# GUMAN SINGH v. STATE OF RAJASl'HAN & ORS

- **Citation:** [1971] Supp. 1 S.C.R. 900
- **Court:** Supreme Court of India
- **Decided:** 1971
- **Case number:** Civil Appeal No. 1815 of 1970
- **Bench:** M. S!Kri, G. K. MIT'rER, C. A. Vaidialingam, P. Jagan· Mohan Reddy, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/guman-singh-v-state-of-rajasl-han-ors-5460
- **Pages:** 35

## Headnote

/laja>thu11 Adtn/11/stratl\'t' Sr•,.vi<',• Ru!ds, 1954, rr. 288(2) a11d 32Va/idity of-Wli•thtr violativr of Arts. 14 & 16 of Constitution b.ca11,. of
abHnce of 1uidtlln•s In the matter of ,,,Im/on of <'and/dates by mtrltCirc11lnr dated August 27, 1966 ll'lirt/ir1· Invalid on th• ground 1/1at the
nuirkln11 .vy.~ft111 laid down i11 /1 went ag1.1in~t the Rules 111 regard to seltc•
tion by mcrit-Dcpartm•11ta/ Promorlon Committee taking advtr11 remarks
in confidtntial report into actount wlthnur tht.fe havfn1f hc•e1t rtJmmurricat-
''" ro the officrr co11cerned-Et1ect.
The appellant G was a member of I.he Rajasthan Administrative Service.
Aggrieved by the order allotting seniority to him under the Raja,.
than Administrative Service H..ules, 1954, he filed a writ petition under Art.
226 in the High Court. A single Judge of the court allowed the petition.
However in appeal by the State the Division Bench decided a11ainst the
appellant who by special leave appealed to this Court. Two other mem·
bers of the Rajasthan Administrative Senice, similarly ag11rieved filed writ
petitions under Art. 32 before this Court. The common questioilS that
fell for consideration in the appeal and writ petitions were; (i) whether
rr. 28B(2) and 32 of the Raja.than Administrative Service Rules w.re
violative of Arts.
14 and 16 of the Constitution because they did not
contain any 11uidelines in the matter of deteriminina the merit of candidates; (ii) whether the circular dated Au11ust 27, 1966 issued by the State
Government laying down a sysiem of marking for the purpose of determining the merit of candidates was invalid because it was contrary to the
relevant Rules in this regard. The appellant G also complained that ad·
verse remarks in his confidential report which had not been communicat ..
ed to him had been taken into account against him by the Departmental
Promotion Committee.
HELD: (i) Rule 32 in essence adopts what is stated in r. 28B. T''°
latter rule provides for two methods of selection one based on merit nnd
the other based on seniority-cum-merit. In other words, the rule provides
that the promotion based on merit in co11tradiction to that based on seniority-cum-merit shall strictly be on the basis of merit. The Selection Committee and the Promotion Committee consist of very responsible
and
senior officers of the State and being persons of experience they can be
trusted to evaluate the merits of a partic:utar officer. No doubt the word
'merit' is not capable of easy definition, but it can be safely said that
merit is a sum total of various question!: and attributes of an "mployee
such as his academic qualifications, his distinction in the University, his
character, integrity, devotion to duty and the manner in which he discharges bis official duties.
Allied to this may be various other matters
or factors such as his punctuality in work, the quality and out-turn of
work done by him and the manner of ois dealing with his superiors and
subordinate officers and the general public and his rank In the service.
Tbe various particulars in the annual confidential reports of an officer is
OUMAN SINGH v.1\1\IASTHAN (Vaidiallngam, J.)
carefully and properly noted, will aiso give a very broad and general indi·
cation regarding the merit of an officer. Therefore it cannot he stated
that rr. 288 and 32 are in any manner vasue or do not give any guidelines for assegsing the merit ofan officer. [921B-F]
(ii) (a) The restriction contained in the proviso to sub-r. (2) of r. 288
is quite reasonable. Before an officer in the junior scale can be considered as fit for promotion to the senior scale it ls necessary that be should
have worked on a post in the service at least for some period of time. As
to what the quantum of that period must be is not for this Court to lay
down. Tho Oovernfnent hu fixed this period as six years. It cannot
be said that It Is an Improper restriction. [922A·BJ
(b) The provisions contained in sub-r. (2) conftnina tho selection to
senior-

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GUMAN SINGH
v.
STATE OF RAJASl'HAN & ORS.
