Daljeet Singh vs R.C.S.A.T.& Ors on 13 May, 2010

Rajasthan High Court – Jodhpur
Daljeet Singh vs R.C.S.A.T.& Ors on 13 May, 2010
                                            1

              IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
                                AT JODHPUR

                                     :: O R D E R ::


             (1)   Daljeet Singh Vs. Rajasthan Civil Services Appellate
                                     Tribunal & Ors.
                   S.B.Civil Writ Petition No. 3176/1999

             (2)   Kishore Singh Vs. Rajasthan Civil Services Appellate
                                      Tribunal & Ors.
                    S.B.Civil Writ Petition No. 583/2000


             DATE OF ORDER                      ::::       13th May 2010

                                       PRESENT

                      HON'BLE MR.JUSTICE A. M. KAPADIA
                   HON'BLE MR.JUSTICE DINESH MAHESHWARI


             Mr. M.S. Singhvi for the writ petitioners
             Mr. R. L. Jangid, Additional Advocate General
             Mr. L.K. Purohit
             Mr. A.R. Choudhary ], for the respondents.
                                            ....

Reportable   BY THE COURT: (Per Dinesh Maheshwari, J.)

INTRODUCTORY:

These two writ petitions have been placed before this

Bench pursuant to the orders of Hon’ble the Chief Justice on a

reference made by the learned Single Judge of this Court on

the correctness of the view expressed in the case of Prem

Prakash Bidyasar Vs. State of Rajasthan (S.B. Civil Writ

Petition No. 1634/1994 decided on 08.09.1995 – reported in

1996 WLR 197); and on the interpretation of the Explanation

appended to Rule 24-A(11) of the Rajasthan Service of

Engineers and Research Officers (Irrigation Branch) Rules,

1954 [hereinafter referred to as the ‘Rules of 1954’]. As per the

order passed by the learned Single Judge in these writ
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petitions on 19.03.2007, the following questions have been

referred for adjudication by this bench:-

(i) Whether the judgment passed in P.P.Bidyasar
reported in WLR 1996 Raj. 196 in regard to
interpretation of the Explanation to clause 11 of the
instructions has been correctly decided or not?

(ii) Whether according to Explanation to rule 24
(11) (B) of the Rajasthan Service of Engineers and
Research Officers (Irrigation Branch) Rules, 1954 a
candidate for the purpose of selection for promotion
on the basis of merit is required to mandatorily
possess at least five outstanding or very good APAR
ratings for the whole of such five years, out of seven
years preceding the year of selection or such
requirement can be diluted by accepting APAR
ratings relating to part year as outstanding/very good
or for remaining part as only “good” in relation to one
or more number of the required five years as
“outstanding/very good” for such entire year?

THE BACKGROUND FACTS:

A brief reference to the background facts would suffice.

These two writ petitions by the petitioners Daljeet Singh and

Kishore Singh are directed against the same judgment dated

30.03.1999 whereby the Rajasthan Civil Services Appellate

Tribunal, Jaipur has allowed the appeal preferred by the

private respondent Laxmi Kumar Nuwal and has directed the

Government to reconsider his case alongwith the case of the

writ petitioners and other eligible candidates for promotion in

merit quota on the post of Superintending Engineer, Irrigation

Department for the vacancies of the year 1992-93.

The writ petitioners, on being selected by the Rajasthan

Public Service Commission (RPSC), were initially appointed in

the year 1970 as Assistant Engineer (Civil) in the Irrigation

Department; and were, thereafter, promoted on the post of

Executive Engineer (Civil). The writ petitioners were further
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promoted to the post of Superintending Engineer (Civil)

against the vacancies of the year 1993-94 on the basis of

merit; and were yet further promoted to the post of Additional

Chief Engineer by the order dated 02.08.1999 against the

vacancies of the year 1999-2000.

The private respondent Laxmi Kumar Nuval, alike the

writ petitioners, was appointed on the post of Assistant

Engineer (Civil) in the same selection made by RPSC in the

year 1970; but he was placed above the writ petitioners in the

merit list prepared by RPSC. He was promoted to the post of

Executive Engineer (Civil) in the year 1978. He was also

considered for promotion to the post of Superintending

Engineer against the vacancies of the year 1992-93 and 1993-

94 meant for merit quota but on both the occasions, he was

not adjudged meritorious enough to be recommended for

promotion. Ultimately, he was promoted to the post of

Superintending Engineer (Civil) against the vacancies of the

year 1994-95 in seniority-cum-merit quota. Aggrieved that he

had been superseded by promotions made on merit quota and

alleging wrongful denial to him of such promotion on merit

quota, the private respondent filed the appeal before the

Tribunal that came to be allowed by the impugned order dated

30.03.1999.

During the course of hearing, the Tribunal called for the

original APAR dossiers of the private respondent and

examined the relevant record of 7 years preceding the year

1992-93 i.e., from the year 1985-86 to 1991-92. After noticing

that APARs of the private respondent in relation to the years
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1989-90 and 1991-92 were recorded in two parts where, in

one part of each of these years, he was assessed as “Very

Good” and in the other part as only “Good”, the Tribunal held,

while relying on the aforesaid decision in the case of P.P.

