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Wednesday, October 21, 2015

Section 12 of Contempt of Courts Act, 1971- the petitioners allege deliberate violation by the respondents of the judgment and order dated 22nd April, 2010 passed by this Court in N. Suresh Nathan and Ors. v. Union of India & Ors. (2010) 5 SCC 692= whether the practice adopted by the Government of Pondicherry of counting the service of Section Officers/Junior Engineers who have qualified as graduates while in service only from the date they passed the degree or equivalent examination for purposes of promotion to the post of Assistant Engineers under Rule 11(1) of the Government of Pondicherry Assistant Engineers (including Deputy Director of Public Works Department) Group ‘B’ (Technical) Recruitment (Amendment) Rules, 1965 (for short ‘Recruitment Rules’) was legally sound. Rule 5 of the Recruitment Rules provide for the method of appointment as Assistant Engineer to be by ‘selection’ and reads as: “5. Whether Selection post or: Selection” Non-Selection Post:Having said so, there is, in our opinion, no deliberate or contumacious breach of the directions of this Court to warrant punitive action against those responsible for taking the said decision. The error it appears has occurred more because of an erroneous perception on the part of the government and the review DPC that the method adopted by them was sanctioned by law and the orders of this Court. We do not, therefore, consider it necessary to pass any orders of punishment against the respondent on that score although we would expect them to be more careful and circumspect in future. With the above observation we dispose of these contempt petitions with a direction to the respondent-State to redo the exercise in terms of the directions of this Court in N. Suresh Nathan (supra) keeping in view the observations made hereinabove. No costs.

                                             REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION

                  CONTEMPT PETITION (CIVIL) NO.339 OF 2013

                                     IN
                        CIVIL APPEAL NO. 8468 OF 2003


C. Chakkaravarthy and Ors.              …Appellants

Versus

Tmt. M. Satyavathy, IAS
and Ors.                                      …Respondents/Contemnors


                                    WITH

                  CONTEMPT PETITION (/CIVIL) NO.340 OF 2013
                                     IN
                        CIVIL APPEAL NO. 8468 OF 2003


J. Lucien Pedro Kumar and Anr.           …Appellants

Versus

Tmt. M. Satyavathy, IAS
and Ors.                                      …Respondents/Contemnors





                               J U D G M E N T

T.S. THAKUR, J.

1.    In this petition under Article 129 of the Constitution of  India  read
with Section 12 of Contempt of  Courts  Act,  1971  the  petitioners  allege
deliberate violation by the respondents of  the  judgment  and  order  dated
22nd April, 2010 passed by this Court in N. Suresh Nathan and Ors. v.  Union
of India & Ors. (2010) 5 SCC 692.  The question that fell for  consideration
therein was whether the practice adopted by the  Government  of  Pondicherry
of counting the  service  of  Section  Officers/Junior  Engineers  who  have
qualified as graduates while in service only from the date they  passed  the
degree or equivalent examination for purposes of promotion to  the  post  of
Assistant Engineers under  Rule  11(1)  of  the  Government  of  Pondicherry
Assistant Engineers (including Deputy Director of Public  Works  Department)
Group  ‘B’  (Technical)  Recruitment  (Amendment)  Rules,  1965  (for  short
‘Recruitment Rules’) was legally sound. Rule  5  of  the  Recruitment  Rules
provide for the method  of  appointment  as  Assistant  Engineer  to  be  by
‘selection’ and reads as:

“5. Whether Selection post or:    Selection”
     Non-Selection Post:


2.    Reference may also be made to Rule 11 of the said rules  which  is  as
under:

|“11. |In case of           |:|Promotion               |
|     |recruitment by       | |                        |
|     |promotion/deputation/| |Section Officer         |
|     |transfer grades from | |possessing a recognised |
|     |which                | |degree in Civil         |
|     |promotion/deputation/| |Engineering or          |
|     |transfer to be made  | |equivalent with 3 years |
|     |                     | |service in the grade    |
|     |                     | |failing which Section   |
|     |                     | |Officers holding diploma|
|     |                     | |in Civil Engineering    |
|     |                     | |with 6 years service in |
|     |                     | |the grade – 50%.        |
|     |                     | |Section Officers        |
|     |                     | |possessing a recognised |
|     |                     | |diploma in Civil        |
|     |                     | |Engineering with 6 years|
|     |                     | |service in the grade –  |
|     |                     | |50%                     |
|     |                     | |                        |
|     |                     | |... ... ...”            |




