K.B. Vashist vs Chief Justice And Ors.
1993 Latest Caselaw 144 Del

JUDGMENT

Sunanda Bhandare, J.

(1) This writ petition under Article 226 of the Constitution of India has been filed by an officer of this Court challenging the seniority assigned to respondents 3 to 5 over the petitioner in respect of selection to the posts of Deputy Register made by order dated 3rd September 1990.

(2) The petitioner is at present on deputation as Officer on Special Duty to Lt.Governor, Delhi. The petitioner worked as a Superintendent in this Court since the year 1969 till he was appointed as assistant Registrar in the year 1980. In the year 1984 certain posts of Deputy Registrar fell vacant. A Departmental Promotion Committee(hereinafter referred to as the D.P.C.) was constituted. Certain guidelines were prescribed by the then Chief Justice. On the basis of the grading given by the D.P.C., five Assistant Registrars were immediately appointed against the then available posts and a further panel was drawn to meet the future vacancies likely to fall vacant in the near future. The petitioner was placed at S.No.1 in the said panel. The panel was however not implemented and when a vacancy arose the seniormost Assistant Registrar was appointed as Deputy Registrar in the year ]985. One post of Deputy Registrar fell vacant in August 1990. The then Chief Justice created one additi l post of Joint Registrar and four posts of Deputy Registrar in August 1990. A D.P.C. was constituted to make selection to fill up the permanent post as well as additional posts of Deputy Registrar. The petitioner was selected for being appointed as a Deputy Registrar. Though he was the seniormost Assistant Registrar, he was placed at s.no.4 i.e. below respondents 3 to 5 in She select list recommended by the D.P.C. The Chief Justice accepted the recommendations of the D.P.C. Being aggrieved, the petitioner made representation against the said selection which was rejected.

(3) It was contended by the learned counsel for the petitioner that the then Chief Justice took over in 1988 as Chief Justice of this Court and was to relife in September 1990. However,one post of Joint Registrar and four posts of Deputy Registrar were created on the eve of his retirement and were also tilled in the shortest possible period by a procedure which was never followed in the past. Learned counsel submitted that the petitioner had been working as Assistant Registrar since 1980 and would have become' Deputy Registrar in 1985 itself if the panel of 1984 was implemented. Respondents 3 to 5 were not even Assistant Registrars at that time. He submitted that if four posts of Deputy Registrar were not created, respondent no.3 would not have been within the zone of consideration. He further submitted that the D.P.C. made the recommendations on the basis of the confidential reports without interviewing the candidates. Furthermore, the confidential reports of the petitioner for the year 1989 and 1990 were not available before the D.P.C. since they were with the borrowing department. Thus, the non-consideration of the confidential reports of the petitioner had prejudicially affected his grading in the list. He submitted that the promotion to the post of Deputy Registrar should not be made on the basis of confidential reports only because a fair evaluation of performance cannot be done on the basis of confidential reports because confidential reports do not correctly reflect the merit of the candidate. Learned counsel submitted that both the immediate superior officers of the petitioner i.e. Deputy Registrar and Joint Registrar who were responsible for writing the confidential reports of the petitioner were not favorably inclined towards the petitioner because their appointment as Assistant Registrar was challenged by the petitioner in a writ filed by him in the year 1979 before the Supreme Court. It was submitted that the petitioner had excellent record before 1984 and after 1989 and he has been assessed Very Good. The reason for not getting the same report from 1984 to 1988 was the animosity the immediate superiors had against the petitioner. It was further submitted that no distinction is to be made between remarks "Good" and "Very Good". Learned counsel submitted that as per the previous guidelines issued fay the Chief Justice various aspects arc to be considered before making recommendation in a selection post like age, length of service, educational qualifications, seniority, outstanding contribution, experience coupled with confidential report etc. In the present case, there was a deviation from the established procedure and none of the other criteria were considered by the D.P.C. before making the recommendations. The recommendations of the D.P.C. disturbing the seniority in the feeder grade has affected the right of the petitioner to be promoted as Joint "Registrar. Learned counsel further alleged that respondent no.3 was Principal Private Secretary to Hon'ble the Chief Justice and the Hon'ble Chief Justice was also a member of the D.P.C. He. therefore, gave preference to his own personal staff and the said Principal Private Secretary though was much junior was placed at s.no.1 as against the petitioner who was the seniormost. Learned counsel further submitted that the additional posts of Deputy Registrar i.e. the newly created posts were temporary and as such only the person who was at s.No.1 would be appointed in a permanent post and in case the temporary posts were sot sanctioned, the other four candidates in the list would lave to be reverted. This would cause irreparable injury to the petitioner. Learned counsel submitted that the former Chief Justice bad issued specific guidelines that whenever promotions are made to a selection post, the inter-se seniority in the lower grade should be maintained. These guidelines were not placed either before the Selection Committee or before the Chief Justice. Learned counsel submitted that in the year 1985 when the Selection Committee had disturbed the seniority and recommended that a junior Assistant Registrar be placed higher in seniority as Deputy Registrar, the then Chief Justice had on review restored the seniority. Thus when Shri S.B,Vohra was placed lower in seniority as Deputy Registrar to Shri R-S.Longia and Shri R.S.Chhabra, on a representation made by Shri Vohra his seniority was restored. Learned counsel submitted that the past practice had been given a go bye. Learned counsel referred to Rule 8(1) of Delhi Higher Judicial Service and submitted that the rule was being followed even incase of High Court employees. The petitioner did not challenge the selection but challenges the seniority assigned to respondents 3 to 5 vis-a-vis the petitioner.

