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Ganesh Prasad v. State Of U.P. - SPECIAL APPEAL No. 416 of 1992  RD-AH 1968 (25 January 2006)
Special Appeal No. 416 of 1992
Ganesh Prasad .....Appellant
State of U.P. and others .....Respondents
Hon'ble S. Rafat Alam, J.
Hon'ble Sudhir Agarwal, J.
This special appeal under the Rules of the Court arises from the order of the Hon'ble Single Judge dated 14.7.1992 dismissing the appellant's Civil Misc. Writ Petition No. 3787 of 1989.
We have heard Sri Raj Kumar Jain, learned counsel for the appellant and the learned Standing Counsel for the State-respondents.
It appears that the appellant was selected in the year 1973 and was appointed on 23.12.1973 as Deputy Regional Marketing Officer pursuant to which he joined on 31st December, 1976.
The promotional avenues for Deputy Regional Marketing Officers are Regional Marketing Officers/ Deputy Regional Food Controller and thereafter to the post of Regional Food Controller. The respondent no.3, Sri Aditya Kumar, was selected and appointed along with the petitioner on the post of Deputy Regional Marketing Officer but he was junior to the petitioner. By an order dated 13.4.1982, respondent no.3 and some others, namely, Kanhaiya Lal, Sukh Lal, Ram Lal Singh all junior to the petitioner were promoted on ad hoc basis as Regional Marketing Officer while by a separate order of the same date, the petitioner was sent on deputation as Divisional Manager in U.P. Food and Essential Commodities Corporation. The petitioner was confirmed as Deputy Regional Marketing Officer vide order dated 22.11.1982 and thereafter was served with two charge sheets dated 28.5.1983 and 14.6.1983. One of the charge sheet resulted in exoneration of the petitioner vide order dated 13.3.1984 and the other charge sheet also resulted in exoneration except one charge in respect thereto he was administered warning vide order dated 15.4.1984. Thereafter, it appears that vide order dated 30th June 1984 the petitioner was promoted on ad hoc basis as Deputy Regional Food Controller. In the meantime, the petitioner had represented on 1.8.1984 requesting the respondents to promote him with effect from 24.6.1982 when six ad hoc promotions were made on the post of Regional Marketing Officer. He also filed Civil Misc. Writ Petition No. 4966 of 1986 which was disposed of by this Court vide order dated 12.1.1989 with the direction to the State Government to decide the petitioner's representation expeditiously. Pending decision of the State Government on the petitioner's representation, it appears that in the meantime, for promotion to the post of Regional Food Controller, a Departmental Promotion Committee was constituted and it considered all the eligible persons and as a result of selection respondent nos. 3 and 4 were promoted vide order dated 24.2.1989 as Regional Food Controller on ad hoc basis. Subsequently, pursuant to the U.P. Public Services (Regulation of Ad hoc Promotion on post) outside the purview of Public Service Commission Rules, 1988, the ad hoc promotions were also regularised vide order dated 19.4.1989.
Pursuant to the High Court's direction issued vide judgment dated 12.1.1989, the State Government considered and decided the representation of the appellant vide order dated 24.6.1989 granting notional promotion with effect from 8th August, 1983 on the post of Deputy Regional Marketing Officer in the pay-scale of Rs.850-1720/-. The petitioner-appellant approached this Court in filing Civil Misc. Writ Petition No. 3787 of 1989 challenging the order dated 24.6.1989 passed by the State Government on the ground that his juniors were promoted in the year 1982 when no departmental enquiry was pending against him and, therefore, he was entitled to be promoted to the post of Deputy Regional Food Controller with effect from 24.6.1982 and the respondents in allowing the promotion with effect from 8.8.1982 have acted illegally. The petitioner-appellant further sought a mandamus directing the respondents to determine seniority of the appellant as Deputy Regional Food Controller/ Regional Marketing Officer with effect from 24.6.1982 with all consequential benefits. The aforesaid writ petition has been dismissed by the Hon'ble Single Judge vide judgment under appeal, hence this appeal.
Learned counsel for the appellant submitted that the promotion of the appellant was delayed for no fault on his part and, therefore, the respondents by giving him notional benefit of promotion only with effect from 8.8.1983 and not from 24.6.1982 have acted illegally and arbitrarily. Sri R.K.Jain, learned senior counsel further submitted that the criteria for promotion is seniority cum merit and the authorities, therefore, are bound to promote him on the basis of seniority. Since there was no departmental enquiry pending in the year 1982, the appellant could not have been declared unfit for promotion in the year 1982 and the action of the respondents is arbitrary and discriminatory. He fortified his contention by referring to the Hon'ble Apex Court verdict in the case of B.V.Sivaiah and others Versus K.Addanki Babu and others, (1998) 6 SCC 720 and a Division Bench judgment of this Court in the case of N.K.Agarwal and others Versus Kashi Gramin Bank, Varanasi and others, 2003(2) UPLBEC 1333.
