- (1.) THE delay in filing the Special Appeal has been sufficiently explained and is not opposed by learned counsel appearing for the respondents.
(2.) THE application under Section 5 of the Limitation Act is allowed. We have heard learned counsel appearing for the parties and find that the questions raised before us, as rightly held by learned Single Judge, are covered by the judgment of the Division Bench of this Court, in D.B. Civil Special Appeal (Writ) No. 232/2013 - State of Rajasthan & Ors. Vs. Dr. Ashok Singhvi, decided on 06.08.2013.
(3.) THE Division Bench, held, with reference to the Circular dated 26.07.2006, that a person awarded censure entry, cannot be denied consideration by the Departmental Promotion Committee, on administrative instructions issued by the State Government, in pursuance to the statutory rules, which provides for consideration on acquiring eligibility by an employee for promotion. The Division Bench in State of Rajasthan & Ors. Vs. Dr. Ashok Singhvi (supra), held as follows: - Learned counsel for the appellants has also placed reliance on a decision of Apex Court in case of State of Rajasthan & Ors. Vs. Shanker Lal Parmar ( : AIR 2012 SC 1913) and urged that the Hon'ble Apex Court, while construing the Circular issued by the State Government for grant of selection grade, has held that an incumbent employee who has suffered the punishment of "censure" is not entitled for the same in the year he really deserves for it and the deferment of the grant of selection grade for a year cannot be said to be illegal, arbitrary, 14 unconstitutional or without authority of law. The Apex Court made following observations in this behalf in Para 22 & 23: 22. In the case in hand, it is a question of grant of Selection Grade. A Selection Grade has higher pay but in the same post. A promotion post is a higher post with higher pay. A Selection Grade is intended to ensure that capable employees who may not be able to get a chance of promotion on account of limited outlets of promotion, should at least be placed in the Selection Grade to prevent stagnation at the maximum of the scale. Selection Grade was created to remove stagnation in service and consequently leading to greater efficiency. State has permitted grant of Selection Grade to those who had good service record but for those who had earned censure, the same has been deferred by one year. Thus, according to us, it would clearly fall in the category of reasonable classification which is permissible in accordance with the mandate of the Constitution and also on account of various judgments pronounced by this Court on this topic from time to time. 23. Thus, in our opinion, there is a basic and fundamental difference between the two categories of the employees. Appellant -State was fully justified in issuing the subsequent Office Order/letter dated 24.07.1995, putting all controversies at rest. We do not find that any case of discrimination has been made out against the Respondents/Employees. Subsequent Office Order/letter cannot be said to be illegal, arbitrary, unconstitutional or without authority of law. We find merit in the arguments advanced by Dr. Manish Singhvi, Advocate for the Appellants and thus, have no hesitation in allowing these Appeals. It is also pertinent to mention here that Respondents/Employees had not challenged the subsequent Office Order/letter dated 24.07.1995, as being illegal, unconstitutional, arbitrary or without jurisdiction. As long as this Office Order/letter holds good, it is to be implemented in the same manner and spirit in which it was issued. Per contra, learned Senior Counsel, Mr. M.S. Singhvi appearing for the respondent, has argued that the contentions raised by the learned Addl. Advocate General are not touching the real lis involved in the matter, and therefore, all these contentions are absolutely alien for the issue involved in the matter. Learned counsel for the respondent, Mr. Singhvi, while defending the impugned order passed by the learned Single Judge would urge that the learned writ Court has addressed the issue which was germane to the matter viz., whether an incumbent can be debarred from right of consideration for promotion on the strength of Circular dated 26th of July 2006? According to submission of Mr. Singhvi, while construing the Circular, the learned Single Judge has concluded that it is an affirmative attempt of the Government to fetter the powers of the DPC to consider candidature of an individual for promotion who has suffered punishment. While conceding on the issue that an incumbent, who is having blameworthy service profile can be passed over for promotion even if the criteria for promotion is seniority cum merit, Mr. Singhvi has argued that such an incumbent cannot be denied his right of consideration. Thus, in nutshell, the submission of Mr. Singhvi is that the learned Single Judge has rightly concluded that the Circular dated 26th of July 2006 cannot come in the way of the respondent for his right of consideration for promotion, which is guaranteed under Article 16 of the Constitution. Categorizing the Circular dated 26th of July 2006 as administrative instructions, Mr. Singhvi would urge that circulars or administrative instructions can be issued for supplementing the rules