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PETITIONER: MOHAN DUTT SHARMA

       Vs.

RESPONDENT: CHIEF JUSTICE, PUNJAB & HARYANA HIGH COURT

DATE OF JUDGMENT:       30/07/1997

BENCH: SUJATA V. MANOHAR, G. B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      The appellant  joined the services of the High Court of Punjab and  Haryana as  a Clerk in the year 1966. In 1973 he was promoted  as an  Assistant From  1979 he  was  a  Senior Assistant  within   the  cadre   of  Assistants.  As  Senior Assistant he  was entitled  to a  higher  pay-scale.  In  or around 1978 On account of cases relating, to defaulcation of finds in  the subordinate courts coming to the notice of the High Court,  it was  decided by  the Chief Justice and other Judges of  the High  Court, it  was  decided  by  the  Chief Justice and  other Judges  of the High Court, it was decided by the Chief Justice and other Judges of the High Court that an agency should be created on the establishment of the High Court to  undertake audit  of the  subordinate  courts.  The office of the Accountant General was not in a position to do this Work  for the  High Court.  It was,  therefore, decided that the  work of audit both in the High Court as well as in the subordinate  courts should  be done by the High Court as well as  in the  subordinate courts  should be  done by  the High Court  departmentally by  posting some  experienced  or properly qualified  officers in charge of the work. The High Court did  not have  any qualified  staff  members  who  had passed   the Accounts  Services Examination.  It, therefore, set up  an Internal  Audit Cell in 1978 which then consisted of two superintendents Grade II, two Assistants and a clerk. The appellant  worked in  the internal  Audit Cell  from its inception.      In  May  1981  the  appellant  passed  the  Subordinate Accounts Services  (SAS) Examination  held  by  the  Haryana Government Finance  Department. According  to the  appellant officials who  have qualified  in the  SAS  examination  are usually posted as Section Officers in the Central Government and as  senior Auditors in the State Governments. Their next avenue of  promotion is  to the post of Accounts officer. On qualifying  in   the  SAS   examination  appellant   made  a representation to  the  Chief  Justice  of  the  Punjab  and Haryana High  Court in  which he pointed out that he was the first official  of the  court who  had qualified  in the SAS examination.  Keeping   in  view   his   qualification   and experience, he  should be  given an  opportunity to serve as

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Superintendent for  the purpose  of conducting  audit of the accounts of  the High  Court   as well  as  the  subordinate courts. He  stated that  he was  the only  official who  was qualified  to   do  this   work  and   requested  that   his qualification and  experience should be recognised by making him superintendent.  This representation  was considered  by the Chief  Justice of  the High  Court. Bearing  in view the qualification and the excellent work which was being done by the appellant  in the Internal Audit Cell, it was decided to promote the  appellant as  officiating Superintendent  Grade II, against  a newly  created post although he was junior to several  other   officers  in   the  cadre   of  Assistants. Accordingly by an office order  dated 9.2.1982 the appellant was promoted  as officiating  Superintendent Grade II (on ad hoc basis)  with effect  from 3.2.1982.  In the  "  remarks" column it was stated as follows:-           "Against a  newly created post      w.e.f.   3.2.1982   (forenoon)   by      keeping in  abeyance  one  post  of      Senior  Assistant   held   by   him      subject to  the condition  that  on      his  promotion   he  will   not  be      deemed  to   have   become   senior      Assistant held  by him  subject  to      the condition that on his promotion      he  will  not  be  deemed  to  have      become senior to those official who      are otherwise  senior to him in the      general seniority  and that he will      have  no   preferential  claim  for      promotion as  superintendent Gr.  I      merely on  account of  his  present      promotion."      In May 1982 the appellant made a further representation to the  Chief Justice  of the High Court which id dated 20th of May  1982 .  The appellant  requested that  he should  be promoted to  Superintendent Grade  i. He pointed out that in the course  of his  duties, he  had to  inspect the work and accounts of  persons holding  posts senior to him, which was causing some embarrassment. He submitted that looking to the nature of  the work  and his  responsibilities. he should be promoted  as   Superintendent  Grade   I  so   that  he  can effectively  discharge   his  duties  of  carrying  out  the internal audit of the High Court and the subordinate courts.      The representation  of the  appellant was put up before the Chief  Justice of  the High  Court with  an office  note which  said   that  his  representation  may  be  considered favourably and  a post  of Superintendent  Grade I Should be created for  the appellant  . However, in order to safeguard the interests of officials senior to him, it was recommended that a  condition should be imposed similar to the condition which  was   earlier  imposed   when  he   was  promoted  as Superintendent Grade II as a special case. The Chief Justice of the High Court accepted this recommendation. By an office order dated  20.12.1982, the  appellant  was  promoted  from officiating  Superintendent   Grade  II   to  the   post  of Superintendent Grade  I. In  the  "remarks"  column  it  was stated as follows:-           "Against a  newly created post      for him. His appointment is subject      to the condition that on account of      his promotion he will not be deemed      to  have  become  senior  to  those      officials in  general seniority and      he will  have no preferential claim