Bidyasar, that the assessment for both those years shall have

to be taken as “Very Good” for the purpose of adjudging the

merit of the private respondent. The Tribunal, accordingly,

allowed the appeal and directed the Government to hold

review DPC for promotion to the post of Superintending

Engineer against the vacancies of the year 1992-93 in so far

as the quota of merit was concerned. This order of the

Tribunal has been questioned in these writ petitions.

THE REASONS FOR THIS REFERENCE:

It was argued before the learned Single Judge in these

writ petitions that when the APARs of the respondent Laxmi

Kumar Nuwal in relation to the years 1989-90 and 1991-92

were recorded in two parts; one as “Very Good” and other as

only “Good”; the Tribunal was not justified in rating the APARs

for whole of these years as “Very Good”. It was further argued

that the Explanation to rule 24-A(11) of the Rules of 1954 had

not been correctly appreciated by the learned Single Judge of

this Court in Bidyasar’s case (supra). It was pointed out that

the aforesaid Explanation had substituted an earlier

Explanation w.e.f. 30.11.1991; that as per the earlier

Explanation, for the purpose of selection for promotion on the

basis of merit, only the officers with outstanding or consistently

very good record for 7 preceding years were to be selected;
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and that in view of the judgment of this court in the case of

Shambhu Singh Meena and others Vs. State of Rajasthan:

1992 (2) WLC 571, which was approved by the Hon’ble

Supreme Court in Shambhu Singh Meena Vs. State of

Rajasthan: 1995 Suppl. (2) SCC 431, the requirement was that

a person, for being selected on merit, must possess “Very

Good”/”Outstanding” ratings for all the 7 years in question.

The counsel for the petitioners contended that though the rule

making authority intervened and changed the criteria of merit

by reducing the requisite number of such ratings to at least 5

out of 7 years but indicated its intention that such requirement

would be reduced any further particularly with the phraseology

and language of the newly inserted Explanation. It was

submitted that the use of the expression “at least” in the said

Explanation was of the meaning that it cannot under any

circumstances be less than 5 years. It was also contended that

the requirement of “Very Good”/”Outstanding” rating for 5

years out of 7 years has it purpose because the promotion in

question is on merit alone; and if such requirement is further

diluted by permitting inclusion of such candidates who do not

have “Very Good”/”Outstanding” rating for the whole of the

year, the very object would be frustrated. It was submitted that

though in P.P.Bidyasar (supra) the rigor of the merit of

“Outstanding”/”Very Good” in relation to two years out of the

required 5 years was diluted although the said petitioner in

those years did not have “Very Good” rating for the whole of

the year but such dilution, if taken to its logical conclusion,

could mean that even if a person is having “Very Good”/
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“Outstanding” service record in one part of 5 years out of 7

years and lesser rating in the remaining part of those 5 years,

yet his rating in such 5 years could be treated as “Very Good”

and he would be entitled to be considered for promotion

against merit quota, contrary to the intention of the rule.

Several decisions were relied upon in support of the

arguments advanced; and it was submitted that in case

necessary, the judgment in P.P. Bidyasar (supra) be re-

considered by making reference to a larger bench.

The learned Additional Advocate General rather

supported the submissions so made on the question of law

and submitted that the learned Single Judge while deciding

P.P. Bidyasar’s case had not discussed much about the import

and content of the said Explanation except noticing the same

with reference to clause 11 of the Instructions laying down

guidelines for promotion. The learned AAG argued that when

as per the earlier Explanation, 7 years APAR ratings were

required to be “Outstanding” or “Very Good”, the Government,

after consultation and deliberations, purposely decided to relax

such requirement by providing that no person shall be selected

if he does not have “Outstanding” or “Very Good” record in at

least 5 out of 7 years preceding the year for which DPC is

held; and hence, there was no escape from the interpretation

that 5 out of 7 years “Outstanding”/”Very Good” rating was the

minimum requirement for promotion against merit quota. The

learned AAG also submitted that the view expressed by the

learned Single Judge in P.P. Bidyasar required re-

consideration.

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The learned counsel for the respondent Laxmi Kumar

Nuwal, however, submitted before the learned Single Judge

that his client had lost interest in the matter and he had no

instructions in the case; and did not make any arguments on

the merits of the case.

In the reference order dated 19.03.2007, after

examining the contentions so urged, the learned Single Judge

took note of the provisions contained in the Rules of 1954,

more particularly “the Explanation” under consideration. The

learned Single Judge, then, referred to the facts in the case of

P.P. Bidyasar (supra) and to the decision therein. The learned

Single Judge further noticed the fact that the said decision in

P.P.Bidyasar was subjected to challenge in SAW No.748/1995

which was dismissed by the Division Bench with the

observations that on a close scrutiny of the material on record,

the Court did not find any infirmity in the impugned judgment

but without any discussion with regard to the interpretation of

the Explanation in question.