This Court on a consideration of the rival submissions urged before  it  and
the decisions of this Court relied upon by the parties in support  of  their
respective submissions held that the practice adopted by the  Government  of
Pondicherry of placing the Junior Engineers qualified as  graduates  in  the
order of seniority according to the date on which  they  passed  the  degree
examination was contrary to Rule 5 of the Recruitment  Rules.   Having  said
that this Court held that the directions issued by the High Court  directing
that the entire service of a  person  should  be  counted  for  purposes  of
seniority and promotion to the post of Assistant Engineer was also  contrary
to the provisions of Rule 5 of the Recruitment Rules (supra). The  following
passage appearing in  the  judgment  of  this  Court  is,  in  this  regard,
apposite:

“41. The practice adopted by the Government of Pondicherry  in  consultation
with UPSC of counting the services of Section Officers or Junior  Engineers,
who qualified as graduates while in service from the date  they  passed  the
degree or equivalent examination and placing  them  in  order  of  seniority
accordingly for the purpose of consideration for promotion to  the  post  of
Assistant Engineer under Clause 1 of Rule 11 of  the  Recruitment  Rules  is
contrary to Rule 5 of the Recruitment Rules.  Similarly,  the  direction  of
the High Court in the impugned  judgment  and  order  to  count  the  entire
service of  a  person  concerned  even  before  acquiring  degree  in  Civil
Engineering for the purpose of  seniority  and  promotion  to  the  post  of
Assistant Engineer under Clause 1 of Rule 11 of  the  Recruitment  Rules  is
contrary to Rule 5 of the Recruitment Rules.”


This Court then proceeded  to  declare  that  recruitment  to  the  post  of
Assistant Engineers was by way of selection meaning thereby  that  seniority
in  the  cadre  of  Section  Officers/Junior  Engineers  was  not  of   much
significance.  Selection for promotion to the post  of  Assistant  Engineers
was, declared this Court, to be made only on the basis of comparative  merit
of eligible candidates in which persons found most meritorious  were  to  be
selected for appointment.  Such a method of selection  would,  according  to
this Court, not only be consistent with Rule 5 of the Recruitment Rules  but
also satisfy the demands of equality of opportunity contained in Article  16
of the Constitution. This Court observed:

“48. As we have seen, Rule 5 of the Recruitment Rules in  the  present  case
states that the post of Assistant Engineer  is  a  selection  post  and  the
Recruitment Rules nowhere provide  that  seniority-cum-merit  would  be  the
criteria for promotion. In the absence of any indication in the  Recruitment
Rules that seniority in the grade of Section Officers/Junior Engineers  will
be counted for the purpose of promotions to the post of Assistant  Engineer,
consideration of all Section Officers/Junior Engineers  under  Clause  1  of
Rule 11 of the Recruitment Rules who are  eligible  for  such  consideration
has to be done on the basis of assessment of the comparative  merit  of  the
eligible candidates and the most suitable or meritorious  candidate  has  to
be selected for the post of Assistant Engineer. Such a method  of  selection
will be consistent with Rule 5 of the Recruitment Rules and  Article  16  of
the Constitution which guarantees to all citizens  equality  of  opportunity
in matters of public employment.”

