STATE OF RAJASTHAN vs. UCCHAB LAL CHHANWAL

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 9544 OF 2013 (Arising out of S.L.P. (C) No. 21202 of 2011) State of Rajasthan … Appellant Versus Ucchab Lal Chhanwal …Respondent WITH CIVIL APPEAL NO. 9545 OF 2013 (Arising out of S.L.P. (C) No. 21201 of 2011) JUDGMENT J U D G M E N T Dipak Misra, J. Leave granted in both the special leave petitions. 2. Regard being had to the identic issue involved in both the appeals they were heard together and are disposed Page 1 2 of by a common judgment. For the sake of convenience the facts from the appeal arising out of S.L.P. (C) No. 21202 of 2011 are adumbrated herein.

Service (Junior Scale) after his selection through Rajasthan Public Service Commission (for short “the Commission”) vide order dated 19.10.1989. As stipulated in Rajasthan Police Service Rules, 1954 (for short “the Rules”) the R.P.S. cadre is divided into four categories and the lowest category is in the junior scale. The persons from the junior Scale are promoted to senior scale and thereafter to super time scale. The Rules provide that the person who has six years JUDGMENT experience in junior scale becomes eligible for consideration to senior scale. A seniority list was published on 19.8.1997 wherein the name of the respondent found place at serial number 51 in junior scale. In respect of vacancies in the promotional posts arising against the quota of 1996-97 a Departmental Promotion Committee (DPC) was convened and on the Page 2 3 basis of recommendations of the DPC persons junior to the respondent were promoted. It is apt to mention here that the criterion for promotion was seniority-cum- merit. 4. Be it noted, the DPC though considered the case of the respondent, yet his case was not recommended for promotion for the vacancy occurring in 1996-97 as he was imposed with the punishment of censure on 1.12.1992. However, he was promoted thereafter in the year 1998. In this backdrop the respondent approached the High Court by way of filing S.B. Civil Writ Petition No. 6574 of 1997 for quashing of the penalty of censure imposed on him on 1.12.1992 and JUDGMENT further for setting aside the order dated 22.8.1997 whereby he had been superseded and his juniors had been promoted. A prayer was made for issue of a direction to consider his candidature for promotion to the post of senior scale in Rajasthan Police Service and, if he was found suitable, to promote him with all consequential benefits. Page 3 4 5. The writ court vide order dated 5.3.2010 came to hold that the promotion of the respondent could not have been deferred as the seniority was required to be given

rendered in B.V. Sivaiah and others v. K. Addanki 1 Babu and others . Being of this view the writ court allowed the writ petition and quashed the order dated 1.12.1992 as far as it denied promotion to the respondent to the senior scale against the vacancies of the year 1996-97 and directed that he was entitled to promotion to the senior scale against the vacancy of the year 1996-97 with all consequential benefits. 6. Being dissatisfied with the aforesaid order the State of JUDGMENT Rajasthan preferred D.B. Civil Special Appeal (Writ) No. 08449 of 2010. In the appeal circular dated 26.7.2006 which sets out certain guidelines relating to the types of punishments and their impact/effect on promotion of a personnel as per which the respondent was found unfit to be promoted was pressed into service. The 1 (1998) 6 SCC 720 Page 4 5 Division Bench vide judgment and order dated 11.11.2010 placing reliance on B.V. Sivaiah (supra) 2 and K. Samantaray v. National Insurance Co. Ltd.

Shankar Lal Balai v. State of Rajasthan and 3 others , Satyamani Tiwari v. State of Rajasthan 4 and others and various other pronouncements of the High Court came to hold that the circular dated 26.7.2006 was not applicable as the controversy relating to promotion pertained to the year 1996-97. The High Court further observed that in case of promotion based on seniority-cum-merit the person who had been inflicted with the penalty of censure JUDGMENT which is a minor penalty, cannot be denied promotion without being considered and, in any case, it could not have taken into consideration in respect of the year 1996-97. Being of this view the Division Bench affirmed the order passed by the learned single Judge. 2 (2004) 9 SCC 286 3 2009 (Raj.) unreported cases page 777 4 S.B.C.W.P.No. 2878/2003 decided on 11.8.2006 Page 5 6 7. We have heard Dr. Manish Singhvi, learned counsel appearing for the appellant in both the appeals, Ms. Sandhya Goswami, learned counsel for the respondent

