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Judgment
Amitava Roy, C.J.—This writ petition has been filed by the petitioner seeking quashing of order dt. 09.08.1999 (Annexure-6), whereby, respondent No. 3 Babu Lal Jain and respondent No. 4 Manoj Kumar-Senior Personal Assistant-cum-Judgment Writers (''Sr. P.A.'') were promoted as Private Secretary-cum-Judgment Writers (''P.S.'') on officiating basis for a period of six months and order dt. 10.08.2001 (Annexure-R/3), whereby, petitioner''s representation dt. 16.08.1999 against Annexure-6 was rejected and direction to accord promotion to the petitioner as per his seniority with effect from the date when vacancies of P.S. arose on 01.04.1999/01.05.1999 or at least w.e.f. 09.08.1999 with all consequential benefits in his favour. The facts in brief, as alleged by the petitioner are that he joined the service as Stenographer Grade-II on 13.01.1992. He was accorded ad hoc/temporary promotion on the post of Personal Assistant (''P.A.'') on 22.12.1993. In the qualifying test held for promotion, the petitioner with others passed the same and was accorded promotion on the post of Personal Assistant-cum-Judgment Writer on 24.10.1994 and the order of seniority was as follows:--
English
[1] Mangi Lal Tinwar
[2] Mohd. Mustafa Ansari (petitioner)
[3] Manoj Kumar (respondent No. 4)
[4] Pankaj Baweja (respondent No. 5)
Hindi
[1] Babu Lal Jain (respondent No. 3).
Thereafter, on 20.10.1997 promotions were accorded to others on the post of Sr. P.A. and petitioner was excluded on account of pendency of departmental enquiry. Promotion was accorded to him on the post of Sr. P.A. on 01.09.1998. It was claimed by the petitioner that on 01.04.1999 a vacancy of P.S. occurred due to retirement of Mr. B.L. Dave, and another vacancy arose on 01.05.1999 on account of retirement of Mr. Amarpal Singh. Thereafter, vide impugned order dt. 09.08.1999 promotions were accorded on the said two posts of P.S. to respondent Nos. 3 and 4 respectively, which is put in question in the present writ petition.
It may be noticed that during the pendency of the writ petition vide order dt. 10.08.2001, the representation of the petitioner was accepted and he was accorded promotion to the post of Sr. P.A. w.e.f. 20.10.1997 instead of 01.09.1998, however, his representation for assigning seniority over Babu Lal Jain (respondent No. 3) was rejected; the representation made by the petitioner against order dt. 09.08.1999 (Annexure-6) was rejected by order dt. 10.08.2001 (Annexure-R/3). The writ petition was thereafter amended and petitioner sought quashing of the order Annexure-R/3 also. The term period of promotions granted on ad hoc basis on 09.08.1999 has been extended till further orders.
The contention of the petitioner in the writ petition is that on the date when promotion was accorded to respondent Nos. 3 and 4 i.e. 09.08.1999, there was nothing adverse against him and as he was senior to respondent Nos. 3 and 4, there was no reason for over looking him for promotion to the post of P.S.
It has also been pointed out that a memo dt. 23.06.1999 was received by the petitioner seeking explanation on the basis of a note dt. 03.06.1999 on behalf of a Hon''ble Judge. A charge-sheet dt. 13.12.1999 was issued to him under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (''the Rules of 1958'') for imposing major penalty read with Rule 13 of the Rajasthan High Court (Conditions of Service of Staff) Rules, 1953 (''the Rules of 1953'').
After enquiry, the disciplinary authority vide order dt. 23.07.2001 imposed punishment of withholding of five annual grade increments with cumulative effect. On appeal, the appellate authority reduced the penalty to withholding of three annual grade increments with cumulative effect. A writ petition being D.B. Civil Writ Petition No. 153/2002 was filed, which was dismissed by this Court on 14.11.2007 and SLP against the order dt. 14.11.2007 also stood dismissed by the Hon''ble Supreme Court on 08.07.2008.
During pendency of the writ petition, the petitioner impleaded two more persons being Pankaj Baweja and Deepanker Bhattacharya as respondent Nos. 5 and 6 respectively on account of their ad hoc/temporary promotion to the post of P.S.
It may also be noticed that during pendency of this petition the petitioner has been accorded promotion to the post of P.S. on 21.05.2009 on ad hoc/temporary basis.