Having said so, this Court set aside  the  impugned  judgment  of  the  High
Court and directed the Government of Pondicherry to consider  the  cases  of
Section Officer/Junior Engineer who have completed 3 years  service  in  the
grade of   Section Officers/Junior Engineers for promotion to the  vacancies
in the post of Assistant Engineers, Public Works Department,  Government  of
Pondicherry on the basis of their inter se merit.  The operative portion  of
the order passed by this Court runs as under:

“50. For the aforesaid reasons, we set aside the impugned  judgment  of  the
High Court and direct the Government of Pondicherry to  consider  the  cases
of all Section Officers  or  Junior  Engineers,  who  have  completed  three
years’ service in the grade of Section Officers  or  Junior  Engineers,  for
promotion to the vacancies in the post of Assistant Engineer,  Public  Works
Department, Government of Pondicherry, in accordance with  their  merit.  We
make it clear that the promotions to the post of Assistant Engineer  already
made pursuant to the judgment and order  of  the  High  Court  will  not  be
disturbed until the exercise is carried  out  for  promotion  in  accordance
with merit as directed in this judgment and on completion of such  exercise,
formal orders of promotion to  the  vacancies  in  the  posts  of  Assistant
Engineer which arose during the pendency of the cases before this Court  are
passed in case of those who  are  selected  for  promotion  and  after  such
exercise only those who are not selected for promotion may  be  reverted  to
the post of Section Officer or Junior Engineer.”


Considering  the  fact  that  the  number   of   candidates   eligible   for
consideration will be large, this Court reserved liberty to  the  Government
to issue executive  instructions  as  to  the  method  to  be  followed  for
consideration of such eligible candidates for promotion.  This Court said:

“Where,  therefore,  there  are  a  large  number  of  eligible   candidates
available  for  consideration  for  promotion  to  a  selection  post,   the
Government can issue executive instructions consistent  with  the  principle
of merit on  the  method  to  be  followed  for  considering  such  eligible
candidates for promotion to the selection post.”


Pursuant to the liberty so reserved, the review DPC appears  to  have  taken
note of certain pre-existing Government of India Order  dated  6th  January,
2006 issued by the Department of Personnel and  Training,  for  purposes  of
selecting suitable officers for promotion on  the  basis  of  ‘Merit’.   The
said order set out guidelines to be followed for restricting  the  field  of
selection to a manageable number of candidates in cases where the number  of
such  candidates  was  large.    The  case  of   the   respondent-State   of
Pondicherry is that the review DPC evolved a procedure keeping in  mind  the
observations made by this Court as also  the  DoPT  guidelines  referred  to
above for identifying the field of selection and applying the  criteria  for
determination of inter se merit of the candidates. The procedure so  evolved
comprised six  steps  which  the  respondent-state  has  identified  in  the
counter affidavit filed by it in the following words.
“A. Identify the available vacancies of Asst.  Engineers  for  the  relevant
year.

B. Make a list of  eligible  candidates  based  on  the  date  of  attaining
eligibility in terms of the Rule 11 of the Recruitment Rules.

C. In view of the large number of  candidates  available  for  selection  to
less number of available posts, identify the Field of  Selection  using  the
DoPT prescribed formula of 2 x Available Vacancies + 4.  For example for  10
vacancies, the field of selection would be 24.

D. Fix the benchmark.  In the present case it is ‘good’.

E. In the field of Selection, the grading is marked.

F. Prepare the Select List of the most meritorious candidates  in  terms  of
this Hon’ble Court’s criterion in paras 39 to  42  of  Judgment  in  CA  No.
8468/2003 and batch, and listing of the successful candidates in  accordance
with their merit with reference to the entries given in Annual  Confidential
Reports,  which  inter  alia  included  all  or  most  of  the   ingredients
constituting merit as enunciated by this Hon’ble Court in  Para  42  of  the
judgment,  and  not  in  accordance  with  seniority,  for  that   year   of
selection.”


