Satish Virha vs State of M.P. and others

Sanjay Yadav, J.—Petitioner, an Assistant Grade II in the Department of Transport, Government of Madhya Pradesh, vide this petition seeks quashment of appointment of respondent Nos. 4 to 6 on the post of Transport Sub Inspector (Non-Technical) on the ground that the select list was not prepared by taking into consideration the proper and objective assessment of A.C.Rs of preceding 5 years. The petitioner further seeks direction to respondent State of Madhya Pradesh and its functionaries, to prepare the list afresh as per instructions contained in the communication dated 7.4.1998 and 29.7.2000 (Annexure P/4 and P/5 respectively). Relevant facts briefly are that, the petitioner, an Assistant Grade II belonging to Schedule Caste became eligible for selection to the post of Transport Sub-Inspector (Non-Technical), Department of Transport to be filled in by special recruitment drive carried out for backlog vacancies under limited departmental scheme.

The Rules which governs such recruitment are the M.P. Transport Department Subordinate (Class III Executive) Service Recruitment Rules, 1969 (Referred as the Rules). These Rules are framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India.

As per Rule 11 (A) of the Rules employees from Transport Department belonging to ministerial cadre are eligible for appointment on the post of Transport Sub Inspectors through limited Departmental Examination. Rule 11 A of the Rules is in following terms:

11 (A) Direct recruitment by selection the post of Transport Sub Inspector from Ministerial Service through limited competitive examination - (1) For filling up the posts of Transport sub-Inspector by selection from amongst the ministerial services of the office of the Transport Commissioner and subordinate offices under him, the appointing authority shall hold annually, at such time, as he may determine, a limited competitive examination in accordance with the scheme laid down in Scheduled IV.

(2) 16 and 20 percent of available vacancies in the above reserved quota shall be reserved for candidates who are members of scheduled castes and scheduled tribes, respectively.

(3) In filling the vacancies so reserved, candidates who are members of scheduled castes and scheduled tribes shall be considered for appointment in the orders in which their names appear in the list referred to in sub-rule (5) irrespective of their relative rank as compared with other candidates.

(4) If a sufficient number of candidates belonging to the Scheduled castes and Scheduled tribes are not available for filling all the vacancies reserved for the remaining vacancies may be filled from other candidates who have been declared successful in the limited competitive examination. The unfilled vacancies reserved for scheduled castes and scheduled tribes shall lapse.

(5) List of suitable candidates recommended for appointment:- A list arranged in order of merit of the candidates, who have qualified by such standard, as has been laid down in scheduled VI, and of the candidates belonging to Scheduled Castes and scheduled tribes who though not qualified by that standard and declared by committee/ appointing authority to be suitable for appointment with due regard to the maintenance of efficiency of administration shall be prepared.

(6) Subject to the provision of these rules, candidates shall be considered for appointment to be available vacancies in order in which their names appear in the list.

(7) The inclusion of a candidate''s name in the select list confers no right to the appointment, unless the appointing authority is satisfied, after such inquiry as may be considered necessary that the candidate is suitable in all respect for appointment to the service.

That, in furtherance to aforesaid provision a Special Recruitment Drive to fill in the backlog vacancies through limited Departmental Examination comprising of written test and interview was taken recourse to. The written test was held on 20.6.1993. Under the scheme the candidate to be eligible for interview was required to have 50% minimum in the written test and the select list was to be prepared by adding the marks of their character report of preceding five years in the scale of Rs. 100 marks, such as:

Very Good

(Ka)

20 marks

Good

(Kha)

15 marks

Average

(Ga)

10 marks

As per the petitioner despite of his excellent performance, he was not selected. Whereagainst, he, preferred a representation on 31.5.1995. The representation and the deliberation, as apparent from Annexure P/3-1, culminated into a communication dated 7.4.1998 entered into between the State of Madhya Pradesh and the Transport Commissioner, paragraph 2 of said communication is extracted below:

It was further re-iterated vide communication dated 29.7.2000 (Annexure P/5) that:

It is contended on behalf of the petitioner that the respondent Nos. 4 to 6 were given undue favour as the marks allotted to them for the A.C.Rs was not in consonance with the procedure laid and were on the higher side

The petitioner to ventilate the grievance also filed O.A. 550/2002 before erstwhile State Administrative Tribunal at Bhopal, which was transferred to this Court as W.P. No. 26667/2003 on abolition of the Tribunal. The said Writ Petition was disposed of on 17.1.2007 with a direction to the respondents to take decision in terms of directives issued vide letter dated 7.4.1998 and 29.7.2000, and in case the petitioner is found to be entitled for promotion then the same be conferred on him. That alleging non-compliance of order dated 17.1.2007, petitioner filed a contempt petition: C.P. No. 1105/2007. The same was dismissed as withdrawn with liberty to the petitioner to agitate the action of Transport Commissioner in appropriate proceedings. Armed with above liberty present writ petition is filed seeking following reliefs

(i) To issue the writ in the nature of Certiorary or other appropriate writs, orders, directions for summoning the entire selection proceedings conducted by the respondent No. 3 pursuant to recruitment advertisement (P/1) for perusal of this Hon''ble Court and be further pleased to set-aside the same, including the appointment orders of respondent Nos.4 to 6, as contained in Annexure P/6 to P/7, for not having been prepared by taking into consideration the proper and objective assessment of ACRs of preceding 5 years of the petitioner and respondent No. 4 to 6.

