The State of Himachal Pradesh etc. vs Shri Sudershan Singh Saini etc.

Chet Ram Thakur, J.—This letters patent appeal has been filed by the State of Himachal Pradesh against the decision of a single Judge of the Delhi High Court, Himachal Bench, Simla accepting the writ petition of Shri Suoarshan Singh for quashing the promotions of the present Respondents 2 to 6 to the posts of Circle Head Draftsmen in the pay scale of Rs. 250-15-355 made by the present Appellant allegedly disregarding the claim of Respondent No. 1 (Petitioner in the writ petition) for promotion to the post, although he was senior to all these persons.

It is admitted by the Appellants that the Petitioner is undoubtedly senior, but the post of a Circle Head Draftsman is a selection post and the Respondent No. 1 cannot claim the post as a matter of right merely on the basis of seniority. According to the Appellant the Respondent No. 1 was considered but was not found fit and, therefore, was not promoted. As for Respondent No. 2, the Appellant admitted that he is an unqualified person and the Government is taking suitable action against him. As for Respondents 3 to 6, it was submitted that they were diploma holders from recognised Universities and were found fit for promotion.

From the above, therefore, only two points emerge for determination:

Firstly, whether the Respondents 2 to 6 being junior to Respondent No. 1 could not be promoted, and secondly, whether the above Respondents 2 to 6 were unqualified inasmuch as they did not hold diplomas from recognized Universities or Institutions and, therefore, could not be promoted ignoring a senior man holding a diploma from a recognised University.

It is admitted by the Appellant that Respondent No. 1 was senior to the other Respondents. But the submission made is that the post of a Circle Head Draftsman is a selection post for which under the rules merit-cum-seniority was the principle. It is common ground that Respondent No. 1 was considered by the Departmental Promotion Committee for selection to the post of Circle Head Draftsman. According to Rule 7(vii) sub-para 3 of the Himachal Pradesh Public Works Department Subordinate Services, Class III Draftsman and Tracers Recruitment and Promotion Rules, 1961, the post of Circle Head Draftsman is a selection post and the promotion is made strictly in accordance with the order of selection. Further it says that for the post enumerated in clause (vi) the promotion will be based on good work put in by each member for the decision of which the confidential report will be the sole criterion. Seniority would be a secondary thing. Therefore, it would be [apparent that under the rules promotion to the post of Circle Head Draftsman is to be made purely on the basis of selection and for this purpose the election Com-mittee or the Departmental Promotion Committee has to consider the character rolls to assess the merit and [Seniority is not a dominant factor but it plays a secondary role. In this behalf I may also quote Dr. Jai Narain Misra v. State of Bihar and Ors. 1970 S.L.R. (S.C.) 923. It had been held by their Lordships:

Where promotion to the post of Director of Agriculture which was a selection post, seniority was not relevant in making the selection. It was for the Government to select such officer as it considered most suitable. High Court was not justified in going into the question of seniority nor would it be justified in going into that question. So far as the question of suitability was concerned, the decision entirely rested with the Government.

Therefore, this point in the face of this pronouncement of the Supreme Court is not tenable. The Appellant had placed before this Court the character rolls and the assessment report of the Departmental Promotion Committee, although according to the above quoted authority it was not necessary to call for the notes of the Public Service Commission. From the Character Rolls and the assessment report, it is quite apparent that the Respondent No. 1 was found wanting in merit as compared to the selected persons for promotion. Therefore, this point that he was senior and should have been preferred has got no substance in it.

Point No. 2.

Respondent No. 1 in his writ petition contended that he was a qualified person, whereas the others were unqualified in as much as they did not hold any diploma from any recognised University or Institution. It is admitted that Respondent No. 1 is a diploma holder from a recognised Institute. The reply of the Appellant is that Shri Sardari Lal (Respondent No. 2) is undoubtedly unqualified and action has already been taken against him on 29th November, 1970, and he has been reverted. Therefore, as regards him the Petitioner need be given no relief.