A new list of promotees was, on the above  basis,  prepared  by  the  review
DPC, which according to the respondents was based on the inter se  merit  of
the candidates. The petitioners find fault  with  the  above  procedure  but
only to the  extent  para  ‘B’  reproduced  above  determines  the  zone  of
consideration, based on the date the candidates acquired  their  eligibility
in terms of Rule 11  of  the  Recruitment  Rules.    The  grievance  of  the
petitioner is that this action of the respondent has totally  distorted  the
picture and denied to persons who were  otherwise  eligible  and  senior  in
terms of their length of service, an opportunity to compete  for  promotion.
It is argued on their behalf  that  the  process  of  preparing  a  list  of
eligible candidates on the basis of the date  of  obtaining  eligibility  is
totally wrong, unfair and discriminatory.  The date  on  which  a  candidate
acquires his eligibility would depend upon the date on  which  he  completes
three years after obtaining the  degree  qualification.   The  obtaining  of
degree qualification would,  in  turn,  depend  upon  several  imponderables
beyond the control of the candidates including whether the  candidates  were
working on a hard  or  soft  posting  over  which  the  candidates  have  no
control.   It  was  urged  that  while  length  of   service   of   Sections
Officers/Junior Engineers may not count for purposes  of  determining  their
inter se merit, the same was the only sound basis for identifying  the  zone
of consideration.  Inasmuch as the Government  has  ignored  the  length  of
service of the candidates and departed from the principle  of  seniority  of
candidates who served in the same cadre while  drawing-up  of  the  list  of
eligible candidates, it has committed a mistake that needs to be  corrected.




There is, in our opinion, considerable  merit  in  that  submission  of  the
petitioners.  There is no  gainsaying  that  this  Court  has  unequivocally
declared that promotion to the post of Assistant Engineers  in  the  service
shall be on the basis of merit and merit alone and  that  seniority  of  the
candidates cannot be taken as an input for  determining  such  merit.   This
Court  has  also  very  clearly  rejected  the  procedure  followed  by  the
Government whereby the date on which the candidate had acquired  his  degree
qualification was taken as a determining factor.  That being so,  and  given
the large number of candidates eligible  for  consideration  the  Government
was entitled to adopt the method of restricting the  zone  of  consideration
based on the number of vacancies.   Inasmuch as the Government  relied  upon
the DoPT guidelines for achieving that  objective  it  committed  no  fault.
The question, however, is whether the Government could  draw-up  a  list  of
eligible candidates not by reference to the length of service in  the  cadre
but  by  reference  to  the  date  on  which  the  candidates  acquired  the
eligibility which, as noticed earlier, was itself dependent  upon  the  date
on which the candidate acquired the degree qualification.   Since,  however,
the acquisition of a degree  qualification  itself  was  not  based  on  any
consistently uniform criterion, test or procedure, the date on which such  a
qualification was acquired and resultantly the date on which  the  candidate
attained their eligibility was also bound to be  anything  but  uniform  and
non-discriminatory.   As between the date of acquiring eligibility  and  the
date of entering service as a Section  Officer/Junior  Engineer  the  latter
was, in our opinion, a more intelligible, fair and reasonable  yardstick  to
be applied for drawing-up the list of  eligible  candidates  by  the  review
DPC.  Inasmuch  as  the  review  DPC  relied  upon  the  date  of  acquiring
eligibility  as  the  basis  for  preparation  of  the  list   of   eligible
candidates, it committed a mistake which needs to be corrected.


Having said so, there is, in our  opinion,  no  deliberate  or  contumacious
breach of the directions of this Court to warrant  punitive  action  against
those responsible for taking the said decision. The  error  it  appears  has
occurred more because  of  an  erroneous  perception  on  the  part  of  the
government  and  the  review  DPC  that  the  method  adopted  by  them  was
sanctioned by law and the orders of  this  Court.   We  do  not,  therefore,
consider  it  necessary  to  pass  any  orders  of  punishment  against  the
respondent on that score although we would expect them to  be  more  careful
and circumspect in future.  With the above observation we dispose  of  these
contempt petitions with a direction to  the  respondent-State  to  redo  the
exercise in terms of the directions  of  this  Court  in  N.  Suresh  Nathan
(supra) keeping in view the observations made hereinabove.  No costs.

                                                      ……………………………………….…..…J.
                                                               (T.S. THAKUR)






                                                     ………………………… …………….…..…J.
                                                           (V. GOPALA GOWDA)

New Delhi
October 16, 2015

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