Full Judgment Text
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CASE NO.:
Appeal (civil) 1906 of 2003
PETITIONER:
Post-Graduate Institute of Medical Education and Research & Anr.
RESPONDENT:
A.P. Wasan & Ors.
DATE OF JUDGMENT: 03/03/2003
BENCH:
Ruma Pal & B.N.Srikrishna
JUDGMENT:
J U D G M E N T
(Arising out of SLP(C) No. 6236 OF 2001)
RUMA PAL, J.
Leave granted.
The first appellant is an Institute incorporated under a
statute entitled the Post-Graduate Institute of Medical Education
and Research, Chandigarh Act 1966 (referred to as the ’1966
Act’). The object for setting up the Institute is reflected in the
name. The Institute has, broadly speaking, three Departments,
namely, Education, Hospital and Engineering Departments. We
are concerned with the Engineering Department. The
Engineering Department deals primarily with maintenance works
of the Institute and includes diverse activities from maintenance
of mechanical equipment such as operation tables to collection
and distribution of linen. According to the appellants, there are
distinct sections dealing with the different kinds of activities,
each section having its separate administrative hierarchy. The
question to be decided in this appeal is whether in 1980
promotions within the Engineering Department were to be made
section wise or cadre wise.
Section 31 of the 1966 Act empowers the Central
Government, after consultation with the Institute, to make rules
to carry out the purposes of the Act by notification in the Official
Gazette. Some of the matters that the rules may provide for
have been listed in Section 31. These include under clause (f) of
Section (2) to Section 31:
"the number of officers and employees
that may be appointed by the Institute
and the manner of such appointment";
Section 32 empowers the Institute to frame Regulations
with the prior approval of the Central Government providing
inter-alia for:
"the tenure of office, salaries and
allowances and other conditions of
service of the Directors and other officers
and employees of the Institute including
teachers appointed by the Institute".
On 29th March 1967, the Central Government, by
notification in the Official Gazette made the Post-Graduate
Institute of Medical Education and Research, Chandigarh, Rules,
1967 (referred to hereafter as the Rules). Rule 7, sub-sections
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(1) and (5) (as it stood after an amendment in 1984) read:
"7. Creation of Posts and
Appointments thereto: -
(1) The Institute may create posts,
subject to specific provisions in the
budget, on such scales of pay as are
approved by the Central
Government, classify them into
grades and specify their
designations:
Provided that no post above
the Associate Professor level shall
be created except with the prior
approval of the Central
government.
(5) The method of recruitment, the age
limit, the educational qualifications
and other matters relating to the
appointment to various posts in the
Institute shall be determined in the
manner provided for by regulations.
According to the appellants under Rule 7, posts were duly
designated in Schedule V to the Rules together with, inter-alia,
the method of recruitment and qualifications for each post. It is
not clear when this was done as the document namely ’Schedule
U’, relied upon in this connection itself has no date. As it stands
today, the third and fourth post in the prescribed hierarchy in
the Engineering Department are described as Technologist Grade
I/Assistant Engineer and Technologist Grade II. The method of
recruitment prescribed to the former is "50% by promotion and
50% by direct recruitment in the respective field". Promotion is
to be by selection from "amongst Technologist Grade II having 8
years experience in the respective field". As far as the post of
Technologist Grade II posts are concerned the only method of
appointment prescribed is by direct recruitment and the eligible
criteria is "three years diploma with 5 years’ experience in
respective field of Engineering".
On 18th April 1967, Regulations called the Post-Graduate
Institute of Medical Education and Research, Chandigarh
Regulations, 1967 were brought into force. Of these regulations,
regulation 32(1) and the quoted extract of regulation 34 are
relevant:
"32. Qualification for appointment:
(1) Age, experience and other
qualifications for appointment to a post
shall be as specified by the Institute
keeping in view the qualifications and
experience prescribed by the Central
Government for similar posts before
applications of candidates are called for
subject to the conditions that non-
medical personnel shall not be appointed
to the posts of Director and Medical
Superintendent.
