Hon'ble Rang Nath Pandey,J.
Heard learned counsel appearing for the petitioner, learned Additional Chief Standing Counsel appearing for the State-respondents and the learned counsel representing the respondent no.9.
This Court by means of the order dated 03.07.2018 had directed the learned Additional Chief Standing Counsel to produce the proceedings of the Departmental Promotion Committee and the entire related record to ascertain the correct fact as to whether in terms of the relevant Government Orders any bench mark was fixed by the Departmental Promotion Committee or not. Pursuant to the said order dated 03.07.2018 passed by the Court, the relevant record, which includes the proceedings of the Departmental Promotion Committee held on 22.01.2018, was produced, which has also been perused by us.
By means of this petition, filed under Article 226 of the Constitution of India, the petitioner, who substantively holds the post of Additional Director has primarily challenged the proceedings of the Departmental Promotion Committee held on 22.01.2018 for making selection for the purposes of making promotion to the post of Director (Agriculture).
It has also been prayed by the petitioner that the decision of the Departmental Promotion Committee, whereby the respondent no.9 has been declared eligible for promotion to the post of Director (Agriculture) against the vacancy, which occurred on 30.06.2018, be also quashed.
Further prayer made in the writ petition is to take decision on the representations said to have been preferred by the petitioner for upgradation of his Annual Confidential Report for the recruitment years 2008-09, 2009-10, 2012-13, 2013-14, 2014-15 and 2015-16 and accordingly to hold review Departmental Promotion Committee.
Having heard learned counsel representing the respective parties and perused the record relating to the Departmental Promotion Committee as also the record of the writ petition available before us, two questions emerge for consideration of the Court in this case.
The first question, which needs adjudication, is as to whether the Departmental Promotion Committee which met on 22.01.2018 for making selection for promotion to the post of Director (Agriculture) has followed the procedure prescribed in the relevant Government Orders, namely, the Government Order dated 22.03.1984 and 20.11.2017 which prescribe the procedure to be followed for considering the candidature of eligible candidates for promotion where the criteria for promotion is merit.
The second issue, which engages attention of this Court in this matter and which also needs determination by the Court is as to whether in view of the judgment rendered by Hon'ble Supreme Court in the case of Dev Dutt vs. Union of India and others, reported in [(2008) 8 SCC 725], in terms of the Government Order dated 01.02.2013 read with the Government Order dated 29.01.2014 the representations for upgradation of entries are to be considered only in respect of the Annual Confidential Entries pertaining to the year 2012-13 and onwards or such representations need to be considered in respect of the entries awarded prior to the year 2012-13 as well.
The appointment to the post of Director (Agriculture) is governed by U.P. Agriculture (Group-A) Service Rules, 1992 (herein after referred to as the ''Service Rules, 1992'). Rule 5 of the Service Rules, 1992 provides that on the post of Director, appointment shall be made from amongst substantively appointed Additional Directors (Agriculture), who have completed two years of service on first July of the recruitment year by way of promotion through Departmental Promotion Committee. Rule 8 provides that the appointment to the post of Director shall be made on the criteria of merit through the Departmental Promotion Committee, comprising of the Chief Secretary of the State who will be its Chairman, the Principal Secretary/Secretary, as the case may be, of the State Government in Agriculture Department and the Secretary in the Karmic Department of the State Government, who shall be its members. Sub Rule 3 of Rule 8 provides that eligibility list shall be prepared by the appointing authority as per the provisions contained in the Uttar Pradesh Promotion by Selection (On Posts Outside Purview of the Public Service Commission) Eligibility Rules, 1986 and the appointing authority shall also place the character rolls and other relevant documents which may be deemed appropriate, before the Departmental Promotion Committee. Sub rule 5 of Rule 8 provides that the Departmental Promotion Committee shall prepare a list of selected candidates as per the prevalent Government Order and shall furnish such list of the selected candidates to the appointing authority. Rule 9 provides that the appointing authority shall make appointment from the list prepared under rule 8.