or filling up the gaps and not to create a new state of things which were never intended in the relevant service rules governing the province of promotion. Inviting attention of this Court towards Rule 24A of the Rules of 1963, Mr. Singhvi has submitted that Rule 24A prescribing criteria, eligibility and procedure for promotion, nowhere envisages that an incumbent who is having blameworthy service profile can be denied his right of consideration for promotion. Thus, describing the Circular as a blatant attempt by the Government to brow beat the DPC, Mr. Singhvi has argued that by adhering to the Circular the appellants have acted dehors Rule 24A of the Rules of 1963 and as such the impugned order passed by the learned Single Judge cannot be faulted and calls for no interference in this intra court appeal. For substantiating his this argument, learned Senior Counsel, Mr. Singhvi has placed reliance on a Constitution Bench decision of the Apex Court in case of Guman Singh Vs. State of Rajasthan & Ors. [ : (1971) 2 SCC 452]. In the said verdict, the Apex Court has held that the Government cannot amend or supersede statutory rules by administrative instructions and any circular containing the provisions for making the system so rigid that it curtail or restrict the powers conferred on the selection committee and the appointing authority by the rules. The Court further opined that such circular/administrative instruction is per -se opposed to the selection procedure envisaged under the rules. The Apex Court made following observations in Para 39 of the verdict: 39. Then the question is whether Government is competent to issue the said Circular and whether the Circular in any manner affects the discretion and powers of the Committee functioning under the statutory rules. The position is clear, as laid down by this Court in Sant Ram Sharma v. State of Rajasthan & Anr. (supra) "It is true that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." The Court further proceeded to observe on evaluation of the Circular, in Para 47, as under: 47. One gets a fairly good picture of the nature of the instructions contained in the circular issued by the Government. No doubt a properly evaluated marking system may be helpful for assessing the merit of persons who are already in service. But the instructions given in the circular are so rigid that they are opposed to the selection to be made strictly on merit as provided under Rules 28 -B and 32. While appreciating the object of the Circular, the Apex Court proceeded to observe that such a circular offend the Rules, in Para 53 of the verdict: 53. The object of the circular may be to bring about uniformity in the award of marks. But the directions contained therein do offend the rules. This is not a case of the Government filling up the gaps or of giving executive instructions on matters not provided for by or not inconsistent with the rules. The learned Judges of the Division Bench of the High Court, have by and large, upheld the validity of the marking system as well as the other instructions contained in the circular of 1966 on the ground that the marking system as pointed out by the State has been in vogue from 1960, on the basis of a previous circular, dated August 31, 1960, issued by the State Government. Reliance placed upon this circular of 1960 by the High Court, in our opinion, is not justified. We have gone through the circular of 1960 which is No. F.1(6)Apptts.(D)/60, dated August 31, 1960. That circular was issued by the State to clarify the misapprehension that appears to have been caused in the application, for promotion on the principle of merit -cum -seniority or seniority -cum merit. For the purpose of having uniformity, the State Government had laid down certain principles in the said circular to be borne in mind by the Promotion Committees. No doubt there is a marking system indicated therein. But there are two features which distinguish the circular of 1960 from that of the 1966 circular. In Paragraph 3 of the former circular, it is specifically laid down that the principles mentioned therein are only in the nature of executive instructions to be kept in view by the Committees when marking promotions. It is made clear that those Committees "should however, exercise their own discretion while applying the above principles in view of the fact that occasionally the Confidential Rolls may not have been written with full sense of responsibility. Moreover, some of the rules permit interview before selection and in such cases the Selection Committee will have to assess suitability of the officer as a result of the interview also". Under the circular of 1966, we have already indicated, no such discretion is left to the Selection or Promotion Committees to adopt any method other than that indicated in the circular. In fact, it is emphasised that the Statutory Service Rules and the instructions contained in the circular are to be treated as a complete code by the Committees. Another point to be noted is that in 1960 the question of promotion on the basis of merit alone had no place. That principle was adopted only, as pointed out by us earlier, in 1965 which led to the amendment of the rules. Therefore, the principles mentioned in the circular of 1960 cannot be