JUDGMENT
1. The special arises out of the judgment dated 1.2.1994 allowing the writ petition No. 19016 of 1988 quashing the selection and promotion of the respondent-appellant on the post of Personal Assistants/Stenographer to the Divisional Commissioner.
2. The brief relevant facts as disclosed by the petitioner-respondent are that he was appointed as stenographer to the Additional Commissioner, Varanasi division, Varanasi and Camp Assistant were in the equivalent pay scale i.e. 300-500. Both constitute feeder cadre for promotion to the post of Stenographer/Personal Assistant to Commissioner, witch was in the higher scale of 400-600. The recruitment and conditions of service to the aforesaid posts is governed by the commissioners Offices Ministerial Service Rules 1980 (in short 1980 Rules).
3. It appears that the vacancy of personal Assistant/Stenographer to the Divisional Commissioner occurred due to sudden demise of one Shri Raguhnath prasad, who was working on the said post. Accordingly, a selection was held by the Departmental Selection Committee in accordance with the Rule 18 r/w 5(5) of the 1980 Rules wherein the respondent-appellant was selected and promoted vide order dated 19th September 1988. The petitioner-respondent challenged the aforesaid order in write petition No. 19016 of 1999. The writ petition has been allowed and the aforesaid promotion has been quashed by this Court vide judgment under appeal.
4. The learned Counsel for the petitioner-respondent, however, submitted that he was the senior most stenographer to Additional Commissioner and amongst the three incumbent, who were considered for promotion was also senior most. He further submits that he was found unfit on the ground that he lacks proficiency in English Stenography and typing, and lacks knowledge for typing on Hindi Electronic Typewriter, witch are not the qualifications required for promotion under the Rules and, therefore, he has wrongly been rejected. This aspect has been considered and upheld by the Honble judge and, therefore, the write petition has rightly been allowed.
5. Heard learned Counsel for the parties, perused the record of the special as well as the writ petition.
6. Before dealing with the issue in question, it would be appropriate to refer the relevant, rules applicable in the case in hand. Rule 5-Category E of 1980 Rules provide sources of recruitment to the post of Stenographer to Commissioner. The qualification for Stenographer to Commissioner have not been prescribed in the Rules. However the Selection Committee consists of the commissioner of the Division, District Magistrate and the Staff Officer of the Commissioner and is well conversant with the requirement and job description for the post of Stenographer-Personal Assistant to Divisional Commissioner.
7. For brevity Rule 5-Categozy 'E, 8(2). 16(1) and 18 relevant for the purpose of the present case are reproduced as under:-
Category E-Rule 5: By promotion from amongst permanent stenographer to Additional Commissioner and permanent Camp Assistant in the scale of Rs. 300-500.
8(2). Stenographer and Camp Assistant Must have passed intermediate Examination of the Board of High School and Intermediate, Education, Utter Pradesh or an eximination recognised by the Government as equivalent thereto; and
(ii) Must have a minimum speed of 80 words per minute in Hindi shorthand and 30 words per minute in Hindi typewtiting.
16. Procedure for direct recruitment to the post of Stenographer and Camp Assistant (1) For the purpose o] direct recruitment to the post of Stenographer to Additional Commissioner and Camp Assistant there shall be constituted a Selection Committee comprising:
(i) The Commissioner of the Division.
(ii) The District Magistrate of the Headquarters of the commissioner.
(iii) The Staff Officer of the Commissioner.
18. Procedure for recuitment by promotion to the posts not covered by Rule 17-(1) Recruitment by promotion to the, posts of different categories shall be made on the basis of seniority subject to rejection of the unfit through the Selection Committee constituted under Rule 16(1) (2) The appointing authority shall prepare categorywise eligibility lists of the candidates arranged in order of seniority and place it before the Selection Committee along with their character rolls and such record pertainimg to them as considered proper.
(3) The Selection Committee shall consider the cases of candidates on the basis of records, referred to in Sub-rule (2) and if considers necessary, it may interview the candidates also.
(4) The Selection Committee shall prepare a list of selected candidates arranged in order of seniority and forward the same to the appointing authority.