Thus, the scheme of the service rules in relation to appointment on the post of Director (Agriculture) is that the appointment is to be made from amongst the substantively appointed Additional Directors (Agriculture) who have put in two years of substantive service on the basis of criteria of merit to be evaluated by the Departmental Promotion Committee in terms of the prevalent Government Order(s).
For the purposes of prescribing the procedure to be followed by the Departmental Promotion Committee for making recommendations for promotion to the next higher post, the State Government has issued Government Order dated 22.03.1984. The said Government Order prescribes the procedure to be followed by the Departmental Promotion Committee where the criteria is seniority subject to rejection of unfit and also where the criteria is merit. According to sub clause 2 of clause 2 of the said Government Order dated 22.03.1984, where the criteria is merit the Departmental Promotion Committee is required to consider all the officers, who are in the eligibility list. It further provides that the criteria of merit means that the most meritorious officer should be selected from amongst the entire eligibility list. It further provides that where the criteria for selection is merit, the entries of the entire service period should be seen, however, special emphasis should be given to the entries of last ten years. It further provides that, on the basis of character rolls/entries of the eligible officers, the candidates should be categorized in three categories, namely, (i) vfr mŸke] (ii) mŸke and (iii) vuqi;qDr. It also provides that first of all the vacancy should be filled in the order of seniority from amongst the officers categorized in the category of vfr mŸke and thereafter as per the need, rest of the vacancies, if there are any, shall be filled in from amongst the officers categorized as mŸke and thereafter all the officers categorized as vfr mŸke and mŸke are to be rearranged in the order of seniority, which shall be the seniority list.
The State Government has amended para 2(2) of the aforesaid Government Order dated 22.03.1984 by issuing a subsequent Government Order dated 20.11.2017. According to the said Government Order, in terms of the various orders of Hon'ble Supreme Court and other Courts, the Departmental Promotion Committee is free to evolve its own method and procedure and to apply its mind. Clause 3 of the Government Order dated 20.11.2017 clearly states that the Government Order dated 20.11.2017 has been issued for amending the procedure prescribed in Clause 2(2) of the Government Order dated 22.03.1984 in relation to selections based on the criteria of merit. Clause 3 of the said Government Order further provides that all the officers included in the eligibility list are to be considered for promotion and evaluation of merit of all the eligible officers is to be made on the basis of their entries in the last ten years, however, if there is any need, the entries of the entire service career can also be seen. It further provides that the Departmental Promotion Committee shall categorize the eligible officers in two categories, namely, mi;qDr (fit) and vuqi;qDr (unfit), after determining a bench mark. The Government Order further provides that those officers, who fulfill the bench mark as determined by the Departmental Promotion Committee shall be included in the select panel, on the basis of their being found fit ¼mi;qDrk ds vk/kkj ij½ and thereafter such officers whose names are included in the select panel are to be rearranged in the order of their inter se seniority in the feeding cadre. It also provides that the order of promotion shall be issued in the order of seniority and further that the officers found mi;qDr (fit) shall not be superseded. The Government Order further states that the officers, who are found vuqi;qDr (unfit) shall not be included in the select panel.
The Government Order dated 20.11.2017 also provides that the U.P. Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995 were promulgated on 10.07.1995 which prescribe the procedure for disposal of representation made against the adverse Annual Confidential Reports and that the Government Order dated 01.02.2013 provides for disposal of representation made by the officers for upgradation of their entries. It also states that before making selection or even before sending the proposal for making selection by way of promotion, the provisions of 1995 Rules and the Government Order dated 01.02.2013 should be ensured. Thus, the prescription available in the Government Order dated 20.11.2017 relating to procedure to be followed for making promotion to a higher post where the criteria for promotion is merit, clearly mandates that disposal of representation for upgradation of entries in terms of the Government Order dated 01.02.2013 be ensured and that the Departmental Promotion Committee for categorizing the eligible officers into two categories of mi;qDr (fit) and vuqi;qDr (unfit) needs to determine/fix a bench mark first and it is only thereafter that the officers are to be categorized into the aforesaid two categories. In other words, the eligible officers, who attain the bench mark on the basis of evaluation of their Annual Confidential Reports are to be categorized as mi;qDr (fit) and those who do not secure the bench mark prescribed/determined/fixed by the Departmental Promotion Committee on the basis of their entries are to categorized as vuqi;qDr (unfit). It is only thereafter that the officers categorized as mi;qDr (fit) are to be rearranged in the order of their seniority and depending on the vacancies available, promotions are to be recommended/made.
