Page 1

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

1

Page 2

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

2

Page 3

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

3

Page 4

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

4

Page 5

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.”

5

Page 6

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.”

6

Page 7

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

7

Page 8

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.”

8

Page 9

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

9

Page 10

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

10

Page 11

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

11

Page 12

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)

12

Page 13

keeping  in  view the  observations  made hereinabove.   No

costs.

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

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

New Delhi October 16, 2015

13