11'/y 26, 1'171
[S, M. S!KRI, C. J., G. K. MIT'rER, C. A. VAIDIALINGAM, P. JAGAN·
MOHAN REDDY AND I. D. DUA, JJ.J
/laja>thu11 Adtn/11/stratl\'t' Sr•,.vi<',• Ru!ds, 1954, rr. 288(2) a11d 32Va/idity of-Wli•thtr violativr of Arts. 14 & 16 of Constitution b.ca11,. of
abHnce of 1uidtlln•s In the matter of ,,,Im/on of <'and/dates by mtrltCirc11lnr dated August 27, 1966 ll'lirt/ir1· Invalid on th• ground 1/1at the
nuirkln11 .vy.~ft111 laid down i11 /1 went ag1.1in~t the Rules 111 regard to seltc•
tion by mcrit-Dcpartm•11ta/ Promorlon Committee taking advtr11 remarks
in confidtntial report into actount wlthnur tht.fe havfn1f hc•e1t rtJmmurricat-
''" ro the officrr co11cerned-Et1ect.
The appellant G was a member of I.he Rajasthan Administrative Service.
Aggrieved by the order allotting seniority to him under the Raja,.
than Administrative Service H..ules, 1954, he filed a writ petition under Art.
226 in the High Court. A single Judge of the court allowed the petition.
However in appeal by the State the Division Bench decided a11ainst the
appellant who by special leave appealed to this Court. Two other mem·
bers of the Rajasthan Administrative Senice, similarly ag11rieved filed writ
petitions under Art. 32 before this Court. The common questioilS that
fell for consideration in the appeal and writ petitions were; (i) whether
rr. 28B(2) and 32 of the Raja.than Administrative Service Rules w.re
violative of Arts.
14 and 16 of the Constitution because they did not
contain any 11uidelines in the matter of deteriminina the merit of candidates; (ii) whether the circular dated Au11ust 27, 1966 issued by the State
Government laying down a sysiem of marking for the purpose of determining the merit of candidates was invalid because it was contrary to the
relevant Rules in this regard. The appellant G also complained that ad·
verse remarks in his confidential report which had not been communicat ..
ed to him had been taken into account against him by the Departmental
Promotion Committee.
HELD: (i) Rule 32 in essence adopts what is stated in r. 28B. T''°
latter rule provides for two methods of selection one based on merit nnd
the other based on seniority-cum-merit. In other words, the rule provides
that the promotion based on merit in co11tradiction to that based on seniority-cum-merit shall strictly be on the basis of merit. The Selection Committee and the Promotion Committee consist of very responsible
and
senior officers of the State and being persons of experience they can be
trusted to evaluate the merits of a partic:utar officer. No doubt the word
'merit' is not capable of easy definition, but it can be safely said that
merit is a sum total of various question!: and attributes of an "mployee
such as his academic qualifications, his distinction in the University, his
character, integrity, devotion to duty and the manner in which he discharges bis official duties.
Allied to this may be various other matters
or factors such as his punctuality in work, the quality and out-turn of
work done by him and the manner of ois dealing with his superiors and
subordinate officers and the general public and his rank In the service.
Tbe various particulars in the annual confidential reports of an officer is
OUMAN SINGH v.1\1\IASTHAN (Vaidiallngam, J.)
carefully and properly noted, will aiso give a very broad and general indi·
cation regarding the merit of an officer. Therefore it cannot he stated
that rr. 288 and 32 are in any manner vasue or do not give any guidelines for assegsing the merit ofan officer. [921B-F]
(ii) (a) The restriction contained in the proviso to sub-r. (2) of r. 288
is quite reasonable. Before an officer in the junior scale can be considered as fit for promotion to the senior scale it ls necessary that be should
have worked on a post in the service at least for some period of time. As
to what the quantum of that period must be is not for this Court to lay
down. Tho Oovernfnent hu fixed this period as six years. It cannot
be said that It Is an Improper restriction. [922A·BJ
(b) The provisions contained in sub-r. (2) conftnina tho selection to
senior-most officers not oxceedina 10 tlmes tho number of total vacancle&
is also reasonable. Such a provision will encourage the members of the
service to aspire for promotion for making themselves eligible by increasing their efficiencies In the discharge of their duties.
[922B·C]
(iii) The object of the impugned circular may be to bring about uniformity in the award of marks. But the directions contained therein do
offend the rules. This is not a case of the Government filling up the gaps
or of aiving executive instructions not provided for by or not inconsistent
with the rules. No discretion is given to the selection or promotion com·
inittee to adopt any method other than that indicated in the circular. Aocording to the principle laid down by this Court in Sant Ram Sharma'&
cue, If the circular dated August 27, 1966 or any part of it gives instructions contrary to or opposed to any of the rules, tho circular or tho!
part of tho circular to that extent would be invalid. By this test the circular
in question was Invalid and must be struck down. [928F-929F]
Sa11t Ram Sharma v. State of Rajasrhmi & A.nr., (1968] l S.C.R. 111,
nrplied.
(iv) Appellant 0 bd inade a specific grievance in his writ petition
before the High Court about the uncommunicated adverse remarks having been taken 'into account bi' the Departmental Promotion Committee.