The learned Single Judge referred to the antecedents,

particularly of the provisions related with merit promotions;

referred to the criteria of merit promotions as existing

previously; and referred to the ratio of Shambhu Singh

Meena’s case (supra) where the Hon’ble Supreme Court did

not countenance the submissions that as a matter of practice

for the purpose of selection for promotion on merit basis, a

person having 5 out of 7 “Outstanding” or “Very Good” rating

was considered fit. The learned Single Judge pointed out that

the Supreme Court, on analysis of the entire matter and the
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rule has held: “the rule requires that the record of the officer

should be outstanding or consistently very good and that would

imply that it should be for the entire period under

consideration”.

The learned Single Judge observed that in view of the

position of law aforesaid, the requirement of rule had been that

a candidate for the purpose of selection on merit should

possess outstanding or consistently very good record for last 7

years. The learned Single Judge pointed out that the aforesaid

Explanation was however substituted by the omnibus

amendment made in all the State Service Rules by the

Explanation which was considered by the learned single Judge

in P.P. Bidyasar (supra). The learned Single Judge, thus

opined that the background in which the new Explanation was

substituted in the Rules clearly indicated that it was intended to

dilute the earlier requirements and, instead, to provide that ‘no

person shall be selected if he does not have “Outstanding” or

“Very Good” record in at least five out of the 7 years preceding

the year for which DPC is held’.

The learned Judge observed that history of an

enactment and the events that preceded the framing of a

particular law can be looked into for the purpose of guidance in

arriving at the true intention of the legislature; and further

observed with reference to the decisions of the Hon’ble Apex

Court that when the question arises as to the meaning of a

certain provision in a statute it is not only legitimate but proper

to read the provision in its context and the context means the

statue as a whole, the previous state of law, other statutes in
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pari materia, the general scope of the statute, and the mischief

that it intended to remedy. The learned Judge, then, opined as

under:-

“What I find from the explanation to rule 24(11)(B) is
that the rule making authority has laid much
emphasis on the requirement of having minimum five
years APAR ratings as “outstanding” or “very good”
by emphatically providing that “no person shall be
selected if he does not have “outstanding” or “very
good” record in at least five out of the seven
preceding years for which DPC is held.” The rule
making authority has thus used selective words such
as “no person”, “does not” and “at least” in order to
repeatedly emphasis on the requirement of having at
least five out of seven APAR ratings as “outstanding”
or “very good”. The explanation with pointed
reference to these three phrases if construed in the
historical background in which it has been brought
into the rule book by substituting the earlier
explanation, makes the intention of the rule making
authority clearly evident that it is the bottom line
below which no one can be considered as meritorious
for promotion in merit quota.”

The learned Single Judge, thereafter, referred to the

dictionary meanings of the expression “least”, and to the

various principles of statutory interpretation including the

mischief rule in Heydon’s case:(1584) 3 Co Rep 7a (V) as

relied in Bengal Immunity Co. Vs. State of Bihar: AIR 1955 SC

661; the rule that every part of the statute must be given full

effect; the requirement to take reasonable and common sense

approach; and the requirement to arrive at true and legal

meaning with reference to the words used in the enactment in

the light of the object and purpose thereof. The learned Judge,

then, stated disagreement with the decision in P.P. Bidyasar

while saying,-

“What is, therefore, evident on close scrutiny of
the judgment passed by the learned single Judge in
P.P.Bidyasar is that all these aspects which are being
deliberated upon in the present matter have not
received the consideration of the learned single
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Judge in the context of the rule position obtaining
prior to introduction of the aforesaid explanation, what
mischief it sought to suppress and the intention of the
rule making authority insisting upon at least five out of
the seven APAR ratings to be “outstanding/very good”
for the purpose of promotion on merit. The words
such as “no person”, ” does not” and “at least” as
have been used in the explanation are pointer to the
intention of the rule making authority that there
cannot any further relaxation in regard to this much of
merit out of the total period of seven years records,
which period forms the basis for evaluation of merit of
a given candidate.”

Hence, the learned Single Judge found it necessary to

make a reference in the matter with the following

observations:-

“For what has been discussed above, I am not
persuaded, with great respect, to concur with the
view taken by the learned single Judge in
P.P.Bidyasar which has since been upheld by the
division bench too and doubt very much the
correctness of the interpretation placed by the
learned Single Judge on the said Explanation. In the
light of the view I have taken of the matter and
because I am bound by the aforesaid judgment, I
consider it necessary to refer this matter for
adjudication by a larger bench. Besides the fact that
the division bench while upholding the judgment of
the learned Single Judge has neither made any
discussion nor recorded a specific finding as to the
correctness of the interpretation taken therein, I am
fortified from the view taken by their Lordships of the
Hon’ble Supreme Court in Food Corporation of India
and another Vs. Yadav Engineer & Contractor (1982)
2 SCC 499…….”

