Sukrm Pal vs Punjab and Haryana High Court and Another

Mahavir Singh Chauhan, J.—Having cleared Haryana Civil Services (Judicial Branch) Examination, the petitioner, was appointed as Civil Judge-cum-Judicial Magistrate vide order dated 25.07.1995, was promoted as Additional Civil Judge (Senior Division) from 11.09.2001, vide order dated 11.09.2001, was designated as Chief Judicial Magistrate vide order dated 30.05.2003 and vide order dated 26.03.2009 was appointed as Additional District & Sessions Judge (Ad hoc) by promotion against one of the eight existing temporary posts of Additional District & Sessions Judges (Ad hoc) in the State of Haryana. This promotion was subject to the conditions that the officer would not be entitled for annual grade increment on account of this promotion and as per directions of the Hon''ble Supreme Court of India in the case of Brij Mohan Lal Vs. Union of India (UOI) and Others, , "No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre." Meaning thereby to earn promotion as Additional District & Sessions Judge, the petitioner was required to pass the prescribed suitability test under Rule 8 of the Haryana Superior Judicial Service Rules, 2007 (for short, the Rules). The petitioner appeared in the written test and viva voce in the year 2009, then in the year 2010 and then in the year 2011 and his case for promotion to the post of Additional District & Sessions Judge was considered on the basis of his performance in the written test, and viva voce, his judgments, work done statements and annual confidential reports but, unfortunately, on all the three occasions he could not succeed. On account of non-extension of Fast Track Courts beyond 31.03.2011 in the State of Haryana, the petitioner was repatriated to his substantive rank of Civil Judge (Senior Division) on bifurcation of posts of Civil Judge (Senior Division)-cum-Chief Judicial Magistrate, vide order dated 31.01.2011 (Annexure P-12), and as per Gradation and Distribution List of Officers of the Judicial Department, Haryana, corrected upto 03.08.2013, the petitioner has been promoted as Additional District & Sessions Judge with effect from 21.05.2012 after having passed the suitability test under Rule 6(1)(a) of the Rules.

The petitioner claims to have made representation dated 22.09.2010 (Annexure P10) followed by another dated 30.04.2011 (Annexure P13) for grant of notional promotion but having tailed to get a response to these representations, he has invoked extra-ordinary jurisdiction of this Court, by way of the instant Civil Writ Petition, under Articles 226 and 227 of the Constitution of India, with a prayer that a writ of Certiorari quashing Rule 6(1) of the Rules saying it to be unconstitutional, illegal and arbitrary; and a writ of Mandamus directing the respondents to give him notional promotion from the date on which his juniors have been promoted, with all consequential benefits, be issued.

Submissions put up on behalf of the petitioner.

We have heard learned counsel for the petitioner and have also perused the assertions made in the writ petition.

Learned counsel for the petitioner argues that Rule 6(1) of the Rules cannot be allowed to sustain because it is unconstitutional, arbitrary and unreasonable in so far as it gives unbridled discretion to the respondents to promote or not to promote a candidate as there is no suitable criterion/parameters/guidelines to find out the best candidate and that''s why the petitioner, who was not only the senior most but also the most suitable candidate for promotion to the post of Additional District & Sessions Judge, has been ignored, whereas his juniors have been allowed a march over him.

By referring to Article 233 of the Constitution of India, learned counsel points out that the provisions of this Article do not envisage that seniority should be sacrificed for merit only but by introducing Rule 6(1) of the Rules, the respondents have arbitrarily introduced the principle of "merit-cum-seniority" and have, thereby, bestowed upon themselves an unguided and uncontrolled authority to assess merit of the candidates.

It is also argued that while ignoring the petitioner for promotion and giving his admitted juniors a march over him, the respondents have exhibited bias against the petitioner and in favour of his juniors and that being so the petitioner is entitled to be promoted from the date on which his juniors have been promoted as Additional District & Sessions Judges.

No other or further point has been urged.