Tho Division Bench of the High Court was wrong in holding that since
the Committee had not been made a party to the proceedings this question
could not be gone into. The Government which was the appointing authority was a party before the High Court. It was the duty of the State
Government to place before the High Court all the materials available
before it to enable the Court to consider whether the grievanct of the
appellant was justified or not. The appellant's case must therefore be re:I
considered in the light of the Rules.
[932C-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1815 of
1970.
Appeal by special leave from the judgment and order dated
January 20, 1970 of the Rajasthan High Court in D. B. Special
Appeals Nos. SS and S7 of 1968 and Writ Petitions Nos. 76 and
139 of 1970.
Petitions under Art. 32 of the Constitution of India for en·
forc~ment of fundamental rights.
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R. K. Garg, S. C. Agarwa/a, D. P. Singh and R. K. Jain, for
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the appellant (in C. A. No. 1815/1970) and the petitioners On both
the petitions.).
Jagadish Swarup, Solicitor-General and K. Ba/dev, Mehta, for
respondent No. 1 (in C. A. No. 1815 of 1970).
S. M. Jain, for respondent No. 3 (in C. A. No. 1815 of 1970).
B. Sen and K. Baldev Mehta, for respondent No. 1 (in W. P.
No. 76 of 1970).
K. Baldev Mehta, for respondent Nos. I, 32 and 33 (in W. P.
No. 139 /1970.).
The Judgment of the Court was delivered by
Vaidialingam, J.-In both the writ petitions under Art. 32
and the civil appea•I, by special leave, common questions that
arise for consideration relate to the validity of rr. 28B and 32 of
the Rajasthan Administrative Service Rules, 1954 (hereinafter to
be referred as the Rules) and the Circular No. F. 1. (6) Apptts.
D/50 dated August 27, 1966 issued by the Chief Secretary to the
Government of Rajasthan as well as the Order of the Government
of Rajasthan No. F. 2(24) Apptts. (A-IV)/ 66 dated January 4, ·
1967. In the two writ petitions the Order No. F. 2(24) Apptts.
(A-IVl /66 dated January 22, 1970 and in Writ Petition No. 139
of 1970 ai further Order of the State Government No. F. 27(24)A
(A-4) /66 dated February 21, 1970 are also challenged. The
nature of the various Orders as well as the Rules and the Circular
that are challenged will be referred to later !lit the appropriate stage.
Civil Appeal No. 1815 of 1970 arises out of the Division
Bench Judgment of the Rajasthan H'igh Court dated January 20.
1970 in D. B. Special Appeal No. 57 of 1968. The facts leading
up to the Civil Appeal may be stated : The appellant is an Arts
Graduate having taken his degree in 1947.
He took his Law
Degree in the year 1961 hiwing been placed in the First Division.
He joined the service of the former Jaipur State as Inspector, Customs and Excise, in 1948. On the formation of
the United State of Rajasthan, he was appointed in the service
of the State C1f Rajt!sthan as Inspector, Customs and Excise. In
1950 the Rajasthan Administrative Service was constituted for
the State of
Rajasthan
and
the
Rules
governing
the
'conditions
of service
of
the
members
therein
were
framed in
f954
by the Rajpramukh under
the proviso
to Art. 309 of
the Constitution.
Under the Rules the
Adminisrative Service Cadre has three cadres of pay, namely.
Ordina,ry Time Scale, Senior Scale and Selection Grade.
The
iippointment to the service cadre was by direct recruitment as well
GuMAN SINGH?. RAJASTHAN (Vaidialingam, J.)
as by promotion from other subordinate services in the State of
Rajasthan. The appointment to the Senior Scale and Selection
Grade was by promotion from amongst the members of the service.
According to the appellant rr. 27 and 32 of the Rules, as they stood
originally provided for promotion to be made only on the basis
of seniority-cum-merit and that sub-rule(2) of r. 27 laid down
various criteria to be taken into account in the matter of selection
of candidates for promotion. It was his further case that r. 28, as
it originally stood, laid down the procedure for recruitment by
promotion to the service on the basis of seniority-cum-merit. The
appellamt was appointed in the year 1957 as member of the Rajasthan Administrative Service as a result of the open competitive
examination held by the State Public Service Commission under
the provisions of the Rajasthan Administrative Service (Emergency)
Rules, 1956. The appellant claimed tha.t his seniority was higher
than that of respondents 2 to 5 as is evident from the seniority list
published on July I, 1964. At this stage it may be mentioned that
though under the Order dated January 4, 1967 of the State Government fifteen officers in the junior scale were promoted and a.ppointed on an officiating basis to the senior scale of the service, the
appellant has made only four of them respondents 2 to
S as
parties in
these procedings on the
ground that
though they were
juniors to him, promotion
has been
given to them superseding his claims. The other officers
so
promoted,
even
a.ccording
to
the
appellant
were
senior to him in service.
We may also mention that respon·
dent No. 5 is since dead, but for convenience he will be referred
to by the rank occupied by him as respondent.