It is in the aforesaid background that the matters have

been placed before us on the questions as noticed at the

outset. We have heard the learned counsel appearing for the

parties and have given thoughtful consideration to the entire

matter.

THE RELEVANT PROVISION/S:

In view of the questions involved, appropriate it shall be

to refer to the relevant provisions in the Rules of 1954 dealing
11

with merit promotions with the note that various other service

rules governing different services under the State carry similar

provisions. In Bidyasar’s case, the applicable one were the

Rajasthan Administrative Service Rules. Rule 24-A of the

Rules of 1954, applicable to present petitions, provides

“Revised criteria, Eligibility and Procedure for Promotion to

Junior, Senior and other posts encadred in the Service”.

Therein, after making various provisions concerning selection

for promotion in the service, sub-rule (6) provides that the

selection for promotion to all other higher posts or higher

category of posts in the State service (which would include the

post of Superintending Engineer also) shall be made on the

basis of merit and on the basis of seniority-cum-merit in the

proportion of 50:50. The Explanation with which we are

concerned is placed below sub-rule (11) of Rule 24-A ibid

which provides, inter alia, for the method of consideration of

the cases for promotion, preparation of select lists, and

currency thereof. Sub-rule (11) of Rule 24-A ibid with the

Explanation in question reads as under:-

“11(a)”The committee shall consider the case of all of
the senior most persons who are eligible and
qualified for promotion to the class of posts
concerned under these rules and shall prepare a list
containing names of the persons found suitable on
the basis of seniority-cum-merit and/or on the basis of
merit, as the case may be, as per the criteria for
promotion laid down in these rules, equal to the
number of vacancies determined under rule relating
to “Determination of vacancies” of these rules. The
list so prepared on the basis of seniority-cum-merit
and/or on the basis of merit, as the case may be,
shall be arranged in the order of seniority on the
category of posts from which selection is made.

(b) The committee shall also prepare a separate
list on the basis of seniority-cum-merit and/or on the
basis of merit, as the case may be, as per the criteria
for promotion laid down in the rules, containing
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names of persons equal to the number of persons
selected in the list prepared under (a) above to fill
temporary or permanent vacancies, which may occur
subsequently. The list so prepared on the basis of
seniority-cum-merit and/or on the basis of merit shall
be arranged in the order of the seniority in the
category of posts from which selection shall be made.
Such a list shall be reviewed and revised by the
Departmental Promotion Committee that meets in the
subsequent year and that such list shall remain in
force till the end of the last day of the next year or till
the Departmental Promotion Committee meets,
whichever is earlier. Such list shall be sent to the
appointing authority together with annual confidential
reports/annual performance appraisal reports and
other service record of all the candidates included in
the lists as also of those not selected, if any.”

Explanation:- For the purpose of selection for
promotion on the basis of merit no person shall
be selected if he does not have “Outstanding” or
“Very Good” record in at least five out of the 7
years preceding the year for which D.P.C. is held.”

Noticeable it is that the ‘Explanation’ in the form it

appears in the reproduction above came to the substituted

with effect from 30.11.1991 in place of the earlier Explanation

that read as under:-

”Explanation:- For purpose of selection for promotion
on the basis of merit, officers with ”outstanding” or
consistently ”very-good” record shall only be selected
and their names arranged in the order of seniority.”

For a complete picture of the changing facets of the said

Explanation in the Rules of 1954, it may be noticed that the

aforesaid Explanation that came into force with effect from

01.04.1981 too had substituted its predecessor that read as

under:-

“Explanation:- For the purpose of selection on the
basis of merit, the list of officers graded as
‘Outstanding and very good’ shall be classified in the
first category in the order of seniority the officers
graded as ‘good’ shall be classified in the second
category in the order of seniority and the officers
graded as ‘Average’ and Not-selected’ shall be
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classified in the Third category. The officers graded
and classified in the second category list shall be
placed below the officers graded and classified in the
first category list and such officers shall be appointed
from this category only if the officers graded and
classified in the first category list is exhausted
otherwise they shall not be appointed to the service
by promotion. The officers graded and classified in
the third category list shall not be considered for
appointment by promotion.”

THE DECISION IN THE CASE OF P.P. BIDYASAR:

As noticed, in these matters, the issue posed before the

Tribunal in the appeal filed by the private respondent was

about treatment of such APARs that were recorded in part for

any given year; where in one part, he was rated “Very

Good”/”Outstanding” but in the other part, lower than that. The

Tribunal held that in such part APARs, the one beneficial to the

incumbent shall be taken into consideration while relying on

the decision in P.P. Bidyasar (supra) whose correctness, as

noticed, has been doubted by the learned Single Judge while

making this reference. Hence, necessary it is to closely

examine the decision in Bidyasar. The said petitioner Prem

Prakash Bidiyasar was an officer of the Rajasthan

Administrative Services who was placed under suspension in

the year 1986; and during that period, a meeting of DPC for

promotion in the senior scale was convened. The petitioner’s

result was kept in sealed cover. After certain rounds of

litigation, the suspension order was ultimately revoked

pursuant to the orders passed by this Court. After revocation of

suspension, when the said sealed cover was not opened

despite requests, the said petitioner filed a writ petition

(No.1418/1992) for getting the sealed cover opened. During

the pendency of this petition, the respondents convened a
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meeting of DPC for promotion for the year 1992-93 and the

