TaxTMI 
TaxTMI 
1971 (7) TMI 158
X X X X Extracts X X X X
X X X X Extracts X X X X
....ferred to later at the appropriate stage. Civil Appeal No. 1815 of 1970 arises out of the Division Bench Judgment of the Rajasthan High Court dated January 20, 1970 in D. B. Special Appeal No. 57 of 1968. The facts leading up to the Civil Appeal may be stated: The appellant is an Arts Graduate having taken his degree in 1947. He took his Law Degree in the year 1961 having been placed in the First Division. He joined the service of the former Jaipur State as Inspector, Customs and Excise, in 1948. On the formation of the United State of Rajasthan, he was appointed in the, service of the State of Rajasthan as Inspector, Customs and Excise. In 1950 the Rajasthan Administrative Service was constituted for the State of Rajasthan and the Rules governing the 'conditions of service of the members therein were framed in 1954 by the Rajpramukh under the proviso to Art. 309 of the Constitution. Under the Rules the Adminisrative Service Cadre has three cadres of pay, namely, Ordinary Time Scale, Senior Scale and Selection Grade. The appointment to the service cadre was by direct recruitment as well as by promotion from other subordinate services in the State of Rajasthan. The appointment t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e date when r. 28B was incorporated sub-rule (2) of r. 27 was deleted. On January 7, 1966 sub-rules(2) to (6) of r. 28 were also deleted. On December 14, 1965 a Circular was issued by the Chief Secretary to the Government of Rajasthan. According to the appellant the said Circular was a secret one issued without any authority directing the Selection and Promotion Committees and the Appointing authorities to follow the instructions given therein when making selection, promotion or appointment in the service. The said circular prescribed "merit formula for making selection of persons to be appointed on the basis of merit alone and the seniority-cum-merit formula for making selection of persons to be appointed on the basis of seniority-cum-merit." The basis for both the types of promotions was the marking system indicated in the circular. We do not think it necessary to go more elaborately into the details of this circular or the authority under which it was issued because it is seen that this circular was superseded by the circular dated August 27, 1966, which is under severe attack in all these proceedings. The contents of the latter Circular as well as the authority under which it i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....omotion Committee was constituted and the Committee met in the end of September, 1966 for considering the claims of the officers for purposes of promotion. On the basis of the recommendations made by the said Committee, the Government by the Order dated December 7, 1966 promoted 29 officers to the Senior Scale on the basis of seniority-cum-merit. Again by the order dated January 4, 1967, which is another order under attack in these proceedings, 15 officers including the respondents Nos. 2 to 5 were promoted to the Senior Scale of Service on the basis of merit alone. According to the appellant by the Orders dated December 7, 1966 and January 4, 1967 promotions had been made quite contrary to rr. 28B and 32 of the Rules. It is the grievance of the appellant that under the Order dated January 4, 1967 a large number of officers who had qualified for promotion on the basis of merit under the merit formula were superseded by the officers junior to them. Though Rules 28B and 32 provided for selection on the basis of merit gave no indication or guidance as to what are the factors to be taken into account in assessing the merit of an officer. The promotions had also been made by the Comm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r being considered for first promotion. The Order dated January 4, 1967 was attacked on the ground that the promotions had been made on the basis of illegal rules as well as the directions contained in the invalid Circular dated August 27, 1966. In particular the appellant contended that though his service record for the year 1965- 66 was quite good. nevertheless certain adverse remarks contained in the confidential rolls which were not communicated to him, had been taken into account by the Departmental Promotion Committee, which met in the last week of September, 1966 and hence there has been no proper consideration of his claims for being promoted to the Senior post. On all these grounds the appellant attacked rules 28B and 32, the Circular dated August 27, 1966 and the Order dated January 4, 1967. He also alleged mala fide against the State. The respondents Nos. 2 to 5 do not appear to have filed any counter-affidavit. But the State contended that rr. 28B and 32 were not invalid and did not violate the provisions either of Art. 14 or Art. 16. The requirement in the rules regarding promotion to be based on merit was justified as such selection was necessary to achieve effi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Departmental Promotion Committee when it met for making selection in September, 1966 and that there was nothing illegal in the said Committee considering the adverse remarks, if any, made in those reports. The State finally prayed for dismissal of the writ petition. The learned Single Judge who dealt with the writ petition held that rr. 28B and 32 were not violative of either Arts. 14 or 16. The principle of merit embodied in the rules was valid and the Committee charged with the duty under the rules of considering the claims of various officers for promotion was quite competent to take all the relevant factors when assessing the merits of an officer regarding his suitability