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    merely on  account of  his  present      post ."      Therefore, both these promotions were special promotion which were  given to  the appellant  in view  of his special qualifications and for discharge of special duties for which he was  suited, as  also on  account of  his excellent track record. It  is necessary to note that when the appellant was promoted from senior Assistant to Officiating Superintendent Grade  1   he  was   the  junior   most  in   the  list   of Superintendents Grade II.      In 1987  the appellant  made a  representation  seeking waiver of the conditions which were imposed upon him when he was promoted  as superintendent  Grade II  ad thereafter  as Superintendent Grade  II and  as Superintendent  Grade I. On that basis  he should  also  be  given  selection  Grade  as Superintendent Grade  I. By an order of "office Judge" dated 22.4.1987  this   representation  was   rejected  and   this rejection was  endorsed by  the Chief  Justice of  the  High Court. Thereupon  the appellant  filed a Civil Writ Petition No  5932  of  1987  in  the  High  Court  praying  that  the conditions imposed at the time of granting promotions to the appellant, denying  him the  benefit of  seniority should be deleted  and   that  he   should   be   granted   seniority, confirmation and  selection Grade  from the date his juniors have been  conformed and granted selection Grade in the said posts and  for other  reliefs. This  Writ petition  has been dismissed by  the High  Court and  hence the  appellant  has preferred the present appeal.      Rule 8  of the High Court (conditions of Service) rules at the  material time  prescribed, inter  alia, that for the post of  Superintendent Grade  I the method of promotion was by "selection  on the basis of seniority cum merit" from out of Superintendents  Grade II  and Revisors  in the  ratio of 5.1.      Rule 12  prescribed, inter  alia, that promotion to the post of  Superintendent Grade  Ii was  by " selection on the basis of seniority cum merit" from out of the Assistants.      Rule 24 provided as follows :-      "Promotion  in   the   High   Court      Establishment from one grade to the      next higher  one  shall  except  in      cases where competitive examination      is prescribed.  be by selection and      no one  shall have a right to claim      promotion merely  on the  basis  of      seniority."      Rule 30  which dealt  with  seniority  provided,  inter alia, that seniority shall be determined separately for each category of  post sin  the establishment  and that up to the dat of  confirmation, seniority  shall be  determined by the length of  continuous service  in the particular category of posts.  Within   the  same   category,  seniority  shall  be determined from  the date  of confirmation in the particular category. Rule 38 provided as follows-      "Where   the   Chief   Justice   is      satisfied that the operation of any      rule causes  undue hardship  in any      particular case,  he may  by  order      dispense   with    or   relax   the      requirements of  that rule  to such      extent   and    subject   to   such      conditions  as   he  may   consider      necessary for dealing with the case      in  a  just  and  equitable  manner      provided that the case is not dealt