8. Where the criteria for promotion is seniority subject to rejection of unlit, the promotion is to a non-selection post. However, "fitness means fitness in all respects In such cases the assessment of comparative merit of all the person within the zone of consideration is not required to he judged, but the individual person in order of seniority in the zone of consideration is to be assessed whether he is fit for promotion considering the duties, responsidilities and other job requirement of the promoted post and in case he is found fit, he shall be promoted.
9. In the present case, it has been stated in the counter affidavit that the work and performance of the petitioner-respondent was not satisfactory and on. various occasions explanation was called from him, he was awarded adverse entries, and disciplinary action was also taken against him. He used to avoid typing of the orders passed by the Additional Commissioner in respect whereto vide order dated 21st November 1983. he was placed under suspension and subsequently vide order dated 29.11.1983 a censure entry was awarded as a result of the disciplinary proceedings, which is reproduced as under:
10. The Selection Committee consisting of the Commissioner himself, Additional Commissioner (Administration) and District Magistrate. Varanasi in the selection proceedings dated 5th September 1988 considered the service record of the petitioner-respondent, the appellant and one Shir Gulam Sabir. The deliberations of the Selection Committee wherein they found the petitioner-respondent as unfit may also be reproduced as under:
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11. The aforesaid facts show that the petitioner-respondent lacks proficiency in typing and shorthand and was also a reluctant worker. The Commissioner of a Division is required to discharge the administrative as well as quasi judicial functions under various statutory provisions and therefore. Stenographer to the Commissioner mast be a person who is well conversant and proficient in Stenography including typing in both the languages. In the absence of any specific qualification required to be possessed by the Stenographer to the Commissioner under the rules, it can not be said that the selection committee can not consider the job requirements particularly when the officer with whom the incumbent after promotion would work is well aware of the job requirement of the post and is the part and parcel of the Selection Committee Learned Single Judge appears to have-swayed by the qualifications prescribed under Rule 5 for the post of Stenographer and, therefore, has observed that the proficiency in English short hand and Typing as well as m Hindi Typing on electronic machine is not prescribed under the rule, hence the same could not have been taken into consideration while considering promotion to the post of Stenographer to Commissioner since the persons who constitute feeder cadre for promotion did not require to possess such qualification while being appointed in the feeder cadre.
12. In our view, the Hon'ble Single Judge has erred in giving much weight to the qualifications prescribed for the post of Stenographer and Camp Assistant under the Rules without looking into the facts that for the post of Stenographer to the Commissioner, the specific job requirement or qualifications have not been prescribed in the rules and therefore, in order to judge the fitness of the person for promotion, the selection Committee particularly when it consists of the Commissioner of the Division would be better equipped to assess the fitness of the person for promotion considering the nature of the post in question.
13. Even otherwise, we find that Rule 8 of 1980 rules nowhere exclude the proficiency in Hindi Shorthand and Typing on an electronic machine. The rule does not mention the kind of machine on which the incumbent must have proficiency in Typing. With the passage of time and technical advancement the rules cannot be read as if they contemplate a static situation and exclude the technical advancement in the equipments necessary in aid and assistant for effective discharge of duties. The rule as it stands in our view is capable of interpretation as to provide Hindi Typewriting proficiency on any kind of equipment machine whether manual or electronic etc. The Learned Single Judge, in our view, is not correct in observing that the rule does not require proficiency in Hindi Typewriting, on electronic machine and therefore, the Selection Committee considered the irrelevant factors in order to declare the petitioner-respondent unfit for promotion. In the matter of promotion where criteria is seniority subject to rejection of unfit, there is no question of ignorance of seniority since the person who is senior is entitled not only for consideration for promotion but also has a right of promotion provided he is fit for promotion. The assessment of fitness lies within the ambit of the Selection Committee. The court in the process of judicial review would not sit in appeal over the assessment of said Selection Committee. However, it may also be mentioned that a Selection Committee while considering fitness of a person for a particular post can always set up a minimum necessary merit requisite for the post.
14. A Division Bench of this Court in the case of Vinod Kumar Verma v. Union of India 2004 (1) Education Service Cases 19 while considering similar issue, held in Para 14, 15 and 16 as under:
14 Under the rules, the promotions were to be made on the basis of seniority cum-merit. This, no doubt means Seniority subject to the rejection of unfit. In our opinion, however, to determine a person fit or unfit, it is open to the authorities to setup a minimum necessary merit requisite for the post. The competent authority can therefore, lay down die minimum standard that will be required of a candidate, and only those who reach this minimum standard will then be promoted on the basis of seniority.