for promotion. The learned Judge further held that the principle of merit of an officer being considered for promotion embodied in the rules, was really based on the recommendation of the Administrative Reforms Committee. However, the learned Judge held that the provision in sub-rule (2) of r. 28B restricting the number of eligible candidates to be considered for promotion to ten times the total number of vacancies, was violative of Art. 16 inasmuch as the claims of various other eligible officers for being c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng the eligibility of officers who have put in at least six years of service was quite reasonable and the further provision in r. 28B(2) regarding the field of selection being confined to senior most officers in the Junior Scale not exceeding 10 times the total number of 'Vacancies was also reasonable. Differing from the learned Single Judge, the Division Bench held that no part of r. 28B(2) was invalid. The Division Bench agreed with the views of the learned Single Judge regarding the validity of sub-rule (1) of r. 28B and r. 32. Regarding the Circular dated August 27, 1966, the learned Judges held that the marking system indicated therein was really based upon the previous Circular dated August 31, 1960 under which merit was to be evaluated by allotting marks on the previous record of an officer. The said Circular of 1960 had been in operation in respect of the said services except the Rajasthan Judicial Service or the Rajasthan Higher Judicial Service, which were under the control of the High Court. It is the view of the Division Bench that the Circular of 1966 was very elastic and gave wide discretion to the Committees to assess the merit of an officer. The Circular has don....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hile State of Jodhpur on August 1, 1943 as a Special Officer (Settlement). He entered the Jodhpur State Civil Service on March 13, 1946 as a result of the competitive examination held by the Public Service Commission of that State. At the time of the formation of the Rajasthan Union, the petitioner was working as Assistant Director, Civil ?Supplies, Jodhpur. Ultimately the petitioner was appointed to the Rajasthan Administrative Service with effect from January 6, 1950. He has been serving in various capacities and he was also sent for higher training to the United States of America by the Government of India during the period March 23, 1958 to September 27, 1958. The petitioner thereafter was sent on deputation to the Municipal Corporation of Delhi as an Assistant Commissioner during the period June 17, 1963 to April 21, 1964. Later on he was on deputation as Principal, Tribal Orientation and Study Centre during the period May 22, 1964 to March 31, 1967. He became the District Manager of Food Corporation of India and was holding that post since July 1, 1968. After giving the history sheet of respondents Nos. 2 to 16, the petitioner claims that he was the senior most amongst them a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g in the Senior Scale the respondents Nos. 18 to 33. The facts leading up to this writ petition may be stated: The petitioner after obtaining the B. Sc. (Hons.) Agricultural Degree in the First Division from the Delhi University and the LL. B. Degree from the Agra University joined service in the Delhi Administration on February 6, 1954 as Extension Officer, Agriculture. On January 12, 1959 he was promoted as Block Development Officer in the Delhi Administration, in which capacity he continued till September 30, 1960. The petitioner joined the Rajasthan Administrative Service on October 1, 1960 after having passed the competitive examination held by the State Public Service Commission. After the probationary period of one year, he was confirmed in the service with effect from October 1, 1961. His rank has been given as Nos. 332 in the Seniority List of the Rajasthan Administrative Officers issued in 1964. The petitioner gives the rank of some of the respondents. After referring to the rules as well as the amendments made from time to time and the Circular of 1966, the petitioner levels the same attack as against them similar to those in the civil appeal. The petitioner then refe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ese rules on the ground that there is no criteria laid down in the rules for assessing the merit of the officers concerned when their claims are being considered for promotion to the Senior Scale. The further ground on which this attack is made is that the Rules give arbitrary powers to the Promotion Committees in the matter of assessing the merits of an officer. According to the State, on the other hand, the Rules are valid and the promotions on the basis of merit are also valid. It is now necessary to refer to the relevant rules as they originally stood as well as to the amendments made thereto from time to time. In 1954 the rules were framed by the Rajpramukh under the proviso to Art. 309 of the Constitution to regulate conditions of service of the officers in the Rajasthan Administrative Service. We have already referred to the fact that the Rajasthan Administrative Set-vice was fanned in the year 1950. There were three Grades in the Service : (i)Ordinary Time Scale Rs. 285-800 (herein after to be referred as the Junior Scale); (ii) Senior Scale Rs. 500-1150; (iii)Selection Grade Rs. 900-1500. In the Civ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....promotion. Those sub- rules also dealt with the Head of the Department preparing a list of candidates, eligible for promotion in the order of seniority and. recording. this remarks in respect of those officers. Sub-rule (7) provided for the Committee consis- ting of