Learned Standing Counsel, however, submitted that on the representation of the petitioner-appellant, his case was considered for notional promotion on the basis of the service record and he was not found fit for promotion in the year 1982 and, therefore, the same has been granted in the next year of recruitment. He further submits that in assessing the fitness and merit of the employee for promotion, the departmental promotion committee has considered the service record of the petitioner-appellant and on the basis thereof, he was not found fit for promotion in the year 1982. The said decision of the selection committee was not found to be erroneous, either on the ground of malafide or contrary to any statutory provision and, therefore, the Hon'ble Single Judge has rightly rejected the contention of the petitioner-appellant since this Court will not re-appreciate the evidence and the decision taken by the selection committee. Further, referring to the counter affidavit filed in the writ petition he pointed out that the appellant after selection in the Combined Upper Subordinate Examination 1973-74, the result whereof was declared in the year 1976, was appointed to the post of Deputy Regional Marketing Officer, Hardoi where he joined on 2.12.1977. He also stated that as per U.P. Food and Civil Supplies (Marketing Branch) Service Rules, 1981 the promotion to the post of Regional Marketing Officer/Deputy Regional Food Controller is to be made from the feeder cadre of Deputy Regional Marketing Officer, having five years experience on the said post and who are already confirmed on the said post. He also pointed out referring to para-7 of the supplementary counter affidavit that the appellant was awarded one special adverse entry on 2nd December, 1980 and two warnings vide orders dated 15.3.1984 and 17th December, 1988. Therefore, it cannot be said that there was no adverse material on the record, on the basis whereof, the appellant could not have been declared unfit in the year 1982. Further, two departmental enquires were in contemplation, which resulted in issuance of charge sheet in the year 1983 and after completion thereof, in one of the departmental enquiry, warning was issued to the petitioner-appellant and hence in the year 1982 he was considered by the selection committee but was not found fit for promotion.
Admittedly, the petitioner-appellant has been considered for promotion in the year 1982 but has not been found fit for such promotion. It is not the case of the petitioner-appellant that the selection committee has acted with bias or that it has contravened any statutory provisions in declaring him unfit for promotion in the year 1982. The sole contention of the learned counsel for the appellant is that the departmental enquiries actually commenced in the year 1983, when two charge sheets were issued to the petitioner-appellant and, therefore, the same could not have been referred in reply for denying him promotion in the year 1982. Once the petitioner-appellant has been considered by the selection committee for promotion and has been found unfit, this Court will not sit in appeal to re-appreciate the decision of the selection committee unless and until there is material to show that the action of the selection committee is vitiated on account of bias or in violation of any statutory provision of law or to the decision is such which no person of ordinary prudence have been taken on the basis of material on record. The petitioner-appellant has a special adverse entry in his record awarded in the year 1980 and two departmental enquires were contemplated. One ultimately resulted in imposing minor punishment of warning. Thus, it cannot be said that the decision taken by the selection committee, finding him unfit for promotion in the year 1982 is without any material on record or perverse.
The judgment relied by the learned counsel for the appellant in B.V.Sivaiah and others Versus K.Addanki Babu and others (Supra) would have no application to the case in question, inasmuch as, the Hon'ble Supreme Court in the said case while considering of seniority cum merit; Seniority cum suitability the meaning and the procedure to be followed, in para-18 of the said judgment held that the criterion for seniority cum merit in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior even though less meritorious shall have priority and a comparative assessment of merit is not required to be made. However, it further held that for assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of employee who is eligible for consideration. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks, which would entitle a person to be promoted on the basis of seniority cum merit.
In the present case, it is not the case of the petitioner-appellant that while considering his promotion on the basis of seniority cum merit, the comparative assessment of merit has been made by the selection committee. The stand taken by the respondents is categorical that the petitioner-appellant was considered but was not found fit for promotion. In the circumstances, the aforesaid judgment does not advance the case of the petitioner-appellant at all.
Similar was the position in N.K.Agarwal and others Versus Kashi Gramin Bank, Varanasi and others (Supra) wherein also a Division Bench of this Court following B.V.Sivaiah's case held where the criteria is seniority cum merit, the selection held while assessing comparative merit of the officers in the zone of consideration, would be contrary to the criteria for promotion. However, this Court while referring to the observations made by the Hon'ble Apex Court as to how the minimum merit may be assessed, further held that the method referred to by the Hon'ble Apex Court in para-18 of the judgment is not only the mode and manner in which merit can be assessed but there may be different other procedures also. This Court held that the authorities may fix the minimum objective eligibility requirement which candidates should possess, rather than, to be promoted on the basis of mere seniority. Therefore, in our view, this judgment also does not help the petitioner-appellant at all.
Once a candidate has been considered and has been found unfit for promotion, this Court would not substitute its own view. In Union of India Versus Rajendra Singh Kadyan, AIR 2000 SC2513 the Hon'ble Apex Court held that where the entire service profile has been taken care of by the authorities concerned, this Court should not substitute its view to that of authorities since it is beyond the scope of judicial review.
In this view of the matter, we do not find any error in the order/judgment of the Hon'ble Single Judge warranting interference in this appeal. This appeal is, therefore, devoid of merit and is accordingly dismissed. However, there shall be no order as to costs.
Dated : 25.1.2006
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