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    with in a manner less favourable to      the officer  or official  concerned      than in accordance with the rules."      Ordinarily, therefore,  promotion    to  the  posts  in question is  on the  basis of  seniority cum  merit;  and  a person is  not entitled  to claim  promotion merely  on  the basis of  his seniority.  Rule 30 which deals with seniority further provides  that seniority is based upon the length of continuous service  in respect  of  employees  who  are  not confirmed; while  it is based on the date of confirmation in the case of employees who are confirmed in that post.      The promotion  of the  appellant was  not in the normal course. This  is quite  clear from  the representations made and from  the fact that a post was specially created for the appellant first,  in the  cadre of  Superintendent Grade ii, and t  he in  the cadre  of Superintendent Grade I. This was done because  of the  special requirements of the High Court and the fact that the appellant as the only qualified person who was  in a position to meet these special requirements of the High  Court and  carry out  the special responsibilities and duties  of internal audit in a proper manner. Looking to the seniority of the appellant in the cadre of Assistants it was also  obvious that  the promotion which was given to the appellant would  cause prejudice  to a number of persons who were senior  to the appellant in the cadre of Assistants and who would  have probably  been selected for promotion on the basis of  seniority cum merit prior to the appellant. It was in these  circumstances that  the Chief Justice, in exercise of his  powers under  Rule 38, directed that the normal rule as to  seniority should  not be  applied in  the case of the appellant and  that his  said two  promotions would not make him senior  to those  officials who were otherwise senior to him in  "the general  seniority". The  appellant has pleaded for deletion of this condition as contrary to the High Court Rules. Rule  38, however,  empowers  the  chief  justice  to impost a  special condition  when the  application of a rule may cause  undue headship  in particular case. The condition was imposed  in the  case of the appellant because the chief Justice felt that in order to deal in a just manner with the promotion in  question and with those who were senior to the appellant in  the lower  cadre, it  was necessary  to impose such a  condition protecting  the seniority  of those in the lower cadre. The promotion was subject to this condition and , therefore. the promotion and the condition attached cannot be de-linked.  There is no doubt that it was in very special circumstances  that   the  appellant  was  given  these  two promotions  which   he  would   not  have   otherwise   got. Undoubtedly, the  appellant had  discharged his  duties in a very able  manner  and  had  exerted  himself  to  earn  the qualification of  passing the  SAS examination which enabled him to  discharge which  were entrusted  to him  by the high Court.  The   promotion  that   was  given  to  him  was  in recognition of  his ability  and his  qualification. At  the same time,  if the Chief Justice thought it edit to impose a condition protecting  the seniority of other officers in the lower cadre  in view  of this  out of  turn promotion,  that condition cannot  be considered  as unjust and unreasonable. It cannot,  therefore, be  struck down in the manner claimed by the appellant.      What are the implications of the condition which was so imposed twice  in succession? At the time when the appellant was promoted  as superintendent  Grade Ii  the appellant was 95th in the seniority list of the Assistants. Therefore, the condition that  on his  promotion, he  will not be deemed or have become  senior to  those officials  who  are  otherwise

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senior to him in " the general seniority" would be referable to all  those officials  who were senior to the appellant in the seniority list of Assistants. These Assistants would, as and when  promoted as  Superintendents Grade  II, rank above the  appellant   although  the  appellant  was  promoted  as Superintendent  Grade  II  prior  to  them.  Obviously,  the conditions will  operate so long as the appellant remains in the cadre of Superintendent Grade II. Otherwise the question of inter  se seniority  between the  appellant and others in the said  cadre would not arise and as per rule 30, there is separate seniority for each cadre.      Thereafter, in December 1982 the appellant was promoted as Superintendent  Grade I.  This promotion was also subject to the  condition that  he will not be deemed to have become senior to  those officials  senior to  him in  " the general seniority".  In  this  instance,  the  appellant  was  being promoted from  Superintendent  Grade  Ii  to  Superintendent Grade I.  The condition,  therefore, has  a reference to the seniority of  the appellant  in the  cadre of Superintendent Grade II  from which he was promoted as Superintendent Grade I. The  appellant was  the  junior  most  in  the  cadre  of Superintendent Grade  II. Therefore,  all those  persons who were senior to the appellant in the cadre of Superintendents Grade II  there being  a separate  seniority list  for  each cadre would,  on promotion  as Superintendents Grade I, rank in seniority  above the  appellant although  he was promoted earlier  to   them  as   Superintendent  Grade  I.  For  the promotional post  of Superintendent grade I, for the purpose of protecting  the seniority  of others,  one has to look to the position  of the  officials who  are in  the same  cadre along  with   the  appellant   in   the   lower   grade   of Superintendents Grade II which promotion is made. Therefore, in the case of promotion to the post Superintendent grade i, one has  to look  to the  seniority list  of Superintendents Grade Ii.  All those  persons who ranked above the appellant in the cadre of Superintendents Grade II at the time when he was promoted  as Superintendent  Grade  i  would,  on  their promotion as Superintendents Grade i, retain their seniority above the  appellant. The  respondents  are,  therefore  not right in  contending that  even for the purpose of seniority in the  cadre of  Superintendent Grade i, the appellant will rank below  all those  assistants who  were senior to him at the time  when he  was promotes  as Superintendent Grade II. The general  seniority which is referred to in the condition imposed at  each step  is the general seniority in the cadre from which  promotion is  made to  the post  in question. It cannot go  beyond the  general seniority  in the  cadre from which the  promotion is  made. Any previous seniority in the cadre  from  which  the  promotion  is  made.  Any  previous seniority in  a lower  cadre beyond  the  cadre  from  which promotion is  made may be different or conflicting and would be irrelevant  for this purpose. therefore, the only persons who are  entitled to  claim seniority above the appellant in the cadre  of Superintendents  Grade I are those persons who were holding the post of Superintendents Grade II along with the appellant at the time when the appellant was promoted as Superintendent Grade  I and who were senior to the appellant in the  cadre of  Superintendents  Grade  Ii.  it  is  their seniority which  is protected  by  the  condition  which  is imposed in the order of promotion by respondent no 1.      The justification  for this  special condition  and for the exercise  of power  under rule  38 lies  in the especial requirements of  the High Court at the material time and the fact that  the appellant  was, by  virtue of his ability and qualification. Specially  suited to meet these requirements.