the, officers mentioned therein considering the cases of all the candidates recommended by the Board and the Administrative Secretaries and interviewing them, if necessary. It also provided for the Committee selecting the requisite number of candidates equal to the number of vacancies likely to occur in the Service and to be filled up by promotion and to the list being prepared in the order of seniority. The Committee has also to make another supplementary list in the manner mentioned therein in the said sub-rule. Under sub-rule (8) both the lists prepared by the Committee are to be submitted to the Government, who after scrutinising the same have to forward them to the Public Service Commission along with the character rolls, personal files and other particulars relating to the officers mentioned therein. Under sub-rule (9) the names of the candidates considered to be suitable by the Commission are to be reported to th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... on the basis of merit and on the basis of seniority-cum-merit in proportion of 50:50. Provided that if the appointing authority is satisfied that suitable persons are not available for appointment by promotion strictly on the basis of merit in a particular year appointment by promotion on the basis of seniority-cum-merit may be made in the same manner as specified in these rules. (2) Selection strictly on the basis of merit shall be made from amongst persons who are otherwise eligible for promotion under these rules; the number of eligible candidates to be considered for the purpose shall be ten times the total number of vacancies to be filled in on the basis of merit and seniority un-merit provided such number is available; where the number of eligible candidates exceeds ten times the number of vacancies, the requisite number of senior-most persons shall be considered for the purpose. (3) Except as otherwise expressly provided in this rule the procedure prescribed for selection to the post on the basis of seniority-cum-merit shall, so far as may be, be followed in making selection strictly on the basis of merit. (4....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s deleted. On January 7, 1966, a further amend- ment was made to the rules by deleting sub-rules (2) to (6) of r. 28. It will be seen that under the new r. 28B, promotion to posts in the service is to be made by selection on the basis of merit and on the basis of seniority-cum- merit in the proportion of 50:50. Sub-rule (2) provided for the manner of selection on the basis of merit. Under sub- rule (3) procedure prescribed for selection to the posts on the basis of seniority-cummerit has to be followed as far as possible in making selection strictly on the-basis of merit. On August 26, 1966 by a notification certain amendments were made in r. 28B. Under subrule (1) of r. 28B, the original proportion of selection on the basis of merit and on the basis of seniority-cum-merit was altered and the proportion was fixed as 1:2. A proviso was also added to sub-rule (2) of r. 28B, which is as follows : "Provided that for the first Promotion in the same cadre (from a lower grade to higher grade) against the merit only such of the persons shall unless a higher period is prescribed elsewhere in these rules be eligible who have put in not less than six years of servi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inciples for selection by merit being the same as provided in r. 28B. Therefore, it will be seen that the position as it stood at the time when promotions of the various respondents in the appeal and in the writ petitions were made was : (1) the promotions had to be made on the basis of merit and seniority-cum-merit in the ratio of 1:2 as provided by Rule 32 read with r. 28B; (2) under the proviso to sub-rule 2 of r. 28B the minimum period of eligibility for being considered for the first promotion is six years of service in the lower grade of the cadre; (3) under sub-rule 2 of r. 28B the selection for promotion is restricted only to officers eligible for promotion under the rules coming within ten times the total number of vacancies to be filled up on the basis of merit and seniority-cum-merit; (4) under r. 32 appointments to Senior scale and Selection cadre posts are also on the basis of merit and seniority-cum-merit in the ratio of 1:2, and (5) recommendations for appointments and promotions are to be made by the Committees concerned. It is the grievance of the appellant and the writ petit....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 27 enumerated certain factors or matters to be taken into account in selecting candidates for promotion. Sub-rules (2) to (6) of r. 28, no doubt also dealt with certain aspects of procedure to be adopted for promotion. The deletion of the sub-rules, in our opinion, does not make the rules 28B and 32 in any manner invalid. We have already extracted the relevant rules and also pointed out that the selection or promotion is to be considered by the Committees referred to therein. It is no doubt argued by Mr. Garg that introduction of the idea of merit in the procedure of promotion brings in an element of personal evaluation and such personal evaluation opens the door to the abuse of nepotism and favouritism. Hence it is argued that there is a violation of the constitutional guarantee under Arts. 14 and 16. We-are unable to accept this contention. The State Govern- ment has taken a decision in 1965 that selection to the service and promotion have to be on the basis of merit and senioritycum-merit. There can be no controversy that the main object in such matters is to serve public interest and not the personal interest of the members of the official-roup concerned. As stated by Leona....
