By AdminAugust 6, 2020

Promotion- Lost Somewhere Between Rules and Right.

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"Shine like Sun so no one can ignore for long" Author- DEVAJYOTI BARMAN, ADVOCATE, HIGH COURT, CALCUTTA/SUPREME COURT OF INDIA. An avid blogger and researcher on various subjects of law. He is also the Managing Partner of Ace Legal. Introduction- Promotion can be defined to be vertical movement of an employee within the organisation. Therefore it refers to the upward movement of an employee from one job to another higher one, with increase in salary, status and responsibilities. Promotion may be temporary or permanent, depending upon the needs of the organisation. Promotion has an in-built motivational value as it elevates the authority, power and status of an employee within an organisation. Promotion has an in-built motivational value as it elevates the authority, power and status of an employee within an organisation. The Law on the Subject- It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case [(1983) 3 scc lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment. In Rajasthan Public Service Commission v. Chanan Ram, the Supreme Court rejected a claim for filing up vacancies in posts which no longer existed, after an amendment of the extant Rules. The relevant excerpt of the decision is reproduced hereinbelow for ready reference: "14. ...Once it is held that the old vacancies were in posts which no longer existed after April 1995, there remained no occasion to consider whether these old vacancies could be filled in by applying earlier rules of recruitment to the very same posts. There were no such posts after April 1995 in the cadres of the Rajasthan Agricultural Marketing Service as seen earlier... 15. ...On the contrary a three-Judge Bench judgment of this Court in the case of Jai Singh Dalal v. State of Haryana [1993 Supp (2) scc 600 : 1993 scc (L&S) 846 : (1993) 24 ATC 788] would squarely get attracted on the facts of the present case. A.M. Ahmadi J., speaking for the three-Judge Bench in para 7 of the Report relying on an earlier judgment of this Court in case of State of Haryana v. Subash Chander Marwaha [(1974) 3 scc 220 : 1973 scc (L&S) 488] laid down that when the special process of recruitment had not been finalised and culminated into select list the candidate did not have any right to appointment. In this connection it was observed that the recruitment process could be stopped by the Government at any time before a candidate has been appointed. A candidate has no vested right to get the process completed and at the most the Government could be required to justify its action on the touchstone of Article 14 of the Constitution." In Union of India & Ors. v. Krishna Kumar & Ors, , the Supreme Court was dealing with a similar situation of cadre restructuring. The relevant extract of the decision is reproduced hereinbelow for ready reference: "14. In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havildar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havildars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion." The Supreme Court in Hardev Singh held as under:“25. In our opinion, it is always open to an employer to change its policy in relation to giving promotion to the employees. This Court would normally not interfere in such policy decisions. We would like to quote the decision of this Court in Virender S. Hooda vs. State of Haryana, (1999) 3 SCC 696 : 1999 SCC (L&S) 824 where this Court had held in para 4 of the judgment that: (SCC p. 699) “4......When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same.” 26. Similarly, in Balco Employees' Union vs. Union of India, (2002) 2 SCC 333 it has been held that a court cannot strike down a policy decision taken by the Government merely because it feels that another policy would have been fairer or wiser or more scientific or logical. It is not within the domain of the court to weigh the pros and cons of the policy or to test the degree of its beneficial or equitable disposition. 27. For the aforestated reasons, we are of the view that no injustice had been caused to the appellant as his case was duly considered for promotion to the rank of Lieutenant-General by the SSB twice but as other officers were found better than the appellant, he could not be promoted. In the circumstances, we do not find any substance in the appeal and, therefore, the appeal deserves to be dismissed.” A three Judge Bench of the Supreme Court in B.V. Sivaiah and Others vs. K. Addanki Babu and Others, while examining the principle seniority-cum-merit held as under: “10. On the other hand, as between the two principles of seniority and merit, the criterion of “senioritycum-merit” lays greater emphasis on seniority. In State of Mysore vs. Syed Mahmood, AIR 1968 SC 1113 : (1968) 3 SCR 363 : (1970) 1 LLJ 370 while considering Rule 4(3) ( b) of the Mysore State Civil Services General Recruitment Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, this Court has observed that the Rule required promotion to be made by selection on the basis of “seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion.” It was pointed out that where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.” 