied its mind. Promotions are matters of moment

and cannot be treated as a casual or routine affair. The words 'on the ground of merit and ability' appearing in Rule 25(2) clearly enjoin on the

appointing authority a fair and objective application of its mind at the time of making promotions. Even if the appointing authority does not record

reasons in the order, it will be a sufficient compliance with the provisions of Rule 25(2) of the Rules (Supra) if the contemporaneous or anterior

record on the basis of which the order of promotion is passed by the appointing authority clearly shows that reasons have been given for

promotion and that the appointing authority has applied its mind by proceeding on the basis of such record which contains the grounds for

promotion. We, therefore, clarify our Full Bench decision in Lal Chand Pargal and Others Vs. Director NES and Others, accordingly.

In the view that we have taken in this case, the earlier Full Bench decision of this Court in Dr. Shanker Nath Ganju Vs. State of Jammu and

Kashmir, is hereby overruled. When we have mentioned the fact that the record on the basis of which the promotion is made must be in the nature

of a speaking order we do not mean to suggest that the fact that grounds for promotion were disclosed can be proved by a record prepared at a

much later stage and long after the promotion is made. Either the order of promotion must be a speaking order or if the appointing authority does

not choose to give reasons, then the record prepared before the time of promotion must clearly disclose the grounds on which promotion has been

made. The Advocate General contended that if we take the view that in all cases the order of promotion must be a speaking order, and reasons

must be given by the appointing authority, it may in most cases work serious injustice. We feel there is some force in the contention of the

Advocate General, and we hold therefore that where the appointing authority because of its preoccupations is not in a position to give detailed

reasons in the order, it must see to it that the note or the record on the basis of which it applies its mind for promotion contains the necessary

grounds as contemplated by Rule 25(2) and as explained in detail by us in the previous Full Bench judgment in Lal Chand Pargal and Others Vs.

Director NES and Others, .

We therefore, answer the question referred to us accordingly. The case will now go back to Bhat, J. for decision on merits in the light of the

observations made above.

J.N. Bhat, J.

I agree.

Jaswant Singh, J.

I agree.

Jalal-Ud-Din, J.

I agree.