What, thus, we find from a bare perusal of the Government Order dated 20.11.2017 is that once the proposal for making promotion is placed before the Departmental Promotion Committee, the first act which the Departmental Promotion Committee has been mandated by the said Government Order dated 20.11.2017 to perform is to determine/fix/prescribe the bench mark and only thereafter further proceedings are to be drawn by the Departmental Promotion Committee.
It has vehemently been argued by the learned counsel for the petitioner that the Departmental Promotion Committee in this case which met on 22.01.2018 did not prescribe/fix/determine the bench mark and proceeded ahead by categorizing the eligible officers into the categories of the officers being fit or unfit. Thus, the submission is that the Departmental Promotion Committee has utterly failed to follow the procedure as mandated by the Government Order dated 20.11.2017.
For the purposes of testing the aforesaid submission as advanced by the learned counsel appearing for the petitioner, we have perused the original record of the proceedings of the Departmental Promotion Committee. From a bare perusal of the proceedings of the Departmental Promotion Committee held on 22.01.2018 what unambiguously transpires is that the Departmental Promotion Committee considered the promotion for two vacancies occurring in the recruitment year 2017-18. The first vacancy occurred on 31.10.2017 on the retirement of one Shri Mukesh Kumar Srivastava, Director, State Agriculture Management Institute, Rahmankhera, Lucknow and second the vacancy against which the promotion was considered occurred on 30.06.2018 on the retirement of one Shri P. C. Singh, Director, Seeds Certification Agency, U.P., Alambagh, Lucknow. It considered four officers to be eligible for promotion, namely, (i) Shri Rajendra Dhar Dwivedi (ii) Shri Santosh Kumar Agnihotri (petitioner), (iii) Shri Prashant Kumar and (iv) Shri Sant Ram Kaushal (respondent no.9) However, it is strange to notice that without determining/fixing/prescribing any bench mark as mandated by the Government Order dated 20.11.2017, the Departmental Promotion Committee categorized the aforesaid four officers into two categories of mi;qDr (fit) and vuqi;qDr (unfit). Shri Rajendra Dhar Dwivedi and Shri Sant Ram Kaushal (respondent no.9) were categorized as mi;qDr (fit) and Shri Santosh Kumar Agnihotri (petitioner) and Shri Prashant Kumar were categorized as vuqi;qDr (unfit). Thereafter two eligible officers, who were categorized as mi;qDr (fit) were rearranged in the order of their seniority and name of Shri Rajendra Dhar Dwivedi was put in serial no.1 whereas the name of Shri Sant Ram Kaushal (respondent no.9) was put in at serial no.2.
On the basis of the aforesaid recommendations made by the Departmental Promotion Committee in its meeting held on 22.01.2018, Shri Rajendra Dhar Dwivedi was appointed as Director (Agriculture) on 01.02.2018 and respondent no.9 has thereafter been appointed on the post in question on 28.06.2018 whereupon he has also assumed the charge of his post w.e.f. 01.07.2018.
What we notice from a perusal of the minutes of meeting of the Departmental Promotion Committee held on 22.01.2018 is that it clearly did not proceed in accordance with the mandate contained in the Government Order dated 20.11.2017 which required the Departmental Promotion Committee to, first of all, fix/determine/prescribe the bench mark where the criteria for promotion is merit. The Government Order dated 20.11.2017 though is not statutory in nature, however, it has been issued for prescribing the procedure to be followed by the Departmental Promotion Committee, where the criteria for promotion is merit.