X X X X Extracts X X X X
X X X X Extracts X X X X
....carefully and properly noted, will also give a very broad and general indication regarding the merit of an officer. Therefore, it cannot be stated that rr. 28B and 32 are in any manner vague ,or do not give any guide line for assessing the merit of an officer. No doubt sub-rule (2) of r. 27 dealt with certain factors which are to be taken into account for considering the claims for promotion, but when it comes to a, question of merit, not only those factors but also certain additional factors and circumstances will have to be taken into account and such an evaluation of merit has been left under the rules to a Committee consisting of res- ponsible, senior and experienced officers of the State. We are also not impressed with the contention that Rule 28B(2) and its proviso confining the selection to senior- most officers not exceeding ten times the number of total vacancies to be filled up and the further restriction regarding the eligibility of officers who have put in at least six years of service for first promotion offend Art. 16 of the Constitution. In this respect also we agree with the views expressed by the Division Bench of the Rajasthan High Court in D. B. Special Appeal No....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ued by the Chief Secretary as the Head of the Service and it is not an order of the Government. This has been accepted by the State Government. If so, it follows that the Circular is illegal and void. We have already referred to the stand taken by the State Government in this regard. They have specifically taken the stand that the circular has been issued by the Chief Secretary as the Head of the Service. Before the Division Bench in the High Court when this matter was again raised by the appellant, it is seen that an application for amending their counter-affidavit was made by the State to make the position clear that the Circular was issued with the approval of the Government. As pointed out by the Division Bench there is some confusion in this regard. But ultimately the Division Bench has stated that they themselves have gone through the Cabinet file and the notes and satisfied themselves that the Circular has been issued with the approval of the Government. Therefore it follows that the Circular is an order of the Government and not of the Chief Secretary alone. Then the question is whether the Government is competent to issue the said Circular and whether the Circular in an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....if such persons had been appointed by promotion on the basis of seniority-cum-merit. This is illustrated by the following example Name of the No. of Seniority in the Officer Marks. next below grade. A 75 8 B 73 9 c 70 4 D 69 3 E 65 1 That if there are 5 vacant posts to be filled by promotion on the basis of 'merit' formula the inter-se seniority of these 5 selected persons will be the same as in next below grade, but if only 3 posts are to be filled then those who have secured 75, 73 and 70 marks respectively will be selected and the remaining left out. The inter-se seniority amongst these selected shall be the same as the next below grade. (b)The eligible candidates for promotion on the basis of 'merit' formula shall be 10 times the total number of vacancies to be filled by way of promotion provided such number is available and they should be holding the post in the next below cadre in substantive capa- city. As for example, if there are twelve posts to be filled by way of promotion on the basis of both the formula (viz. four posts for merit and eight for seniority-cum-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld not be repeated or counted in the next selection. Also if some marks have been deducted from the Confidential Roll of a particular year, then that deduction should not be repeated or counted next time. That Confidential Roll should be considered satisfactory, and marks awarded accordingly, with a view to ensure implementation of this, it would be necessary for the promotion Committee to keep a record of such deductions and additional marks as the case may be. (c)On the basis of above marking, only such persons who have secured a minimum of 6-1/2 marks out of the total of 75 marks will be considered for promotion on the basis of 'Seniority-cum-merit' formula. Thus, as has been mentioned earlier, even if a junior person secures more than 621 marks, the senior will not be superseded if he has secured 62- 1/2 marks. Under the 'merit' formula those who have secured 65 marks or more will only be considered for promotion." Paragraph 6 dealing with officers, who can be called for interview provides that a person who has secured less than 62-1/2 marks shall be called for interview.. But persons who get less than 61 marks, should not. be call....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ernment employees. One gets a fairly good picture of the nature of the instruc- tions contained in the circular issued by the Government. No doubt a properly evaluated marking system may be helpful for assessing the merit of persons who are already in service. But the instructions given in the circular are so rigid that they are ,opposed to the selection to be made strictly on merit as provided under rr. 28B and 32.- For instance the marking system provides 50 marks for the record prior to 5 years and for the five years preceding the selection the marking of 25 is to be on the basis of confidential rolls. From this it is clear that an officer who has rendered less than five years of service will not be eligible to get a single mark ,out of 50 which is provided for the record for the period preceding five years for the simple reason that he will have no such record. The officer who has put in less than five years of service has been straightaway denied 50 marks out of 75 marks and he has to establish his worth within the small range of 25 marks on the basis of his confidential rolls which will be available for a period of less than five years. This formula of marking is certainly op....