WP/6383/1995 of P.PARASURAMAN Vs PONDY ENGG COLLEGE,REP BY on 4 December 2002

:ORDER

In these three writ petitions, the petitioners seek forquashing the order of the first respondent dated 8.8.1995 and to direct thefirst respondent to place them in the list of seniority in 16th, 10th, 11 thplace respectively, in the seniority list for Lower Division Clerk (L.D.C.) inthe Pondicherry Engineering College, the first respondent herein.

2. It is sufficient to refer to the pleadings in W.P.No.6383

of 199 5 considering that the pleadings in all the three cases raise identicalfacts and points for consideration. The petitioner claims that he was workingas an L.D.C. He joined the services of the respondents as Group 'D' employeeon daily rate basis and later promoted to the post of L.D.C. on 25.6.1993, bywhich order 12 Attenders were promoted on the basis of the recommendations ofthe Departmental Promotion Committee (D.P.C.). While he was working as anAttender, the respondents had published a seniority list on 17.8.1992whereunder the petitioner was placed in 9th in rank as per date ofappointment. The promotion was made on the same date whereby 12 Attenderswere promoted. The seniority list in the grade of L.D.C. was issued on8.8.1994 wherein the seniority of L.D.Cs. from 10 to 22 were published. Interms of the said seniority, the petitioners name should come in the 16thplace as per seniority of the Attenders and also as per the date ofappointment. But the respondents had placed the petitioner in the twentysecond place and had placed the juniors of the petitioner above him bycompletely disturbing the seniority as in the Attender post. The secondrespondent who was in the 15th place in the Attenders' list, has now beenplaced in the 10th rank. Likewise, the other respondents also who were lowerdown in the seniority in the Attenders' Seniority list have been placed abovethe petitioner. The petitioner is entitled to be placed in the seniority listin accordance with the list of the seniority of Attenders. Placing him belowhis juniors was arbitrary and discriminatory and violative of Articles 14 and16 of the Constitution of India. It is further stated that the post ofAttender is a Group 'D' post for which there is no maintenance of confidentialreport as per the Rules. Nor has the petitioner been informed about themaintenance of any confidential report. Therefore, there was no reason fordisrupting the seniority as held by the petitioner while he was an Attender.

3. A counter affidavit has been filed by the respondents.

3. A counter affidavit has been filed by the respondents.

With reference to the issue raised for decision, the respondents would statethat based on the Departmental Promotion Committee's (D.P.C.) recommendationsthe Government had promoted the attenders to the post of L.D.Cs. For fixingseniority in the promoted cadre, the D.P.C. took into account the performancereport of the candidates in the panel. That was in compliance with thedirections of the D.P.C. in the absence of confidential reports for Group 'D'staff. The filling up of the vacancy of L.D.C. post is by selection and theD.P.C. after perusing the performance report had recommended a list ofcandidates for promotion from the panel. Therefore, the contention of thepetitioner that the seniority in L.D.C. cadre should be based on theseniority in the category of Attender, was not tenable. Though confidentialreports are not required for Group 'D' staff, the Government of Indiaguidelines provide for performance report even for Group 'D' staff with a viewto maintain discipline and performance in the organisation. The contention ofthe petitioner that no adverse remark had been communicated to them, cannot besustained since there is no adverse remark against the petitioner and thepetitioner was included in the panel for promotion and was also promoted.

4. Subsequently, an additional counter affidavit has been filed on 26.6.2002. Respondents have contended that the petitioner had been promoted as Upper Division Clerk (U.D.C.) in July, 2000 based on the senioritylist of L.D.C. Thereafter tentative seniority list of L.D.C. including thepetitioner was issued on 25. 10.2001 and objections were called for. Thepetitioner did not raise any objection regarding the seniority in the U.D.C.post. Therefore, nothing further survives in the writ petition.

