Holding

The Punjab Government Circular dated 28 June 1961 was the applicable guideline, and the DPC’s selection under it was valid, rendering the High Court’s order erroneous.

Summary

The appellant, Sarabjit Singh, was promoted by a Departmental Promotion Committee (DPC) meeting on 16 April 1999 under the Punjab Government Circular dated 28 June 1961. The respondent, Ex‑Major B.D. Gupta, challenged the selection, arguing that the DPC should have applied the newer Punjab circular of 1 October 1999 (which adopted Central Government guidelines) and therefore should have considered eight candidates, including him. The High Court agreed with the respondent and ordered a fresh DPC. On appeal, the Supreme Court held that the 1 October 1999 circular could not apply to a DPC meeting that occurred before its issuance and that the earlier 17 June 1960 guidelines were superseded by the 28 June 1961 circular, which was correctly applied. Consequently, the DPC’s decision to consider only the first five senior officers and to promote the appellant was lawful, and the writ petitioner's omission was justified. The Court set aside the High Court judgment and upheld the DPC’s recommendations.

Issues considered

Whether the Punjab circular dated 1 October 1999, which adopted Central Government guidelines, was applicable to the DPC meeting held on 16 April 1999.
If the 1 October 1999 circular was inapplicable, whether the Punjab guidelines of 17 June 1960 or the later circular of 28 June 1961 governed the DPC.
If the 28 June 1961 guidelines applied, whether the DPC’s decision to exclude the writ petitioner from the zone of consideration was valid.

Subjects

departmental promotionDepartmental Promotion Committeegovernment circularseniority listpromotion guidelinesservice lawfundamental right to promotionselection criteria

Judgment

SARABJIT SINGH A
v.
EX. MAJOR B.D. GUPTA AND ORS.

AUGUST 9, 2000

[M. JAGANNADHA RAO AND DORAISWAMY RAJU, JJ.] B

Service Law :

Departmental Promotion-Government Circulars-Applicability a/-
Appellant promoted in the meeting of DPC held on 16.4.1999, as per Govern-
ment Circular dated 28.6.61-High Court set aside the promotion holding that
c
for the DPC Government Circular dated 1.10.1999 was applicable-All the
parries conceded that for the DPC, Circular dated 1.10.99 was not applica-
ble-Plea of re:.pondent that Circular dated 17.6.1960 applicable to the DPC-
Held, Circular dated 17.6.1960 not applicable as the same was replaced by
Circular dated 28.6.1961. D
DPC selected three Chief Engineers including the appellant, from
amongst the first five from the seniority list of eight Superintending Engi-
neers. Respondent was at number six in the seniority list and he was not
selected.
E
Respondent filed writ petition challenging the above-mentioned se-
lection. High Court set aside the selection holding that since the DPC was
governed by the guidelines issued by the Central Government which were
adopted by the State on 1.10.1999, and as per those guidelines DPC would
have had to consider eight Superintending Engineers for promotion to the
F
post of Chief Engineer, and if that had been done, the writ petitioner
(respondent herein) would have come within the zone of consideration for
promotion. High Court directed fresh DPC to be conducted in accordance
with the State Government Circular dated 1.10.1999.

As per the direction of the High Court, petitioner was reverted back G
to his previous post and fresh date for the meeting of DPC was fixed.

In appeal to this Court, respondent contended that though in respect
of DPC which met on 16.4.1999, by which date the Circular dated 1.10.1999
had not come into being, the said Circular was not applicable, but Punjab
Guidelines dated 17.6.60 were applicable, according to which for each post H
323
324 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A at least three officers had to be considered. Appellant contended that
Punjab Guidelines dated 17.6.60 were also not applicable as the same were
replaced by Punjab Government Circular dated 28.6.61 applied to DPC
under which it was sufficient to consider the case of five officials.

Allowing the appeal, this Court
B
HELD : 1. Since all the parties had conceded that for the DPC dated
16.4.99, the Punjab circular dated 1.10.99, which adopted the Central
Government's guidelines for the DPC did not apply, the DPC would not
have obviously applied guidelines, which were formulated much later.
Therefore, the view of the High Court that as per the Central guidelines.
C dated 1.10.99 adopted by the Punjab Government, eight candidates had to
be considered, could not be accepted. The entire reasoning of the High
Court based on the 1.10.99 guidelines would fall to the ground.[327-C-D]

2. Guidelines dated 17.6.60 are no longer applicable once the 28.6.61
guidelines, hne come into being. Therefore, it is these guidelines dated
D 28.6.61 that are applicable and have been rightly applied by the DPC.
[327-F]

3. There was no need for considering the name of the writ petitioner,
who was the sixth candidate. Therefore, the writ petitioner's case was
rightly not considered for promotion. The High Court erred in applying
E the wrong guidelines and in thinking that eight names ought to have been
considered (including the name of the writ petitioner) and in directing
fresh DPC on that ground. [328-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4467 of 2000.

