The Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the second respondent in proceedings RC No.5340/A1/2008 dated 29.7.2008 and to quash the same and direct the respondents 1 and 2 to conduct fresh Selection for promotion to the post of Personal Secretary in TANCEM Registered Office, Chennai after complying with the law laid down by the Supreme Court reported in (2008)8 SCC 725 para 41.
2. The petitioner challenges the impugned proceedings dated 29.7.2008 whereby and whereunder, respondents 5 to 7 were promoted from the post of Selection Grade Personal Assistant to the post of Personal Secretary. The case of the petitioner is that she is a senior to the respondents 5 to 7 in service and her claim for promotion to the post of Personal Secretary was rejected for the following reasons:-
(i) The pendency of the charge memo RC.No.4180/A1/2008 dated 9.6.2008.
(ii) The complaint given by the petitioner against the fourth respondent Thiru K.Meyyanathan, Senior Company Secretary and Public Information Officer that he had committed sexual harassment in the cabin on 14.8.2000. The said Meyyanathan is one of the Members sitting in the Department Promotion Committee and therefore, the proceedings of the Committee rejecting the petitioner's claim is tainted by bias and apparent personal prejudice.
(iii) The Department has in a letter taken the plea that petitioner has suffered adverse remarks. Petitioner, however, contends that the so-called adverse remarks have not been communicated. Therefore, the rejection of the petitioner's claim for promotion was based on material which is not furnished to the petitioner. Therefore, the proceedings of the Department Promotion Committee is arbitrary and contrary to law.
Petitioner's counsel relies upon the Apex Court's decision in Dev Dutt vs. - Union of India and others reported in (2008)8 Supreme Court Cases 725 to support his contention No.(iii) as above. The Apex Court held in para 41 as follows:-
"41. In our opinion, non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of
Article 14 of the Constitution."
It was, therefore, pleaded that since the adverse entries have not been communicated, the petitioner's non-selection is bad.
3. Respondents have been noticed. Respondents 1 to 4 are represented by a counsel Thiru Karthick. Respondents 5 and 6 were served, but none appeared on their behalf. Even though 7th respondent was not served, after hearing the counsel for the petitioner and the counsel for the respondents 1 to 4 and in view of the orders that is to be passed whereby, the selection of respondents 5 to 7 is not disturbed, notice to 7th respondent is dispensed with.
4. Mr.Karthick, learned counsel for the official respondents 1 to 4, brought the records of the Department Promotion Committee and the service records of the petitioner. He submitted that based on the comparative merits of the candidates who were eligible to be considered for promotion to the post of Personal Secretary, the respondents 5 to 7 were selected and the petitioner's case was not considered as a charge memo issued against her and the department proceedings are pending. The said charge memo has, however, been challenged in Writ Petition No.2381 of 2001 and the disciplinary proceedings has been stayed by this Court.
5. Learned counsel for the official respondents 1 to 4 relied upon rule 2.8 of the Service Rules which reads as follows (as mentioned in the counter-affidavit):-
"(a) For all categories of posts, the basic criteria for promotion will be merit, suitability, efficiency and past performance and seniority being taken into consideration only if other factors are equal.
(b) The management may lay down suitable criteria to determine merit, suitability and efficiency by assessing the regular work of the staff member/officer and by means of written/oral tests, performance appraisals, interview, etc."
The Department Promotion Committee considered the merits, suitability, efficiency and past performance of all the candidates and based on the comparative merits, respondents 5 to 7 were selected, rejecting the claim of the petitioner. He contended that the Department Promotion Committee was guided by the Rule as above. The respondents produced the service records of the petitioner to show that her service record belies her statement of unblemished service.
6. With regard to the plea of bias based on the complaint given by the petitioner against the fourth respondent Thiru K.Meyyanathan, Senior Company Secretary that he had committed sexual harassment in the cabin on 14.8.2000, learned counsel for the official respondents 1 to 4 submitted that the fourth respondent Mr.Meyyanathan, as the Senior Company Secretary and in the absence of Manager (Finance) he had to sit in the Department Promotion Committee along with other Members to consider the selection of several candidates in different category. The Department Promotion Committee's decision was taken by a collective body and therefore, the question of bias or prejudice as has been stated by the petitioner is not justified. In any event, the complaint as above was dismissed by a competent Committee.
7. Insofar as the plea with regard to the adverse remarks is concerned, on instruction from the officer of the respondent Department, learned counsel Shri.Karthick stated that except the service record, respondent do not record Annual Confidential Report insofar as the petitioner or similarly placed persons are concerned. This statement of the counsel is recorded.
8. The primary plea taken by the counsel for the petitioner that the non-selection of the petitioner to the post of Personal Secretary is because of the adverse remarks in the Annual Confidential Report and that has not been communicated does not merit consideration, in view of the statement by the learned counsel for the respondents 1 to 4 that no Annual Confidential Report is recorded insofar as the petitioner and similarly placed persons are concerned. Therefore, the reliance placed by the learned counsel for the petitioner (2008) 8 Supreme Court Cases 725 (cited supra) does not apply to the facts of the present case and the said plea does not merit consideration.
9. The only plea that remains to be considered is whether the Department Promotion Committee while considering the case of the petitioner was free from the plea of prejudice or bias as alleged by the petitioner. As could be seen from the affidavit filed in support of the petitioner, the petitioner has highlighted the complaint that she has made against the fourth respondent in respect of the alleged incident dated 14.8.2000 that she was sexually harassed by the fourth respondent. It is a matter of record that the complaint was taken up by the Complaints Committee constituted as per the Apex Court's decision in Vishaka & others vs. - State of Rajasthan and others reported in 1997(6) SCC 241 and after enquiry, the charge was held to be false and the fourth respondent was exonerated of the charge. Petitioner, however, states that she has challenged the report of the Special Committee exonerating the fourth respondent before this Court. In view of the above, it is clear that the petitioner and the fourth respondent are averse each other on this issue. This plea has to be considered as a tenable plea as the fourth respondent sitting in the Department Promotion Committee has to be free from prejudice or bias of any kind considering the nature of allegation between the two. Though the fourth respondent sat in the Department Promotion Committee along with other Members of the Committee, the plea of bias or prejudice should be totally absent. The fourth respondent, who is defending a case against the petitioner should have been refrained himself from the Department Promotion Committee insofar as the petitioner is concerned. This would avoid the plea of bias or prejudice. It goes with the adage that justice must not only be done but seem to be done.
10. In view of the above, the Department Promotion Committee which consider the case of the petitioner, in order to be free of allegation of bias or prejudice, should consist of any other member except the fourth respondent K.Meyyanathan, the Senior Company Secretary. To the suggestion from this Court, Mr.Karthic learned counsel appearing for the respondents 1 to 4 stated that a new Manager (Finance) has taken charge and he will be able to participate in the Department Promotion Committee in the place of Mr.K.Meyyanathan and the Committee will consider the case of the petitioner afresh, if so directed by the Court.
11. Considering the nature of the allegations made against the fourth respondent by the petitioner and in view of the pendency of this issue, this Court is constrained to hold that the Department Promotion Committee proceedings insofar as petitioner is concerned has to be set aside, however, with a further direction to the first respondent to consider the case of the petitioner for promotion by constituting the Department Promotion Committee in which Mr.K.Meyyanathan, the Senior Company Secretary not being a member. The case of the petitioner will be considered on its own merits and based on relevant records that are already available. Such exercise shall be completed on or before First March, 2010. This Writ Petition is ordered to the extent indicated above. There will be no order as to costs.