S.K.Lamba vs State of U.P., through Secretary (Appointment)

S.N. Sahay, J.—The short question which has been raised for determination in this writ petition is whether denial of special grade to the petitioner from the date of promotion of his juniors, is illegal, unconstitutional and unjustified.

The petitioner joined the U.P. Civil Service (Executive Branch) in 1978. On September 8, 1986 an adverse entry was given to the petitioner in connection with his work, while he was posted as Deputy Director (consolidation) at Ghaziabad during the year 198182. The adverse entry was later on expunged and a censure entry was awarded to the petition which was substituted by a warning. Due to this, the petitioner could not be promoted and instead his juniors were promoted to the next higher post. The petitioner felt aggrieved and filed Writ Petition No. 9834 of 1987. The said writ petition was disposed of finally by this Court on October 19, 1989 as follows:

�In view of what we have indicated hereinabove, the opposite parties are directed to consider the case of the petitioner for promotion to the next higher post from the date his juniors were promoted ignoring the warning contained in Annexure7 to the writ petition. The opposite parties will also consider the case of the petitioner for expunction of the warning contained in Annexure7 to the writ petition in view of what has been stated above. The promotion matter be considered in the light of observations made above.�

Incompliance with the aforesaid directions the petitioner''s case for promotion was considered by a Selection Committee on August 18,1990. The Selection Committee found the petitioner to be unsuitable for promotion with effect from October 16, 1984 when his juniors were promoted. The reasons for not promoting the petitioner from the date of promotion of his juniors may best be described in the words of Smt. Neera Yadav, the then Appointment Secretary, who has filed a personal affidavit in pursuance of the Court''s directive contained in the order dated August 11, 1992. It is stated in para 4 of the affidavit as follows;

�That the Selection Committee considered the merit of the petitioner in the same manner in which the merit of other candidates were considered earlier for the same respective dates ignoring the adverse entries including the warnings awarded for the year 198182, 198283 and found the petitioner unsuitable for promotion w.e.f. 29984, 19111985 and 1861987. It is significant to mention here that the selection for special grade for P.C.S. was held strictly on the basis of merit of other candidates who were considered earlier for promotion w. e. f. 2991984, 19111985 and 1861987 were also seen and compared with the petitioner''s merit and then the Selection Committee reached at the conclusion that the petitioner was not suitable for promotion w.e.f. the above mentioned dates. It is significant to mention here that in the selection dated 29984, 191185 and 18686 comparative service record of other officers were better than the petitioner, so petitioner could not be selected. In subsequent selection on dated 23488, on account of his improvement petitioner was selected for promotion in special grade of P.C.S. It is also necessary to point out here that the entries of the petitioner for the year 198182 and 198283 were treated as existence by the Selection Committee on 188.90.�

It is urged on behalf of the petitioner that the meeting of the Selection Committee was not held on August 18, 1990 in accordance with the provisions of Rule 18, of the U.P. Civil Service (Executive Branch) Rules, 1982 and so any action taken on the basis of the recommendation made by .the Selection Committee in that meeting shall be void and illegal. Rule 18 as contained in Annexure SR1 which contains the English version of the U.P. Civil Service (Executive Branch) Rules, 1982 reads as follows:

�Special Grade 18 Selection to the Special Grade shall be made on the recommendation of a Selection Committee on the basis of merit from amongst such officers as have either been confirmed or are at least 16 years service on the date of selection. The Selection Committee shall be constituted by

(1) the Chief Secretary to the Government;

(2) the Chairman, Board of Revenue,

(3) The Secretary to Government, Personnel Department;

(4) the Secretary to Government, Appointment, Department;

Provided that the Government may, in special circumstances, relax the limit of service fixed for promotion to the Special Grade;

Provided further, that officers recruited against the quota reserved for Exarmy officers, who become due for promotion to the Special Grade on the basis of their year of allocation, will be eligible for promotion to the Special Grade only after they have put in at least three years actual service in the senior scale.�

The averments made in the counteraffidavit show that the Chairman, Board of Revenue was not present in the meeting of the Selection Committee which was held on August 18, 1990 while Secretary to Chief Minister was present and participated in that meeting. In this connection, it is stated in para 4 of the supplementary counteraffidavit dated August 26, 1992 that the intimation for holding selection and meeting of the Selection Committee held on August 18. 1990 was sent to all the members of the Selection Committee including the Chairman, Board of Revenue, but he was not present in the meeting. The other members and the Chairman of the Selection Committee were present and since there were no separate secretaries in Personnel Department and Appointment Department of the Government, only one person namely, Smt. Neera Yadav who was then posted as Secretary to Government, Appointment and Personnel Departments was present and quorum was completed and the selection proceeded with by the remaining two members and Chairman of the Selection Committee (Chief Secretary).

