‘Existing policy illegal, irrational, without any logical basis’
Direction passed by Single Judge for promotion set-aside
Mohinder Verma
JAMMU, Aug 23: Division Bench of the High Court comprising Chief Justice Pankaj Mithal and Justice Wasim Sadiq Nargal has deprecated the practice of importing officers from other departments to the Road Transport Corporation (RTC) for being in contravention of the Rules, illegal, irrational and without any logical basis. Moreover, it has set-aside the direction passed by the Single Judge regarding promotion to the post of Deputy General Manager (Maintenance) and General Manager in the Corporation.
The Single Judge by virtue of judgment and order dated April 28, 2022 passed in petition titled Syed Arshid Tramboo Versus State of J&K and Others had held the petitioner entitled to the promotion as Deputy General Manager (Maintenance) in the Corporation with effect from February 11, 2013 and as General Manager with effect from February 11, 2018 with all consequential service benefits.
Further, the Single Judge had directed the Corporation to consider the case of petitioner in the light of the observations made in the judgment and pass appropriate orders of substantive promotion of the petitioner.
The case of the petitioner before the Writ Court was that while he was representing for his confirmation in the post of DGM and consequent promotion to the post of General Manager, the Corporation vide communication dated November 26, 2015 requested the Administrative Department for appointment of Abdul Hamid Wani, Drilling Engineer in the Geology and Mining Department as General Manager on deputation.
The judgment and order of the Single Judge was challenged by the Corporation before the Division Bench on the ground that the findings were recorded by the Single Judge without taking into consideration the availability of the post of GM, which post otherwise in terms of the Rules was required to be filled up by selection amongst other eligible candidates and thus the direction by the Writ Court, which is based on presumptions and assumptions, cannot sustain the test of law and is liable to be set-aside.
After hearing both the sides, the Division Bench comprising Chief Justice Pankaj Mithal and Justice Wasim Sadiq Nargal observed, “the Corporation is empowered to lay down criteria for promotion and all the promotions shall be made on the ground of merit, ability, performance, besides good report and the seniority is to 1be considered only when the merit and ability is approximately equal”.
“The qualification for the promotion is for both the posts by way of selection which clearly enjoin on the appointing authority to have a fair and objective application of its mind at the time of making selection for promotion strictly in conformity with the Rules”, the DB said, adding “mere existence of vacancy is not a sole criterion to hold somebody entitled for promotion when merit, eligibility, suitability, APRs and vigilance clearance are also relevant factors to accord promotion as per Rules”.
The DB further said, “it is only when merit and suitability are equal, then the seniority will be the determining factor and all these factors can be gone into by Establishment Committee constituted by the Government in this regard, which goes into all these factors and consequently, the matter is placed before the Board of Directors, which takes a conscious decision after subjective satisfaction”.
“The court has no yardstick or mechanism to go into all these questions and, thus, the finding of the Single Judge holding the petitioner entitled for retrospective promotion as DGM and GM in absence of the matter being examined by the Selection Committee cannot sustain the test of law”, the DB added.
In addition to this, Regulation 12 of the Regulations of 2013 in categoric terms provides that all the posts are to be filled up by promotion on the basis of recommendations of the designated promotion committee of the Corporation based on merit, suitability and seniority. “Thus, merit, suitability and seniority is yet to be assessed by the committee and without having the opinion of the committee, the judgment impugned to the extent of holding petitioner entitled to promotion as DGM and GM retrospectively is in contravention to the provisions of law”, the DB further observed.
Pointing towards the Recruitment Rules, which reveal that the post of DGM and GM can be filled up 100% by promotion by way of selection from the feeding category with requisite experience, the DB said that Rules nowhere provide that the outsiders can be brought in by way of “deputation” infringing fundamental right of persons, who are born on the establishment of the Corporation and have preferential right of being considered for promotion, adding “to bring the officers from outside by way of deputation to the Corporation can be only in the eventuality if no suitable person is found eligible in the Corporation after assessing their merit, eligibility and suitability”.
Stating that policy of the Government to bring outsiders to the Corporation by way of deputation is in contravention of the Rules, being illegal, irrational and without any logical basis, the DB said, “we leave it open for the respondents to examine the policy to bring outsiders to the Corporation by way of deputation, on the touchstone of rationality, reasonableness and legality as the same is violative of the fundamental rights of employees borne on the establishment of the Corporation having preferential claim and right of consideration for promotion”.
“Since, the direction passed by the Single Judge with regard to entitlement of petitioner for promotion to the post of DGM (Maintenance) in Corporation is premature as the issue in question was pending adjudication before the competent authority—Committee/Board of Directors, we, accordingly, set-aside the direction passed by the Single Judge to the extent of holding petitioner entitled for promotion”, the DB said.
“We further direct the Corporation to place the petitioner at an appropriate place in the seniority list once the decision is taken by competent authority with regard to his eligibility, merit coupled with seniority for the post of DGM and subsequently for the post of GM (if he is entitled)”, read the judgment written by Justice Wasim Sadiq Nargal.
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