A.P. Wasan vs The Post-Graduate Institute of Medical Education and Research, Chandigarh and others

K.S. Kumaran, J.

This is an appeal against the order dated 17.2.1989 vide which the learned Single judge declined the appellant''s prayer for directing

respondents Nos. 1 and 2 to promote him as Technologist Grade-I from the date respondent Nos. 3 to 5 were so promoted.

The facts :-

Appellant-A.P. Wasan joined the service of the Post-Graduate Institute of Medical Education and Research, Chandigarh (respondent No. 1) on

17.7.1995 as Technologist Grade-II (Electrical) in the pay scale of Rs. 300-600/-. Respondent No. 3 - R.K. Wadhwa was initially appointed as

Sectional Officer (Electrical) in the pay scale of Rs. 200-450/- w.e.f. 13.2.1969. On 29.4.1972, he was appointed as Foreman (Electrical) in the

pay scale of Rs. 250-550/-. With effect from 27.1.1975, he was promoted as Foreman Grade-I (Electrical) in the pay scale of Rs. 300-600/- and

finally, he was promoted as Technologist Grade-I in the pay scale of Rs. 650-1200/- vioe the order dated 24.5.1980. Respondent No. 4-K.S.

Sharma was appointed as Technologist Grade-II in the service of respondent No. 1 in November, 1975 in the pay scale of Rs. 300-600/-. He

was promoted as Technologist Grade-I on 24.5.1980. Respondent No. 5-R.K. Goyal was initially appointed as Sectional Officer on 14.7.1973.

After 5 years, he was appointed as Technologist Grade-II in the pay scale of Rs. 425-800/- with effect from 1.6.1978, He too was promoted as

Technologist Grade-I on 24.5.1980.

The appellant and Shri R.K. Sarin challenged the promotion of the non-official respondents by filing C.W.P. No. 1877 of 1980 which was

partly allowed by the learned Single Judge on 17.2.1989. The relevant extracts of that order read as under :-

The only point for consideration in this case is whether for the purpose of promotion from the post of Technologist Grade-II to that of

Technologist Grade-I the seniority of the incumbent of the grade is to be taken section- wise or cadre-wise and whether they can be considered

for promotion irrespective of their section of posting. The petitioners'' stand is that it should be cadre-wise, instead of section-wise, whereas the

stand of the respondents is that it should be section-wise keeping in view the workload, The petitioner No. 1 has been ignored for consideration

for the post of Technologist Grade-I on the plea that he was never appointed as Technologist Grade-II inasmuch as there was no post of

Technologist Grade-II for Linen Bank Manager. Linen Bank post was charged against the post of Technologist Grade-II which does not appear

to be correct in view of conversion of 25 technical posts into 22 posts of Technologists. If the respondent Nos. 1 and 2 are left to adopt the

criteria of promotion section-wise, then there is every possibility of favouritism and arbitrariness inasmuch as the persons of choice can be easily

posted in the sections where there are chances of promotion. As regards the petitioner No. 2 it has been specifically averred that the D.P.C.

considered his name for promotion from the post of Technologist Grade-II to that of Technologist Grade-T along with respondent Nos. 3 to 5 and

one more, but he was not so meritorious as respondent No. 3 who was admittedly senior to him in the cadre of Technologists Grade-II.

I am of the considered view that merely by posting a particular person in a particular section, his chances of promotion cannot be marred if he is

otherwise suitable and eligible for the higher post particularly when it is not in dispute that seniority of Technologist Grade-II is common. More so,

the distribution of post of Technologists shows that there are some sections where there is no post of Technologist Grade-II but there exist posts of

Technologist Grade-I vice versa. Hence from this angle also promotion cannot be branch-wise. So the respondents were duly bound to consider

all the incumbents falling within consideration zone for promotion from the post of Technologist Grade-II to Technologist Grade-I irrespective of

their posting in a particular section. Hence the petitioner No. 1 should have also been considered keeping in view his seniority in the grade of

Technologist Grade-II and it does not stand to reason that he was posted as a Linen Bank Manager and was being charged against the post of

Technologist Grade-II. As regards petitioner No. 2 he has got no case as he was duly considered by the Departmental Promotion Committee but

was not found suitable so as to supersede a senior person according to seniority. It is well settled that an employee has not a right of consideration

alone and not of selection.