F From the Judgment and Order dated 7.6.2000 of the Punjab and Haryana
High Court in C.W.P. No. 13240 of 1999.

P.P. Rao, P.N. Puri, Rajiv Dutta, A.K. Chopra and M.K. Dua for the
appearing parties.

G In-person for the Respondent.

The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J. Leave granted.

The appellant Mr. Sarabjit Singh (2nd respondent in the writ petition) is
H aggrieved by the judgment of the Division Bench of High Court of Punjab &
SARABJIT SINGH v. EX.MAJOR B.D. GUPTA [M. JAGANNADHA RAO, J.] 325

Haryana dated 7 .6.2000 in CWP No. 13240/99 allowing the same in favour of A
the Ist respondent-writ petitioner, Ex. Major B.D. Gupta. The High Court
accepted the contention of the lst respondent that the Departmental promotion
committee of the State of Punjab was governed by the guidelines issued by the
Central Government which were adopted by the State on 1.10.1999 and held
that if those guidelines were applied, the DPC would have had to consider eight
B
Superintending Engineers for promotion to the post of Chief Engineer and not
merely five as done in the case, and if that had been done, the writ petitioner,
Ex. Major B.D. Gupta would have come within the said zone of consideration
and he could not have been omitted from consideration as was done by the
DPC. Further under the Central Guidelines, as adopted by the State on 1.10.99,
candidates had to get the grading of 'very good' while under the earlier State c
guidelines, "good" was sufficient. Hence the selection of Respondents 2 to 4
in CWP, namely Mr. Sarabjit Singh (appellant), Mr. B.K. Thapar and Mr. D.P.
Bajaj as Chief Engineers was liable to set aside The High Court directed a fresh
DPC to be conducted in accordance with the State Government's circular dated
1.10.1999 where the State had adopted the Central guidelines. That is how this D
appeal come to be filed by Sri Sarabjit Singh. Before the matter was listed in
this Court, the appellant was reverted back as Superintending Engineer and a
fresh date was fixed for the meeting of the DPC to consider eight names,
including that of the respondent-writ petitioner and others. This Court stayed
the fresh meeting of the DPC.
E
In this appeal, learned senior counsel for the appellant Sri P.P. Rao
contended that the High Court failed to notice that the DPC had met on 16.4.99
by which date the Circular of the Punjab Government dated 1.10.99 adopting
the Central Government's guidelines had not come into being. The other
circular dated 25.11.95 ofthe State Government referred to the Central Gov- F
ernment's guidelines only to the limited extent that the DPC must meet peri-
.. odically. Counsel contended that the earlier Punjab Guidelines 28.6.61 applied
and the DPC which met on 16.4.99 rightly followed the said guidelines of
28.6.61 under which, on the facts of the case, it was sufficient to consider the
cases of five Superintending Engineers and inasmuch as the writ petitioner (Ex.
G
Major B.D. Gupta) fell beyond five in the seniority (being sixth), the DPC was
not obliged to consider his case. The selection of the appellant and two others
(Respondents 2 to 4 in the CWP) was perfectly in order.

In this appeal, so far as the State of Punjab is concerned, the learned
counsel Sri Rajiv Dutta submitted that the State had filed a brief counter H
326 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A affidavit here without supporting either side while, no doubt, the State had filed
a counter-affidavit in the High Court supporting the appellant.

The contesting respondent in this appeal is the writ petitioner (Ex. Major
B.D. Gupta) and he filed a separate counter-affidavit and appeared in person.
He contended that he had a fundamental right to be considered for promotion.
B Of course, he agreed that in respect of a DPC dated 16.4.99 the Punjab circular
dated 1.10.99 could not have been applied and the High Court was wrong in
applying the said circular. He, however, referred to the Punjab guidelines dated
17 .6.60 and contended that they applied to the DPC and that for each post to
be filled, atleast three officers had to be considered. In this case, for two posts,
C six names should have been considered and he (Mr. B.D. Gupta) was the sixth
person in the list. In fact, here three persons were ultimately selected, as one
was on deputation.

