C. CHAKKARAVARTHY & ORS. Vs. TMT. M. SATYAVATHY, I.A.S., & ORS.

Supreme Court of India (Division Bench (DB)- Two Judge)

Contempt Petition (Civil), 339 of 2013, Judgment Date: Oct 16, 2015

The question that fell for  consideration
therein was whether the practice adopted by the  Government  of  Pondicherry
of counting the  service  of  Section  Officers/Junior  Engineers  who  have
qualified as graduates while in service only from the date they  passed  the
degree or equivalent examination for purposes of promotion to  the  post  of
Assistant Engineers under  Rule  11(1)  of  the  Government  of  Pondicherry
Assistant Engineers (including Deputy Director of Public  Works  Department)
Group  ‘B’  (Technical)  Recruitment  (Amendment)  Rules,  1965  (for  short
‘Recruitment Rules’) was legally sound.

The question, however, is whether the Government could  draw-up  a  list  of
eligible candidates not by reference to the length of service in  the  cadre
but  by  reference  to  the  date  on  which  the  candidates  acquired  the
eligibility which, as noticed earlier, was itself dependent  upon  the  date
on which the candidate acquired the degree qualification.

As between the date of acquiring eligibility  and  the
date of entering service as a Section  Officer/Junior  Engineer  the  latter
was, in our opinion, a more intelligible, fair and reasonable  yardstick  to
be applied for drawing-up the list of  eligible  candidates  by  the  review
DPC.  Inasmuch  as  the  review  DPC  relied  upon  the  date  of  acquiring
eligibility  as  the  basis  for  preparation  of  the  list   of   eligible
candidates, it committed a mistake which needs to be corrected.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

CONTEMPT PETITION (CIVIL) NO.339 OF 2013

IN
CIVIL APPEAL NO. 8468 OF 2003

C. Chakkaravarthy and Ors. …Appellants

Versus

Tmt. M. Satyavathy, IAS
and Ors. …Respondents/Contemnors

WITH

CONTEMPT PETITION (/CIVIL) NO.340 OF 2013
IN
CIVIL APPEAL NO. 8468 OF 2003

J. Lucien Pedro Kumar and Anr. …Appellants

Versus

Tmt. M. Satyavathy, IAS
and Ors. …Respondents/Contemnors

J U D G M E N T

T.S. THAKUR, J.

1. In this petition under Article 129 of the Constitution of India read
with Section 12 of Contempt of Courts Act, 1971 the petitioners allege
deliberate violation by the respondents of the judgment and order dated
22nd April, 2010 passed by this Court in N. Suresh Nathan and Ors. v. Union
of India & Ors. (2010) 5 SCC 692. The question that fell for consideration
therein was whether the practice adopted by the Government of Pondicherry
of counting the service of Section Officers/Junior Engineers who have
qualified as graduates while in service only from the date they passed the
degree or equivalent examination for purposes of promotion to the post of
Assistant Engineers under Rule 11(1) of the Government of Pondicherry
Assistant Engineers (including Deputy Director of Public Works Department)
Group ‘B’ (Technical) Recruitment (Amendment) Rules, 1965 (for short
‘Recruitment Rules’) was legally sound. Rule 5 of the Recruitment Rules
provide for the method of appointment as Assistant Engineer to be by
‘selection’ and reads as:

“5. Whether Selection post or: Selection”
Non-Selection Post:

2. Reference may also be made to Rule 11 of the said rules which is as
under:

This Court on a consideration of the rival submissions urged before it and
the decisions of this Court relied upon by the parties in support of their
respective submissions held that the practice adopted by the Government of
Pondicherry of placing the Junior Engineers qualified as graduates in the
order of seniority according to the date on which they passed the degree
examination was contrary to Rule 5 of the Recruitment Rules. Having said
that this Court held that the directions issued by the High Court directing
that the entire service of a person should be counted for purposes of
seniority and promotion to the post of Assistant Engineer was also contrary
to the provisions of Rule 5 of the Recruitment Rules (supra). The following
passage appearing in the judgment of this Court is, in this regard,
apposite:

“41. The practice adopted by the Government of Pondicherry in consultation
with UPSC of counting the services of Section Officers or Junior Engineers,
who qualified as graduates while in service from the date they passed the
degree or equivalent examination and placing them in order of seniority
accordingly for the purpose of consideration for promotion to the post of
Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules is
contrary to Rule 5 of the Recruitment Rules. Similarly, the direction of
the High Court in the impugned judgment and order to count the entire
service of a person concerned even before acquiring degree in Civil
Engineering for the purpose of seniority and promotion to the post of
Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules is
contrary to Rule 5 of the Recruitment Rules.”