(4) On the other hand, learned counsel appearing for the respondent Delhi High Court submitted that it was open to the Selection Committee to disturb the inter se seniority "because the most meritorious candidate had to be placed at s.no.1. Thus when the Committee considered five persons for the first post if the fifth person was found most suitable, he would be put at s.No.1. Similarly, for the second post next five persons would be considered and best of the five would be placed at s.no.2 and so on and so forth. The Committee followed exactly this procedure and, therefore, the fifth person i.e. S.S.Bhatia though he was fifth in the seniority was placed at s.No.1 because he obtained Outstanding confidential reports. It was submitted that Article 229(2) of the Constitution of India lays down that "the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by Hon'ble the Chief Justice of the High Court." In exercise of this power Hon'ble the Chief Justice has made the Delhi High Court Establish (Appointment and Conditions of Service) Rules 1972 for regulating the appointment of persons to and conditions of service of persons serving on the establishment of the High Court. Appointments have, therefore, to be made in accordance with the said Rules. Promotion to the post of Deputy Registrars is to be made by selection on merit from Delhi Judicial Service or Categories 3 and 4 of Class Ii mentioned in Schedule I i.e. PPS-cum-Assistant Registrar to Hon'ble the Chief Justice and Assistant Registrars working on the establishment of the court. It was submitted that the then Chief Justice had ordered that the mode of selection would be by scrutiny of dossiers of the eligible candidates from the consideration zone vide order dated 29th August 1990 and accordingly the Committee considered the dossiers and recommended promotions on the basis of the merit assessed by it. It was however not disputed that the Cr dossiers of the petitioner were not available before the Committee in its meeting held on 30th August 1990, but submitted that the Cr dossiers of the petitioner were available before the Review Committee. The Review Committee had confirmed the decision of the Selection Committee dated 30th August 1990. It was submitted that the selection made on the basis of consideration of Cr dossiers is well recognised and it is not necessary to hold interviews in every case. There was, therefore, nothing wrong in the Chief Justice accepting the recommendations made by the Selection Committee as well as the Review Committee. It was also not denied that four temporary posts of Deputy Registrars were created on 27th August 1990. The Selection Committee was constituted by the Chief Justice on 29th August 1990 which met on 30th August990 and the recommendations of the Committee were accepted by the Chief Justice on 3rd September 1990. It was further submitted that the selections made to the post of Deputy Registrars on earlier occasions were placed before the Chief Justice before he constituted the Committee for selection of Deputy Registrars. Since there is no rule which prescribes that inter-se seniority has to be maintained when selection is made for several posts in one process of selection, the selection and appointment is perfectly valid..

(5) Learned counsel appearing on behalf of respondent no.3 submitted that the petitioner cannot challenge the order of merit fixed by the Selection Committee because assessment of merit can only be done by the Selection Committee and this Court cannot judicially 'review the same. Thus, it was necessary for the petitioner to challenge the selection before he could challenge the order of merit which he had not done. Learned counsel referred to Pritam Singh & Others versus Union of India & 0thers 1986 Suppl. Scc 618, Somraj & Others vs. State of Haryana & Olivers , Union Public Service Commission versus Hiranyalal & Others, 1988 (2) Slr 148, and Dalpatabasahed Solunke & Others vs. B.S. Mahajan & Others . It was submitted that the petitioner not having challenged the selection, could not challenge the inter se seniority recommended by the Selection Committee on the basis of the evaluation of the merit.

