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PETITIONER: SARABJIT SINGH

       Vs.

RESPONDENT: EX.  MAJOR B.D.GUPTA & OTHERS

DATE OF JUDGMENT:       09/00/2000

BENCH: M. JAGANNADHA RAO, J. & DORAISWAMY RAJU, J.

JUDGMENT:

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Leave granted.

The  appellant Mr.Sarabjit Singh (2nd respondent in the writ petition) is aggrieved by the judgment of the Division Bench of  High  Court  of Punjab & Haryana dated 7.6.2000  in  CWP No.13240/99  allowing  the  same  in   favour  of  the   Ist respondent-writ  petitioner, Ex.  Major B.D.Gupta.  The High Court accepted the contention of the Ist respondent that the Departmental  Promotion Committee of the State of Punjab was governed  by the guidelines issued by the Central Government which  were adopted by the State on 1.10.1999 and held  that if  those guidelines were applied, the DPC would have had to consider eight Superintending Engineers for promotion to the post  of Chief Engineer and not merely five as done in  this case,  and  if that had been done, the writ petitioner,  Ex. Major  B.D.Gupta  would  have come within the said  zone  of consideration  and  he  could  not have  been  omitted  from consideration  as  was done by the DPC.  Further  under  the Central  Guidelines,  as  adopted by the State  on  1.10.99, candidates had to get the grading of ’very good’ while under the  earlier State guidelines, "good" was sufficient.  Hence the  selection  of  Respondents  2  to  4  in  CWP,   namely Mr.Sarabjit  Singh  (appellant),  Mr.   B.K.Thapar  and  Mr. D.P.Bajaj  as Chief Engineers was liable to set aside.   The High  Court  directed  a  fresh   DPC  to  be  conducted  in accordance  with  the  State   Government’s  circular  dated 1.10.1999   where   the  State   had  adopted  the   Central guidelines.  That is how this appeal came to be filed by Sri Sarabjit Singh.  Before the matter was listed in this Court, the  appellant was reverted back as Superintending  Engineer and  a  fresh date was fixed for the meeting of the  DPC  to consider eight names, including that of the respondent- writ petitioner  and others.  This Court stayed the fresh meeting of the DPC.

In this appeal, learned senior counsel for the appellant Sri P.P.Rao  contended that the High Court failed to notice that the DPC had met on 16.4.99 by which date the Circular of the Punjab  Government  dated  1.10.99   adopting  the   Central Government’s  guidelines had not come into being.  The other

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circular  dated 25.11.95 of the State Government referred to the  Central  Government’s  guidelines only to  the  limited extent  that  the  DPC   must  meet  periodically.   Counsel contended that the earlier Punjab Guidelines 28.6.61 applied and  the DPC which met on 16.4.99 rightly followed the  said guidelines of 28.6.61 under which, on the facts of the case, it   was   sufficient  to  consider   the  cases   of   five Superintending Engineers and inasmuch as the writ petitioner (Ex.   Major  B.D.Gupta) fell beyond five in  the  seniority (being sixth), the DPc was not obliged to consider his case. The selection of the appellant and two others (Respondents 2 to 4 in the CWP) was perfectly in order.

In  this appeal, so far as the State of Punjab is concerned, the learned counsel Sri Rajiv Dutta submitted that the State had  filed a brief counter affidavit here without supporting either  side  while,  no  doubt,   the  State  had  filed  a counter-affidavit   in  the  High   Court   supporting   the appellant.

The  contesting  respondent  in  this  appeal  is  the  writ petitioner  (Ex.   Major B.D.Gupta) and he filed a  separate counter-affidavit and appeared in person.  He contended that he  had a fundamental right to be considered for  promotion. Of  course, he agreed that in respect of a DPC dated 16.4.99 the  Punjab  circular  dated  1.10.99 could  not  have  been applied  and  the High court was wrong in applying the  said circular.   He,  however, referred to the Punjab  guidelines dated 17.6.60 and contended that they applied to the DPC and that  for each post to be filled, atleast three officers had to  be  considered.  In this case, for two posts, six  names should  have been considered and he (Mr.  B.D.Gupta) was the sixth  person in the list.  In fact, here three persons were ultimately selected, as one was on deputation.

Adverting  to  the above contention of  the  respondent-writ petitioner,  Sri  P.P.Rao  learned senior  counsel  for  the appellant  replied  that the guidelines of 17.6.60 were  not applicable  and were replaced by fresh guidelines in  Punjab Government  Circular letter 4044- 5GS-61/23179 dated 28.6.61 which read as follows:

"In this connection, it is also made clear that, in fact, in the  first  instance, a list of eligible  officers/officials who fulfil the prescribed experience, etc., for promotion is to be drawn up in accordance with the sub-paras (i) and (ii) above.   then  out of this list, such officers/officials  as are considered unsuitable for promotion are to be weeded out and  a list of only those who are suitable for promotion has to  be drawn up.  Selection thereafter is to be confined  to the  3  suitable  officers/officials of the latter  list  if there  is one post, 4 if there are two posts, and 5 if there are  three  posts and so on.  Unsuitable  officers/officials are those who, on the basis of their service record, general reputation  etc.,  are  definitely not  considered  fit  for promotion  by  the department.  Selection for every  vacancy has,   therefore,   to   be  made   from  the  slab   of   3 officers/officials  who are considered fit for promotion and unless  a  junior  among them happens to be  of  exceptional merit and suitability the senior-most will be selected."