This Court then proceeded to declare that recruitment to the post of
Assistant Engineers was by way of selection meaning thereby that seniority
in the cadre of Section Officers/Junior Engineers was not of much
significance. Selection for promotion to the post of Assistant Engineers
was, declared this Court, to be made only on the basis of comparative merit
of eligible candidates in which persons found most meritorious were to be
selected for appointment. Such a method of selection would, according to
this Court, not only be consistent with Rule 5 of the Recruitment Rules but
also satisfy the demands of equality of opportunity contained in Article 16
of the Constitution. This Court observed:

“48. As we have seen, Rule 5 of the Recruitment Rules in the present case
states that the post of Assistant Engineer is a selection post and the
Recruitment Rules nowhere provide that seniority-cum-merit would be the
criteria for promotion. In the absence of any indication in the Recruitment
Rules that seniority in the grade of Section Officers/Junior Engineers will
be counted for the purpose of promotions to the post of Assistant Engineer,
consideration of all Section Officers/Junior Engineers under Clause 1 of
Rule 11 of the Recruitment Rules who are eligible for such consideration
has to be done on the basis of assessment of the comparative merit of the
eligible candidates and the most suitable or meritorious candidate has to
be selected for the post of Assistant Engineer. Such a method of selection
will be consistent with Rule 5 of the Recruitment Rules and Article 16 of
the Constitution which guarantees to all citizens equality of opportunity
in matters of public employment.”

Having said so, this Court set aside the impugned judgment of the High
Court and directed the Government of Pondicherry to consider the cases of
Section Officer/Junior Engineer who have completed 3 years service in the
grade of Section Officers/Junior Engineers for promotion to the vacancies
in the post of Assistant Engineers, Public Works Department, Government of
Pondicherry on the basis of their inter se merit. The operative portion of
the order passed by this Court runs as under:

“50. For the aforesaid reasons, we set aside the impugned judgment of the
High Court and direct the Government of Pondicherry to consider the cases
of all Section Officers or Junior Engineers, who have completed three
years’ service in the grade of Section Officers or Junior Engineers, for
promotion to the vacancies in the post of Assistant Engineer, Public Works
Department, Government of Pondicherry, in accordance with their merit. We
make it clear that the promotions to the post of Assistant Engineer already
made pursuant to the judgment and order of the High Court will not be
disturbed until the exercise is carried out for promotion in accordance
with merit as directed in this judgment and on completion of such exercise,
formal orders of promotion to the vacancies in the posts of Assistant
Engineer which arose during the pendency of the cases before this Court are
passed in case of those who are selected for promotion and after such
exercise only those who are not selected for promotion may be reverted to
the post of Section Officer or Junior Engineer.”

Considering the fact that the number of candidates eligible for
consideration will be large, this Court reserved liberty to the Government
to issue executive instructions as to the method to be followed for
consideration of such eligible candidates for promotion. This Court said:

“Where, therefore, there are a large number of eligible candidates
available for consideration for promotion to a selection post, the
Government can issue executive instructions consistent with the principle
of merit on the method to be followed for considering such eligible
candidates for promotion to the selection post.”

Pursuant to the liberty so reserved, the review DPC appears to have taken
note of certain pre-existing Government of India Order dated 6th January,
2006 issued by the Department of Personnel and Training, for purposes of
selecting suitable officers for promotion on the basis of ‘Merit’. The
said order set out guidelines to be followed for restricting the field of
selection to a manageable number of candidates in cases where the number of
such candidates was large. The case of the respondent-State of
Pondicherry is that the review DPC evolved a procedure keeping in mind the
observations made by this Court as also the DoPT guidelines referred to
above for identifying the field of selection and applying the criteria for
determination of inter se merit of the candidates. The procedure so evolved
comprised six steps which the respondent-state has identified in the
counter affidavit filed by it in the following words.
“A. Identify the available vacancies of Asst. Engineers for the relevant
year.

B. Make a list of eligible candidates based on the date of attaining
eligibility in terms of the Rule 11 of the Recruitment Rules.