As for Shri Kuldip Singh Negi (Respondent No. 6), the Petitioner did not press his claim qua him. Regarding Shri Kali Charan Puri (Respondent No. 5) in this Court it had been stated in para No. 8 of the reply by the State Appellant that his name did not appear in the provisional integrated seniority list of Divisional Head Draftsman (Annexure PBI of the petition) from which post the promotion to the rank of Circle Head Draftsman has been made. In fact the Respondent No. 8 had never worked as Divisional Draftsman in the department. From the judgment of the learned Single Judge also it is quite apparent that the Petitioner (Respondent No. 4) Shri Kali Charan Puri, was not promoted through any selection but instead was appointed by direct recruitment and that the Petitioner (Respondent No. 1) attacked the promotion given to S/Shri Sardari Lal, D.N. Amrik and Narinder Singh only. In view of these findings of the learned Single Judge, I am now only left with the promotion of Shri D.N. Amrik, and Shri Narinder Singh. According to the reply filed by the Appellant (State) to the writ petition, these two Respondents possessed diplomas from recognised institutions. Shri D.N. Amrik completed the course of training at Industrial Training Institute, Rohtak, and passed the examination in Draftsman (Civil) held in January, 1952, and was awarded the diploma in Craftsmanship by the Government of India, Ministry of Labour, Directorate-General of Resettlement and Employment. The Industrial Training Institute, Rohtak is affiliated to the Government of India, Ministry of Labour, Directorate-General of Resettlement and Employment, for conducting courses under Adult Civilians Training Schemes (renamed as Craftsman Training Scheme) vide Government of India, Ministry of Labour and Employment letter No. TA-II(1)/57, dated 30th September, 1957 (Annexure RA). Further, it had been submitted that all the Training Centres/Institutions throughout India affiliated to the Ministry of Labour (D.G.B.R.) for conducting courses under their Adult Civilians Scheme are recognised for recruitment to the post of Draftsman (Civil) vide list received with Chief Engineer, Central Public Works Department, New Delhi letter No. 51-2-57, EI, dated 16th July, 1957 (Annexure RB). I have perused the annexures and I find that the submission made by the Appellant in so far as Shri Amrik is concerned is wholly correct. He possesses a diploma from a recognised Institution for the purpose of employment to the post of Draftsman (Civil). Once he is inducted into service thereafter the promotion and other conditions of service are to be governed by the Himachal Pradesh Public Works Dpeartment Subordinate Services, Class III Draftsman and Tracers Recruitment and Promotion Rules, 1961, and he is also eligible for consideration for promotion to the post of Circle Head Draftsman.

About Shri Narinder Singh (Respondent No. 4), it had been stated by the Appellant in their return before the learned single Judge that he had passed from the School of Military Engineering, Kirkee (the Petitioner has wrongly written Military School Rurkee) re-named as College of Military Engineering, Kirkee, and it was a recognised Institute. The Draftsman, Estimating and Design examination conducted by the College of Military Engineering, Kirkee is recognised for appointment to subordinate posts of Draftsman under the Central Government. From the list annexed to the reply of the Appellant 1 find that the diploma from the College of Military Engineering, Kirkee, or the Military Engineering School, Kirkee, is duly recognised. Therefore, it is not correct to say that Shri Narinder Singh was unqualified for being considered for promotion to the post of Circle Head Draftsman in the P.W.D.

The learned single Judge in his findings attributed mala fides to the Appellant and other Respondents Nos. 1 to 4 in the petition on the ground that against his non-selection the Petitioner had made several representations on various dates as mentioned in paragraph 13 of the petition, but the Respondents never passed any order in respect thereof, and 10 annexure had been filed disclosing any decision taken in respect of those representations. The attitude of the said Respondents, it was observed, disclosed not only negligent and legal malice but also afforded a presumption that they could not support the legality of the impugned selection. It was pointed out that a litigation brings the parties of necessity before a Court of law and the party defending its action has to disclose the reasons justifying the same as legal and without malice. The learned single Judge also laid emphasis on the written statement of the Respondents 1 to 4 to the petition wherein it had been stated by the Respondent: "Mere earning of good or fair reports does not entitle an incumbent for promotion to the selection posts". The learned single Judge held that in the case of "selection posts" where the selection is impugned it has to be shown that the candidates have not been subjected to any discrimination and have not suffered due to any illegality, arbitrariness or bias. It was observed that the seniority of the Petitioner was not denied and it was not stated as to why he was not found fit. This view, taken by the learned single Judge does not appear to be correct, inasmuch as the Court is not empowered to go into the question of suitability or the grounds which weighed with the Selection Committee in assessing the merits for promotion. In Union of India v. Mr. Bhim Singh and Ors. 1971 S.L.R. 111, the Respondent''s name was also placed before the Selection Committee but he was not selected and he filed a writ petition in the High Court and which was allowed and on an appeal in the Letters Patent, it was held:

It is not for this Court to prove into the mental process of the members of the Selection Committee in order to discover as to what weighed with them in excluding Respondent No. 1 from list IV. It is self evident that the right to select includes the right not to select. The only right which Respondent No. 1 could legitimately claim was to be considered for selection. He could not insist upon being selected. That right we have seen he has already had.

Therefore, it seems to me, with great respect to the learned single Judge, that he has erred in holding that the reasons should have been given as to why the Respondent No. 1 was not selected. In the instant case, the Respondent No. 1 has not been able to prove if there was any bias against him or that the Selection Committee had acted mala fide. The assessment report, etc. and the other relevant papers which were placed before us clearly go to show that the Selection Committee acted in an impartial manner. Hence the second submission also succeeds.

Therefore, I hold that the petition of Shri Sudarshan Singh has wrongly been allowed by the learned single Judge. The promotion order did not proceed from mala fides. Consequently the appeal is allowed, the judgment and order of the learned single Judge are hereby set aside and the writ petition is dismissed.

There is no order as to costs.

R.S. Pathak, C.J.

I agree.