relied on when considering the validity of the present circular, when promotion by merit alone has been recognized by the Rules from 1965. We have already indicated that the instructions in the 1966 circular contravene the Rules. Therefore, we are of the opinion that the circular, dated August 27, 1966, is bad and accordingly it is struck down. We make it clear that we express no opinion on the validity or otherwise of the circular of August 31, 1960. We have only referred to that circular to show that the High Court has committed an error in placing reliance on the same. Reliance in this behalf can profitably be made to a recent pronouncement of the Apex Court in case of Sarva U.P. Gramin Bank Vs. Manoj Kumar Chak [ : (2013) 6 SCC 287]. The Apex Court while reiterating the principles laid down in the Constitution Bench judgment in Guman Singh's case (supra), has held as under: 43. We also do not find any merit in the submission of Mr. Dhruv Mehta that Circular No. 17 of 2009 dated 30.11.2009 and Circular dated 12.7.2010 are to ensure that the individual members of DPC do not recommend for promotion an individual officer despite having been punished in the proceeding five years. Such curtailment of the powers of DPC would have to be located in the statutory service rules. The 1998 Rules do not contain any such provision. The submission needs merely to be stated, to be rejected. We also do not find any merit in the submission of Mr. Mehta that without the aforesaid guidelines, an officer, even though, he has been punished for gross misconduct would have to be permitted to be promoted as no minimum marks are prescribed for interview or performance appraisal. In our opinion, it is fallacious to presume that under the 1998 Rules, once an officer gets the minimum marks in the written examination, he would be entitled to be promoted on the basis of seniority alone. There is no warrant for such a presumption. The misconduct committed by an eligible employee/officer would be a matter for DPC to take into consideration at the time of performance appraisal. The past conduct of an employee can always be taken into consideration in adjudging the suitability of the officer for performing the duties of the higher post. 44. There is another very good reason for not accepting the submissions made by Mr. Dhruv Mehta. Different rules/regulations of the banks provide specific punishments such as "withholding of promotion, reduction in rank, lowering in ranks/pay scales". However, there is another range of penalty such as censure, reprimand, withholding of increments, etc. which are also prescribed under various staff regulations. To debar such an employee from being considered for promotion would tantamount to also inflicting on such employee, the punishment of withholding of promotion. In such circumstances, a punishment of censure/reprimand would, in fact, read as censure/reprimand plus five years' debarment from promotion. Thus the circulars issued by the Bank debarring such employees from being considered would be clearly contrary to the statutory rules. The circulars clearly do not fall within the ratio in Sant Ram case. 45. In our opinion, the observations made by this Court in Ram Ashish Dixit are a complete answer to the submissions made by the learned counsel for the appellants, Mr. Dhruv Mehta. Therefore the High Court, in our opinion, has rightly quashed the aforesaid two circulars and directed that the respondent be considered for promotion in accordance with the applicable rules. We have heard the learned counsel for the parties at length, scanned the materials on record and perused the impugned order passed by the learned Single Judge. A glance at the impugned order passed by the learned Single Judge clearly and unequivocally reveals that the learned Single Judge has simply confined the relief to the respondent vis -a -vis his right of consideration for promotion and question of his suitability for promotion has been left open to be decided by the competent authority. Learned Single Judge has further observed that if the penalty suffered by the incumbent adversely effects minimum merit necessary for efficiency of administration, the DPC can adjudge him unsuitable for promotion. Learned writ Court has further concluded that debarring an incumbent from his right of consideration for promotion on the strength of Circular dated 26th of July 2006 is not sustainable and that being so issued directions to consider the candidature of the respondent ignoring the said Circular. On examining the impugned order in the light of Rule 24A of the Rules of 1963 and on the touchstone of the Constitution Bench judgment of the Apex Court in Guman Singh's case (supra), and the latest verdict of the Hon'ble Apex Court in case of Sarva U.P. Gramin Bank's case (supra), we do not feel persuaded to interfere with the impugned order. The legal precedents which are cited by the learned Addl. Advocate General, are having no bearing whatsoever on the issue involved in the matter, and therefore, these judgments are of no help to the appellants. We, therefore, fully concur with the impugned order passed by the learned Single Judge and find no merit in this appeal. Resultantly, this intra -court appeal is hereby dismissed. Costs are made easy.";