In 1965 the State decided to introduce the system of making
promotions to the service on the basis of merit alone in addition
to the existing system of making promotions on the basis of
seniority-cum-merit.
With this end in view there were various
amendments made to the Rules by which certain additions were
made and certain other provisions deleted.
On December 14,
I 965, r. 28B was incorporated providing for appointment by
promotion to posts in the service on the basis of merit a.nd on
the basis of seniority-cum-merit in the proportion of 50:50 and
the number of eligible candidates to be considered for promotion
is to be 10 times the total number of vacancies to be filled up on
the basis of merit as well as seniority-cum-merit. On the same
date when r. 28B was incorporated sub-rule (2) of r. 27 was
deleted.
On January 7, 1966 sub-rules(2) to (6) of r. 28 were
also deleted.
On December 14, 1965 a Circular was issued by
the Chief Secretary to the Government of Rajasthan. According
to the appellant the sa·id Circular was a secret one issued without
any authority directing the Selection and Promotion Committees
and the Appointing authorities to follow the instructions given
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therein when ma.king selection, promotion or appointment in
\the service.
The said ~ircular p1rescribed "merit formula for
making selection of persons to be appointed on the basis of merit
clone and the seniority-cum-merit formula for making selection
of persons to be appointed on the basis of seniority-cum-merit."
The basis for both the types of promotions was the marking
system indicated in the circular. We do not think it necessary
to go more elaborately into the details of this circular or the
authority under which it was issued because it is seen tha.t this
circular was superseded by the circular dated August 27, 1966.
which ls under severe attack in all these proceedings. The contents of the latter Orcular as well as the authority under which it
is purpora.ted to have been issued will be dealt with by us in
due course in the latter part of the judgment. On August 26,
1966 r. 28B was further amended by providing that the proportion of promotion to be made by sdection on the basis of merit
and seniority-cum-merit is to be 1:2 instead of 50:50. On the
same day a proviso was also added to sub-rule (2) of r. 28B providing tha.t only officers who have been in service for not less
than six years in the lower grade of the cadre will be eligible for
being considered for the first promotion in the cadre. On August
27, 1966 the impugned circular was issued by the Chief Secretary
to the State Government. It is the case of the appellant that this
circular was issued without any 111uth1irity and it was again a secret
circular giving directions in the matter of selection, promotion and
appointment to the service to the Committees or the Authorities
incharge of the same. The circular again dealt with the merit
formula and the seniority-cum-merit formul111 on the basis of
marking system indicated therln. 011 September 8, 1966 the State
decided to extend the principles of rnaking selections on the basis
of merit alone to appointments to senior posts also. For this
purpose the original r. 32 was substituted by a new rule providing
for appointments to senior scale 111nCI selection grade posts on the
basis of merit and seniority-cum-merit in the ratio of I : 2 on the
recommendation of the Committee: constituted under the said
rule.
It is the case of the appellant that prior to the notification
dated September 8, 1966 though many posts in the senior scale
of service had fallen vacant even d'uring the years 1963-64 and
1964-65, those post· were not filled up by making promotion on
the basis of the principle of seniority-cum-merit which was in
force at the relevant time. By the Order dated January, 1966,
the State Government created 26 new posts in the Senior Scale of
Service and 14 posts in the Selectio:~ Grade with effect from the
date of the order. As a result of this creation of new posts, about 44
vacancies became available for being filled up by promotion to the
Senior Scale of Service in 1965-66.
Nevertheless the vacancies
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GUMAN SINGH'· RAJASTilAN (Valdfa/i11gam. J.)
90 5
were not filled up by the State. After the new r. 32 was incorporated on September 8. 1966 the Government took steps to fill up
the 44 vacnmcies in the Senior Scale of Service and for this purpose a Departmental Promotion Committee was constituted and
the Committee met in the end of September, 1966 for considering
the claims of the officers for purnoses of promotion.
On the
basis of the recommendations made by the said Committee, the
Government by the Order dated December 7, 1966 promoted 29
officers to the Senior Scale on the basis of seniority-cum-merit.
Again by the order dated January 4. 1967, which Is another order
under attack in these proceedings, IS officers Including the respont'ents Nos. 2 to S were promoted to the Senior Scale of Service on
the basis of merit alone.
According to the appellant by the Orders dated December 7,
1965 and January 4, 1967 promolions had been made quite contrn.ry to rr. 28B and 32 of the Rules.
It is the grievance
of the appellant that under the Order dated January 4, 1967 a
lar~e number of officers who had qualified for promotion on the
bn.sis of merit under the merit formula were superseded by the
officers junior to t~m. Though Rules 28B and 32 provided for
selection on the basis of merit gave no indication or guidance
us to what are the factors to be taken into account in assessing
the merit of an officer. The promotions had also been ma<le by
the Committee adopting the principle of awarding marks as direc·
ted by the Circular dated August 27, 1966 which had been issued
without any authority of law.
