STATE OF RAJASTHAN Vs UCCHAB LAL CHHANWAL
Bench: ANIL R. DAVE,DIPAK MISRA
Case number: C.A. No.-009544-009544 / 2013
Diary number: 10242 / 2011
Advocates: IRSHAD AHMAD Vs
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9544 OF 2013 (Arising out of S.L.P. (C) No. 21202 of 2011)
State of Rajasthan … Appellant
Versus
Ucchab Lal Chhanwal …Respondent
WITH
CIVIL APPEAL NO. 9545 OF 2013 (Arising out of S.L.P. (C) No. 21201 of 2011)
J U D G M E N T
Dipak Misra, J.
Leave granted in both the special leave petitions.
2. Regard being had to the identic issue involved in both
the appeals they were heard together and are disposed
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of by a common judgment. For the sake of
convenience the facts from the appeal arising out of
S.L.P. (C) No. 21202 of 2011 are adumbrated herein.
3. The respondent was appointed in Rajasthan Police
Service (Junior Scale) after his selection through
Rajasthan Public Service Commission (for short “the
Commission”) vide order dated 19.10.1989. As
stipulated in Rajasthan Police Service Rules, 1954 (for
short “the Rules”) the R.P.S. cadre is divided into four
categories and the lowest category is in the junior
scale. The persons from the junior Scale are promoted
to senior scale and thereafter to super time scale. The
Rules provide that the person who has six years
experience in junior scale becomes eligible for
consideration to senior scale. A seniority list was
published on 19.8.1997 wherein the name of the
respondent found place at serial number 51 in junior
scale. In respect of vacancies in the promotional posts
arising against the quota of 1996-97 a Departmental
Promotion Committee (DPC) was convened and on the
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basis of recommendations of the DPC persons junior to
the respondent were promoted. It is apt to mention
here that the criterion for promotion was seniority-cum-
merit.
4. Be it noted, the DPC though considered the case of the
respondent, yet his case was not recommended for
promotion for the vacancy occurring in 1996-97 as he
was imposed with the punishment of censure on
1.12.1992. However, he was promoted thereafter in
the year 1998. In this backdrop the respondent
approached the High Court by way of filing S.B. Civil
Writ Petition No. 6574 of 1997 for quashing of the
penalty of censure imposed on him on 1.12.1992 and
further for setting aside the order dated 22.8.1997
whereby he had been superseded and his juniors had
been promoted. A prayer was made for issue of a
direction to consider his candidature for promotion to
the post of senior scale in Rajasthan Police Service and,
if he was found suitable, to promote him with all
consequential benefits.
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5. The writ court vide order dated 5.3.2010 came to hold
that the promotion of the respondent could not have
been deferred as the seniority was required to be given
more weightage over the merit as per the decision
rendered in B.V. Sivaiah and others v. K. Addanki
Babu and others1. Being of this view the writ court
allowed the writ petition and quashed the order dated
1.12.1992 as far as it denied promotion to the
respondent to the senior scale against the vacancies of
the year 1996-97 and directed that he was entitled to
promotion to the senior scale against the vacancy of
the year 1996-97 with all consequential benefits.
6. Being dissatisfied with the aforesaid order the State of
Rajasthan preferred D.B. Civil Special Appeal (Writ) No.
08449 of 2010. In the appeal circular dated 26.7.2006
which sets out certain guidelines relating to the types
of punishments and their impact/effect on promotion of
a personnel as per which the respondent was found
unfit to be promoted was pressed into service. The
1 (1998) 6 SCC 720
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Division Bench vide judgment and order dated
11.11.2010 placing reliance on B.V. Sivaiah (supra)
and K. Samantaray v. National Insurance Co. Ltd.2
and the decisions of the High Court of Rajasthan in
Shankar Lal Balai v. State of Rajasthan and
others3, Satyamani Tiwari v. State of Rajasthan
and others4 and various other pronouncements of the
High Court came to hold that the circular dated
26.7.2006 was not applicable as the controversy
relating to promotion pertained to the year 1996-97.
The High Court further observed that in case of
promotion based on seniority-cum-merit the person
who had been inflicted with the penalty of censure
which is a minor penalty, cannot be denied promotion
without being considered and, in any case, it could not
have taken into consideration in respect of the year
1996-97. Being of this view the Division Bench affirmed
the order passed by the learned single Judge.
2 (2004) 9 SCC 286 3 2009 (Raj.) unreported cases page 777 4 S.B.C.W.P.No. 2878/2003 decided on 11.8.2006
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7. We have heard Dr. Manish Singhvi, learned counsel
appearing for the appellant in both the appeals, Ms.