C. In view of the large number of candidates available for selection to
less number of available posts, identify the Field of Selection using the
DoPT prescribed formula of 2 x Available Vacancies + 4. For example for 10
vacancies, the field of selection would be 24.

D. Fix the benchmark. In the present case it is ‘good’.

E. In the field of Selection, the grading is marked.

F. Prepare the Select List of the most meritorious candidates in terms of
this Hon’ble Court’s criterion in paras 39 to 42 of Judgment in CA No.
8468/2003 and batch, and listing of the successful candidates in accordance
with their merit with reference to the entries given in Annual Confidential
Reports, which inter alia included all or most of the ingredients
constituting merit as enunciated by this Hon’ble Court in Para 42 of the
judgment, and not in accordance with seniority, for that year of
selection.”

A new list of promotees was, on the above basis, prepared by the review
DPC, which according to the respondents was based on the inter se merit of
the candidates. The petitioners find fault with the above procedure but
only to the extent para ‘B’ reproduced above determines the zone of
consideration, based on the date the candidates acquired their eligibility
in terms of Rule 11 of the Recruitment Rules. The grievance of the
petitioner is that this action of the respondent has totally distorted the
picture and denied to persons who were otherwise eligible and senior in
terms of their length of service, an opportunity to compete for promotion.
It is argued on their behalf that the process of preparing a list of
eligible candidates on the basis of the date of obtaining eligibility is
totally wrong, unfair and discriminatory. The date on which a candidate
acquires his eligibility would depend upon the date on which he completes
three years after obtaining the degree qualification. The obtaining of
degree qualification would, in turn, depend upon several imponderables
beyond the control of the candidates including whether the candidates were
working on a hard or soft posting over which the candidates have no
control. It was urged that while length of service of Sections
Officers/Junior Engineers may not count for purposes of determining their
inter se merit, the same was the only sound basis for identifying the zone
of consideration. Inasmuch as the Government has ignored the length of
service of the candidates and departed from the principle of seniority of
candidates who served in the same cadre while drawing-up of the list of
eligible candidates, it has committed a mistake that needs to be corrected.

There is, in our opinion, considerable merit in that submission of the
petitioners. There is no gainsaying that this Court has unequivocally
declared that promotion to the post of Assistant Engineers in the service
shall be on the basis of merit and merit alone and that seniority of the
candidates cannot be taken as an input for determining such merit. This
Court has also very clearly rejected the procedure followed by the
Government whereby the date on which the candidate had acquired his degree
qualification was taken as a determining factor. That being so, and given
the large number of candidates eligible for consideration the Government
was entitled to adopt the method of restricting the zone of consideration
based on the number of vacancies. Inasmuch as the Government relied upon
the DoPT guidelines for achieving that objective it committed no fault.
The question, however, is whether the Government could draw-up a list of
eligible candidates not by reference to the length of service in the cadre
but by reference to the date on which the candidates acquired the
eligibility which, as noticed earlier, was itself dependent upon the date
on which the candidate acquired the degree qualification. Since, however,
the acquisition of a degree qualification itself was not based on any
consistently uniform criterion, test or procedure, the date on which such a
qualification was acquired and resultantly the date on which the candidate
attained their eligibility was also bound to be anything but uniform and
non-discriminatory. As between the date of acquiring eligibility and the
date of entering service as a Section Officer/Junior Engineer the latter
was, in our opinion, a more intelligible, fair and reasonable yardstick to
be applied for drawing-up the list of eligible candidates by the review
DPC. Inasmuch as the review DPC relied upon the date of acquiring
eligibility as the basis for preparation of the list of eligible
candidates, it committed a mistake which needs to be corrected.

Having said so, there is, in our opinion, no deliberate or contumacious
breach of the directions of this Court to warrant punitive action against
those responsible for taking the said decision. The error it appears has
occurred more because of an erroneous perception on the part of the
government and the review DPC that the method adopted by them was
sanctioned by law and the orders of this Court. We do not, therefore,
consider it necessary to pass any orders of punishment against the
respondent on that score although we would expect them to be more careful
and circumspect in future. With the above observation we dispose of these
contempt petitions with a direction to the respondent-State to redo the
exercise in terms of the directions of this Court in N. Suresh Nathan
(supra) keeping in view the observations made hereinabove. No costs.

……………………………………….…..…J.
(T.S. THAKUR)

………………………… …………….…..…J.
(V. GOPALA GOWDA)

New Delhi
October 16, 2015

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