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The points for consideration are:

(1)  Whether the High Court was right in applying the Punjab guidelines   dated  1.10.99  which   adopted   the   Central Government’s guidelines for DPC?

(2)  Whether, in case the State guidelines dated 1.10.99 did not  apply, the 17.6.60 guidelines of the State relied  upon by  the respondent applied or the 28.6.61 guidelines  relied upon for the appellant applied?

(3) If the 28.6.61 guidelines applied, whether the decision of the DPC dated 16.4.99 was not liable to be set aside on the ground that the writ petitioner’s name was not considered?

Point 1:

It  was  practically conceded before us by all  the  parties that  for  the DPC dated 16.4.99, the Punjab Circular  dated 1.10.99  which  adopted the Central Government’s  guidelines for the DPC did not apply.  The DPC would not have obviously applied  guidelines  which  were   formulated  much   later. Therefore,  the  view  of  the HIgh Court that  as  per  the Central  guidelines  dated  1.10.99 adopted  by  the  Punjab Government,  eight candidates had to be considered could not be accepted.

The  entire reasoning of the High Court based on the 1.10.99 guidelines  would fall to the ground.  Point 1 is decided in favour of the appellant.

Points 2 and 3:

In  our  view,  the respondent-writ petitioner is  no  doubt right  in  contending that he has a fundamental right to  be considered  for promotion but this is available only if  the 1st   respondent  falls  within   the  prescribed  zone   of consideration.   That question depends again on the relevant guidelines  in Punjab as applicable on the date the DPC met, i.e.  10.4.99.

The  respondent  is  not  right in relying  upon  the  State guidelines  dated  17.6.60  which no doubt  require  atleast three  names  to be considered for each post.  But,  in  our view,  those  guidelines are no longer applicable  once  the 28.6.61  guidelines, extracted above, have come into  being. Therefore,  it  is these guidelines dated 28.6.61  that  are applicable  and  have been rightly applied by the  DPC.   We have already extracted the guidelines of 28.6.61.

Now,  it  appears  that by the date of the  DPC  meeting  on 16.4.99,  the  position  was  that  the  seniority  list  of Superintending   Engineers   was  as   follows:    (i)   Mr.

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K.K.Vasisht  (2  Mr.Subhash  Malhotra   (3)  Mr.    Sarabjit Singh(appellant)  (4) Mr.  D.P.Bajaj (5) Mr.  B.K.Thapar (6) Mr.   B.D.Gupta  (respondent-writ petitioner) (7)  Mr.Gurdip Singh and (8) Mr.  Gurbax Singh.

Admittedly,  the DPC first called for the files of the first five  and  later, it also called for the files of  the  next three,  -  in  all eight.  At the time of  calling  for  the files,  it  was  not in a position to say whether  it  could select  three candidates for the post of Chief Engineer from the first five.  (Mr.Bajaj was already on deputation).

But,  ultimately, the DPC was able to select three from  the first five.  The procedure followed by the DPC, in our view, is consistent with the guidelines dated 28.6.61, under which for  three posts, five names had to be considered.  The  DPC said    that    having    regard    to    certain    adverse remarks/departmental  inquiries, it did not find No.1 and  2 in  seniority  Mr.   K.K.Vasisht and Mr.   Subhash  Malhotra suitable  for  promotion.  It recommended the appellant  Mr. Sarabjit  Singh  and the two others, Mr.  D.P.Bajaj and  Mr. B.K.Thapar.   In  other  words, the DPC was able  to  select three  out of the first five names as explained earlier  and this  was  permissible under the guidelines of 28.6.61.   So far as 25.11.95 guidelines of the State were concerned, they referred to the Central guidelines only to the extent of the need to have periodical DPCs in time.

There  was,  therefore, no need for considering the name  of the   writ   petitioner,  who   was  the  sixth   candidate. Therefore,  the  writ  petitioner’s  case  was  rightly  not considered  for promotion.  The High Court erred in applying the  wrong guidelines and in thinking that eight names ought to  have  been  considered (including the name of  the  writ petitioner) and in directing fresh DPC on that ground.

The  judgment  of  the  High  Court is  set  aside  and  the recommendation   of   the   DPC   dated  16.4.99   and   the consequential  promotions  of the respondents 2, 3,4  in  WP 13240/99  (including  that  of the  appellant)  are  upheld. There will be no order as to costs.