It is settled law that the Government Order can always be issued to supplement the statutory service rules and accordingly we have no hesitation to hold that the said Government Order dated 20.11.2017 is binding on every Departmental Promotion Committee which needs to be followed mandatorily in an eventuality where the Departmental Promotion Committee considers the eligible candidates for promotion to the higher posts on the basis of criteria of merit.
The first issue which this case poses before us to be determined, is thus decided accordingly and we hold that the Departmental Promotion Committee held on 22.01.2018 has clearly departed from the procedure prescribed in the Government Order dated 20.11.2017 though this Government Order is to be followed mandatorily.
The Departmental Promotion Committee in this case has not followed the mandate contained in the Government Order dated 20.11.2017 and thus, the procedure adopted by the Departmental Promotion Committee is vitiated and the recommendations thus made by the Departmental Promotion Committee in its meeting held on 22.01.2018 cannot be held to be lawful.
Learned counsel representing the respondent no.9 while opposing grant of prayers made in this writ petition has vehemently argued that since the petitioner is challenging the proceedings of the Departmental Promotion Committee held on 22.01.2018 and the said Departmental Promotion Committee had made recommendation to make promotion of respondent no.9 (Sant Ram Kaushal) as also that of Shri Rajendra Dhar Dwivedi, as such Shri Rajendra Dhar Dwivedi is a necessary party in this petition, in absence whereof the writ petition suffers from vice of non-joinder of necessary party. In this view, submission is that the writ petition should not be entertained.
However, what we find is that Shri Rajendra Dhar Dwivedi is, admittedly, senior to the petitioner whereas respondent no.9 (Sant Ram Kaushal) is junior to him. No challenge in this petition has been made by the petitioner against the promotion of Shri Rajendra Dhar Dwivedi, who, admittedly, is senior to the petitioner and has been promoted against the vacancy on the post of Director which had occurred on 31.10.2017. The claim of the petitioner for promotion to the post of Director (Agriculture) is against the vacancy which was to occur on 30.06.2018 against which the name of respondent no.9 was recommended, who has also been promoted vide order dated 28.06.2018. Thus, the challenge having not been made to the promotion of Shri Rajendra Dhar Dwivedi and the claim having been put forth in this writ petition by the petitioner only against the vacancy which occurred on 30.06.2018, we are of the considered opinion that only on the count that Shri Rajendra Dhar Dwivedi has not been arrayed as respondent in this writ petition, the writ petition cannot be said to be not maintainable. The said objection raised by the learned counsel appearing for the respondent no.9 thus, merit rejection, which is hereby rejected.
Now coming to the other issue, which as observed above, has emerged for our consideration, we need to refer to the judgment of Hon'ble Supreme Court in the case of Dev Dutt vs. Union of India and others (supra). Hon'ble Supreme Court in the said case has clearly held that fairness and transparency in public administration requires that all the entries (whether poor, fair, average, good or very good) in the Annual Confidential Report must be communicated to the officer so that he can make a representation for its upgradation. Para 36 of the judgment in the case of Dev Dutt vs. Union of India and others (supra) is extracted hereunder:
"36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders."
The law laid down by Hon'ble Supreme Court in the case of Dev Dutt vs. Union of India and others (supra) has been re-affirmed by Hon'ble Supreme Court in the case of Sukhdev Singh vs. Union of India, reported in [(2013) 9 SCC 566].