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Such a  special condition  can be imposed only when they are special circumstances which warrant a special promotion. The condition so  imposed not  be understood as continuing after all times  in  respect  of  all  future  promotions  of  the appellant. Such  an interpretation  would make the condition onerous and  also beyond  the powers  conferred by  rule 38. This is because rule 38 has a proviso to the effect that the case cannot be dealt with in a manner less favourable to the officer concerned  than in accordance with the rules. Future promotions which  are made  in the normal course by applying the principle  of selection as set out in the relevant rules would not  warrant the imposition of any such condition. One must bear  in mind  that when promotions are by selection on the basis of merit as well as seniority, it is possible that a junior  who is  more meritorious  than his  senior may  be promoted in  preference to  his senior.  in such a situation the junior  who is  promoted will  rank  as  senior  in  the promotional post to his erstwhile senior who may be promoted at a  later date.  Simply because  that person was senior in the lower  cadre,. a  junior who is more meritorious and who secured an  earlier promotion  cannot  be  deprived  of  his seniority under  the normal rules of seniority. In fact, for higher posts  carrying heavy  responsibilities, merit  is  a very important  consideration.  The  efficiency  and  proper functioning  of   any  institution  depends  upon  able  and responsible  people   being  selected   for   positions   of responsibility. The promotional process must be conducive to such  person   reaching  positions   of  authority   in  the institution.      The appeal  of the  appellant, therefore,  in so far as the  appellant   seeks  the  removal  of  condition  imposed relating to  his seniority  at the time when he was promoted as Superintendent Grade II and Superintendent Grade I fails. Seniority of  the appellant  as Superintendent Grade Ii will be determined  in accordance  with  the  condition  imposed. Therefore,  all   those  persons   who   are   promoted   as Superintendent grade  Ii from  the cadre  of Assistants will rank in  seniority above  the  appellant  in  the  cadre  of superintendents  Grade   Ii  if  they  were  senior  to  the appellant in  the cadre  of Assistants.  This is, of course, provided that  at the time of the promotion of such seniors, the appellant  is also in the cadre of Superintendents Grade Ii. Otherwise  the question  of their being placed above the appellant in  the cadre of Superintendents Grade Ii does not arise. Similarly,  in the  cadre of  Superintendents Grade I all those  persons who are promoted as superintendents Grade I from the cadre of Superintendents Grade II who were senior to the  appellant in  the cadre  of Superintendents Grade Ii will rank above the appellant in the cadre of Superintendent Grade I  as and  when such seniors are promoted to the cadre of Superintendents Grade I. Once again this contingency will arise only  in the  case of  promotions was  made  while  he appellant is in the cadre of Superintendents Grade i. If for any reason  the appellant  is no  longer  in  the  cadre  of Superintendents Grade  I at the time when his seniors in the cadre of Superintendents Grade Ii are promoted, the question of their being placed above the appellant does not arise. if on the  basis of  determination of  appellants seniority  in this fashion in the cadre of Superintendent Grade Ii as well as Superintendent Grade I, the appellant becomes entitled to Selection  Grade   i,  the  appellant  becomes  entitled  to Selection Grade by virtue of his Seniority so determined, he will be  granted Selection.  grade.  This  position  in  the seniority list  does not  warrant  the  grant  of  Selection Grade, the same will not be granted to the appellant. We are

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informed that  the grant of selection grade depends entirely on  the   position  in  the  seniority  list  of  the  cadre concerned. With  these directions, the appeal is disposed of There will however, be no order as to costs.