A reply to the writ petition has been filed by respondent Nos. 1 and 2, wherein, it was pointed out that the case of the petitioner for promotion to the post of Sr. P.A. was deferred on account of pendency of a departmental enquiry under Rule 16 of the Rules of 1958 and, in the said departmental enquiry, vide order dt. 12.08.1998 the petitioner was conveyed the order of disciplinary authority, who warned him to be more careful in future and, after conclusion of the said enquiry, he has been promoted on the post of Sr. P.A. It has been submitted that petitioner was considered for promotion on the post of P.S., but keeping in view his unsatisfactory work report and the fact that another departmental enquiry was under contemplation against the petitioner so the case of the petitioner who was second in the seniority list was deferred. In the petitioner''s ACR for the period 01.01.1998 to 31.12.1998 "General Remarks: It was reported by the Steno attached to Hon''ble Justice A.K. Singh that Shri Ansari is an unwilling and disobedient worker. An enquiry under Rule 16 C.C.A. Rules is also pending and Overall Assessment: Unsatisfactory" was reported. The fact of issuance of memo on 23.06.1999 and pendency of disciplinary proceedings under Rule 16 of the Rules of 1958 was also pointed out in the reply. On the issue raised by the petitioner regarding seniority qua Babu Lal Jain - respondent No. 3, it was pointed out that there was no separate cadre for Stenographers from Hindi and English streams and, therefore, the claim was baseless. The sum and substance of the entire reply is that the work report of the petitioner was unsatisfactory and on account of a concluded departmental enquiry, adverse remarks, issuance of a memo and contemplation of enquiry, the petitioner was not promoted.
The respondent No. 3 has also filed a reply to the writ petition and pointed out that he entered the service on 27.09.1988 four years before the petitioner entered the service as Stenographer Grade-II on 09.01.1992 and, thereafter, was accorded promotion as P.A., Sr. P.A. and P.S. on his turn and, therefore, denied the claim made by the petitioner qua him in the writ petition.
It was contended on behalf of the petitioner that the action of the respondents in denying promotion to him on 09.08.1999 is against settled position of law as on 01.04.1999 and 01.05.1999 when vacancies for the post of P.S. arose and even on 09.08.1999 when respondent Nos. 3 and 4 were accorded promotion, the petitioner was fulfilling criteria for promotion and the said respondents were wrongly accorded promotion ahead of the petitioner. It is submitted that there was nothing adverse against the petitioner so as to deny him the promotion to the post of P.S. The stand taken by the respondents regarding deferment on account of contemplation of disciplinary proceedings was contrary to the law laid down by Hon''ble Supreme Court in Union of India Vs. K.V. Jankiraman, etc. etc.,
It has further been submitted that the Rules of 1953 provides for penalty ''withholding of increments or promotion'' and not both.
It was submitted on behalf of the respondents that from the perusal of the material placed on record, it is clear that the work of the petitioner was unsatisfactory and as another enquiry was in contemplation, his consideration was deferred/he was not accorded promotion to the post of P.S.
We have considered the rival submissions made at the Bar.
It may be noticed that the method for appointment/promotion to the post of Private Secretary-cum-Judgment Writers (Super Time Scale) was specified by order dt. 25.02.1986 as under:--
PRIVATE SECRETARIES CUM JUDGMENT WRITERS (SUPER TIME SCALE)
Recruitment to the post of Private Secretaries-cum-Judgment Writers (S.T.S.) shall be made by promotion from amongst the Senior Personal Assistant-cum-Judgment Writers by the Appointing Authority on the basis of suitability-cum-seniority.
The nomenclature of the post Private Secretary-cum-Judgment Writers (Super Time Scale) was changed to Private Secretary-cum-Judgment Writer (P.S.) by order dt. 05.04.1986, therefore, criteria for promotion from amongst the Sr. P.A. to P.S. is ''suitability-cum-seniority''.
The term ''suitability'' has been explained by Hon''ble Supreme Court in Valsala Kumari Devi M. Vs. Director, Higher Secondary Education and Others, as:
The expression "suitability" means that a person to be appointed shall be legally eligible and "eligible" should be taken to mean "fit to be chosen.
The Hon''ble Supreme Court in Gurdial Singh Fijji Vs. State of Punjab and Others, held as under:--
...Clause (2) of Regulation 5 provides that selection for inclusion in the Select List shall be based on merit and suitability in all respects, with due regard to seniority. In other words, the test for inclusion in the Select List is merit-cum-seniority. Neither the Indian Administrative Service (Recruitment) Rules, 1954 under which the regulations are framed nor indeed the provisions of All India Services Act, 61 of 1951, under which the Rules are made, furnish any guidelines for assessing merit or suitability of a candidate for inclusion in the Select List or provide for the consideration of any particular data before a candidate can be brought on the Select List. Every executive authority is charged with the obligation of organising its services so as to ensure maximum efficiency. The ideal of maximum efficiency cannot be achieved unless persons who are selected for public offices posses integrity in as high a measure as ability. Integrity is indeed the sine qua non of merit and suitability: no person can be considered as possessing merit and suitability if he lacks in character and integrity. If, as provided by Regulation 5, selection for inclusion in the Select List has to be based on merit and suitability in all respects, and the Rules and regulations do not furnish guidelines for a proper assessment of these requirements, the Government would have the power to prescribe the criteria for determining whether the requirements are fulfilled by any particular candidate....
