Narinder Kaur Sethi vs Union of India

Hemant Gupta, J.—Challenge in the present writ petition is to an order passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short ''the Tribunal'') on 28.10.2010, whereby an original application filed by the petitioner for promotion to the post of Head of Department (Modern Office Practice), Government Polytechnic for Women, Sector-10, Chandigarh, was declined.

The petitioner was initially appointed as Instructor in the Government Polytechnic for Women, Sector-10, Chandigarh in the year 1978. She was promoted as Junior Lecturer in the year 1984 and was granted the status of Lecturer in the year 1992. Thereafter, the petitioner was given officiating charge of Head of Department (Modern Office Practices) in the year 1997 and also the officiating charge of Principal in the year 2009. Though the earlier challenge to the grant of officiating charge of Principal to the petitioner remained successful before the Tribunal, but such charge was taken away from the petitioner on 10.09.2009 and given to Smt. Vin Dosajh. In a challenge to the said order, the Tribunal directed the official respondents to hold a meeting of the regular Departmental Promotion Committee to consider the cases of those persons including the petitioner, who were holding the charge of officiating Head of the Department for regular promotion as such. In terms of such direction, a Review Departmental Promotion Committee was held on 28.05.2010, but the petitioner was not promoted.

The challenge to the decision of the respondents not to promote the petitioner as Head of the Department (Modern Office Practices) remained unsuccessful before the Tribunal. Still aggrieved, the petitioner invoked the writ jurisdiction of this Court by way of present petition.

At the outset, both the learned counsel for the parties admit that in the matter of promotion, the rules and instructions as issued by the Government of Punjab are applied mutatis mutandis by the Chandigarh Administration. In support of the claim that the petitioner is eligible to be promoted, but has been arbitrarily ignored from promotion, reliance is placed upon Circular dated 06.09.2001 (Annexure A-5) issued by the Punjab Government (Department of Personnel), which has been adopted by the Chandigarh Administration vide letter dated 12.05.2009, wherein it was observed as under:

Since the conditions of service of UT employees are to be governed by the same rules and orders as are for the time being applicable to the employees of the Punjab Government, it is clarified that the above said provisions contained in rule 18 of the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 and the instructions dated 06.09.2001 are to be followed in case of promotions in UT Chandigarh.

A perusal of the Circular dated 06.09.2001 shows that such instructions were to modify the instructions contained in Circular dated 29.12.2000. It was also observed that the Punjab Service (Appointment by Promotion) Rules, 1962 have become obsolete and necessary action to repeal these rules is being taken separately. The said Circular also provides marks to be given for evaluation of the ACRs as well as the bench-mark for promotion. The relevant extract from the Circular dated 06.09.2001 reads as under:

(c) It has been decided to retain the number of marks of evaluation of ACRs as contained to the instructions dated 29.12.2000, which is as under:

ACRS for the last 5 years are to be taken into consideration for promotion. The criteria for promotions will be as under:

(1) The case pertaining to the promotion as Head of Departments would be decided strictly on the basis of merit-cum-seniority. The minimum bench mark for promotion for such posts would be ''Very Good''. The marking system adopted earlier in instructions dated the 29th December, 2000 would be followed and a minimum of 15 marks would be required to be considered as very good. The officer, who is graded as outstanding would supersede the officer graded as very good.

(2) For promotion to posts falling in Group ''A'' other than Head of Departments, the minimum bench mark will be Very Good with at least 12 marks. Amongst those meeting this criteria, there would be no supersession.

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Learned counsel for the petitioner refers to a subsequent clarification issued by the Government of Punjab, Personnel Department on 10.05.2010 (Annexure A-9), which reads as under:

PUNJAB GOVERNMENT PERSONNEL DEPARTMENT P.P. 1 BRANCH

Subject: Regarding Departmental Promotion Committee Meeting for promotion of Officers belonging to different categories.

Your kind attention is drawn towards the Principal Secretary, Punjab Government I.O.N. No. 2/210/09-ITE2/1726 dated 26.04.2010 on the subject noted above.

On the subject noted above, on perusal of the clarifications issued, it has been mentioned that promotions are being considered on merit-cum-seniority basis while referring to Punjab Services (Appointment by Promotion) Rules, 1962, whereas it has been clarified vide this Department instructions dated 06.09.2001 that for the promotion of Head of the Department, criteria of merit-cum-seniority has to be followed. However, on perusal of agenda sent by Technical Education Department, it transpires that by treating the post of Head of the Trade as Head of the Department, recommendation has been made to make promotions on the basis of merit-cum-seniority, which is not correct. Besides this all other posts falling under the category of Group ''A'' could be filled up on the basis of seniority-cum-merit by having the Bench Mark of the very good. AD has not given complete panel to the DPC which is required. Therefore, Administrative Department on perusal of this clarification, may decide once again to hold DPC Meeting after 15 days.

Sd/- Superintendent

To Principal Secretary to Punjab Govt. Technical Education and Industrial Training Department, (Technical Education-2 Branch)

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Learned counsel for the petitioner also refers to two proceedings i.e. one of the Punjab State Board of Technical Education, wherein Head of the Department, MOP, has been promoted, who has fulfilled the bench mark of 12 marks as also the Minutes of the Departmental Promotion Committee dated 29.05.2008 (Annexure A-1) regarding promotions to the post the Heads of the Department in the Government Polytechnic, wherein the candidates, who have obtained 12 marks on the basis of all the ACRs were found suitable for promotion.