For the foregoing reasons, I partly accept this Writ petition and direct respondents No. 1 and 2 to consider the claim of petitioner No. 1 along with

other suitable and eligible candidates for the post of Technologist Grade-I with reference to D.P.C, for which respondents No, 3 to 5 were

selected, within a period of three months from today and to grant him all the consequential benefits per eligibility subject to decision of the D.P.C.,

but the Civil Writ Petition qua the petitioner No. 2 is dismissed. However, his name may be considered as and when vacancy becomes available

and he falls within the zone of consideration.

Shri Vinod Sharma, counsel for the appellant argued in view of the finding recorded by the learned Single Judge that mere posting in a particular

Section or branch cannot mar the promotion of an eligible candidate, the appellant''s prayer for directing the official respondents should have been

accepted. He argued that the learned Single Judge has gravely erred in holding that the appellant''s candidature had been considered alongwith

other eligible candidates, but he was not found more meritorious vis-a-vis non-official respondents. Shri Sharma pointed out that the real cause for

non-promotion of the appellant was non-availability of post of Technologist Grade-I (Estate) - and not the lack of merit. He referred to memo No.

PGI/Engg-79/17297 dated 21.12.1979 sent by the Supdt. Hospital Engineer-cum-E.O. of respondent No. 1 to the appellant to show that his-

client had been denied promotion due to the nonavailability of vacancy of Technologist Grade-I (Estate). The learned counsel further argued that

while rejecting the claim of the appellant, learned Single Judge has completely overlooked the fact that during the pendency of the writ petition, an

order was passed by the Court on 21.3.1983 vide which it was directed that promotions made hereafter would remain subject to the decision of

the case. He pointed out that Sarv Shri I.C. Verma, Cecil Aknai and D.R. Yadav, who were appointed as Technologists Grade-II on 1.6.1978,

9.10.1978 and 3.11.1978 ,were promoted as Technologists Grade-I w.e.f. 11.8.1980, 5.9.1988 and 5.9.1988 respectively without considering

the appellant''s candidature and, therefore, a direction should have been given to the official respondents to promote him as Technologist Grade-I.

Shri Arun Nehra and Shri Surya Rant supported the order of the learned Single Judge and argued that the appellant does not have any right to be

promoted as Technologist Grade-I because his case had been duly considered by the Selection Committee and he was not found meritorious

enough to supersede the non-official respondents who were senior to him in the cadre of Technologist Grade-II.

We have thoughtfully considered the respective submissions. In the written statement filed by the official respondents, the claim of the writ

petitioners (including the appellant) for promotion as Technologist Grade-I had been controverted on the following two grounds :-

(1) The promotion had to be made Section-wise according to the work-load and as the post of Technologist Grade-I (Linen Bank Service) was

not available, the case of R. K. Sarin could not be considered.

(2) The petitioner-A.P. Wasan''s candidature had been considered by the Departmental Promotion Committee along with R.K. Wadhwa and I.C.

Verma and on the recommendations of the Committee, R.K. Wadhwa was promoted as Technologist Grade-I (Electrical) because service

records of A.P. Wasan and I.C. Verma were not superior to that of Shri Wadhwa.

The learned Single Judge, as mentioned above, has rejected the plea of the official respondents that promotion to the post of Technologist Grade-I

had to be made section-wise according to the work-load. The official respondents have not challenged this finding of the learned Single Judge and,

therefore, we shall have to proceed on the assumption that the decision of the official respondents to make section-wise promotions was illegal.

In view of the above, the only issue which survives for consideration is whether the rejection by the learned Single Judge of the appellant''s claim

for promotion to the post of Technologist Grade-I is legally sustainable. In this context, it would be appropriate to mention that the learned Single

Judge upheld the plea of Shri R.K. Sarin and declared that non-consideration of his candidature on the pretext of non-availability of vacancy

resulted in discrimination and violation of his fundamental right to equality. However, the appellant''s claim for promotion was rejected on the

ground that as per the official respondents, his candidature had been considered by the Departmental Promotion Committee alongwith R.K.