34. Seniority : - Seniority of
employees of the Institute in each
category shall be determined by the
order of merit in which they were
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selected for appointment to the grade in
question, those selected on earlier
occasion being ranked senior to those
selected later:
Provided that the seniority interse
of employees, other than the teaching
staff of the Institute shall be determined
by the length of continuous service on a
post in a particular service."
In the background of these provisions, we may now
consider the facts of this case. The respondent No.1 was
appointed on 16th July 1975. He was recruited to the post of
Technologist Grade II (Electrical). The letter of appointment
stated, "while employed in the Institute you will be liable to be
posted at any place at any time under the control of this
Institute". The respondent No. 1 was transferred as
Technologist Grade II (Estate) in 1976. R.K. Wadhwa,
respondent No. 3 was appointed as Technologist Grade II in
January 1975. Shri K.S. Sharma (the respondent No. 4) joined
the post of Technologist Grade II on 13.11.75. Respondent No.
5, R.K. Goel joined the post of Technologist Grade II on 1.6.78.
On 7th August 1976 a decision was taken by the Governing
Body of the appellant to convert 25 existing technical
supervisory posts into 22 posts. The technical supervisory posts
were those of Overseers, Foremen, Linen Bank Manager,
Foremen Grade I and Foreman Grade II, Foreman Stores and
Horticulturist. The converted posts were initially designated as
Foreman Grade II (12 posts), Foreman Grade I (6 posts) and
Foreman, Selection Grade (4 posts). The posts of Foreman
were re-designated as Technologists on 17th August 1978.
Consequently with effect from 1978 there were 12 posts of
Technologist Grade II, 6 posts of Technologists Grade I, and 4
posts of Technologists (Selection Grade).
On 13th December, 1979 the respondent No. 1 wrote to
the appellant requesting that his name be considered for further
promotion to the post of Technologist Grade I as he was the
senior most Technologist Grade II. The respondent No.1’s
application was rejected on 21st December 1979 on the ground
that there was no vacancy of Technologist Grade I (Estate)
against which the respondent No. 1 could be considered for
promotion. The respondent No. 1 stated that he did not seek
promotion in the Estate Branch and should be considered as and
when any vacancy of Technologist Grade I arose.
In 1980, the Departmental Promotion Committee (DPC)
met to consider the suitability of Technologist Grade II
candidates for 4 posts of Technologist Grade I in the following
sections of the Engineering Department of the appellant:
1. Electrical Section
2. Public Health Section
3. Civil Section
4. Stores Management Section
The minutes of the DPC of the meeting held on 8th January
1980 show that the following qualifications/experience were
taken into consideration while assessing the suitability of the
candidates:
i) Diploma in respective trade of
Engineering from a recognised
University/ Institute or its
equivalent qualification.
ii) 8-10 years experience in the
respective field. Preference will
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be given to those who have
worked in a big hospital/
University.
The DPC considered three candidates for promotion to
Technologist Grade I (Electrical Section), namely, R.K. Wadhwa,
the respondent No. 1 and one I.C. Sharma. It was found that
R.K. Wadhwa was found suitable for the post and that the
service records of the other two candidates were not superior to
the extent that would justify supersession of R.K. Wadhwa. As
far as R.K. Goel was concerned, he was promoted to the post of
Technologist Grade I (Public Health) as he was "the only eligible
candidate". K.S. Sharma was selected out of two candidates for
promotion to the post of Technologist Grade I in the Stores
Management Section. It is clear from the minutes that the DPC
did not consider the respondent No. 1’s candidature for
promotion to any of the other Sections apart from the Electrical
Section.
Pursuant to the recommendations of the DPC, orders were
issued to R.K. Wadhwa, K.S. Sharma and R.K. Goel promoting
them as Technologist Grade I at the appellant/Institute with
immediate effect. In none of these orders of promotion was it
mentioned that the promotion was made within any particular
section.
The respondent No. 1 and respondent No. 2, one R.K.