petitioner’s case was not considered. On 09.11.1992, the said

CWP No. 1418/1992 was allowed and the respondents were

directed to consider the case of petitioner for promotion on the

basis of the merit for the year 1991-92 within a period of three

months. The review DPC was not convened as per the said

directions and, instead, on 10.02.1993, a charge-sheet was

issued to the petitioner for willful absence from duty which was

challenged in CWP No. 1445/1993 and was ultimately

quashed in the year 1994. Then, on 15.03.1995, the

respondents issued an order to the effect that the petitioner

was not found suitable to be promoted on the basis of merit for

the year 1991-92.

After noticing such facts and background, the learned

Single Judge, while deciding the writ petition by the said

petitioner P. P. Bidyasar, found justified his grievance of being

subjected to harassment; and that as per the Government

Instructions on promotions, he was entitled to be promoted.

The learned Single Judge said,-

“6. The learned counsel for the petitioner has
submitted and in my opinion with justification that the
petitioner was being harassed and was made to
suffer in the matter of promotion illegally probably
because of having filed petition after petition against
the respondents. The Govt. of Rajasthan has issued
executive instructions on the procedure to be followed
by the D.P.C. in the matter of promotions. Clause 11
of the instructions governs consideration for
promotion. Explanation to this clause provides as
under:-

“Explanation: For the purpose of selection for
promotion on the basis of merit no person shall
be selected if he does not have ‘Outstanding’
or ‘Very Good’ record in at least five out of the
7 years preceding the year for which D.P.C. Is
held.”

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The learned Judge observed that for merit quota of the

year 1991-92, the period of 7 years would commence from the

year 1984-85 but in the petitioner’s case the APARs from the

year 1979 were to be taken into consideration after following

the rules applicable where the officers are kept under

suspension. The learned Judge found that out of this period of

7 years, the petitioner had “Outstanding” or “Very Good”

remarks for the years 1980-81, 1981-82, 1982-83, 1983-84

and 1985-86 though in the year 1980-81 and 1981-82, the

remarks were written for two periods and in one of which, in

each year, the petitioner was rated as “Very

Good”/”Outstanding” but for the period covered by another

report for the same year, he was rated to be “Above Average”.

In this scenario and backdrop, the learned Judge held that ‘the

remark beneficial to the officer will have to be taken in such

circumstances to be remark for the year’. The learned Single

Judge said,-

“…..Thus, out of the period of seven years from 1979-
80 to 1985-86 the petitioner had outstanding or very
good remarks for the years 1980-81, 1981-82, 1982-
83, 1983-84, 1985-86. It is true that in the year 1980-
81 and 1981-82 remarks were written for two periods
and in one of which, in each year, the petitioner has
been rated as very good or outstanding, but for the
period covered by another report for the same year,
he has been rated to be above average. The remark,
beneficial to the Officer will have to be taken in such
circumstances to be remark for the year and thus, the
petitioner has got five very good or outstanding
remarks during the period of seven years which was
to be considered for promotion. Under the Govt.
instructions, he was eligible for being considered in
the merit quota…..”

For the aforesaid reasons, the learned Single Judge

quashed the orders impugned and while issuing consequential
16

directions, observed that the petitioner had been harassed and

compelled to file the petition and hence, held him entitled to

the costs quantified at Rs. 10,000/-.

It is the aforesaid theory of taking into consideration the

‘beneficial’ remarks out of part remarks that was applied by the

Tribunal in allowing the appeal filed by the private respondent

of the present writ petitions; and whose correctness has been

doubted by the learned Single Judge in the reference order.

THE REAL QUESTION:

After having taken note of the background facts, the

relevant provisions and the decision in P.P.Bidyasar’s case, in

our opinion, the basic and real question in this reference is as

to how the Explanation appended to sub-rule (11) of Rule 24-A

of the Rules of 1954, whereby, for the purpose of merit

promotion, a person ought to have “Outstanding” or “Very

Good” ratings in at least 5 years out of 7 years preceding the

year of consideration, shall be employed in the event of any of

relevant year’s ratings having been given in parts and in one

part he be rated “Outstanding” or “Very Good” but in the other

part lower than “Very Good”? If the decision in P.P.Bidyasar’s

case is taken to be applicable to the statutory rule and is held

to have laid down the law correctly and of universal application

then, as per the said decision, in such part APARs, the one

beneficial to the incumbent shall be taken into consideration.