(6) We find no merit in the contention of the learned counsel for the petitioner that the assessment of merit on the basis of Cr dossiers cannot be done or that confidential reports of the petitioner for some years were not as good as in other years because of some rivalry between senior officers who had to write the confidential reports of the petitioner. The Supreme Court in Pritam Singh's case (supra) has approved the selection on the basis of service record and observed as under:

(7) It was Urged that the selection merely based on the appraisal of service record is arbitrary and it is bound tp cause injustice as the entries in the character roll of members of the State service depend upon the whims of the recording officer. It is true that the service records contain remarks which sometimes may not be fully justified, but for that reason the scheme contained in the rules and regulations for promotion cannot be characterised unreasonable. There are various methods of selection viz. by competitive examination, written test-cum-viva voce, or by assessment of service records. For the purpose of recruitment to the Indian Administrative Service from amongst the officers of the State Civil Service, latter method namely, selection on the basis of scrutiny of service record has been Civil Service, latter method namely,selection system for making selection. In Parvez Qadir vs. Union of India, while considering similar submission the court observed:- "THE past performance of an officer being one of the criteria for making selection the only way to adjudge their suitability is by perusal of confidential records. It is true that confidential records do not sometimes give a true picture due to the vagaries of the recording officer. The human fallibility and want of objectivity in the superior officer are factors which cannot be eliminated altogether. For that matter one can ask what method is perfect? For this reason, certain safeguards have been provided in order to make them as objective as possible. If there is an adverse entry against any officer that officer is given an opportunity to explain. After the explanation is given, the superior officer as well as the government ultimately decide whether that remark by the recording officer was justified or not, and if it is not justified the Government can always order its deletion. Sometimes vagary may enter into the service confidentials, and if cannot be postulated that all superior officers who have been empowered to finalise such entries will suffer from any of those traits because the actions of the officer concerned may not have any immediate impact upon him and consequently his sense of objectivity will not be dimmed or strained. In our view, often enough, the entries in the confidential records are themselves an in siginia of the capacity and capability of the maker as a superior officer as well as a commentary on the quality of the officer against whom that confidential remark is being noted. But those who are charged with the duty to oversee that - these entries are fair, just and objective quite often do intervene and rectify any entry on representation being made against it at the proper time. In these circumstances, we do not think that the method of selection based on past performance as disclosed by the confidential records is not the proper method for adjudging suitability of the officer concerned.

(8) The observations of the Supreme Court fortifies our view.

(9) It is well settled that the scope of judicial review in matters of relative merit of candidate is limited. If an officer is not found to be fit and he challenges the selection on the ground of wrong evaluation by the Selection Committee, this Court would not interfere and re-assess the merit. The court cannot substitute its own opinion and play the role of Selection Committee and make selection. However, the question of relative merit is not challenged before us. There can be no doubt about the correctness of the submission made by the learned counsel for the respondents that while considering promotion to a selection post, a senior officer may not be selected, but that is not the question in issue in the present case. The question for consideration in the present case is whether being selected in one process of selection, the inter-se seniority in lower grade can be disturbed or inter se seniority of promoted officers shall be the same as it was in the feeder grade.

(10) In the case of promotions in Delhi Judicial Service there is a specific rule which provides that relative seniority in the lower grade would be maintained when promotions aie made in one process of selection. A Division Bench of this Court presided over by B.N. Kirpal, J. in Shri Brajesh Kumar & Others versus Union of India & Others Cwp 4036/90 decided on 8th January 1992 has observed:- "ON a correct interpretation of Rule 8(1) the inter se seniority of officers promoted to the Delhi Higher Judicial Service shall be the same as it was in the Delhi Judicial Service only if those officers were promoted in the same process of selection. To give an example, if in the year 1989 three posts in the Delhi Higher Judicial Service were to be filled and, in the seniority list persons at S.No.1,5 and 6 are selected, with persons at S. Nos.5 and 6 being graded as outstanding and the person at S.No.1 being graded as very good, then all the three of them would be appointed to the Higher Judicial Service but by virtue of Rule 8(1), person at S.No.1 would retain his seniority vis-a-vis the other two officers. If at a later point of time, in a separate selection persons who were superseded viz. who are at S.Nos.2,3 and 4 are promoted then they cannot claim seniority over those persons who had superseded them earlier. It is implicit in Rule 8(1) that' the process of selection must be the same for the officers to retain their relative seniority which was there in the lower cadre."

(11) However, there is no such rule governing the conditions of services of the High Court employees. We are, therefore, to be guided by past precedents and guidelines issued by the Chief Justices from time to time. None of the cases cited by the learned counsel for the respondents deal with this aspect of the matter.