Sareen, filed a writ application on 26th May 1980 in the High
Court of Punjab and Haryana. It was claimed that since 1976
there was one single cadre of Technologist Grade II and that the
seniority list had to be worked out on the basis of such single
cadre. Their grievance was that despite their seniority, they were
not considered against the available vacancies in the post of
Technologist Grade I and that the respondents Nos. 4 and 5 who
were admittedly junior to the writ petitioners had been promoted
superseding them. They prayed for the quashing of the
promotion of R.K. Goel and K.S. Sharma and for a directive on
the appellant to consider their claim for promotion to the post of
Technologist Grade I.
The writ application was disposed of by the learned Single
Judge on 17th February 1989 who accepted the reasoning of the
writ petitioners and held that promotions from Technologist
Grade II and Grade I were to be made cadre wise and not
section wise. However, the writ petition was allowed only as far
as R.K. Sareen was concerned. The claim of the respondent
No. 1 was rejected on the ground that his candidature had in
fact been considered by the DPC. The appellant/ Institute did
not challenge the decision of the learned Single Judge and R.K.
Sareen was duly promoted to the post of Technologist Grade I.
An appeal was preferred by the respondent No. 1 before
the Division Bench. On 7th January 1999, the Division Bench
allowed the respondent No. 1’s appeal. It noted that the finding
of the Single Judge that promotion was to be made cadre wise
and not section-wise had not been challenged by the
appellant/Institute. It also noted that the appellants had
refused to consider the promotion of the respondent No. 1 only
because they were of the view that he was serving in a
particular Section. It was held that the stand of the
appellant/Institute was erroneous particularly when no rules to
support the stand were produced by the appellant/Institute. It
was found that R.K. Wadhwa and K.S. Sharma were both senior
to respondent No. 1 and therefore, the respondent No. 1 could
not have a legitimate grievance as far as their promotions were
concerned. However, as far as R.K. Goel was concerned, it was
found that he was definitely junior to the respondent No. 1 and
since it had not been shown that R.K. Goel’s service record was
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superior to that of respondent No. 1, the respondent No. 1
should have been considered for promotion along with R.K. Goel.
It was further directed that even if the respondent No. 1 was not
found to be more meritorious than R.K. Goel, he was entitled to
be considered for promotion from the date his other juniors were
considered for promotion.
It may be mentioned that during the pendency of the writ
application, R.K. Wadhwa left the Institute in 1981. In 1982, the
respondent No. 1 was transferred from the Estate Branch to the
Engineering Department and was subsequently posted on
temporary basis as Technologist Grade II responsible for the
following sections;
1. Electrical Section
2. Public Health Section
3. Air Conditioning Section
4. Lift Section and Other Engineering Services
The respondent No. 1 was then shifted as Technologist
Grade II Planning Division and then again from the Planning
Division to the Stores Sub Division.
According to the respondent No. 1 despite the High Court’s
order, promotions continued to be made by the appellants from
Technologist Grade II personnel to the post of Technologist
Grade I but the respondent No. 1 was not considered for any of
the promotions. It has been claimed that since R.K. Wadhwa left
the service, the respondent No. 1 should have been promoted in
the vacancy so created. According to the respondent No. 1,
I.C. Verma who was junior to the respondent No. 1 by three
years and who was below the respondent No. 1 in the 1980
panel for Technologist Grade I (Electrical) as considered by the
DPC, has been promoted as Technologist Grade I on 11th August
1988 without considering the respondent No. 1’s case. Other
instances have also been given. On the allegation that the
appellants had flouted the order of the High Court, the
respondent No. 1 filed an application before the High Court
invoking its contempt jurisdiction.
The Special Leave Petition challenging the decision of the
Division Bench of the High Court was filed before this Court on
7th March 2001 by the appellants. This Court by an order dated
10th August 2001 stayed the operation of the High Court’s
order. An application for intervention has been filed by Mr. Arun
Vohra, R.C. Tuli, Rajnish Puri and R.K. Gupta. The application is
allowed and the matter disposed of after hearing them.