(ii) To issue the writ in the nature of Mandamus or other appropriate writs, orders, directions for commanding the respondent No. 3 to prepare the select list afresh in the light of instructions of State Government as contained in Annexure-P/ 4 and P/5.

(iii) And be further pleased to command the respondent No. 3 to issue appropriate orders for appointment of the petitioner on the post of Transport Sub-Inspector from the date of issuance of appointment order of respondent No. 4 to 6, with all consequential benefits.

Regarding challenge to promotion of respondent Nos. 4 to 6, it is borne out from the record of present case that the same was subject to challenge by one Smt. Urmila Shakya, before M.P. State Administrative Tribunal, Bench at Gwalior vide O.A. No. 1147/1993. The Tribunal by its order dated 6.11.1997 quashed the promotion. The order was affirmed in W.P. No. 1910/1997 which was dismissed on 20.11.1997 and the review petition R.P. No. 5/1998 filed there against was also dismissed on 27.1.1998. These orders were set aside by the Supreme Court in Haridas Parsedia Vs. Urmila Shakya and Others, wherein in respect of the issues, i.e.,

(i) Whether any relaxation from general passing marks of 50% for each of the written test papers is permissible for SC/ST candidates when they complete inter se for being appointed to the reserved category posts of Transport Sub Inspectors and when in such examination the general category candidates are not competing.

(ii) If the answer to the first point is in negative whether the original petition filed by respondent No. 1 was available to be dismissed as respondent No. 1 was not found eligible to be appointed to the aforesaid post and in that eventuality whether it was open to the Tribunal or to the High Court to consider further question whether appellants'' appointments were vitiated in law?

It was held by their Lordships:

17....Even when SC/ST candidates compete among themselves for the reserved category posts they are required to pass the written examination. For them the passing marks remain the same i.e. 40% as compared to general category candidates for whom 50% passing marks are prescribed. This is the firm policy of the Government for the benefit of SC/ST candidates. It is easy to visualise that after passing such departmental examination, all of them will be absorbed in some higher cadre of Transport Sub-Inspector along with general category candidates. Secondly, in our view it is patently erroneous to hold that the decision of the Government for relaxation of passing marks for SC/ST departmental candidates at the departmental examination can be applicable only when in such examination, the departmental candidates belonging to general category also compete with the SC/ST candidates and not otherwise. Holding general examinations for all types of candidates at a time or separate examinations for only SC/ST candidates for being appointed to the reserved posts on the one hand and for general category candidates on the other wherein SC/ST candidates can also compete for unreserved posts, is totally irrelevant for judging the efficacy of the relaxation policy. The general sweep of the policy decision already taken by the State of Madhya Pradesh under Article 16(4) cannot get diluted on the basis of such an irrelevant and fortuitous circumstance. Consequently, even the third objection raised by Shri Krishnamani against the appellants'' contention cannot be sustained".

In the result, the first point is decided against the respondents and in favour of all the appellants. Point No. 2

20 In view of our decision on Point No. l, It is not necessary for us to consider Point No. 2, as Respondent No. 1 would admittedly get excluded by the appellants, once relaxation of general passing marks by 10% up to 40% is found permissible in connection with the recruitment in question, even assuming that she is entitled to take the benefit of relaxation of height (for female candidates) by the subsequent amendment to the recruitment Rules.

21.In the result these appeals succeed and are allowed. The impugned judgments of the High Court as well as of the Tribunal are set aside, so far as they are against the appellants. The appointment orders issued by the State of Madhya Pradesh to all the appellants are held to be perfectly legal and valid and fully operative. The State of Madhya Pradesh is directed to give effects to these appointment orders and fix the seniority of the appellants in the higher cadre of Transport Sub-Inspectors, pursuant to their aforesaid appointment orders. The State of Madhya Pradesh is also directed to make available to the appellants all consequential benefits, including monetary benefits flowing from the said order of appointment as Transport Sub-Inspectors. In case any of the appellants are reverted in the meantime pursuant to the impugned order of the Tribunal, they will be entitled to be restored to the posts of Transport Sub-inspectors in the light of the initial appointment orders and also be entitled to all other reliefs, including permissible monetary benefits and difference of salary and other emoluments legally permissible to the appellants. All these benefits will have to be worked out by the respondent-State accordingly and made available to them as expeditiously as possible.