The argument of learned counsel for the petitioner is based upon Circular dated 10.05.2010, wherein distinction has been drawn between the Head of the Department of a Trade and Head of the Department in a Polytechnic. The argument of learned counsel for the petitioner is that ''Modern Office Practice'' is a Head of the Department of a Trade, therefore, para 2 of the Circular dated 06.09.2001 would be applicable, wherein the bench mark is 12 marks on the basis of grading in the ACRs, therefore, the petitioner is eligible for promotion.

On the other hand, the argument of learned counsel for the respondents is that the promotion is to the Head of the Department, the basis of which is merit-cum-seniority. One who obtains 15 marks alone will qualify the bench mark and eligible for promotion. Therefore, the petitioner was rightly not promoted as Head of the Department.

A perusal of Rule 3 of the Punjab Services (Appointment by Promotion) Rules, 1962 (for short ''the Rules'') shows that where appointment to any Scheduled post is required under the Service Rules to be made by promotion, then, notwithstanding anything to the contrary contained in such rules, the appointment by promotion to such post shall be made by selection on merit. The Department of Technical Education is reflected at Sr. No. 36 of the Schedule, which reads as under:

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The argument that Head of the Department of a Trade is different from the Head of the Department as contemplated in Circular dated 06.09.2001 is misconceived. The Head of the Department in a Polytechnic is a post specified in Punjab Services (Appointment by Promotion) Rules, 1962. The Head of the Department of a Trade is a non-existence post in the said rules. A perusal of extract of 1962 Rules shows that a Principal of a Polytechnic and Head of the Department of a Polytechnic are the posts, which fall in the Schedule, which are required to be filled on the basis of merit. Circular dated 06.09.2001 has been issued pending repeal of 1962 Rules. The said Circular shows that the promotion as Head of the Department would be strictly on the basis of merit-cum-seniority, the bench mark for promotion being ''Very Good'' and that a candidate must obtain minimum of 15 marks. The post of Head of Department is a post in terms of The Punjab Department of Technical Education and Industrial Training (Technical Education Wing) Group-A Service Rules, 2001. In terms of Rule 7(3) of such Rules all the posts except at Sr. Nos. 1, 2, 3, 4, 5 and 8 of Directorate Cadre and Sr. No. 29 of Institute Cadre (Polytechnic) as contained in Appendix ''A'' in the Service shall be deemed to be the Scheduled Posts within the meaning of the Punjab Services (Appointment by Promotion) Rules, 1962 and all appointments to a post in the Service by promotion shall be regulated as per provisions contained in the aforesaid rules.

None of the parties have drawn our attention to any other statutory Rule applicable to fill up the post of the Head of the Department in a Polytechnic in the Chandigarh Administration. In the absence of any other Rule, the basis of consideration for promotion is merit and that the merit is to be determined as the parameters specified in the circular. In fact, the admitted position is that the promotion process is based upon the circular dated 6.9.2001. Thus, we find that the bench mark for the post in question is 15 marks, as the bench mark is meant for the post of Head of the Department.

The other argument of learned counsel for the petitioner is that the anomalous situation has been created by the respondents, wherein the bench mark of the Head of the Department is considered to be 15 marks, whereas in respect of Principal, it is Clause (2), which is applied, wherein the bench mark is 12 marks.

We do not find any merit in the said argument as well. It is not disputed that Principal is a promotional post, which is required to be filled in from amongst the Heads of the Department. In our view, Clause (2) applies to the post in Group ''A'' other than the post of Head of the Department or the higher post for which the minimum bench mark would be 12 marks. For the post of Head of the Department or the higher post of Principal, the bench mark is of obtaining 15 marks leading to grade ''Very Good'' so as to be eligible for promotion. The post of Principal though falls in Group ''A'', but is not a post, which is covered under Clause (2). Clause (2) pertains to the post which is lower than the post of the Head of the Department, which are covered under Clause (1) of the Circular. For the posts of the Head of the Department and Principal, 1962 Rules contemplates the rule of promotion is merit. The merit has to be determined in terms of Circular dated 06.09.2001. Clause (2) of the Circular dated 06.09.2001 would be applicable for promotion to other post i.e. other than the post of the Head of the Department and for Principal falling in Group ''A''. For the post of the Head of the Department and higher posts, it would be Clause (1) of the Circular, which will be applicable.

We also find that clarification referred to by the petitioner (Annexure A-9) is not in modification of the Circular dated 06.09.2001, but a clarification issued by the Personnel Department to the Technical Education Department. It appears that such Circular has created misgivings inasmuch as the post of Head of the Trade has been considered to be separate as Head of the Department. The circular issued in respect of a specific query. It was not issued for circulation amongst all the departments of the State Government. For the said reason, such communication cannot be treated to be as a modification of the Circular dated 06.09.2001.

Still further, reliance on two proceedings for promotion in the Punjab Government cannot form a precedent for promotion in the Chandigarh Administration. Any interpretation of the guidelines by the functionaries of the State Government will not be binding on the Chandigarh Administration. It is the guidelines, which are required to be interpreted by the Chandigarh Administration in its own wisdom. We find that interpretation of the Chandigarh Administration that the bench mark for the post of Head of the Department falls in Clause (1) and a candidate can be said to have qualified only if he obtains 15 marks cannot be said to be unjustified.

In view of the above discussion, we do not find any illegality in the order passed by the Tribunal, which may warrant any interference by this Court in exercise of its writ jurisdiction.