How the Rules were framed:

The Rules, indisputably, have been framed in exercise of powers conferred by Article 233 read with Proviso to Article 309 of the Constitution of India and pursuant to the directions of the Hon''ble Supreme Court of India in All India Judges Association and Others Vs. Union of India (UOI) and Others, to the following effect:

As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be:

(1)(a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test;

(b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years'' qualifying service; and

(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts.

(2) Appropriate rules shall be framed as above by the High Courts as early as possible.

Rule in question, i.e. Rule 6 of the Rules, is reproduced below:

(1) Recruitment to the Service shall be made:-

(a) 50 per cent by promotion from amongst the Civil Judges (Senior Division)/Chief Judicial Magistrates/Additional Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test;

(b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service as Civil Judges (Senior Division)/Chief Judicial Magistrates/Additional Civil Judges(Senior Division); and who are not less than thirty five years of age on the last date fixed for submission for applications for taking up the limited competitive examinations; and

(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible Advocates on the basis of the written and viva voce test, conducted by the High Court.

(2) The first and second post would go to category (a) (by promotion on the basis of merit-cum-seniority), third posts would go to category (c) (direct recruitment from the bar), and fourth post would go to category (b) (by limited competitive examination) of rule 6, and so on.

Rule 8 of the Rules lays down the procedure to be adopted for assessment of suitability of members of Haryana Civil Services (Judicial Branch) for promotion to the post of Additional District & Sessions Judge. It reads as under:

For assessing and testing the merit and the suitability of a member of the Haryana Civil Service (Judicial Branch) under rule 6(a) above, the High Court may-

(a) take into consideration

(i) Annual Confidential Reports for preceding five years;

(ii) inspection report of the court of the officer made by the inspecting Judge nominated by the Chief Justice during the preceding three years;

(iii) inspections done by the officer of his own court and courts subordinate to him if he is assigned inspection work of those courts during the preceding three years;

(iv) self assessment report of the officer of the work during the preceding three years;

(v) judgments of the cases decided by the officer during the preceding three years; and

(b) hold a written objective test (20 marks); and viva voce (20 marks) in order to ascertain and examine the legal knowledge and to assess the efficiency in legal field:

Provided that any officer having grading as C (integrity doubtful) in any year shall not be eligible to be considered for promotion.

A perusal of Rule 6 of the Rules, as culled out here-in-above, would show that it is in total conformity with the mandate of the Hon''ble Supreme Court of India in the case of All India Judges'' Assn. v. Union of India (supra). Further, procedure for assessment of suitability of the members of Haryana Civil Services (Judicial Branch) is given in Rule 8 of the Rules and, for reasons best known to the petitioner, he has chosen not to question the validity of this rule.

Principle of waiver/promissory estoppels:

As per his own saying, the petitioner appeared in the written test and viva voce in the year 2009, then in the year 2010 and then in the year 2011 and his case for promotion to the post of Additional District & Sessions Judge was considered on the basis of his performance in the written test, and viva voce, his judgments, work done statements and annual confidential reports but, unfortunately, on all the three occasions he could not succeed but has now been promoted as Additional District & Sessions Judge with effect from 21.05.2012 after having passed the suitability test under Rule 6(1)(a) of the Rules. Having, thus, participated in the process for assessment of suitability as prescribed by Rules 6 and 8 of the Rules, the petitioner is precluded from challenging the validity of Rule 6 and procedure adopted for assessment of his suitability. It may be apposite to refer here to the following observations of the Hon''ble Supreme Court of India in the case of Babulal Badriprasad Varma Vs. Surat Municipal Corporation and Others,

In Halsbury''s Laws of England, Vol. 16(2), 4th Edn., Para 907, it is stated:

The expression ''waiver'' may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right... Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only... Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it.

As early as in 1957, the concept of waiver was articulated in a case involving the late assertion of a claim regarding improper constitution of a Tribunal in Manak Lal v. Dr. Prem Chand Singhvi, in the following terms: (AIR p. 431, para 8)

...It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. As Sir John Romilly, M.R. has observed in Vyvyan v. Vyvyan, 9 (Beav p. 75: ER p. 817)

Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim.