The appella.nt filed S. B. Writ
Petition No. 79 of 1967 in the High Court challenging the vires
of rr. 28B and 32 as violative of Arts. 14 and 16. The appellant
also challeneed the validity and legality of the Circular dated August 27, 1966 as well as the order dated January 4, 1967 giving
oromotions to the respondents Nos. 2 to S to the senior Posts. In
the writ petition the appellant had alleged that the various amendments made to the rules from 'time to time and the delay in making promotions to Senior Posts were all with a view to show favourtism to the third· respondent who was the son-in-law of the Chief
Minister of Rajasthan and to the other respondents who are all
near relations of persons who were the favourites of the Chief Mini-
~ter of the State. According to the appellant, the Circular dated
August 27, 1966 was issued without any authority and 'in any event
the Government by execution instructions had no power to fetter
the powets of the Selection Committees wh.ich were functioning
under the statutory rules. Even the principles laid down in the Circular regarding the award of marks for assessing the merit were
arbitrary and vague. Rules 28B and 32 were challenged as violative of Arts. 14 and 1.6 inasmuch as the basis of merit had not been
defined anywhere in the rules and no principle~ or guidelines had
hecn laid down in the niles for assessing the merit of an officer.
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SUPREME COURT RllPORTS
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The provisions laying down the criteria for judging the merit of
an officer contained in sub-rule (2) of r. 27 as well as the procedure for assessing the sa.id merit contained in els. 2 to 6 of r. 28
having disappeared by the deletion of those provisions, according
to the appellant, arbitrary powers haid been conferred by the rules
on the Committees to select any person they liked on the ground
of merit. Apart from the' attack levelled aga-inst rr. 28B and 32
that there were no principles laid down for judging the merits
of an officer, the appellant also attacked as discriminatory and
viola.tive of ·Arts. 14 and 16, the provisions of r. 28B providing
that the number of eligible candidates to be considered was to be
IO times the total number of vacanciies to be filled up and that six
years service was essential for an officer to be eligible for being
considered for first promotion.
The Order dated January 4, 1967 was attacked on the ground
that the promotions had been made: on the basis of illegal rules
as well as the directions contained in the inva.lid Circular dated
August 27, 1966.
In particular tl1e appellant contended that
though his service record for the yc:ar 1965-66 was quite good,
nevertheless certain adverse remarks contained in the confidentia.l
rolls which were not communicated to him, had been taken into
account by the Departmental Promotion Committee, which met
in the last week of September, 1966 and hence there has been no
proper consideration of his cla.ims for being promoted to the
Senior post. On a.11 these grounds the appellant attacked rules
28B and 32, the Circular dated August 27, 1966 and the Order
dated January 4, 1967. He also alleged mala fide against the State.
The respondents Nos. 2 to 5 do not appear to have filed any
counter-affidavit.
But the State contended that rr. 28B and 32
were not invalid and did not violate the provisions either of Art.
14 or Art. 16. The requirement in the rules regarding promotion
to be based on merit was justified as such selection was necessary
to achieve efficiency in service. The State controverted the allegations of mala fides made by the appellant. Though it was admitted
that the third respondent was the son-in-la.w of the Chief Minister
of the State, it was denied that any favouritism was shown by
the State either to that respondent or to the other respondents
in the matter giving promotions to them. On the other hand, the
Departmental Promotion Committee: considered the claims of
the appellant and other officers and on assessment of the various
claims of the officers promotions were given to the officers mentioned in the Order dated Janua.ry 4, 1967 by the State Government on the basis of the recommendation of the Departmental
Promotion Committee which has also recommended respondents
2 to 5.
The State further contended that though promotions
GUMAN SINGH v. RAJASTHAN (Vaidialingam, J.)
907
had not been made to the Senior Scale in the yeair 1963-64 and
A
· 1964-65, it was not with a view to favour any particular officer.
Apart from the fact that the State Government boo the power
either to fill up the posts or keep them vacant, in this particular
case the vacancies were not tilled up as an aimendment of the rules
was in contemplation of the State Government. It was urged thait
the rules contained various principles for assessment of merit of
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an officer.
Regarding the Circular daited August 27, 1966, the State
contended that the marking system laid down in the Circular
for assessment of ment of an officer was calculated to ensure
objectivity of approach on the p&rt of the Selection Committee.
As there were as many as 35 sets of service rules governing various
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services, the Circular was issued to bring about uniformity in
the procedure for assessment of merit and for making selections
on the basis of seniority-cum-merit.
The Staite claimed that it
has ·ample powers to issue such a Circular.
Regarding the
validity of the Circular the State contended that the Circular
dated August 27, 1966 was issued by the Chief Secretairy in his
D
administrative capacity being the Head of the Service in
the State. It is within his competence to give guidance
for the proper working of any governmental machinery. The circular is not intended to be a piece of legislation nor is it an order
of the Government.