Adverting to the above contention of the respondent-writ petitioner, Sri
P.P. Rao learned senior counsel for the appellant replied that the guidelines of
D 17 .6.60 were not applicable and were replaced by fresh guidelines in Punjab
Government Circular letter 4044-SGS-61/23179 dated 28.6.61 which read as
follows :

"In this connection, it is also made clear that, in fact, in the first
instance, a list of eligible t•fficers/officials who fulfil the prescribed
E experience, etc., for promotion is to be drawn up in accordance with
the sub-paras (i) and (ii) above, then out of this list, such officers/
officials as are considered unsuitable for promotion are to be weeded
out and a list of only those who are suitable for promotion was to be
drawn up. Selection thereafter is to be confined to the 3 suitable
officers/officials of the latter list if there is one post, 4 if there are two
F posts, and 5 if there are three posts and so on. Unsuitable officers/
officials are those who, on the basis of their service records, general
reputation etc., are definitely not considered fit for promotion by the
department. Selection for every vacancy has, therefore, to be made
from the slab of 3 officers/officials who are considered fit for promo-
G tion and unless a junior among them happens to be of exceptional merit
and suitability the senior-most will be selected."

17ze points for consideration are :

(1) whether the High Court was right in applying the Punjab guidelines
H dated 1.10.99 which adopted the Central Government's guidelines for DPC?
SARABJIT SINGH v. EX.MAJOR B.D. GUPTA [M. JAGANNADHA RAO, J.] 327
(2) Whether, in case the State guidelines dated 1.10.99 did not apply, the A
17 .6.60 guidelines of the State relied upon by the respondent applied or the
28.6.61 guidelines relied upon for the appellant applied?

(3) If the 28.6.61 guidelines applied, whether the decision of the DPC
dated 16.4.99 was not liable to be set aside on the ground that the writ
petitioner's name was not considered? B
Point 1 :

It was practically conceded before us by all the parties that for the DPC
dated 16.4.99, the Punjab Circular dated 1.10.99 which adopted the Central
Government's guidelines for the DPC did not apply. The DPC would not have c
obviously applied guidelines which were formulated much later. Therefore, the
view of the High Court that as per the Central guidelines dated l.10.99 adopted
by the Punjab Government, eight candidates had to be considered could not be
accepted. The entire reasoning of the High Court based on the l.10.99 guide-
lines would fall to the ground. Point 1 is decided in favour of the appellant.
D
Points 2 and 3 :

In our view, the respondent-writ petitioner is no doubt right in contend-
ing that he has a fundamental right to be considered for promotion but this is
available only if the !st respondent falls within the prescribed zone of consid-
eration. That question depends again on the relevant guidelines in Punjab as E
applicable on the date the DPC met, i.e. 10.4.99.

The respondent is not right in relying upon the State guidelines dated
17 .6.60 which no doubt require atleast three names to be considered for each
post. But, in our view, those guidelines are no longer applicable once the
28.6.61 guidelines, extracted above, have come into being. Therefore, it is
F
these guidelines dated 28.6.61 that are applicable and have been rightly applied
by the DPC. We have already extracted the guidelines of 28.6.61.

Now, it appears that by the date of the DPC meeting on 16.4.99, the
position was that the seniority list of Superintending Engineers was as follows:
G
(!)Mr. K.K. Vasisht (2) Mr. Subhash Malhotra (3) Mr. Sarabjit Singh (appel-
lant) (4) Mr. D.P. Baja,j (5) Mr. B.K. Thapar (6) Mr. B.D. Gupta (respondent-
writ petitioner) (7) Mr. Gurdip Singh and (8) Mr. Gurbax Singh.

Admittedly, the DPC first called for the files of the first five and later,
it also called for the files of the next three, - in all eight. At the time of calling H
328 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A for the files, it was not in a position to say whether it could select three
candidates for the post of Chief Engineer from the first five. (Mr. Bajaj was
already on deputation).

But, ultimately, the DPC was able to select three from the first five. The
procedure followed by the DPC, in our view, is consistent with the guidelines
B dated 28.6.61, under which for three posts, five names had to be considered.
The DPC said that having regard to certain adverse remarks/departmental
inquiries, it did not find No. l and 2 in seniority Mr. K.K. Vasisht and Mr.
Subhash Malhotra suitable for promotion. It recommended the appellant Mr.
Sarabjit Singh and the two others, Mr. D.P. Bajaj and Mr. B.K. Thapar. In other
c words, the DPC was able to select three out of the first five names as explained
earlier and this was permissible under the guidelines of 28.6.61. So far as
25 .l l.95 guidelines of the State were concerned, they referred to the Central
guidelines only to the extent of the need to have periodical DPCs in time.

There was, therefore, no need for considering the name writ petitioner,
D who was the sixth candidate. Therefore, the writ petitioner's case was rightly
not considered for promotion. The High Court erred in applying the wrong
guidelines and in thinking that eight names ought to have been considered
(including the name of the writ petitioner) and in directing fresh DPC on that
ground.
E The judgment of the High Court is set aside and the recommendation of
the DPC dated 16.4.99 and the consequential promotions of the responden"ts 2,
3, 4 in WP 13240/99 (including that of the appellant) are upheld. There will
be no order as to costs.

K.K.T. Appeal allowed.