15. In our opinion it is always open to the authorities to fix a minimum requirement, which a candidate must have before he can be considered for promotion on the basis of seniority-cum-merit. Hence it is not correct to say that only those who have some adverse entries or other adverse material in their service record can be eliminated while considering promotions on the basis of seniority-cum-merit.
16. No doubt one standard which the authorities can adopt for determining un fitness is the existence of adverse material in the service record of the candidate but that is not the only - way in which the authorities can declare a person unfit for being considered for promotion. The authorities can fix any objective criterion for this purpose, and tins court cannot sit in appeal, over this minimum merit criterion fixed by the authorities. The authorities must he given wide latitude in the manner and mode of fixing this minimum merit.
15. Earlier the Apex Court also in the Case of Union of India v. Rajendra Singh Kadyan while considering the similar criteria promotion observed as under:-
Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit, fitness means fitness in all respects Seniority-cum-merit" postulates the requirement of certain minimum merit for satisfying benchmark previously fixed. Subject to fulfilling this recquirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum fitness and seniority-cum-merit. Merit cum-suitability with due regard to seniority as prescribed Unit he is of promotion,'o All India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them.
16. The minutes of the Selection Committee shows that it has considered the entire service record of all the persons which includes the various entries of the petitioner-respondent as disclosed in the counter also. Merely because in the minutes of the meeting the specific reference to the adverse entries docs not find mention, it docs not mean that while considering the fitness of the petitioner-respondent, the same have not been taken into account.
17. The Apex Court in Rajendra Singh Kndyan Case (Supra) has clearly held where the entire service profile has been taken care by the authorities concerned the court should not substitute its view to that of authorities since a is beyond the scope of judicial review. The relevant observations of the Apex Court are noted as under:-
May be one may emphasize one aspect raster than the other hut in the appraisal of the total profile, the entire service profile has been taken care of by the authorities concerned and we can not substitute our view to that of the authorities. In is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions has nexus to the facts on record the same cannot be attacked on merits. Judicial review is permissible only to the extern of finding whether process in reaching decision has been observed correctly and not the decision as such. In that view of the mailer we think there is no jurisdiction for the High Court 'to have interfered with the order made by Government.
18. It would be fruitful to refer at this stage the observations made by Hon'ble A.N. Ray, C.J. in the State of Kerela v. N.M. Thomas held as under:-
With regard to promotion die normal principles of either menit-cum-seniority or seniority-cum-merit Seniority cum-merit means that given die minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority.
19. Therefore, it is a settled position of law that the minimum proficiency is always required even where the promotion is to made on non-selection basis i.e. seniority subject to rejection of unfit or seniority-cum-fitness or seniority cum-ment. In the present case, the Departmental Promotion Committee considered the fitness of the petitioner-respondent on the basis of ins service record and other relevant material including his proficiency in typing and stenography. A stenographer or private assistant is an important person and if he is not man of competence, the efficiency of the officer with whom he is attached is also likely to suffer. For an 'officer at the level of Divisional Commissioner, the stenographer must be very competent in shorthand and typing. The Departmental Promotion Committee, in the present case, knowing the work and performance of the petition Br-respondent and also after perusing his service record found him unlit for the said post and in such circumstances, in the absence of any allegation of mala fide or bias on the pail of the Departmental Promotion Committee, the Court should be very reluctant to disturb the assessment of such an expert body unless it can be shown to be vitiated in law on account of mala fide or contrary to some statutory provision. We do not find in the present case her the proceedings in the case in hand are vitiated on any of the aforesaid two grounds. Accordingly, we cannot persuade ourselves to agree with the view taken by the Hon'ble Single Judge and, therefore, the judgment in appeal cannot be sustained.
20. In the result, the Special Appeal is allowed. The judgment dated 1.2.1994 in writ petition No. 19016 of 1988 passed by Hon'ble Single Judge is set aside. Accordingly, the respondent is also dismissed.
21. No order as to costs.