(12) We have gone through the selections made to the posts of Deputy Registrar in the past and we find that only once inter se seniority of officers selected in one process of selection was disturbed i.e. in the case of Shri S.B.Vohra. The then Chief Justice on review restored the seniority of Shri S.B. Vohra. In none of the other promotions made on the basis of selection, inter se seniority has been disturbed when recommendations were made in one process of selection. The record shows that former Chief Justice Shri Prakash Narain had issued specific guidelines on 30th October 1980 regarding the method of consideration at the time of selection which were reiterated again in the guidelines issued on 3rd January 1985.The relevant portion of the guidelines dated 3rd January 1985 read thus: "THE Selection Committee should select officers to be appointed as Deputy Registrars or Assistant Registrars on merit. The panel that should be. prepared by Selection Committee should be so prepared that inter se seniority in the lower grade of the selected candidates is not disturbed unless the Selection Committee, for any special reasons, recommends otherwise for an individual candidate."

(13) It is thus clear that the Selection Committee is required to select officers to be appointed as Deputy Registrars or Assistant Registrars on merit and the panel that should be prepared by Selection Committee should be so prepared that inter se seniority in the lower grade of the selected candidates is not disturbed unless the Selection Committee for any special reason recommends otherwise for an individual candidate. When the Selection Committee disturbed the seniority of Shri S.B.Vohra while preparing the panel for Deputy Registrars in the year 1985, reasons were given by the said Committee for proposing Shri R.S. Longia and Shri R.S.Chhabra to be placed above Shri S.B.Vohra in the panel and yet on re-examination of the matter the Chief Justice reviewed the decision and restored the seniority of Shri S.B.Vohra. We find that these guidelines were not placed before Chief Justice Pyne or before the Selection Committee at the time the present selection for the posts of Deputy Registrar was made. These guidelines were also not placed before the Review Committee. There is also nothing on record to indicate that fresh guidelines in this regard were issued any time thereafter. Undoubtedly, Chief Justice has the power to lay down conditions of service of officers and servants of High Court. In the present case the record indicates that past precedents and guidelines issued by the various Chief Justices from lime to time were not brought to the notice of the Chief Justice and he had thus not considered whether any deviation from the past practice is to be made. The selection in the present case was made within five days of the creation of the posts and the whole exercise of appointment was completed within a week. Admittedly, the dossiers of the petitioner were also not available on the day the Selection Committee met i.e. on 30th August 1990. We also find that the petitioner had in fact been selected and placed at s.No.1 in the panel prepared in the year 1984 and yet he did not become Deputy Registrar till 1990. If the panel had been implemented as soon as the vacancy arose, he would have had a right to be appointed in that vacancy. However, on a later decision the panel was given a go bye and the seniormost Assistant Registrar was appointed in a vacancy which arose in the year 1985 as Deputy Registrar. The petitioner is not seeking appointment on the basis of the panel prepared in 1984 though he did challenge the 1985 appointment at some stage but unsuccessfully. The injustice that would result by disturbing seniority on selection for filling of temporary posts cannot also be ignored. The juniormost candidate on being made seniormost would be appointed in a permanent vacancy but the seniormost candidate though selected in the same process would have to be reverted in case the post did not get confirmed. Furthermore, the future promotions as Joint Registrar would also be dependant on the position of seniority as Deputy Registrars because interestingly under the Rules, promotion to the post of Joint Registrar is only by seniority and not by selection. Thus, the seniormost Deputy Registrar would be entitled to become Joint Registrar on the basis of his seniority. The result would be that a candidate who was not even an Assistant Registrar when the petitioner's name was put on the panel for appointment as Deputy Registrar would become a Joint Registrar before the petitioner.

(14) Needless to say that when the court deals with the services of its officers, utmost care must be taken so that the officers have confidence that full justice is meted out. Last minute creation of posts and filling up of vacancies in a hurried manner sometimes gives a wrong impression and goes against the principle that justice not only must be done but also seem to be done. Such decisions lead to dissatisfaction and officers get demoralised which ultimately results in inefficiency. The petitioner has made allegations of malafide in the petition, however he did not press the same at the hearing and, therefore, we do not consider it necessary to go into that question.

(15) We are of the view that when specific guidelines are operative and available, in the absence of any rule, it is imperative that the guidelines are followed.

(16) In the present case the Selection Committee has not given any reasons for disturbing the inter se seniority of the promoted officers.

(17) For the afore-mentioned reasons, we allow the writ petition and direct that the seniority of the officers promoted as Deputy Registrar in selection made on 3rd September 1990 will be re-fixed as per their seniority in the lower grade. No costs.