5. Mr.Ajayakumar appearing for the petitioner contends that all the petitioners were promoted to the post of L.D.Cs. from the post ofAttender which was a Group 'D' post and hence the promotion was purely onseniority basis and there was no question of any confidential report orassessment on merits of their performance when they were holding the post ofAttenders. Therefore, in the promoted post also, the promotees ought to havebeen placed in the same level of seniority. Learned counsel refers toparagraph No.32 of Swamy's compilation of copies of Orders relating toConfidential Report which is as follows in support of his contention thatthere was no practice of writing confidential report for Group 'D' staff,namely memorandum dated 22.5.1975.

"Writing of CRs. of Group 'D' staff only if it serves public interest. - Inthe case of Ministries/Departments where Confidential Reports are not atpresent maintained for Group 'D' staff, the present practice may continue.Other Ministries/Departments should examine the necessity for continuing thepractice of maintaining Confidential Reports for Group 'D' employees underthem having regard to the specific purpose for which such reports are not atpresent being used. Where such reports are not required for any specificpurpose or do not serve a public interest, the practice may be discontinued.In this connection, it may be borne in mind that in respect of Group 'D' staffentrusted with sensitive work it may be necessary to continue the system ofConfidential Reports for maintaining efficiency in exercising proper controland discipline. These should be clearly identified by the Ministries withDepartments concerned. Where the Confidential Reports are dispensed with, thepunishments including recordable warnings, commendations, etc., conveyed tothe employees, should be entered in the service book. (D.P. & A.R.,O.M.No.51/3/74-Est. (A) dated the 22 nd May, 1975)"

6. He also relies on a judgment of the Delhi High Court in

Issues

6. He also relies on a judgment of the Delhi High Court in S.P. MATHURI v. UNION OF INIDA (1998 L.I.C., 2292) in which it was held thatthe action of the D.P.C. in not promoting the petitioner by ignoring theseniority when he had not been declared unfit for promotion and there was noentry against him, was invalid.

7. Per contra, Mr.T.Murugesan, learned Government Pleader (

Pondicherry), contends that the promotion and fixation of seniority had beencomplied with in accordance with the Rules. D.P.C. after going through therecords and considering the yearwise performance report of each of thepromottee, had recommended promotions also indicating ranking of promotees.The recommendation of the D.P.C. was complied with in accordance with Clause2.2. of the Consolidated orders of Seniority issued by the Government ofIndia in their memorandum dated 3.7.1986 . In terms of the said provisions,seniority was fixed according to the recommendations of D.P.C. LearnedGovernment Pleader further contends that the respondent institution was run bya society which was autonomous body and hence the writ petition was not maintainable.

8. I have considered the submissions of both sides. On the issue of maintainability of the writ petition, it is not disputed that thoughthe 1st respondent is an autonomous body, it is fully owned by the Governmentand controlled and governed entirely by the Government officials. In otherwords, the Institution belongs to the Government and hence I am inclined tohold that it satisfies the requirements of Article 12 of the Constitution ofIndia and hence amenable to writ jurisdiction.

9. On the merits of the case, the following facts are not in dispute:- The petitioners and respondents were originally working as Attenders.It is Group 'D' post. Seniority list is being maintained in the said Attendercategory and they were not subjected to any confidential roll or report. Thesaid category is one of the feeder posts for the next promotional post ofL.D.Cs. subject to the Attenders satisfying the other qualifications for thepost of L.D.C. Seniority is therefore, the only test for promotion from amongthe Attenders. In the impugned promotion, the petitioners and the partyrespondents have been assigned seniority in the promoted post not inconformity with the seniority list in the category of Attenders, but in adifferent order of seniority. In the above background the question whicharises for consideration is as to whether such a course is permissible.