The appellants, the respondents Nos. 4 and 5 and the
interveners have made submissions which are substantially
similar. As they have all in effect impugned the High Court’s
decision, they are, for the sake of convenience, referred to
collectively as the appellants. They claim that pursuant to the
decision of the Building Committee constituted under the 1967
Regulations the posts of Technologist Grade I and II were
bifurcated into different sections such as Mechanical, Electrical,
Civil, Laundry etc. Thus they say for the post of Technologist
(Civil) the qualification prescribed was a Diploma in Civil
engineering; for the post of Technologist (Public Health) the
qualification was a Diploma in Civil or Mechanical Engineering,
for the post of Technologist (Bio-Medical), the diploma required
was Bio/Mechanical/Industrial Engineering; for the post of
Technologist (Refrigeration), the requisite diploma was in the
field of Mechanical/Refrigeration & Air-conditioning; for the post
of Technologist (Laundry), the diploma required was
Mechanical/Electrical/Laundry Technology and that for the post
of Technologist (Stores) and Technologist (Purchase), three
years diploma was required in any branch of Engineering. The
only distinction between Technologist Grade I and Grade II
according to the submission, is a difference in the length of
service/experience. Separate section wise seniority lists were
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maintained which have been updated from time to time and
circulated to all the employees of the appellant/Institute. It is
emphasised that the qualification and experience in a particular
field has been considered for promotion to Technologist Grade I
posts which were in respect of those particular sections. They
say that the respondent No. 1 was recruited to the post of
Technologist Grade II (Electrical) and could not be considered for
any post other than Technologist Grade I (Electrical) since a
distinction has been drawn between the Technologist Grade I
posts on the basis of the workload in the different sections. It is
said that in 1980 only four posts of Technologist Grade I in the
field of Electrical, Public Health, Civil and Stores were sought to
be filled up and that the respondent No. 1 was duly considered
for promotion to the post of Technologist Grade I (Electrical) but
R.K. Wadhwa was found more meritorious. As far as the post of
Technologist Grade I (Stores) was concerned, it is claimed that
K.S.Sharma who was promoted in 1980 was in fact senior to the
respondent No. 1. It is stated that the respondent No. 1 was
considered again by the DPC for promotion to the post of
Technologist Grade I (Electrical) on 2nd August 2001 but his
juniors were found better suited for promotion. It is said that
since 1983 there has been a restructuring of the Engineering
Department and the old cadres have been abolished and new
cadres created under four different Divisions viz. Civil, Bio-
Medical, Electrical and Air conditioning. They have relied upon
advertisements issued by the appellants for recruitment to the
posts of Hospital Engineers/Assistant Engineer, Junior Engineer
etc. The interveners have an added grievance. They say their
career prospects have been jeopardised by the decision of the
High Court without their being given any opportunity of being
heard.
The arguments of the appellants appear plausible but do
not bear close scrutiny. It was not necessary for the respondent
No. 1 to have impleaded the interveners nor can the High
Court’s decision be criticized because they were not made
parties. The grievance of the respondent No. 1 was against the
appellant/ Institute and its alleged policy to promote
Technologist Grade-II section-wise. It was for the
appellant/Institute to have justified its action. The justification
would serve to protect the interests of other employees if it were
legally sustainable. If it is not legally sustainable it must be
negated and not hearing of employees who may be affected as a
result of the rejection of the justification, would not vitiate such
negation. See General Manager, S.C. Railway V. Siddhantti
: 1974 (4) SCC 335 , A. Janardhana V. Union of India and
Others : 1983 (3) SCC 601 at 626 and V.P. Shrivastava v.