The issue relating to opportunity of representation for upgradation of entries came up for consideration before a Division Bench of this Court in a bunch of writ petitions, leading Writ Petition being Writ Petition No.479 (S/B) of 2010, State of U.P. and another vs. Dev Raj Vishwakarma and another and the division bench in the said case vide its judgment and order dated 05.12.2011 directed the Chief Secretary of the State of U.P to issue appropriate Government Order/Circular for communication of all the entries to all the State employee as per the dictum of Hon'ble Supreme Court as laid down in the case of Dev Dutt vs. Union of India and others (supra), with a further provision for making representation to the higher authorities. In compliance of the said order dated 05.12.2011, the State Government has issued a Government Order dated 01.02.2013 which provides that all the entries awarded to a Government employee shall be communicated to him in writing and the employee concerned shall be given an opportunity to make a representation for upgradation of such entries. Subsequently, another Government Order was issued on 29.01.2014 wherein the decision of the State Government to the effect that the Government Order dated 01.02.2013 shall be applicable for the years 2012-13 and for subsequent years only, has been embodied.
Based on the said Government Order dated 29.01.2014, it has vehemently been argued by the learned Additional Chief Standing Counsel appearing for the State-respondents that representations made by the petitioner for upgradation of entries pertaining to the years prior to 2012-13 cannot be considered and accordingly any prayer made by the petitioner for disposal of representations before convening the Departmental Promotion Committee for upgradation of entries awarded to him prior to 2012-13 cannot be granted.
Having considered the aforesaid argument of learned Additional Chief Standing Counsel opposing the petition, what we find is that the Government Order dated 29.01.2014 actually runs under the teeth of the mandate of Hon'ble Supreme Court in the case of Dev Dutt vs. Union of India and others (supra). In paragraph 36 of the judgment in the case of Dev Dutt vs. Union of India and others (supra), it has been mandated that all the entries in the Annual Confidential Report of a public servant must be communicated to him so that he can make a representation for upgradation. Hon'ble Supreme Court further proceeds to observe that communication of all entries needs to be done to the public servant even though there may be no rule/Government Order requiring communication of the entry, or even if there is a rule/Government Order prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution of India will override all rules or Government Orders.
In view of what has been held by Hon'ble Supreme Court in the case of Dev Dutt vs. Union of India and others (supra), whether or not the Government Orders dated 01.02.2013 and 29.01.2014 were in existence, all the entries were to be communicated to the petitioner and any representation made by him for upgradation of such entries are thus, to be considered by the authorities concerned irrespective of the fact as to whether the entry pertained to the years prior to the year 2012-13. The mandate of Hon'ble Supreme Court is unambiguous and clear and hence the stand taken by the learned Additional Chief Standing Counsel representing the State-respondents based on the Government Order dated 29.01.2014 is, thus, highly misconceived.
The second issue as formulated by us in the beginning of this judgment is, thus, decided accordingly.
For the reasons disclosed above, the writ petition deserves to be allowed.
Resultantly, the writ petition is allowed.
Recommendation of the Departmental Promotion Committee made in its meeting held on 22.01.2018 to the extent it recommends promotion of respondent no.9 is hereby quashed. Consequently, the order dated 28.06.2018, whereby the respondent no.9 has been promoted to the post of Director (Agriculture) is also quashed.
Respondents are directed to consider and decide the representations made by the petitioner for upgradation of his entries irrespective of the fact as to whether the said entries pertained to the years prior to the year 2012-13, if the same have already not been disposed of. After disposal of the representations said to have been preferred by the petitioner for upgradation of his entries, if any, review Departmental Promotion Committee shall be convened which will consider the claim of the petitioner along with other eligible officers for promotion to the post of Director (Agriculture) against the vacancy, which occurred on 30.06.2018 and accordingly promotion be made.
The aforesaid exercise by the respondents i.e. disposal of the representations and convening of review Departmental Promotion Committee shall be completed within a period of six weeks from the date of production of certified copy of this order.
We further direct that the respondent no.9 shall be allowed to continue to work and discharge the functions of the post of Director (Agriculture) till the review Departmental Promotion Committee is held as per the observations made herein above and continuance of respondent no.9 on his post shall, thus, abide by the result of the Departmental Promotion Committee.
In the circumstances of the case, there will be no order as to costs.
Order Date :- August 20, 2018 akhilesh/ [Rang Nath Pandey, J.] [D. K. Upadhyaya, J.]