Sandhya Goswami, learned counsel for the respondent
in appeal arising out of S.L.P. (C) No. 21202 of 2011,
and Mr. Santosh Mishra, learned counsel for the
respondent in appeal arising out of S.L.P. (C) No. 21201
of 2011.
8. It is submitted by Dr. Manish Singhvi, learned counsel
for the appellant, that though the respondent was
entitled to be considered for promotion but the
principle relating to seniority-cum-merit would come
into play when he is compared with other persons and
in that event the punishment of censure has to be
taken note of. It is his further contention that the
punishment does not stand wiped off unless the
Rules/instructions so provide. The learned counsel for
the State has criticized the approach of the writ court
and that of the Division Bench on the ground that there
has been incorrect appreciation of facts and the view
expressed ignoring the distinction between
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consideration for promotion and suitability for
promotion is legally unsustainable.
9. Learned counsel for the respondents in both the
appeals submitted that censure which is a minor
punishment cannot be an impediment for the entire
service career and it has to be restricted to a specified
period of time and when there is consideration on the
base of seniority-cum-merit, seniority has to be given
due weightage. For the aforesaid purpose they pressed
into service the decisions which have been relied upon
by the High Court. It is also canvassed by them that
the High Court has correctly opined that the circular
cannot be made applicable retrospectively having been
issued in the year 2006 to a promotional matter
pertaining to the year 1996-97.
10. There can be no scintilla of doubt that the finding
recorded by the High Court pertaining to the circular is
absolutely correct and unassailable. The said circular
could not have been placed reliance upon by the State
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to contend that the respondents could have been
deprived of promotion. However, the said circular is
totally inconsequential for the present case, for what
we are going to hold.
11. Though some argument was canvassed with regard
to the relevance of the punishment of censure, yet the
said aspect need not be adverted to. On a perusal of
the writ petition, the order of the writ court and that of
the Division Bench we notice that there were specific
averments that juniors placed at serial numbers 9, 10
and 11 in gradation list had been promoted vide order
dated 20.8.1997. They have not been arrayed as
parties. Needless to emphasize, in the event the order
passed by the High Court is affirmed, the persons who
are seniors to the respondents in the promotional cadre
are bound to become junior regard being had to their
seniority position in the feeder cadre. It is well settled
in law that no order can be passed behind the back of
the person that shall adversely affect him. In this
context, we may refer with profit to the decision in
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Vijay Kumar Kaul and others v. Union of India
and others5 wherein it has been held thus: -
“Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant.”
12. After so stating this Court referred to the decision in
Indu Shekhar Singh v. State of U.P.6 wherein it has
been held thus: -
“56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority.”
13. In Public Service Commission v. Mamta Bisht7
this Court while dealing with the concept of necessary
parties and the effect of non-impleadment of such a
5 (2012) 7 SCC 610 6 (2006) 8 SCC 129 7 (2010) 12 SCC 204
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party in the matter when the selection process is
assailed observed thus: (SCC pp. 207-08, paras 9-10)
“9. … in Udit Narain Singh Malpaharia v. Board of Revenue8, wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called ‘CPC’) provides that non- joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat9, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot10 and Sarguja Transport Service v. STAT11.)
10. In Prabodh Verma v. State of U.P.12 and Tridip Kumar Dingal v. State of W.B.13, it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties.”
8 AIR 1963 SC 786 9 AIR 1965 SC 1153 10 (1974) 2 SCC 706 11 (1987) 1 SCC 5 12 (1984) 4 SCC 251 13 (2009) 1 SCC 768
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14. In J.S. Yadav v. State of Uttar Pradesh and
another14 it has been held as follows:-
“No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice.”
15. In the case at hand the dispute relates to promotion
which will have impact on inter se seniority. The
learned counsel for the respondents assiduously
endeavoured to convince us that they are agitating the
grievance with regard to their promotion and it has
nothing to do with the persons junior to them who had
been promoted. Despite the indefatigable effort, we
are not persuaded to accept the aforesaid
proponement, for once the respondents are promoted,
the juniors who have been promoted earlier would
become juniors in the promotional cadre, and they
being not arrayed as parties in the lis, an adverse order
cannot be passed against them as that would go
14 (2011) 6 SCC 570
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against the basic tenet of the principles of natural
justice. On this singular ground the directions issued by
the writ court as well as the Division bench pertaining
to grant of promotion to the respondents are quashed.
To elaborate, as far as the conclusion of the High Court
relating the circular is concerned, it is unexceptionable
and we concur with the same.
16. Consequently, the appeals are allowed in part and
the order passed by the Division Bench as well as by
the writ court is set aside to the extent directions have
been issued granting benefit of promotion to the
respondents. In the facts and circumstances of the
case, there shall be no order as to costs.
………………………..J. [Anil R. Dave]
………………………..J. [Dipak Misra]
New Delhi; October 22, 2013.