and Mr. Santosh Mishra, learned counsel for the respondent in appeal arising out of S.L.P. (C) No. 21201 of 2011. 8. It is submitted by Dr. Manish Singhvi, learned counsel for the appellant, that though the respondent was entitled to be considered for promotion but the principle relating to seniority-cum-merit would come into play when he is compared with other persons and in that event the punishment of censure has to be JUDGMENT taken note of. It is his further contention that the punishment does not stand wiped off unless the Rules/instructions so provide. The learned counsel for the State has criticized the approach of the writ court and that of the Division Bench on the ground that there has been incorrect appreciation of facts and the view expressed ignoring the distinction between Page 6 7 consideration for promotion and suitability for promotion is legally unsustainable.

punishment cannot be an impediment for the entire service career and it has to be restricted to a specified period of time and when there is consideration on the base of seniority-cum-merit, seniority has to be given due weightage. For the aforesaid purpose they pressed into service the decisions which have been relied upon by the High Court. It is also canvassed by them that the High Court has correctly opined that the circular cannot be made applicable retrospectively having been JUDGMENT issued in the year 2006 to a promotional matter pertaining to the year 1996-97. 10. There can be no scintilla of doubt that the finding recorded by the High Court pertaining to the circular is absolutely correct and unassailable. The said circular could not have been placed reliance upon by the State Page 7 8 to contend that the respondents could have been deprived of promotion. However, the said circular is totally inconsequential for the present case, for what we are going to hold. 11. Though some argument was canvassed with regard to the relevance of the punishment of censure, yet the said aspect need not be adverted to. On a perusal of the writ petition, the order of the writ court and that of the Division Bench we notice that there were specific averments that juniors placed at serial numbers 9, 10 and 11 in gradation list had been promoted vide order dated 20.8.1997. They have not been arrayed as parties. Needless to emphasize, in the event the order JUDGMENT passed by the High Court is affirmed, the persons who are seniors to the respondents in the promotional cadre are bound to become junior regard being had to their seniority position in the feeder cadre. It is well settled in law that no order can be passed behind the back of the person that shall adversely affect him. In this context, we may refer with profit to the decision in Page 8 9 Vijay Kumar Kaul and others v. Union of India 5 and others wherein it has been held thus: -

12. After so stating this Court referred to the decision in 6 Indu Shekhar Singh v. State of U.P. wherein it has been held thus: - “56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority.” JUDGMENT 7 13. In Public Service Commission v. Mamta Bisht this Court while dealing with the concept of necessary parties and the effect of non-impleadment of such a 5 (2012) 7 SCC 610 6 (2006) 8 SCC 129 7 (2010) 12 SCC 204 Page 9 10 party in the matter when the selection process is assailed observed thus: (SCC pp. 207-08, paras 9-10)

12 10 . In Prabodh Verma v. State of U.P. and 13 Tridip Kumar Dingal v. State of W.B. , it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties.” JUDGMENT 8 AIR 1963 SC 786 9 AIR 1965 SC 1153 10 (1974) 2 SCC 706 11 (1987) 1 SCC 5 12 (1984) 4 SCC 251 13 (2009) 1 SCC 768 Page 10 11 14. In J.S. Yadav v. State of Uttar Pradesh and 14 another it has been held as follows:-

15. In the case at hand the dispute relates to promotion which will have impact on inter se seniority. The learned counsel for the respondents assiduously endeavoured to convince us that they are agitating the grievance with regard to their promotion and it has nothing to do with the persons junior to them who had been promoted. Despite the indefatigable effort, we JUDGMENT are not persuaded to accept the aforesaid proponement, for once the respondents are promoted, the juniors who have been promoted earlier would become juniors in the promotional cadre, and they being not arrayed as parties in the lis, an adverse order cannot be passed against them as that would go 14 (2011) 6 SCC 570 Page 11 12 against the basic tenet of the principles of natural justice. On this singular ground the directions issued by the writ court as well as the Division bench pertaining

To elaborate, as far as the conclusion of the High Court relating the circular is concerned, it is unexceptionable and we concur with the same. 16. Consequently, the appeals are allowed in part and the order passed by the Division Bench as well as by the writ court is set aside to the extent directions have been issued granting benefit of promotion to the respondents. In the facts and circumstances of the case, there shall be no order as to costs. JUDGMENT ………………………..J. [Anil R. Dave] ………………………..J. [Dipak Misra] New Delhi; October 22, 2013. Page 12