THE INTERPRETATION OF THE ‘EXPLANATION’

Having taken note of the relevant provisions of the

Rules of 1954, the questioned decision in P.P.Bidyasar and
17

the real point calling for determination, appropriate it is to take

up for interpretation in the first place the Explanation

appended to sub-rule (11) of Rule 24-A of the Rules of 1954 in

its plain meaning on the fundamental rule of literal

interpretation. The rule of literal interpretation is that in

construing a written instrument, grammatical and ordinary

sense of the words is adhered to unless that would lead to

some absurdity, or some repugnancy or inconsistency. The

words of a statute are, obviously, required to be given their

natural and ordinary meaning and understood in that sense;

and the sentences are construed according to their

grammatical meaning but not when giving of such literal

meaning leads to some absurdity or if there is something in the

context or in the object of the statute to suggest to the

contrary. In the case of Raghunath Rai Bareja & Anr. Vs.

Punjab National bank & Ors.: 2006 AIR SCW 6446, the

Hon’ble Supreme Court, while referring to several of the

fundamental decisions on the point, has explained the

principle thus:

”40. It may be mentioned in this connection that the
first and foremost principle of interpretation of a
statute in every system of interpretation is the literal
rule of interpretation. The other rules of interpretation
e.g. the mischief rule, purposive interpretation etc.
can only be resorted to when the plain words of a
statute are ambiguous or lead to no intelligible results
or if read literally would nullify the very object of the
statute….”

The Hon’ble Supreme Court has further pointed out,-

”46. The rules of interpretation other than the literal
rule would come into play only if there is any doubt
with regard to the express language used or if the
plain meaning would lead to an absurdity. Where the
words are unequivocal, there is no scope for
importing any rule of interpretation vide Pandian
Chemicals Ltd. Vs. C.I.T., 2003 (5) SCC 590.”
18

47. It is only where the provisions of a statute are
ambiguous that the Court can depart from a literal or
strict construction vide Nasiruddin Vs. Sita Ram
Agarwal, AIR 2003 SC 1543. Where the words of a
statute are plain and unambiguous effect must be
given to them vide Bhaiji Vs. Sub-Divisional Officer,
Thandla, 2003 (1)SCC 692.”

Though several rules of interpretation have been referred

by the learned Single Judge in the reference order but we feel

that recourse to the other rules of interpretation is really not

necessary in this case. The words of the said Explanation are

absolutely clear, unambiguous, and unequivocal; and in our

opinion are not susceptible to any other meaning than the plain

and the literal one. There is no likelihood of any anomaly or

absurdity in giving the words and phrases occurring in the said

Explanation their plain and simple meaning; nor there is any

likelihood of the object being defeated by giving plain, simple

and direct meaning to what has been stated.

The said Explanation clarifies as to who cannot be

considered for the purpose of selection for promotion on the

basis of merit; and provides that for merit promotion ‘no person

shall be selected if he does not have “Outstanding” or “Very

Good” record in at least five out of the 7 years preceding the

year for which D.P.C. is held’. In our opinion the language used

is so certain and crystal clear that no other interpretation is

possible except that for being selected in merit promotion under

the said Rules of 1954, a person must have minimum 5 years

record as “Outstanding” or “Very Good” within the bracket of 7

years under consideration. The phrase ‘at least’ definitely

draws a bottom line; and in our opinion, there is no
19

scope for any dilution of this minimum to any lower level.

The entire of the present controversy has arisen because

of the reason that there are cases where annual records and

particularly the ratings are found recorded in parts and when in

one of the parts, a person is rated below “Very Good” though

having “Outstanding” or “Very Good” rating in the other part. In

our view, even such an eventuality cannot lead the Court to put

any other interpretation on the plain language of the provision.

It cannot be assumed that the rule making authority had been

oblivious of or ignorant about the fact that in such records, the

person could be given the rating in parts in a year and could be

given different ratings in any particular year. The provision

would be presumed to have been inserted in the rules with the

Government being conscious of all the eventualities; and

merely because the rule may lead to a seemingly harsh

position qua a person having part rating below “Very Good” in a

particular year, it cannot, in our considered view, be a reason

for modulating or diluting the rule so as to provide for a fiction in

relation to such part ratings and to take the one so-called

‘beneficial’ to the employee into consideration. In our view,

the clear and explicit terms of the Explanation aforesaid leave

no room for doubt that for the purpose of merit promotion, there

has to be minimum 5 years’ “Outstanding” or “Very Good”

ratings out of the relevant 7 years without any scope for dilution

in such requirement.

The plain and literal meaning as is available from the

wordings and phraseology of the Explanation in question does

not lead to any absurdity or unintelligible result either.
20

Noticeable it is that for such merit promotion, it is not that only

the record of 5 years is considered but what is considered is

the record of preceding 7 years to the year for which DPC is

held. The requirement is that out of such 7 years, the person

must have at least 5 years ratings of “Outstanding” or “Very

Good”. Thus, whatever concession was considered fit to be

given, has already been given in the provision itself. Now to

stretch it beyond such relaxation and to bring a person to 5

years requisite ratings by omitting from consideration the part

of record where he has not been rated “Outstanding” or “Very

Good”, in our opinion, would be not only against the plain

words and their meanings but would also be against the object

and purport of the said Explanation. We do not find any reason

to take any other view of the matter except that emerges from

the plain meaning of the words and phrases employed.