13. In State of Mysore and Another vs. G.B. Purohit and Others, (1967) SLR 753 this Court held that a right to be considered for promotion, is a condition of service but mere chances of promotion are not. The rule which merely affects the chances of promotion cannot be regarded as varying a condition of service. The said judgment was quoted with approval in later judgment reported as Ramchandra Shankar Deodhar and Others vs. State of Maharashtra and Others, wherein this Court held as under: “15......All that happened as a result of making promotions to the posts of Deputy Collectors division wise and limiting such promotions to 50 per cent of the total number of vacancies in the posts of Deputy Collector was to reduce the chances of promotion available to the petitioners. It is now well settled by the decision of this Court in State of Mysore vs. G.B. Purohit that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. In Purohit’s case the district wise seniority of sanitary inspectors was changed to State wise seniority, and as a result of this change the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115, sub-section (7). This contention was negatived and Wanchoo, J. (as he then was), speaking on behalf of this Court observed: “It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service....” In Dwarka Prasad and Others vs. Union of India and Others, the argument examined was that the promotion opportunities have to be provided in ratio with the strength of the feeder cadre. It was held as under: “16. Fixation of quotas or different avenues and ladders for promotion in favour of various categories of posts in feeder cadres based upon the structure and pattern of the Department is a prerogative of the employer, mainly pertaining to the policy-making field. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the holders of posts in the feeder cadres. Most important of them all is the requirement of the promoting authority for manning the post on promotion with suitable candidates. Thus, fixation of quota for various categories of posts in the feeder cadres requires consideration of various relevant factors, a few amongst them have been mentioned for illustration. Mere cadre strength of a particular post in the feeder cadre cannot be a sole criterion or basis to claim parity in the chances of promotion by various holders of posts in feeder categories.” In A. Satyanarayana and Others vs. S. Purushotham and Others, the Supreme Court held that the power of the State to fix quota for promotion cannot be said to be violative of the Constitutional Scheme of equality as contemplated under Articles 14 and 16 of the Constitution of India. The Court held as under: “23. We, however, are of the opinion that the validity or otherwise of a quota rule cannot be determined on surmises and conjectures. Whereas the power of the State to fix the quota keeping in view the fact situation obtaining in a given case must be conceded, the same, however, cannot be violative of the constitutional scheme of equality as contemplated under Articles 14 and 16 of the Constitution of India. There cannot be any doubt whatsoever that a policy decision and, in particular, legislative policy should not ordinarily be interfered with and the superior courts, while exercising their power of judicial review, shall not consider as to whether such policy decision has been taken mala fide or not. But where a policy decision as reflected in a statutory rule pertains to the field of subordinate legislation, indisputably, the same would be amenable to judicial review, inter alia, on the ground of being violative of Article 14 of the Constitution of India.. While saying so, we are not unmindful of the legal principle that nobody has a right to be promoted; his right being confined to right to be considered therefor. 26. Similarly, the power of the State to take a policy decision as a result whereof an employee's chance of promotion is diminished cannot be a subject-matter of judicial review as no legal right is infringed thereby.” In A.P. Public Service Commission vs. Baloji Badhavath and Others, the Supreme Court held that the Court will not ordinarily interfere with the process of determining merit unless the procedure adopted by it is held to be arbitrary or against known-principles of fair play. The Court held as under: “25. How the Commission would judge the merit of the candidates is its function. Unless the procedure adopted by it is held to be arbitrary or against the known principles of fair play, the superior courts would not ordinarily interfere therewith. The State framed Rules in the light of the decision of the High Court in S. Jaffer Saheb (1985) 2 APLJ 380. Per se, it did not commit any illegality. The correctness of the said decision, as noticed hereinbefore, is not in question having attained finality. The matter, however, would be different if the said Rules per se are found to be violative of Article 16 of the Constitution of India. Nobody has any fundamental right to be appointed in terms of Article 16 of the Constitution of India. It merely provides for a right to be considered therefor. A procedure evolved for laying down the mode and manner for consideration of such a right can be interfered with only when it is arbitrary, discriminatory or wholly unfair.” In Ajit Singh, the Supreme Court held that equal opportunity contemplated by Article 14 of the Constitution means the right to be considered for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be considered for his promotion, which is his personal right. The rules and the considerations contemplated promotion by “seniority-cum-merit” particularly in the light of reserved category candidates promoted at the roster points. It was held that in terms of Article 16, every employee eligible for promotion or who comes within the zone of consideration, has a fundamental right to be considered for promotion but his right is of consideration alone. The Court held as under: “22.......It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularizes the generality in Article 14 and identifies, in a constitutional sense “equality of opportunity” in matters of employment and appointment to any office under the State. The word “employment” being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right...” In Ramesh Chandra Shah vs. Anil Joshi candidates who were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that: “18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.” 