C. CHAKKARAVARTHY Vs TMT. M. SATYAVATHY, I.A.S., .
Bench: T.S. THAKUR,V. GOPALA GOWDA
Case number: CONMT.PET.(C) No.-000339-000339 / 2013
Diary number: 11350 / 2013
Advocates: M. A. CHINNASAMY Vs
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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
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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
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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 recruitment by promotion/deputatio n/transfer grades from which promotion/deputatio n/transfer to be made
: Promotion
1. Section Officer possessing a recognised degree in Civil Engineering or 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%. 2. Section Officers possessing a recognised diploma in Civil Engineering with 6 years service in the grade – 50%
... ... ...”
3. 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
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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.”
4. This Court then proceeded to declare that recruitment
to the post of Assistant Engineers was by way of selection
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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.”
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5. 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.”
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6. 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.”
7. 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
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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.”
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8. 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
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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.
9. 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
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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
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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.
10. 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)
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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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