The learned Single Judge has pointed out meaning of

the word “least” as available in different dictionaries; and the

one available in from Random House Dictionary of the English

Language in its 1983 Publication could be usefully reproduced

as under:-

“least (lest) adj. a superl. of little with less or lesser as
compar. 1. smallest in size, amount, degree, etc;
slightest: He walked the least distance of all. 2. lowest
in consideration or importance. – n. 3. something that
is least; the least amount, quantity, degree etc. 4. at
least, a. at the lowest estimate or figure:….”

Thus, “at least” signifies the “lowest” and the “smallest”;

and we are clearly of the view that this “smallest” cannot be

reduced any further. In fact, the Explanation is couched in
21

specific negative expressions with use of clear words and

phrases such as “no person”, “does not” and “at least”. It does

not need much emphasis that use of negative expressions and

words is essentially to make the provision imperative and

mandatory in character. In the case of M.Pentiah & Ors. Vs.

Muddala Veeramallappa and Ors.: AIR 1961 SC 1107, the

Hon’ble Apex Court said,-

“….Negative words are clearly prohibitory and are
ordinarily used as a legislative device to make a
statute imperative….”

Again, in the case of Nasiruddin & Ors. Vs. Sita Ram

Agarwal: (2003) 2 SCC 577, the Hon’ble Court held,-

“…..It is also equally well settled that when negative
words are used the courts will presume that the
intention of the legislature was that the provisions are
mandatory in character.”

The wordings and phraseology as used in the

Explanation under consideration leaves nothing to doubt that

the requirement of having minimum 5 years rating as

“Outstanding” or “Very Good” has been provided as a

mandatory requirement to be fulfilled for a person to be

considered for merit promotion. The phraseology of the

Explanation is clearly indicative of mandatory nature of the

provision and makes it clear that the same cannot be diluted

any further.

In view of what has been discussed above, we do not

find any necessity of referring to any other rule of

interpretation. Yet, if the other relevant rules of interpretation

are applied, as discussed by the learned Single Judge in the
22

reference order and as argued by the learned counsel for the

petitioner, they only strengthen the view that the requirement of

higher ratings for minimum 5 years is the bottom line and

cannot be reduced further. The history of the Explanation

shows that while the provision before 01.04.1981 was likely to

cause severe hardship to some persons who got lower

remarks for particular years by denial of promotion altogether,

the same was substituted by the provision that required

“Outstanding” or consistent “Very Good” record for merit

promotion. When such rule was, in practice, sought to be

diluted and 5 years’ higher ratings were being employed, the

Courts did not approve of such deviation. In Shambhu Singh

Meena and 4 Others Vs. State of Rajasthan & Ors.: 1992 (2)

WLC 571, the Division Bench of this Court referred to several

decided cases pronounced against deviation from the rule and,

inter alia, quoted the following passage from the decision in the

case of Randhir Singh Vs. State of Rajasthan :-

“The Explanation has also used the word “only” while
it says that officers with “outstanding” or consistently
“very good” record shall only be selected. No
deviation can be made from the Explanation. A
person whose service record is not “outstanding” or
consistently “very good” cannot be selected on the
basis of merit. He has to be considered on the basis
of seniority-cum-merit as per proviso to Rule 28-A (6).”

The aforesaid decision in Shambhu Singh Meena was

taken to the Hon’ble Supreme Court where, again, the practice

was referred and relied upon as would appear from the

following passage in the decision [1995 Suppl (2) SCC 431]

noticing the contentions on behalf of the petitioners:-

“3. It is contended by the learned counsel for the
23

petitioners that the relevant rule, that is, the
Explanation to sub-rule (11) does not prescribe how
many years’ service record should be considered by
the DPC and for how many times during that period
the record should be outstanding or consistently very
good. The DPCs and other administrative authorities
who had to construe, execute and apply the rule
construed the requirement of the rule as 5
outstanding or very good out of 7 years’ record. The
High Court, therefore, should have accepted that
construction and should not have taken a different
view…..”

The Hon’ble Supreme Court did not accept the aforesaid

contention and emphatically said,-

“8. The rule requires that the record of the officer
should be outstanding or consistently very good and
that would imply that it should be so for the entire
period under consideration.”

The aforesaid decision, though relates to the Explanation

as previously existing but leaves no manner of doubt that any

dilution on the merit criteria has always been viewed with

disfavour by the Courts.