18. In Chandigarh Admn. vs. Jasmine Kaur (2014) 10 SCC 521 : 6 SCEC 745, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her nonselection. Role of DPC and ACR on the issue- in State of U.P. vs. Yamuna Shankar Mishra wherein this Court held that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51 A(j) of the Constitution of India enjoins upon every citizen the primary duty to constantly endeavour of prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidential reports should share the information which is not a part of the record with the officer concerned have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If despite giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion. Union Public Service Commission vs. L.P. Tiwari & Ors. Is another landmark decision on the issue. This case relates to grading in selection list for promotion to Indian Forest Service. The jurisdiction of Courts to interfere with evaluation made by the expert committee was under consideration. The respondents were serving as State Service Forest Officers in the post of Assistant Conservator of Forests. Both the officers became eligible to be promoted to the Indian Forest Service. On an overall service records, Selection Committee assessed respondent as being “very good” and included his name at S.No.10 in the Select List of 2001. Respondents 4-8 were assessed as “outstanding” by the Selection Committee and were included at S.Nos. 3-7 in the selection list. Respondent No.1 claimed that he ought to have been assessed as “outstanding” and should have been assigned seniority in the Indian Forest Service Cadre over respondents 4-8. The Tribunal came to the conclusion that patent material irregularities had been committed by the Selection Committee for the year 2001. This Court allowed the appeal filed by the UPSC and held that the evaluation made by an expert committee should not be easily interfered with by the Courts which do not have the necessary expertise to undertake the exercise that is necessary for such purpose. Speaking for the Bench, Altamas Kabir, J. in paragraphs 12, 13 & 14 of the judgment held as under: “12. It is now more or less well-settled that the evaluation made by an expert committee should not be easily interfered with by the Courts which do not have the necessary expertise to undertake the exercise that is necessary for such purpose. Such view was reiterated as late as in 2005 in the case of U.P.S.C. v. K. Rajaiah and Ors. wherein the aforesaid Rules for the purpose of promotion to the I.P.S. Cadre was under consideration. Apart from the above, at no stage of the proceedings, either before the Tribunal or the High Court or even before this Court, has any allegation of mala fides been raised against the Selection Committee and the only grievance is that the Selection Committee erred while making assessment of the comparative merits of the respective candidates. While concluding his submissions, Mr. Rao had pointed out that the direction given by the High Court to the appellant to hold a Review Departmental Promotion Committee was also erroneous since the Regulations provided for selection to be made not by a Departmental Promotion Committee but by a Selection Committee constituted as per the Regulations. 13. Although, on behalf of the respondents it has been urged that there was no bar which precluded the Tribunal from looking into the original ACRs of the respective candidates, what we are required to consider is whether it was at all prudent on the part of the Tribunal to have adopted such a procedure which would amount to questioning the subjective satisfaction of the Selection Committee in preparing the Select List. 14. From the submissions made and the materials on record, we are satisfied that the methodology which has been evolved and included in the Regulations for grading the eligible officers have been religiously followed by the Selection Committee which did not call for any interference by the Tribunal. The High Court has merely followed the decision of the Tribunal without independently applying its mind to the facts involved.” Conclusion- Therefore the right guaranteed to employees for being “considered” for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be “considered” for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta (1997) 5 SCC 201 : 1997 SCC (L&S) 1299 right from 1950. The Promotion Policy can be struck down only if the policy has no reasonable nexus with the objective to be achieved and is discriminatory. The lack of vacancy is not a ground on the basis of which promotion policy can be struck down. The promotion has to be affected in terms of statutory rules and in absence thereof, as per the executive instructions. The policy provides equal opportunities to the officers falling within the zone of consideration and subsequent promotion. Such policy is not discriminatory in terms of Article 14 or denies lack of equal opportunity in terms of Article 16. The promotion to the post of Air Vice Marshal is governed by the policy of Air Force which is applicable to all officers falling in the zone of consideration. Therefore, the Promotion Policy cannot be said to be illegal, arbitrary and irrational warranting interference in exercise of power of judicial review FOOTNOTE- 1. Deepak Agarwal & Another vs. State of Uttar Pradesh & Ors., (2011) 6 SCC 725 – 2. State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 3. Union of India & Ors. vs. Krishna Kumar & Ors., 2019 (1) SCALE 691 – Relied 4. Mukti Ranjan Acharya & Ors. v. State of Orissa & Ors, 2012 (2) OLR 61 5. State of Tripura & Ors. v. Nikhil Ranjan Chakraborty & Ors., (2017) 3 SCC 646 – 6. Jai Singh Dalal v. State of Haryana, 1993 Supp2 SCC 600 7. State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 8. Y.V. Rangaiah & Ors. vs. J. Sreenivasa Rao & Ors, (1983) 3 SCC 284 9. Rajasthan Public Service Commission v. Chanan Ram, (1998) 4 SCC 202 10. Supreme Court Employees` Welfare Association v. Union of India & Anr, (1989) 1 SCC 187 . 11. Ajit Singh v. State of Punjab, (1999) 7 SCC 209 - Distinguished 12. B.V. Sivaiah v. K. Addanki Babu, (1998) 6 SCC 720 13. A. Satyanarayana v. S. Purushotham, (2008) 5 SCC 416 14. Ashok Kumar v. State of Bihar, (2017) 4 SCC 357 15. Air Cmde Randhir Pratap v. Union of India, Writ Petition (C) No. 18935 of 2006 –