State of M.P. : ( 1996) 7 SCC 759, 763. Furthermore, both
K.S. Sharma and R.K. Goel whose stand on the promotional
policy of the Appellant Institute coincides with those of the
interveners, were partners and had the opportunity of presenting
their case. Besides. the Division Bench had merely reiterated
the view taken in 1989 by the learned Single Judge when he
granted relief to R.K. Sareen holding that promotions should be
made cadre wise and not section wise. No protest was made by
the interveners at that stage. They were content to allow the
appellant/Institute to appoint R.K. Sareen on such basis. They
cannot now make a grievance that they were not heard before
the Division Bench granted the respondent No. 1 the same relief.
Indeed even the appellant/Institute did not impugn the
Single Judge’s decision in which it was held:
"After converting 25 technical posts, 22
posts of Technologists were carved out.
Thus bringing all the incumbents of
technical posts in Engineering
Department at par.
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If the respondent no. 1 and 2 are left to
adopt the criteria of promotion section-
wise, then there is every possibility of
favourtism and arbitrariness in as much
as the persons of choice can be easily
posted in the sections where there are
chances of promotion.
I am of the considered view that merely
by posting a particular person in a
particular section, his chance of
promotion cannot be marred if he is
otherwise suitable and eligible for the
higher post particularly when it is not in
dispute that seniority of Technologist
Grade II is common. More so, the
distribution of posts of Technologists
shows that there are some sections
where there is no post of Technologist
Grade II but there exists post of
Technologist Grade I vice versa.
Hence from this angle also promotion
cannot be branchwise. So the
respondents were duty bound to consider
all the incumbents falling within
consideration zone for promotion from
the post of Technologist Grade II to
Technologist Grade I irrespective of their
posting in a particular selection."
( Emphasis supplied)
The direction on the appellants as far as R.K. Sareen was
concerned was to consider his claim along with other suitable
and eligible candidates "for the post of Technologist Grade I with
reference to DPC for which respondents Nos. 3 to 5 were
selected".
According to the appellants although they did not prefer a
counter appeal, which they could have done under the
Explanation to Order XLI Rule 22 of the Code of Civil Procedure,
they could nevertheless challenge the finding in the respondent
No.1’s appeal to the Division Bench. It may be, as has been
held in Ravinder Kumar Sharma V. State of Assam 1999
(7) SCC 435 that the Explanation inserted by the 1976
amendment to Order XLI Rule 22 the Code does not make it
obligatory to file a cross-objection against an adverse finding of
a lower Court and that the respondent could attack such finding
in its submissions to the appellate forum. But in this case,
there is nothing to show from the records that the appellants did
in fact challenge the finding of the Single Judge before the
Division Bench. If they had and the Division Bench had not
recorded it, it was incumbent on the appellants to have had the
matter clarified before the Division Bench particularly when the
Division Bench expressly recorded that the appellants had not
challenged the finding. [See Chitra Kumar V. Union of India
2001(3) SCC 208, 220].
Additionally, it was not open to the appellants to have
challenged the finding because it would have effectively resulted
it upsetting the relief granted to R.K. Sareen by the Single
Bench. This they could not do without preferring a substantive
appeal. Not only did the appellants not raise the issue before
the Division Bench, but they acted on the basis of the finding of
the Single Judge by appointing R.K. Sareen as Technologist
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Grade I as directed. The order as far as R.K. Sareen is concerned
has become final. It is not open to the appellants now to re-
open the issue on the basis of which R.K. Sareen was granted
relief. This finding should be sufficient to have dismissed the
appeal, but since several other points have been raised we will
deal with them briefly.
The reasoning contained in the decision of the learned
Single Judge and that of the Division Bench, appear to us to be
unexceptionable. Furthermore the High Court had observed that
the appellant/Institute had not produced any rules for promotion
before it. We allowed the relevant Rules, if any, to be produced
before us. The relevant extracts have been set out earlier to this
judgment. There is nothing to show that Schedule ’U’ referred to
by the appellants, did in fact operate in 1980. As has been noted
earlier when the respondent No. 1 was appointed, his letter of
appointment stated quite clearly that while the respondent was
employed in the Institute he was liable to be placed "at any
place at any time under the control of the Institute". There was
nothing in the letter of appointment which limited the
respondent No.1’s posting only to the Electrical Section in the
Department of Engineering. It is also not in dispute that the
respondent No. 1 was in fact posted as Technologist Grade II
(Estate) and his application for further promotion was rejected
by the authorities solely on the ground that there was no
vacancy to the post of Technologist Grade I (Estate).
