Rajeev Lochan Sharma vs State of Uttarakhand and another

Petitioner was taken on deputation as a Technical Officer in the Excise Department. The case of the petitioner, in nutshell, is that taking into consideration his experience and educational qualifications, he ought to have been absorbed as Technical Officer in the Excise Department. The petitioner is B.Sc. Diploma Holder in Industrial Fermentation and Alcohol Technology.

Petitioner has put strong reliance on Annexure Nos.1 and 2. Annexure No.1 has been issued by Hon''ble the Chief Minister for the absorption of the petitioner as a Technical Officer. According to the petitioner, the instructions have been issued by the Hon''ble Chief Minister for absorption of the petitioner under the Rules of Business, 1975.

It is not in dispute that there is only one post of Technical Officer. The State Government has not framed any Recruitment and Promotion Rules for filling up the

post of Technical Officer in the pay scale of Rs.15600- 39100 under Article 309 of the Constitution of India. The post of Technical Officer is to be filled up by way of Executive Order bearing No.165 dated 1.3.2012 (Annexure No.4).

According to the executive order dated 1.3.2012, the post of Technical Officer is to be filled up by way of direct recruitment through Uttarakhand Public Service Commission or by way of deputation.

The minimum qualification prescribed for filling up the post of Technical Officer is that a candidate should possess the degree of Chemistry or Pharmacology or Micro Biology in first class. The candidate is also required to possess experience in Chemistry Lab for a period of three years from an institution owned or controlled by the Central Govt. or the State Government or the candidate must be Graduate in Chemical Engineering.

The petitioner does not possess the minimum qualification prescribed under the executive order dated 1.3.2012. The qualification acquired by the petitioner cannot be equated with M.Sc. Chemistry or Pharmacology or Micro-Biology. The petitioner only possesses the degree of B.Sc. and Diploma in Industrial Fermentation and Alcohol Technology.

Petitioner has no legitimate expectation to be absorbed as a Technical Officer in the Excise Department. He had earlier approached this Court seeking his absorption by way of Writ Petition (S/B) No.449 of 2012. This Court on 23.10.2013 passed the following order: -

"The principal claim in the writ petition is absorption of the petitioner in the Excise Department of the State. The fact remains that the petitioner was deputed to the said department and has since been repatriated. No mandamus can be issued directing the respondents to take the

petitioner either on deputation or to absorb the petitioner in a department, where he is not presently working. 2. The writ petition fails and the same is dismissed. The other questions raised in the writ petition have not been gone-in because the same are academic until the petitioner is deputed to the department in question."

The Uttarakhand Government has never adopted the U.P. Excise Technical Group-B Service Rules, 1993. The recommendation made by Hon. Chief Minister vide Annexure No.1 is contrary to the executive order dated 1.3.2012. The Chief Minister could not dilute the essential conditions of service including minimum educational qualification.

` The State Government has decided to fill up the post of Technical Officer by way of direct recruitment and the requisition was sent to the Public Service Commission. The Public Service Commission has also initiated the selection process for filling up the post of Technical Officer as per the norms laid down in the executive order dated 1st March, 2012.

It has been categorically stated in the reply that the Administrative Department has not submitted any proposal for absorption of the petitioner before the Cabinet and only note-sheet was received which did not fulfill the requirements of Government Order dated 12.01.2016.

There is no material placed on record to prove that the petitioner was working on equivalent post in his parent department. The petitioner was permitted to discharge the duties on deputation only till the regular selection was made by the Public Service Commission or recruitment by way of deputation. The petitioner does not fulfill the eligibility criteria as laid down vide executive order dated 1st March, 2012.

All the public posts are to be filled up under the Rules framed under Article 309 of the Constitution of India or in absence thereof, under the executive instructions. The petitioner has only right to be considered for appointment, that too in accordance with law.

In AIR 1967 SC 1910, Their Lordships of Hon. Constitutional Bench in the case of Sant Ram Sharma v. State of Rajasthan, have held that it cannot be said that till statutory rules governing promotion to selection grade posts are framed, government cannot issue administrative instructions regarding principles to be followed. In paragraph no.9, Their Lordships have held as under: -

We pass on to consider the next contention of Mr N.C. Chatterjee that if the executive Government is held to have power to make appointments and lay down conditions of service without making rules in that behalf under the proviso to Article 309, there will be a violation of Articles 14 and 16 because the appointments would be arbitrary and capricious. In our view, there is no substance in this contention of the petitioner. If the State of Rajasthan had considered the case of the petitioner alongwith the other eligible candidates before appointments to the selection posts there would be no breach of the provisions of Articles 14 and 16 of the Constitution because everyone who was eligible in view of the conditions of service and was entitled to consideration was actually considered before promotion to those selection posts was actually made. It was said by Mr C.B. Agarwala on behalf of the respondents that an objective evaluation of the merit of the officers is made each year and promotion is made on scrutiny of the record- sheets dealing with the competence, efficiency and experience of the officers concerned. In the present case, there is no specific allegation by the petitioner in the writ petition that his case was not considered alongwith Respondents 3 & 4 at the time of promotion to the posts of Deputy Inspector General of Police in 1955 or to the rank of Inspector General of Police or Additional Inspector General of Police in 1966. There was, however, a vague suggestion made by the petitioner in para 68 of his rejoinder petition dated July 17, 1967 that "the State Government could not have possibly considered my

case, as they considered and even in this counter- affidavit consider Shri Hanuman Sharma and Shri Sultan Singh senior to me by the new type of seniority they have invented for their benefit". Even though there is no specific allegation by the petitioner that there was no consideration of his case, Respondent 1 has definitely asserted in paras 23, 25, 40 and 44 of the counter-affidavit that at the time of promotion of Respondents 3 & 4 to the selection posts of Deputy Inspector General of Police and of Inspector General of Police the case of the petitioner was considered. We are therefore of the opinion that the petitioner is unable to substantiate his argument that there was no consideration of his case at the time of promotion of Respondents 3 & 4 to the selection posts. We must therefore proceed on the footing that Respondent 1 had considered the case of the petitioner and taken into account the record, experience and merit of the petitioner at the time of the promotion of Respondents 3 & 4 to the selection grade posts. It is therefore not possible to accept the argument of Mr N.C. Chatterjee that there was any violation of the constitutional guarantee under Articles 14 and 16 of the Constitution in the present case. Mr N.C. Chatterjee argued that the introduction of the idea of merit into the procedure of promotion brings in an element of personal evaluation, and that personal evaluation opens the door to the abuses of nepotism and favouritism, and so, there was a. violation of the constitutional guarantee under Articles 14 and 16 of the Constitution. We are unable to accept this argument as well-founded. The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones; an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able man? In other words, the question is how to find a correct balance between seniority and merit in a

proper promotion-policy. In this connection Leonard D. White has stated as follows:

"The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole organisation. The main interest to be served is the public interest, not the personal interest of members of the official group concerned. The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment.... Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level, it is a dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade; the very opposite may be true." (Introduction to the Study of Public Administration, 4th Edn., pp. 380-83). As a matter of long administrative practice promotion to selection grade posts in the Indian Police Service has been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr N.C. Chatterjee that this procedure violates, in any way, the guarantee under Articles 14 and 16 of the Constitution."

Accordingly, there is no merit in the petition and the same is dismissed.