(emphasis supplied)
It has been held by Hon''ble Supreme Court in Shri Parvez Qadir Vs. Union of India (UOI), that:--
Lastly it is contended that the adjudgment of suitability on the basis of the confidential entries and other records is arbitrary, and consequently Regulation 5 is invalid. It may be necessary to point out that the initial recruitment to the Indian Forest Service was to be made from amongst the Gazetted Officers belonging to the State Forest Service of each State, the number of such selections being not in excess of the number of posts available in the cadre for each State. It is true that the adjudgment of suitability of such officers eligible for selection has to be made according to some norms. In order to achieve this end, various methods can be adopted. There can be a method of selection by competitive examination, another by examination-cum-viva-voce, yet a third by via-voce alone, or the fourth by the examination of official record or with a viva-voce and the fifth by purely on the scrutiny of the official record. It is not for this Court to lay down which of the methods has to be adopted for adjudging suitability as long as the norms which have been adopted are correlated and relevant to the adjudgment of the suitability of the officers to be recruited in the Indian Forest Service. It cannot be said that some other method should have been adopted and (sic)e method adopted by the rules or regulations for selection is improper....
....
...Each case has to be viewed in the context in which the words "suitability" or "suitable" is used, the object of the enactment and the purpose sought to be achieved. In any case the adjudging of suitability as has been suggested by the method of viva-voce, as held by this Court in Janki Prasad Parimoo vs. State of J & K is unsatisfactory. The criteria laid down in the rules and regulations on this aspect do, in our view, provide sufficient indication as to the norms applicable for adjudging suitability, namely, the past performance of the Officer as can be gleaned from his confidential and other records if they exist in respect of that Officer.
(emphasis supplied)
From the law laid down by Hon''ble Supreme Court (supra), it is apparent that the criteria suitability cum seniority as prescribed in the present case, wherein, suitability has been given a precedent, means that a person to be promoted should be fit to be chosen; the criteria for assessing suitability can be prescribed by the appointing authority for determining whether the requirements are fulfilled by any particular candidate and the past performance of the officer from his confidential and other records can provide sufficient indication for adjudging suitability.
In the present case, it is not in dispute that the petitioner faced departmental enquiry under Rule 16 of the Rules of 1958 and vide order dt. 12.08.1998 he was "warned to be more careful in future" in the Annual Performance Appraisal Reports for the period 01.01.1998 to 31.12.1998, the general remark was ''it was reported by the Steno attached to Hon''ble justice A.K. Singh that Shri Ansari is an unwilling and disobedient worker. An enquiry under Rule 16 C.C.A. Rules is also pending and his overall assessment was ''unsatisfactory'' and vide memo dt. 23.06.1999, inter alia, he was informed that he was ''deputed with Hon''ble Justice Mr. A.K. Singh, during leave of Shri R.C. Moondra, you did not care to attend the residence of His Lordships for taking dictation'', which culminated into charge-sheet dt. 13.11.1999 and consequential punishment as noted hereinbefore.
Though the said adverse remarks for the period 01.01.1998 to 31.12.1998 were expunged by order dt. 29.06.2002, the material available before the appointing authority on the date of consideration of petitioner''s candidature for promotion to the post of P.S. i.e. 09.08.1999 was sufficient to come to a conclusion that the work of the petitioner was unsatisfactory, meaning thereby, that he was not suitable for promotion to the post of P.S., the plea of deferment taken in the reply is apparently in context of the fact of contemplated disciplinary proceedings, but then the available material itself, in our opinion, was sufficient to cum to a conclusion that the petitioner was not suitable for promotion to the post of P.S. It may be stated here that whether a person is suitable for a particular post also depends upon the nature of the post and essential qualities of the person seeking appointment on that post. The post for which the petitioner is seeking promotion is that of Private Secretary-cum-Judgment Writer of a Judge of High Court and the nature of allegations, remarks and memo issued to the petitioner clearly reflected on the fact that the petitioner lacked essential qualities seeking promotion on the post of P.S., therefore, we find no reason to interfere with the order impugned, whereby, the respondent Nos. 4, 5 and 6 were promoted ahead of the petitioner on the post of P.S. from the post of Sr. P.A.
The judgment in the case of Union of India vs. Jankiraman (supra) which deals with a matter of promotion pending enquiry and adoption of ''sealed cover procedure'' has no applicability to the facts and circumstances of the present case.
The plea regarding imposition of dual penalty of withholding of increments and promotion has no basis. The promotion has not been accorded on account of failure to fulfill the laid down criteria and not by way of punishment.
So far as the challenge of the petitioner relating to the seniority of respondent No. 3 Babu Lal Jain is concerned, merely on account of the fact that in the order 24.10.1994, whereby, the petitioner alongwith respondent No. 3 was promoted/appointed as Personal Assistant-cum-Judgment Writer from the post of Stenographer Grade-II, the said respondent No. 3 was indicated differently under the head Hindi and petitioner alongwith respondent Nos. 4 and 5 was indicated under English is without any substance. The cadre of Stenographer Grade-II, P.A., Sr. P.A. and P.S. does not provide for any distinction between a candidate from Hindi stream and/or English stream and as admittedly respondent No. 3 entered the service as Stenographer Grade-II four years ahead of the petitioner i.e. on 29.07.1988, the respondent No. 3 was senior to him and consequently petitioner is not entitled to any relief qua the respondent No. 3 also. In the result, the writ petition filed by the petitioner has no substance and the same is, therefore, dismissed. No costs.