10. Apart from the fact that no confidential records are

10. Apart from the fact that no confidential records are maintained in respect of attenders and is not disputed by the respondent, thememorandum dated 22.5.1975 extracted above, will also disclose thatconfidential reports are not to be adopted for Group 'D' staff. That beingso, the stand of the respondents that there was a Performance Report for allthe candidates is paradoxical. In whatever name by which it is called eitheras "Confidential Report" or "Performance Report" and if it could be used tothe disadvantage of an employee, then it should be held as impermissible. Ifthe conduct of a person is so undesirable, then he shall not be considered atall. But if he is found fit enough to be considered, then there can be nodiscrimination on the basis of any Performance Report. The memo dated22.5.1975 extracted above, makes only one exception namely where Group 'D' isentrusted with sensitive work. In the present case, it is not the case of therespondents that the petitioners were discharging any sensitive work nor wasany C.R.maintained for them. Therefore, the so called consideration ofperformance report is not permissible. Further, maintaining such a secretrecord is worse than the rigour of a Confidential Report. At least in thematter of maintaining Confidential Reports, if any adverse entry is made, thenit is the duty of the employer to disclose the adverse entry and the employeehas a right to challenge the same. But in the present case of undisclosedperformance report, such requirements are not contemplated, which goes againstbasic rules of fairness.

11. The further defence that the respondents had to comply with the recommendations of D.P.C. is also not acceptable. Firstly, whenonce the very basis of D.P.C. ranking itself is invalid namely, theconsideration of Performance Report, recommendation of D.P.C. can have no better sanctity. Secondly, the very memorandum relied upon by the learnedGovernment Pleader namely, paragraph No.2.2 of the consolidated orders ofseniority dated 3.7.1986 itself signifies that where promotions are made onthe basis of the seniority subject to the rejection of the unfit persons, theseniority shall be the same as the relative seniority in the lower grade fromwhich they are promoted. Paragraph No.2.2 is extracted below:-"2.2. Where promotions are made on the basis of selection by a DPC, theseniority of such promotees shall be in the order in which they arerecommended for such promotion by the Committee. Where promotions are made onthe basis of seniority, subject to the rejection of the unfit, the seniorityof persons considered fit for promotion at the same time shall be same as therelative seniority in the lower grade from which they are promoted. Where,however, a person is considered unfit for promotion and is superseded by ajunior, such persons shall not, if he is subsequently found suitable andpromoted, take seniority in the higher grade over the junior persons who hadsuperseded him." (emphasis supplied)

12. The above extract clearly signifies that if the candidate is considered to be unfit, his claim shall be rejected as unfit. But whenonce he is found fit to be promoted, he shall be promoted only in accordancewith the seniority from the feeder category. In fact, it is admitted in thecounter itself that there are no adverse remarks as against the petitioner.That being so, there can be no discrimination between similarly placedcandidates while fixing the seniority.

13. The further contention raised in the additional counter

Conclusion

affidavit that subsequently the petitioners have been promoted as UpperDivision Clerks, cannot stand in the way of the writ petitions being ordered.Considering that the writ petitions are pending and in the event of thepetitioners succeeding in the writ petitions, they are naturally entitled toall the consequential benefits. The fact that they were promoted subsequentlyfor a higher post, and seniority was fixed in that category cannot deprive thepetitioners of their legitimate rights flowing under the orders to be passedin these writ petitions. Considering the pendency of these writ petitions,there is no need for them to have filed another set of writ petitionsregarding seniority in U.D.C.category. It is not contended before me thatselection to the post of U.D.C. can be made by overlooking the seniority inthe L.D.C. category. The only point which is contended before me is that thecadre strength of U.D.C. is filled by promoting the Degree holder first andthe non-degree holder next in the ratio of 1:1. Except for the saidcondition, the rights of parties in these writ petitions would be governed bythe consequential re-arrangement of seniority in the L.D.C.category.

14. In the result, the petitioners are entitled to succeed and the writ petitions are ordered as prayed for. The petitioners shall beentitled to all the consequential benefits including the seniority in thecadre of U.D.C., subject to what is mentioned in the previous paragraph. Nocosts. Connected miscellaneous petitions are closed as unnecessary.

Index: Yes.Internet : Yes.

sai/-

To

The Secretary and Principal,Pondicherry Engineering College,Pondicherry.