In Manish Kumar Shahi Vs. State of Bihar and Others, , it has been held as under:

We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection, purely, if the petitioner''s name had appeared in the merit list, be would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission.

This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal and Others Vs. State of Jammu and Kashmir and Others, , Marripati Nagaraja and Others Vs. The Government of Andhra Pradesh and Others, , Dhananjay Malik and Others Vs. State of Uttaranchal and Others, , Amlan Jyoti Borooah Vs. State of Assam and Others, and K.A. Nagamani Vs. Indian Airlines and Others, .

In Bareja Automobiles Pvt. Ltd. v. State of Haryana and others, C.W.P. No. 2297 of 2007 decided on 17.08.2012, the writ petitioners had applied for allotment of institutional plots in Sectors 20-A & 20-B, Faridabad, advertised for sale by Haryana Urban Development Authority. Initially, the applications were invited to allot "freehold institutional, plots for Corporate Offices, Research & Development Centers, Corporate Towers and Staff Training Institutes" in Sectors 20-A and 20-B, Faridabad, in the year 2004. The allotments were to be made on an on-going "first come first served" basis. Only 16 applications were received. Thereafter, another advertisement was published in respect of the same plots, which were part of the earlier process of advertisement, but with the stipulation that the booking of these plots commences on 10.02.2006 and closes on 10.03.2006. There was marginal increase in the cost of the plots as well. The plots allotted at Faridabad in pursuance of the second advertisement were the subject matter of challenge in the writ petition. The matter was referred to the Full Bench as in some earlier decisions two Division Benches of this Court had expressed divergent opinions on the question of promissory estoppel. The Full Bench formulated, amongst others, the following question for it disposal:-

Whether the principle of promissory estoppel can be invoked against the petitioners having participated in the selection process and which of the judgment lays down correct principle of law i.e. Delhi Assam Roadways Corporation Ltd. case (supra) on the one hand and Anil Kumar and U.G. Hospital Pvt. Ltd. cases (supra) on the other?

After an in-depth study of the facts and case law, the Full Bench came out with an answer to the above question, to the following effect:-

None of the petitioners have disputed the process of allotment at any time before the allotment process was completed. The petitioners have not even submitted a representation disputing such allotment process, as advertised alleging the same to be violative of directions of the Hon''ble Supreme Court in New India Public School case (supra). The petitioners have participated in the allotment process inasmuch as not only they applied, but also appeared before the Selection Committee. Having remained unsuccessful, the petitioners have invoked the jurisdiction of this Court alleging violation of the directions of the Hon''ble Supreme Court. Though we have found while dealing with Question No. 1, that there is no violation of the directions of the Supreme Court, but even if it is assumed that there is violation of the directions of the Hon''ble Supreme Court in New India Public School case (supra), we find that the petitioners are estopped to dispute the allotment process by way of the writ petition.

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Thus, we find that the findings recorded by the Division Bench of this Court in Delhi Assam Roadways Corporation Ltd. case (supra) not only run counter to the view expressed by two other Division Benches, but also against the principles of law enunciated above. We are unable to agree with such findings. Thus, we hold that petitioners are estopped to dispute the allotment for their failure to dispute the allotment process prior to their participation in the interview.

In view of the above, we are of the firm opinion that the writ petition challenging vires of Rule 6 of the Rules at the behest of the petitioner is not maintainable. Validity of the Rule 6 and procedure laid down there-under:

As noticed here-in-above, Rule 6 of the Rules is in total conformity with the mandate of the Hon''ble Supreme Court of India in the case of All India Judges'' Assn. v. Union of India (supra). Further, procedure for assessment of suitability of the members of Haryana Civil Services (Judicial Branch) is given in Rule 8 of the Rules and, for reasons best known to the petitioner, he has chosen not to question the validity of this rule. Be that as it may, it is evidenced by copy of minutes of meeting of the Recruitment Committee held on 17.05.2010 (Annexures P7, P8 & P9) the comparative merits of the candidates was assessed by five Hon''ble Judges of this Court, including the Hon''ble Chief Justice, and the final result was prepared after assimilating the marks given by each member of the Committee after objectively, assessing the various aspects, viz. annual confidential reports, length of service and quality of judgments besides the marks obtained in the written test and viva voce. This demolishes petitioner''s plea that unguided and uncontrolled discretion has been given by the rule to the respondents herein and that there are no parameters, guidelines or criterion for assessing merit of the candidates.

As regards introduction of a written test, suffice it to refer to Rakesh Sharma and Others Vs. Chairman/Managing Director, Uttaranchal Power Corporation and Others, wherein promotion to the post of Junior Engineer from amongst the operating staff was made on the basis of selection based on a written examination followed by a practical and oral test to which only such candidates were admitted who had qualified in the written test and the names of the candidates who had qualified in the practical and written tests were placed in the order of merit. The Hon''ble Supreme Court ruled as under:

We also do not find any merit in the grievances of the private respondents that they were not promoted but their juniors in Technical Grade II have been promoted on the basis of the 1985 examination. Clauses (2) and (3) of Regulation 17 of the Regulations are quoted hereinbelow:

17.(2) The selection shall be based on a written test followed by a practical and oral test to which only such candidates would be admitted as have qualified in the written test.

(3) The names of the candidates who qualify in the practical and oral test shall be placed in a list in their order of merit. For computing the merit of a candidate the marks obtained by him both in the written test and the practical and oral test shall be added.

Thus, clauses (2) and (3) of Regulation 17 are clear that promotion to the post of Junior Engineer from amongst the operating staff is to be made on the basis of selection based on a written examination followed by a practical and oral test to which only such candidates would be admitted as have qualified in the written test and the names of the candidates who qualified in the practical and written tests were to be placed in the order of merit. If the private respondents could not be promoted whereas their juniors were promoted because of their merit determined in the tests as provided in clauses (2) and (3) of Regulation 17, the promotion of such juniors cannot be held to be in any way illegal.

Petitioner, as is well settled, cannot claim promotion as a matter of right. Only right available to him is for consideration for promotion. He, admittedly, has been considered but has been found unsuitable for promotion. Thus, the constitutional right of being considered for promotion cannot be said to have been infringed. If the Recruitment Committee, after taking into consideration various aspects, including marks obtained in written examination and viva voce, as here-in-before stated, has found the petitioner not suitable for promotion, it cannot be said that the grounds of rejecting petitioner''s case were extraneous grounds for adjudging his suitability for being promoted to the post of Additional District & Sessions Judge. That apart, this Court is not entitled to assess the respective merit of the candidates for adjudging their suitability for being promoted and the only right the petitioner has, is a right of consideration. The said right of consideration not having been infringed in the present case, we are not inclined to interfere. A similar situation arose in the case Orissa Small Industries Corpn. Ltd. and Another Vs. Narasingha Charan Mohanty and Others, and the Hon''ble Supreme Court answered it by holding:

Promotion to the post of Manager is governed by Rule 24 of the Employees Service Rules, 1979. Under the said Rule, the Selection Committee is required to recommend the suitable employee for promotion whom they consider fit. Suitability and merit being the criterion for promotion and the respondent having been considered but being found unsuitable for promotion, the constitutional rights of being considered cannot be said to have been infringed. If the Departmental Promotion Committee has taken into consideration the fact that the respondent has not in fact served as Joint Manager though he has been given notional promotion to the said post and, therefore, has not gained the necessary experience, it cannot be said that the ground is an extraneous ground for adjudging the suitability of the person for being promoted to the post of Manager. That apart, the Court is not entitled to assess the respective merit of the candidates for adjudging their suitability for being promoted and the only right the employee has is a right of consideration. The said right of consideration not having been infringed in the present case, the High Court was not justified in issuing the impugned direction for reconsideration of his case. We, accordingly, set aside the impugned judgment of the High Court and hold that the writ petition filed by the respondent stands dismissed. This appeal is allowed but in the circumstances, there will be no order as to costs. Relevance of seniority:

Stress laid on behalf of the petitioner on the assertion that the petitioner has been ignored for promotion inspite of the fact that he was the senior most officer available for promotion to the post of Additional District & Sessions Judge is also unnecessary because question of seniority would be relevant only if the petitioner was in tie with one or more candidates but it is not his case. It may be appropriate to refer here to R.K.S. Chauhan (Dr.) v. State of U.P., 1995 Supp. (3) S.C.C. 688. In this case Hon''ble Supreme Court ruled as under:

On a plain reading of the relevant rules there can be no doubt that the criterion for appointment to the post of Joint Director by promotion is merit pure and simple. Seniority can become a relevant consideration only when there is a tie between two candidates on merit. If out of two candidates possessing equal merit one has to be selected, seniority may become a relevant consideration. But it is nobody''s case that such a situation had arisen in the instant selection. Therefore, even if we are to assume that the respondents were senior to the appellants, it would not help the respondents since the selection was based on merit. Merely because the first ten candidates in the eligibility list came to be selected it cannot be said that the selection was not made on merit. It was contended by the unsuccessful respondents in their application to the Tribunal that the selection was vitiated for non-application of mind, in that, comparative merit-cum-seniority had not been taken into consideration. If it was put in issue the parties would have placed their point of view in that behalf in the pleadings and perhaps the State would also have filed an affidavit explaining how merit was assessed. It seems to us that the only ground on which the selection was challenged was that a wrong criterion was adopted for the purpose of promotion to the post of Joint Director. According to the unsuccessful respondents the correct criterion was seniority and not merit and that was upheld by the Tribunal. It was for that reason that the appellants felt aggrieved and moved the High Court by way of a writ petition. The High Court conceded that the correct criterion was merit but it knocked down the selection on the ground that there was no proper application of mind in that the Committee had not adjudged the comparative merit of the eligible candidates; at least the record did not reflect it. Now this was never the contention raised before the Tribunal and the pleadings were not completed on that contention. It seems that the High Court called for the file, looked into it and virtually made out the case which was never pleaded by the unsuccessful candidates. In doing so the High Court placed the appellants to a disadvantage, in that, the selection had never been quashed by the Tribunal on that ground. The ground on which the selection was quashed was not one which found favour with the High Court. Even if we are to assume that the unsuccessful respondents were senior to the appellants as their ad hoc service had to be reckoned for the purposes of seniority, we fail to see how it would make any difference if the selection is purely on merit and there was no contention that there was a tie between two candidates of equal merit. We are, therefore, of the opinion that the High Court fell into an error in making out a case which was not pleaded by the unsuccessful candidates in the application filed before the Tribunal and which it appears was made out for the first time by the High Court. Even when the matter was pending before the High Court the unsuccessful candidates never sought leave to amend their application and include this plea. The appellants as well as the State, therefore, had hardly any opportunity to place their point of view in that behalf. We are, therefore, of the opinion that the said ground on which the High Court quashed the selection cannot be allowed to stand. Needless to clarify that we have not gone into the question of inter se seniority. Juniors not impleaded:

Petitioner''s case is bound to fall for another reason. Thrust of case of the petitioner is that his juniors have been allowed a march over him in the matter of seniority and at places he has referred to such juniors as private respondents. In the event of plea of the petitioner being accepted those juniors are likely to be adversely affected. Therefore, in the absence of the stated juniors of the petitioner, the petition cannot proceed. The petitioner has chosen not to implead those juniors as respondents and, at the same time has failed to attempt at comparing his merit vis-�-vis those juniors. Thus, examined from all possible angles, case of the petitioner is found to be without merit. Therefore, we dismiss the writ petition.

No costs.

Sd/- Satish Kumar Mittal, J.