That, against the aforesaid decision a review was filed vide Nand Kishore Ahirwar and Anr. v. Haridas Parsedia and Ors. reported in, (2001) 9 SCC 325 which was dismissed in the following terms:

We have carefully considered the review petitions and the grounds in support thereof. The fact that in a subsequent matter the judgment sought to be reviewed is referred for reconsideration to a Constitution Bench, is irrelevant for deciding the question whether the impugned judgment is required to be reviewed. See Explanation to order 47 Rule 1 which reads as follows:

The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.

Thus, even if subsequent Constitution Bench takes a contrary view, it will be no ground for reviewing the judgment in question. Mere reference to Constitution Bench stands on a still weaker footing. Even otherwise, on merits, it has to be kept in view that the decision sought to be reviewed has nothing to do with the question whether there can be dilution of standards in the matter of promotion of employees as referred to in Indra Sawhney case. The issue was entirely different. In the present case, there was already dilution of standards in making promotions by granting 10 per cent reduction of marks for SC/ST candidates in examinations for the purpose. The question was when the examination was confined to SC/ST candidates only, such dilution could be resorted to. It was not in dispute between the parties that if at such departmental examinations general category of candidates competed with SC/ST candidates, such dilution was legally permissible. Thus question of dilution for SC/ST candidates only was not on the anvil of scrutiny before this Court in the judgment sought to be reviewed while in Indra Sawhney case such general dilution was not approved. 10 W.P. No. 1131/2009 (S) Even otherwise, after insertion of Article 16 (4-A) of the Constitution of India by the Constitution (Seventy-seventh Amendment) Act, 1995 this objection would not survive even on merits. For all these reasons, these review petitions are dismissed.

Thus, the promotion of respondent Nos. 4 to 6 having been affirmed though on an issue of a relaxation of general passing marks by 10%, the same cannot now be intercepted at such a distant date on the ground that the entire selection proceedings got vitiated because the selection committee allegedly downgraded the marks of the Annual confidential reports of the petitioner; moreover, when the respondent Nos. 4 to 6 as stated by their Counsel, have retired from service on attaining the age of superannuation.

The law in respect of interference in promotion matter is trite that a review is permissible only when the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. It is observed in Union of India (UOI) and Another Vs. A.K. Narula, that, if the departmental promotion committee has proceeded in a fair, impartial and reasonable manner, Courts should not interfere.

In Indian Airlines Corporation Vs. Capt. K.C. Shukla and Others, it is observed by their Lordships:

Adjusting equities in exercise of extraordinary jurisdiction isone thing but assuming the role of selection committee is another. The Court cannot substitute its opinion and devise its own method of evaluating fitness of a candidate for a particular post. Not that it is powerless to do so and in a case where after removing the illegal part it is found that the officer was not; promoted or selected contrary to law it can issue necessary direction. For instance a candidate denied selection because of certain entries in his character roll which either could not be taken into account or had been illegally considered because they had been expunged the Court would be within jurisdiction to issue necessary direction. But it would be going too far if the Court itself evaluates fitness or otherwise of a candidate, as in this case

(In this context please also see : C.P. Kalra Vs. Air India through its Managing Director, Bombay and Others, , A.P. State Financial Corporation Vs. C.M. Ashok Raju and others,

The proposition would, however, be different when it is established that the assessment by the Departmental Promotion Committee ignores the criteria fixed for consideration. In the case at hand it is categorically contended that, on a representation against non-promotion, the State Government on a review found that the "Kha" (good) category of the petitioner having the value of 15 marks in the scale of 100 have been downgraded as "Ga" (Average) category having the value of 10 marks. It is contended that if "Kha" category would have been taken into consideration, then, the total marks on account of his A.C.R would be 80 instead of 60. And by adding 80 marks of ACR assessment in the marks of the written examination then the total marks secured by the petitioner would have become 140.5 i.e, more than the marks obtained by respondent No. 6, whose marks were 136.5.

The respondents, more particularly, respondent Nos. 1, 2 and 3 does not dispute the aforementioned factual aspects. This leads to opine that the DPC did not objectively assess the petitioner and though the State Government as apparent from the communication dated 7.4.1998 and 29.7.2000 had directed the respondent No. 3 to reconsider the case of the petitioner in the light of observation made in the correspondence. No action seems to have been taken by respondent No. 3.

The question then would whether entire selection proceedings would get vitiated leading to quashment of entire proceedings or that the ends of justice could be met if a review DPC is directed.

As observed above the promotion of respondent Nos. 4 to 6 has already been upheld by the Apex Court and during pendency of this writ petition they have retired on attaining the age of Superannuation. The cause of justice in the given facts of present case would, therefore, be sub-served if the respondents are directed to convene a review DPC and consider the case of the petitioner as on 30.6.1993 in consonance with the stipulations contained in the communication dated 7.4.1998 and 29.7.2000 and if found suitable confer the benefits of promotion from the date when respondent Nos. 4 to 6 were promoted with consequential benefits except actual wages of the promotional post which should be confined to 50%. Furthermore, the promotion of respondent Nos. 4 to 6 shall not be disturbed in any manner.

Let steps be taken within three months from the date of communication of this order. There shall be no costs. Petition is allowed to the extent above. Parties to bear their own costs.