Wadhwa and I.C. Verma, which had recommended Shri Wadhwa for promotion. However, after going through the record of the case, we are

convinced that the assertions made in the written statement of the official respondents about the consideration of the appellant''s candidature, which

have been relied upon by the learned Single Judge for declining relief to him, are perse against the contents of memo dated 21.12.1979 (Annexure

P4 with the writ petition) vide which his prayer for promotion was rejected on the ground on non-availability of vacancy in the cadre of

Technologist Grade-I (Estate). In the face of his communication, learned Single Judge was not justified in accepting the bald statement made in the

written statement of the official respondents that the candidature of the appellant had been duly considered. Moreover, after having held that the

decision of the official respondents to make promotion section-wise is illegal and unsustainable, the learned Single Judge should have accepted the

claim of the appellant as well.

We may also mention that during the course of arguments, the proceedings of the meeting of the Department Promotion Committee and other

record relating to the selection were placed before us, a perusal thereof shows that the appellant''s case had not been considered with K.S.

Sharma and R.K. Goyal. This, in our considered view, is sufficient to negate the plea of the official respondents and the finding recorded by the

learned Single Judge that the appellant''s candidature had been considered, but he was not promoted due to the fact he was not more meritorious

than the non-official respondents.

At this stage, we may notice another aspect of the matter. In paragraph'' 29(i) of the writ petition it had been specifically alleged that there being

no rules for promotion, the senior-most person is entitled to promotion to the next higher grade on the basis of seniority. Respondent Nos. 1 and 2

have stated in their reply that this paragraph is formal one and does not require any reply. The non-official respondents, in reply to this paragraph,

stated that the seniority along with efficiency is the criteria for the purpose of promotion and that they have better service record. However, none of

the respondents had produced any rule or criteria adopted by respondent Nos. 1 and 2 for the purpose of promotion. In view of this and also in

the absence of any rule or criteria regarding promotion, respondent Nos 1 and 2 were bound to follow the seniority unless there was something in

the service record of the incumbent disentitling him to promotion. Respondent Nos. 1 and 2 have not stated that the service record of the appellant

was not good nor have the other respondents stated so. Respondents No. 1 and 2 have only stated in their reply that the record of service of the

appellant was not superior to such an extent to supersede Shri R.K. Wadhwa. It is, thus, clear that the service record of the appellant was not such

as to disentitle him to promotion. Therefore, the case of the appellant for promotion had to be considered at least when his junior was considered.

As pointed out already, there is also no provision that the promotion should be made section-wise. Even otherwise, such a, methodology for

promotion, if adopted, would result in arbitrariness and favouritism, as pointed out by the learned Single Judge, since the persons who are

favourites of the authorities in power, could be posted in sections in which there are chances for promotion and the others can be dumped in the

other sections where there are no such chances. The chances of promotion of a particular incumbent cannot be spoiled by posting him in a

particular section, even though he happens to be senior to certain others. The posts of Technologists cannot be so distributed in a manner as to

provide for promotion to certain persons who are posted in certain sections of the same department and deprive the others of promotion, who are

posted in other sections, in spite of the latter being senior to the former.

In view of the above discussion, we hold that the learned Single judge was not right in adopting different yard-sticks for deciding the claim of the

writ petitioners whose cases were almost identical.

As a logical corollary to the aforementioned conclusion, we hold that non- consideration of the appellant''s candidature for promotion has resulted

in violation of his fundamental right to equality.

The issue which remains to be considered is as to what relief should be given to the appellant. The pleadings of the parties and the record

produced by the official respondents show that R.K. Wadhwa and K.S. Sharma are senior to the appellant and the service record of these

respondents is not such which could disentitle them from being promoted. Therefore, qua their promotion, the appellant cannot have any legitimate

grievance. However, so far as Shri R.K. Goyal is concerned, he is definitely junior to the appellant and as it has not been shown that his service

record was superior to that of the appellant, we are of the view that his case deserves to be considered qua the said respondent. We are further of

the view that even if the appellant is not found meritorious than Shri R.K. Goyal, his candidature deserves to be considered from the date other

juniors of his were considered.

In the result, the appeal is allowed. The order of the learned Single Judge dismissing the writ petition qua the appellant is set aside and

respondents Nos. 1 and 2 are directed to consider the appellant''s claim for promotion as Technologist Grade-I from the date respondent No. 5 or

any other person junior to him was promoted and if he is found suitable then give him promotion with retrospective effect with all consequential

benefits.

Appeal allowed.