Subsequently, the respondent No. 1 has been posted in different
sections other than the Electrical Section as noted above. The
submission of the appellants that he was looking after the said
sections only for verifying the bills is unacceptable having regard
to the language of the posting orders. Even if there were rules
governing promotions from Technologist Grade II to Technologist
Grade I, it is clear that the practice followed by the
appellant/Institute was to treat the Technologist Grade II cadre
as one cadre. The two other posts which were filled on the
recommendation of the 1980 DPC, namely, Public Health and
Stores Management. Accordingly for the post of Technologist
Grade-I (Stores) no particular kind of engineering degree or
other academic qualification was necessary. That the respondent
No. 1 was not considered for the posts has not been disputed.
Yet it is also not disputed that respondent No. 1 has
subsequently been asked to discharge functions relating to the
Public Health section and Stores Management. In view of the
inter-sectional transferability of Technologist Grade II posts,
there was no sense in making the promotion to the post of
Technologist Grade I dependant upon the initial point of entry
into a particular section. And, as has been recorded earlier, the
orders of appointment to the post of Technologist Grade I which
have been relied upon by the respondent No. 1 do not mention
that promotions to the post of Technologist Grade I were in
respect of a particular section.
According to the respondents, the post of Technologist
Grade I in a particular section has been created having regard to
the workload. Indisputably, R.K. Wadhwa who had been
appointed as Technologist Grade I (Electrical) in 1980 has left
the services in 1981. It has not been shown to this Court how
this particular vacancy was met or how the supposedly separate
Electrical section was manned in the absence of an incumbent in
the post of Technologist Grade I (Electrical).
The reliance on the advertisements issued by the
appellant/Institute is misplaced as they were in respect of direct
recruitments to the post of Technologist Grade I. It does not deal
with the requirements for promotion from Technologist Grade II
to the post of Technologist Grade I. Apart from the fact that the
advertisements relied upon expressly state that the
qualifications/experience were relaxable in case the candidate
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was exceptionally qualified, it is clear from the facts as narrated
that the appellant Institute did not rely on the prescribed
qualifications for posting persons to different sections.
Therefore, the placement in a particular section was fortuitous.
Since, according to the respondents all sections of the
Engineering Department did not have a Technologist Grade I
post, a person’s claims of promotion could be effectively
curtailed by such fortuitous circumstances.
The so called seniority lists have been produced by the
appellants before this Court for the first time. It has not been
shown how the seniority lists were prepared or under which
statutory provision. No leave was obtained prior to the
submission of these documents, nor do they form part of the
Court records nor are they supported by any affidavit. They
cannot be taken for consideration by this Court in the
circumstances. The respondent No. 1’s writ petition was filed
about 23 years ago. On 30th April, 1983 an office order was
passed abolishing the previously sanctioned posts in the cadre of
the Engineering Department which were:
______________________________________________________________________________
Sr.No. Name of the post No. of posts
______________________________________________________________________________
1. Superintending Hospital Engineer 1
2. Hospital Engineers
Mechanical 1
Electrical Air-conditioning 1
Bio medical 1 5
Material Management 1
Civil 1
3. Technologists Grade I 14
4. Technologists Grade II 16
___________________________________________________
It is noteworthy that the posts of Technologists Grade I and
II were not described with reference to any particular section.
Indeed even in the revised cadre the absence of any description
continued. There may be a new nomenclature for the post of
Technologist Grade-I, but this should not deprive him of the
right that he had to be considered in respect of the vacancies
which existed in 1980 and subsequently in the post of
Technologist Grade I or its equivalent.
For all these reasons, we are of the view that the order of
the High Court does not suffer from any infirmity. The appeal is
dismissed with costs.