The contention of the petitioner is that the participation of the Secretary to Chief Minister in the meeting of the Selection Committee on August 18, 1990, was unauthorised. He became a member of the Selection Committee by virtue of an amendment made in Rule 18 by the U.P. Civil Service (Executive Branch) (Fourth Amendment) Rules, 1991, a copy of which has been filed as Annexure SR2, to the rejoinder affidavit dated October 10, 1992, on behalf of the petitioner. The U.P. Civil Service (Executive Branch) (Fourth Amendment) Rules 1991 were made under Article 309 of the Constitution and were published with notification No. 5465/112193 (2)80 dated November 19, 1991, The said rules came into force at once. Rule 4 of the said rules provides for amendment of rule 18 of the U.P. Civil Service (Executive Branch) Rules, 1982. It provides that �for rule 18 of the said rules, set out in column 1 below, the rule as set out in column 2 shall be substituted.� In column 1 the existing rule is given and in column 2 �rule as hereby substituted� is shown. In the Hindi version of the said amendment rules of 1991. the provisions under �stanah 1, vartman niyam� do not specify Secretary to Chief Minister to be a member of the Committee constituted under rule 18. But in the English version of the said amendment rules of 1991, the Secretary to Chief Minister is specified as a member of the said Committee in the provisions under �column 1 existing rule.� The English version is the authorised text of the amendment rules published under Article 348(3) of the Constitution. It is unfortunate that due care and attention was not paid to this kind of discrepancy by the concerned authorities before issuing the above mentioned notification dated November 19, 1991, pertaining to the amendment rules. The State Government may take appropriate steps for necessary rectification and also to ensure that such things do not occur in future. There is no reason to discard the Hindi version of the amendment rules which has not been disputed on behalf of the respondents also. We find great force in the submission made by the learned counsel for the petitioner that the Secretary to Chief Minister was net a member of the Selection Committee on August 18, 1990 and so his participation in the meeting of the selection committee on that date rendered the proceedings to be illegal and against the statutory provisions of rule 18.

We may, however, assume that the Secretary to Chief Minister was a member of the Selection Committee on August 18, 1990 and the proceedings of the Selection Committee are not vitiated on account of his presence and participation in the meeting. The petitioner has urged that the proceedings of the Selection Committee were also vitiated on account of the absence of the Chairman of the Board of Revenue. The learned Standing Counsel has urged that since four members including the Secretary to Chief Minister out of five members of the Selection Committee, as constituted under Rule 18, were present in the meeting dated August 18, 1990, there was no want of quorum and the majority of the members being present, the meeting could be validly held and business could be transacted.

It is admitted by the learned Standing Counsel that there was no provision in the aforesaid rules fixing a quorum for the meeting of the Selection Committee constituted under Rule 18. In S.S. Dhanova v. Union of India, 1991 (3) SCC, 567, it has been observed that it is acknowledged rule of the transacting business in a multimember body that when there is no express provision to the contrary, the business has to be carried on unanimously. The Rule to the contrary such as the decision by majority, has to be laid down specifically by spelling out the kind of majoritywhether simple, special, of all the members or of the members present and voting etc. In Chandra Mohan v. State of U.P. (AIR 1966 SC 1987), it has been held that under Article 233 of the Constitution the High Court means the full Court''. In State v. Batvkdeopati Tripathi (1978 (2) SCC, 102), it has been held that the Administrative Committee constituted under the rules of Court, made under Article 245 of the Constitution is an instrumentality through which the High Court works and it acts on behalf of the High Court as a whole. In Registrar, High Court of Madras v. R. Rajiah [1988 (3) SCC 211], it was held that where a review committee consisting of three Judges has been appointed by the High Court to consider compulsory retirement and two Judges are present in the meeting and the third Judge subsequently records his agreement, the proceeding would be valid.

The principle which emerges from review of the various authorities appears to be that when a body of persons is charged with the duty of transacting a business or taking some action, it is evident that in the normal course, all of them should act together. Some of them may act on behalf of all if it is permitted by the statute or other instrument by which the body is constituted. In the absence of any such provision either all the persons should sit together or have the opportunity and means to communicate with each other in respect of the business which is to be transacted or the action which is to be taken, so that the business may be transacted or action may be taken on the basis of the community of views of the members of the concerned body. Therefore, it will be reasonable to hold that in the instant case when there is statutory provision either fixing the quorum or authorising the Selection Committee under Rule 18 to act and transact business in the absence of one or more of its members, the proceedings of some of them cannot be deemed in the eyes of law to be the proceedings of the Selection Committee.