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the other hand, the indications axe to the contrary. The circular enjoins the Committees to treat the administrative instructions and the statutory Service Rules together as a complete Code. The object of the circular may be to bring about uniformity in the award of marks. But the directions contained therein do' offend the rules. This is not a case of the government filling up the gaps or of giving executive instructions on matters not provided for by or not inconsistent with the rules. 'Me learned Judges of the Division Bench of the High Court, have by and large, upheld the validity of the marking system as well as the other instructions contained in the circular of 1966 on the ground that the marking system as pointed out by the State has been in vogue from 1960, on the basis of a previous circular, dated August 31, 1960 issued by the State Government. Reliance placed upon this circular of 1960 by the High Court, in our opinion, is not justified. We have gone through the circular of 1960 which is No. F. 1(6) Apptts. (D)160 dated 31-8-1960. That circular was issued by the State to clarify the misapprehension that appears to have been caused in the application, for promoti....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... those orders except to the extent indicated below in respect of the promotions of respondents Nos. 2 to 4 in Civil Appeal No. 1815 of 1970 under the first order dated January 4, 1967 and their confirmation, by the second order dated January 22, 1970. Writ Petitions Nos. 76 and 139 of 1970 have been filed in this Court. only after the judgment dated January 20, 1970 of the High Court in D. B. Special Appeal No. 57 of 1968. The petitioners must have been aware that the appellant was challenging only the promotions of four officers in his writ petition 59-1 S.C.R. India/71 in the High Court. Nevertheless, they kept quite and allowed the officiating promotions of all the officers to stand from 1967 and even kept quiet till the government confirmed the promotion of those officers on January 22, 1970. So far as the writ petitioners are concerned, the State must be considered to be justified in passing the order dated January 22,,1970, on which date the High Court's judgment was in its favour. We are entitled to take this circumstance into account for denying the larger reliefs claimed by the writ petitioners when they attack the orders dated January 4, 1970 and January 22, 1970. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a declaration that the circular dated August 27, 1966 is invalid and that it is struck down. They are' not entitled to any further reliefs in the writ petitions. In the civil appeal Guman Singh, the appellant has raised a contention that promotions of respondents Nos. 2 to 4 were made on January 4, 1967 on the basis of illegal rules and invalid circular. He has further contended that the Promotion Committee which met in September, 1966 has taken into account the adverse remarks made against him which were not justified and which were not communicated to him. We have already expressed our views upholding the validity of the rules and the invalidity of the circular. In support of the contention that adverse remarks were taken into consideration by the Committee, he relied upon the following circumstances : The Deputy Commissioner has written a letter dated April 28, 1966 strongly appreciating his services as an officer. While so, it is a matter of surprise that adverse remarks came to be made in September, 1966. The nature of the adverse remarks has been referred to by the Division Bench. It is admitted by the State that the Promotion Committee had met in the end of September, 19....
X X X X Extracts X X X X
X X X X Extracts X X X X
....before the High Court all the materials available before it to enable the Court to consider whether the grievance of the appellant was justified or not. The appellant had made a specific grievance in his writ petition about the uncommunicated adverse remarks having been taken into account by the Committee. The Government could have obtained a report or an affidavit regarding the true facts from a responsible officer of the Committee and placed it before the High Court. Anyhow, as- mentioned earlier, it is not necessary for us to pursue this aspect further except to point out that we do not agree with the reasoning of the High Court in this regard. The High Court has also declined to interfere with the order dated January 4, 1967 as it upheld the validity of rr. 28B and 32 as well as the circular of August 27, 1966. Though we are upholding the validity of the two rifles, we disagree from the High Court's view regarding the validity of the circular. We are also giving separate directions regarding the order dated January 4, 1967. We are, accordingly of the opinion that so far as the appel- lant (in the civil appeal) and respondents Nos. 2 to 4 are concerned, the officiating promo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... In the appeal and the writ petitions we hold that rr. 28B and 32 are valid and that the circular dated August 27, 1966 is struck down as illegal and invalid. In the writ petitions there will be only a declaration that the circular dated August 27, 1966 is invalid and that it is struck down. In other respect both the writ petitions will stand dismissed. There will be no order as to costs. So far as the appeal is concerned there will be a further order at subject to the observations contained in this judgment a direction will issue to the first respondent, the State to instruct the Departmental Promotion Committee to review and reconsider the promotions already given to respondents Nos. 2 to 4 in the appeal under the order dated January 4, 1967 and to decide their claims afresh only on the basis of the Rules. If the appellant is found eligible for being considered for promotion under the Rules, his claim also will have to be considered along with that of the respondents Nos. 2 to 4. No directions are necessary regarding respondent No. 5 as he is already dead. Depending on the fresh recommendations, any, made by the Departmental Promotion Committee, the first respondent, will also....