Regarding the confidentiail reports of the appellant the plea
E
of the State Government was that the confidential reports of all
the officers including that of the appellant were before the Departmental Promotion Committee when it met for making selection
in September, 1966 and tha·t there was nothing illegal in the said
Committee considering the adverse remarks, if any, made in
those reports. The State finally prayed for dismissal of the writ
F
petition.
The learned Single Judge who dealt with the writ petition
held that rr. 28B and 32 were not violative of either Arts. 14 or
16. The principle of merit embodied in the rules was valid an?
the Committee charged with the duty under the rules of const·
dering the claims of various officers for promotion was quite
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competent to take all the relevant factors when a;;sessing the
merits of an officer regarding his suitability for promotion. The
learned Judge further held that the principle of merit of an officer
being considered for promotion embodied in t~~ rule.s, was really
based on the recommenda.tion of the Admm1strat1ve Ref?~ms
Committee. However, the learned Judge held that ~e. provmo~
H
in sub-rule (2) of r. 28B restricting the number of eligible candt·
daites to be considered for promotion to ten times the. total num~er
of vacancies, was violative of Art. .16 inasumuch as the claims
908
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[1971] SUPP. S.C.R.
A -of various other eligible officers for being considered for promotion
wa~ barred.
The learned Judge further held that this portion
of sub-rule (2) of r. 28B is not easily severable from the remaining portion of sub-rule(2) of r. 28B and in consequence be held
that the whole of sub-rule(2) of r. 28B was bad. After considering
the relevant portions of the Circular dated August 27, 1966, the
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learned Judge held that the administrative instructions contained
therein had to be adopted and followed by these Committees.
The directions contained therein did! not leave any choice to the
Committees to ignore the same.
The administrative directions
contained in the said Circular. acc1)rding to the learned Judge,
provided a rigid formula
for being adopted in the matter of
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selection fqr promotion and the directions contained therein
restricted the powers and functions e>f the Committees functioning
under the statutory rules. According to the learned Judge, even
on merits, cannot be considered to be reasonable. In this view
the circular was held to be bad as !being repugna.nt to the rules.
Regarding the promotions made under order dated January 4,
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1967, the learned Judge held that the directions contained in
the Circular must have been taken into account by the Selection
Committee and hence the promotions were not valid.
On this '
reasoning, the learned Judge, by his judgment and order dated
November 7, 1968 held that sub-rule (I) of r. 28B and r. 32
were valid and that sub-rule (2:) of r. 28B was violative .
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of Art. 16 and hence that sub-rule vvas bad. The circulair dated
August 27. 1966 was struck down and the promotions of respon·
dents made under the order dated January 4, 1967 were also
struck down.
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Aggrieved by the judgment and order of the learned Single
Judge, the first respondent, the State, filed D. B. Speciaol Appeal
No. 57 of 1968 and the respondenti Nos. 2 and 3 filed D. B.
Special Appeal No. 55 of 1968. The: appellant herein filed crossobjections, in the appeal filed ·by the: State challenging the decision of the learned Single Judge upholding the validity of sub-rule
(!) or r. 28B and r. 32.
The Division Bench by its order and
judgment dated January 20, 1970 allowed the two appeals Nos.
55 and 57 of 1968 and dismissed the cross-objections filed by the
appellant. The Division Bench held tha.t the view of learned Single
Judge that r. 28B(2) was bad was erreneous. On the other hand,
the Division Bench held that restricting the eligibility of officers
who have put in at least six years of service was quite reasonable
and the further provision in r. 28B(2) regarding the field of selection being confined to senior most officers in the Junior Scale
not exceeding 10 times the total number of vacancies was also
GUMAN SINGH v. RAJASTHAN (Vaidialingam.J.)
909
reasonable. Differing from the learned Single Judge, the Division Bench held that no part of r. 28B(2) was invalid. The Division Bench agreed with the views of the learned Single Judge
regarding the validity of sub-rule (!) of r. 28B and r. 32. Regarding
the Circular dated August 27, 1966, the learned Judges held that
the marking system indicated therein was rea.Jly based upon the
previous Circular dated August 31, 1960 under which merit was
to be evaluated h'y allotting marks on the previous record of an
officer. The said Circular of 1960 had been in operation in respect
of the said services except the Rajasthain Judicial Service or the
Rajasthan Higher Judicial Service, which were under the control of the High Court. It is the view of the Division Bench that
the Circular of 1966 was very elastic and gave wide discretion to
the Committees to assess the merit of an officer.
The Circular
has done nothing except to lay' down broad guidelines for the
excercise of discretion by the Promotion Committee. The system
of marking indicated in the Circular was quite good as it brought
about uniformity in the procedure for assessment of merit.
On
this reasoning the learned Judges held that the Circula.r of 1966
was valid and it was in no way repugnant to the rules.