Nodoubt, in a committee consisting of four or five members, the absence of one member seemingly may not be material, for the remaining members in the meeting, would constitute a majority and may take effective decision. But, it cannot be said to satisfy the requirement of law because it is possible that if the absentee member had been present in the meeting, he might have influenced the decision of other members and the decision of the Selection Committee as a whole might have been different. If the Chairman of the board of Revenue was not present in the meeting of the Selection Committee on August 18, 1990 it was necessary that the decision taken by the members of the committee in that meeting was communicated to him so that he could either endorse the view of the other members or if he so liked, communicate his own views to the other members for their consideration. This is not shown to have been done. The mere fact that intimation of the meeting held on August 18, 1990, had been sent to the Chairman of the Board of Revenue, cannot be held to be sufficient. It is needless to observe that the object of a personal meeting is that an interaction takes place between the participants so that the ultimate view which emerges in the meeting represents the collective wisdom of all. In our opinion, the decision taken in the meeting of August 18, 1990, will not be deemed to be a decision of the Selection Committee under Rule 18, on account of nonparticipation of the Chairman of Board of Revenue either in the meeting or at any stage thereafter in the decision making process.

There is another reason why the decision of the Selection Committee should be regarded as wholly ineffective. The provisions of Rule 18 quoted above indicate that the matter regarding selection to the special grade was to be considered on the basis of merit. There is no provision that the selection is to be made on the basis of the comparative merit of all the officers found to be eligible for selection. The will of the word ''promotion'' used in the first proviso to Rule 18 may create the impression that the selection to special grade is tantamount to promotion. As indicated in the appendix to the said rules, the number of posts in the special grade is limited. This may also, in the light of the provisions of Rule 4 (2), convey the idea that selection to special grade is promotion. But there is nothing in Rule 18 to show that the promotion is to be made on the basis of assessment of comparative merits of all the officers, as has been done in the instant case, according to the averments contained in the affidavit filed by Suit. Neera Yadav. The selection was to be made for providing a higher scale of pay to an officer who was in the senior scale of the service and 10 in the normal course the individual merit of the officer was alone to be considered. In Dayarcm A. Gursahani v. State of Maharastra [1984 (3) SCC, 36), it has been held that the pay scale to which an officer is entitled, is a condition of service which can be regulated by a statute or rules made under the proviso to Article 309 or by executive instructions issued under Article 162 of the Constitution. The mere nomenclature given to the extended pay scale as the Selection Grade does not lead to the inference that there is an element of a selection involved in sanctioning it. Therefore, the whole substratum of the decision in rejecting the claim of the petitioner to special grade was vitiated as he was not found to be suitable for that on the basis of merits as compared to other officers. No justification for it can be found in the provisions of Rule 18 and so even if all the contentions of the respondent are accepted with regard to the validity of the meeting of the Selection Committee held on August 18, 1990 in respect of the members participating in it or the quorum the fact remains that the decision of the Selection Committee was not in accordance with law.

We have come to the conclusion that there is force in the contention of the petitioner that the matter has not been properly considered and there is no justification to deprive him of the right to special grade with effect from the date of promotion of his juniors. We are not inclined to assume the role of the Selection Committee and to examine the case of the petitioner on merits and to issue a direction that the petitioner should be given special grade from the said date. We are conscious of the fact that such a course of action would be contrary to the view expressed in State of Madhya Pradesh v. Shri Kant Chapekhar, [1992 (2) UPLBEC, 1380]. The petitioner has prayed in the writ petition that a writ of mandamus may be issued commanding the respondent to grant notional promotion to the petitioner in the special grade with effect from October 16, 1984 with all financial and service benefits and to promote him in the pay scale of Rs. 5100 to 5700 with effect from August 27, 1990. It will meet the ends of justice if the respondent is directed to consider the matter afresh and take appropriate decision in accordance with law at an early date.

For the above reasons the writ petition is allowed and the recommendation made by the Selection Committee in its meeting dated August 18, 1990 and the subsequent action taken by the respondent on the basis of such recommendation, are hereby quashed and it is directed that the matter regarding selection to Special Grade and grant of pay scale from the due date prayed for by the petitioner shall be considered afresh by the Selection Committee duly constituted under rule 18 mentioned above and in the light of the observations made above and the recommendations o the Selection Committee under rule 18, an appropriate decision according to law, shall be taken by the respondent within three months from the date on which a copy of this judgment is produced by the petitioner before the competent authority. Cost easy.