Rega.rding the authority for the Circular, the learned Judges
noted that there has been some confusion in the stand taken by
the State from time to time even when they made a.pplications for
amending their counter-affidavit for making it clear that the Circular h~ been issued not by the Chief Secretary in his individual
capacity but by the State Government. Ultimately, the Division
Bench held that they had examined the cabinet file produced
before them along with the note sheets and that the Court was
satisfied that the Circular of 1966, has been issued with the approval of the State Government.
The learned Judges rejected the
plea of ma/a fides raised by the appellant herein. Regarding the
allegation made by the appellant that the adverse remarks which
had not been communicated to him had been taken into account
by the Promotion Committee in September, 1966, the learned
Judges held that as the Departmental Promotion Committee had
not been imp leaded as a party, .the question whether the adverse
remarks made against the appellant had been taken into account
by the said Committee cannot be gone into in these proceedings.
Regarding the promotions maide under the Order dated January
14, 1967, the· Division Bench upheld the same as it had already
held that rules 28B and 32 as well as the Circular of 1966 were
all valid. Civil Appeal No. 1815 of 1970 is against the decision
of the Division Bench, reiterating the objections regarding the
validity of the rules, the Circular, as well as the promotions made.
Writ Petition No. 76 of 1970 is filed by Motilal Kakkar,
Apart from challenging rr. 28B and 32 and the Circular of 1966
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and the promotions made under the' order dated January 4, 1967,
the writ petitioner challenges also the order dated January 22,
19 70 cc,ntirming the promotions of respondents 2 to 16 in the
Senior Scale.
The facts leading up to the writ petition are a.s
follows :
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The petitioner after obtaining his M. A. Degree in History
and the Law Degree from the Luknow University joined service
in the erstwhile State of Jodhpur on August 1, 1943 as a Special
Officer (Settlement).
He entered the Jodhpur State Civil Service
on March 13, 1946 as a· result of the competitive examination
held by the Public Service Commission of that State.
At the
time of the formation of the Rajasthan Union, the petitioner was
working as Assistant Director, Civil Supplies, Jodhpur.
Ultir
mately the petitioner was appointed to the Raja.sthan Adminis·
trative Service with effect from January 6, 1950. He bas been
serving in various capacities and he was also sent for higher
training to the United St3tes of America by the Government of
India during the period March 23, 1958 to September 27, 1958.
The petitioner thereafter was sent on deputation to the Municipal
Corporation of Delhi as an Assistant Commissioner during the
period June 17, 1963 to April 21, 1964.
Later on he was on
depumtion as Principal, Tribal Orientation and Study Centre
during the period May 22, 1964 to March 31, 1967. He became
the District Manager of Food Corporation of India and was
holding that post since July 1, 1968.
After giving the history
sheet of respondents Nos. 2 to 16, the petitioner claims that he
wa~ the senior most amongst them and that his seniority has been
so stated in the relevant seniority list.
After referring
to
the
rules as originally framed and the amendments made from time
to time. the petitioner attacks the yalidity of rr. 28B and 32 and
the Circular dMed August 27, 1966 on the same grounds as those
mentioned in Civil Appeal No. 18115 of 1970. According to the
petitioner respondent Nos. 2 to 16 were all his juniors and on the
basis of the illegal rules and the directions given in the Circular,
officiating promotions have been given to those respondents to
the Senior Scale under the Order dialed January 4. 1967.
The petitioner further st3tes that after the judgment of the
•Division Bench of the Rajasthan High Court, which is under attack
in the Civil Appeal, the State Government. passed an order on
January 22, 1970 confirming the promotions of respondents Nos.
2 to 16 in the Senior Scale. According to the petitioner as the
officia.ting promotions given to those respondents under the Order
dated January 4, 1967 were invalid, the order of confirmation is
also equally bad. Therefore. he seeks to get that order also
quashed.
le--
GUMAN SINGH I'. RA.IASTHAN (Vaidialingam.J.)
B 11
The St&te Government has filed a very elaborate counteraffidavit. The stand taken by the State in respect of rr. 28B and
and 32 as well as the Circular of 1966 and the Order dated
January 4, 1967 is the sa.me as in the Civil Appeal. The State
has further contended that as the rules are valid and the circular
is also valid, the officiating promotions given under the Order
dated Janua-ry 4, 1967 are also valid. In consequence the State
points out that the order of confirmation dated January 22, 1970
is also valid. The State disputes the allegation of ma/a {ides and
has also pointed out that the Departmental Promotion Committee
considered the claims of all the respondents including tha,t of the
petitioner for promotion. Promotions were made by the Govem
ment on the basis of the recommendation of the said Committee.
The State finally prays for the dismissal of the writ petition.
Coming to Writ Petition No. 139 of 1970, the petitioner
challenges the validity of the rr. 28B and 32, the Circular da.ted
August 27, 1966 and the Orders dated January 4, 1967 and January 22, 1970. The officers covered by those orders are respondents Nos. 3 to 17.
The petitioner further challenges the order
dated Februa,ry 21, 1970 passed by the State Government promoting and confirming in the Senior Scale the respondents Nos. 18
to 33. The facts leading up to this writ petition may be stated:
The petitioner after obtaining the B. Sc. (Hons.) Agricultural
Degree in the First Division from the Delhi University and the
LL. B. Degree from the Agra University joined service in the
Delhi Administration on February 6, 1954 a~ Extension Officer,
Agriculture. On January 12, 1959 he was promoted a;; Block
Development Officer in the Delhi Administration, in which capacity he continued till September 30, 1960. The petitioner joined
the Rajasthan Administrative Service on October 1, 1960 after
ha.ving passed the competitive examination held by the State
Public Service Commission. After the probationary period of one
year, he was confirmed in the service with effect from October 1,
1961. His rank has been given as Nos. 332 in the Seniority List
of the Rajasthan Administrative Officers issued in 1964.
The
petitioner gives the rank of some of the respondents. After referring to the rules as well as the amendments ma.de from time to
rime and the Circular of 1966, the petitioner levels the same attack
as against them similar to those in the civil appeal. The petitioner
then refers to the officiating promotions to the Senior Sea.le given
to the respondents Nos. 3 to 17 by the Order dated January 4,
1967 as well as to the Order dated January 22, 1970, confirming
their promotions.
According to the petitioner these orders are
illegal and invalid for the same reasons urged in the civil a.pJll:lll.
The petitioner further says that several officers were sele.i;ted on
probationary basis and giv~n promotions. but only respolidents
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Nos. 18 to 33 were confirmed by the order dated February 21,
1970. These orders. according to the petitioner, aire illegal and
the petitioner's claim for promotion has not been properly con-
>idered.
The stand taken by the State Government in this writ petition
is also similar to the stand taken in Writ Petition No. 76 of 1970, which, we have already pointed out, agam
is similar to the stand taken in the civil appea.l.
According to
the State Government the claim of the petitioner is not sustainable
as he was ineligible for consideration for promotion under the
rules.
The State further contends that the petitioner has not
put in the minimum period of six years of service which is a. condition precedent for consideration for promotion to the Semor
Scale under r. 32 read with r. 28(2) of the Rules.
The State
further contends that the respondents Nos. 18 to 33 were selected
by the Promotion Committee for likely vacancies and their selecuons were in accordance with the Rules. Their promotions were
delayed beca.use of the orders of stay granted by the Rajasthan
High Court in certain writ petitions filed before it. As soon as
stay was vacated, the State Government decided to promote those
officers, who had been duly selected. Therefore, according to the
State Government the orders dated January 22, and 21st February, 1970 are legal and valid.
From the statement of facts mentioned above, it will be seen
that the main questions that arises for consideration relate to the
validity of rr. 28B and 32 and the Circular dated August 27, 1966.
The decision regarding the orders da.ted January 4, 1967, January
22, 1970 and February 21, 1970 will largely depend upon the
opinion expressed on the validity of the Rules and the Circular.
We will first take up for consideration the attack levelled
against rr. 28B and 32 as being viola.live of Arts.
14 and 16.
We have already referred to the fact that this attack is made on
these rules on the ground that there is no criteria laid down in
the rules for assessing the merit of the ofhcers concerned
when their claims are being considered for promotion to
the Senior Scale.
The further ground on which this attack is
made is that the Rules give arbitrary powers to the Promotion
Committees in the matter of assessing the merits of an officer.
According to the State, on the other hand, the Rules are
valid and the promotions on the ha.sis of merit are also valid.
It is now necessary to refer to the relevant rules as they
originally stood as well as to the amendments made thereto from
time to time. In 1954 the rules were framed by the Rajpramukh
OURMAN SINGH v. RAIASTHAN (Vaidialingam,J.)
under the proviso to Art. 309 of the Constitution to regulate
conditions of service of the officers in the Ra.jasthan Administrative Service. We have already referred to the fact that the Rajasthan Administrative Service was formed in the year 1950. There
were three Grades in the Service :
(i) Ordinary Time Scale Rs. 285-800 (herein after
:o be referred 116 the Junior Scale);
(ii) Senior Scale Rs. 500-1150;
(iii) Selection Grade Rs. 900-1500.
In the Civil Appeal and the two writ petitions we are concerned with the. promotions from junior scale to the senior scale.
Rule 7 relates to the sources of recruitment to the Service. They
are, (a) by competitive examination; (b) by promotion of administrative subordinate service; (c) by selection from amongst the
prescribed categories of Extension Officers and (d) by special
selection from amongst the persons other than the administrative
subordinate service in connection with the affairs of the State.
Part lV of the Rules deals with the procedure for direct
recruitment. The procedure for recruitment by promotion is deaAt
with in Part V, Rule 27, as originally framed dealing with the
criterion for selection was as follows :
"Rules 27.