Noticeable again it is that the decision in Shambhu Singh

Meena had essentially been in relation to the Explanation

existing in similar nature rules before 30.11.1991. As noticed,

the Explanation in the present form was substituted in the rules

with effect from 30.11.1991 in place of the earlier one. Thus,

the strict requirements of “Outstanding” or consistent “Very

Good” was modulated in the fashion that if a person is having

“Outstanding” or “Very Good” record in at least 5 years out of 7

preceding years, he could be considered for merit promotion. It

has rightly been contended that whatever dilution was

considered proper, was indeed provided in the rules and no

further reduction, dilution or erosion is permissible.
24

It has also rightly been pointed out that if literal

construction of the Explanation is deviated in any manner, the

possibility cannot be ruled out where a person having “Very

Good”/”Outstanding” service record in one part of 5 years out of

7 years and lesser rating in the remaining part of those 5 years,

could yet have his rating in such 5 years be treated as “Very

Good” and claim to be considered for promotion against merit

quota, contrary to the intention of the rule.

Thus, reference to the history, antecedents, object and

purpose, also make it absolutely clear that in the true

interpretation, the requirement of at least 5 years “Outstanding”

or “Very Good” record out of 7 years as stated in the

Explanation is mandatory in character and cannot be reduced

further in any event.

We are clearly of opinion that the Explanation appended

to sub-rule (11) of Rule 24-A ibid admits of no dilution or

variation; and for the purpose of merit promotion, there is no

warrant for the proposition that if in any particular year a

person’s ratings are made in parts and if he is rated

“Outstanding” or “Very Good” only in a part thereof; and is

rated below “Very Good” in the other part, then, he may be

taken “Outstanding” or “Very Good” for the whole year with

reference to such part higher rating. The mandate of the

Explanation, plain and simple, is to look at the preceding 7

years’ records and not to consider a person for merit

promotion if he is not having at least 5 years ratings as

“Outstanding” or “Very Good”. If in any year, even for a part,

he is rated below “Very Good”, in the true operation of the rule,
25

that particular year would not be counted for the purpose of

the requisite 5 years.

THE IMPORT AND CORRECTNESS OF THE DECISION IN
P.P.BIDYASAR:

To the extent it stands contra to what has been

observed, found, and held hereinabove, we cannot approve

the decision in P.P.Bidyasar’s case (supra). We have found

that the mandate of the Explanation is not to consider a person

for merit promotion if he is not having at least 5 years ratings

as “Outstanding” or “Very Good” out of 7 years ratings under

consideration. If in any year, even for a part, he is rated below

“Very Good”, that particular year would not be counted for the

purpose of the requisite 5 years. There is no scope for any

reduction or concession in these 5 years in any eventuality.

The theory of application of so-called beneficial entry, as

adopted in P.P.Bidyasar, in our view, remains away, apart

from, and rather against, the object and purport of the

provision; and cannot be said to be of a correct proposition.

Apart from the above, where in our view the proposition

stated in P.P.Bidyasar cannot be taken as correct, we may

point out that even otherwise, P.P.Bidyasar had been a

decision rendered essentially in the backdrop that the Court

was satisfied about the petitioner having been subjected to

unnecessary and long harassment and hence, proceeded to

observe that “the remark beneficial to the officer will have to be

taken in such circumstances to be the remark for the year”.

Such observations were not made with reference to any

reason or any particular principle of law. The appeal against
26

the said decision was of course dismissed by the Division

Bench of this Court but without any discussion on any aspect

related with the principles of law, particularly on the rules

applicable and interpretation thereof; and without any ratio.

Rather, the Division Bench observed that the learned Single

Judge had taken the previous orders into account. The

decision in P.P. Bidyasar’s case, when closely examined,

makes it clear that it had been a decision rendered essentially

on its own facts and cannot be said to be laying down any

proposition of law as precedent. In the case of Oriental

Insurance Co. Ltd. v. Raj Kumari & Ors.: AIR 2008 SC 403, the

Hon’ble Supreme Court has explained the principles relating to

precedents in the following:-

“11. Reliance on the decision without looking into
the factual background of the case before it is
clearly impermissible. A decision is a precedent
on its own facts. Each case presents its own
features. It is not everything said by a Judge while
giving a judgment that constitutes a precedent.
The only thing in a Judges decision binding a
party is the principle upon which the case is
decided and for this reason it is important to
analyse a decision and isolate from it the ratio
decidendi. According to the well-settled theory of
precedents, every decision contains three basic
postulates (i)findings of material facts, direct and
inferential. An inferential finding of facts is the
inference which the Judge draws from the direct,
or perceptible facts; (ii) statements of the
principles of law applicable to the legal problems
disclosed by the facts; and (iii) judgment based on
the combined effect of the above. A decision is an
authority for what it actually decides. What is of
the essence in a decision is its ratio and not every
observation found therein nor what logically flows
from the various observations made in the
judgment. The enunciation of the reason or
principle on which a question before a Court has
been decided is alone binding as a precedent.
(See: State of Orissa v. Sudhansu Sekhar Misra
and Ors. (AIR
1968 SC 647) and Union of India
and Ors. v. Dhanwanti Devi and Ors.
(1996 (6)
27

SCC 44). A case is a precedent and binding for
what it explicitly decides and no more. The words
used by Judges in their judgments are not to be
read as if they are words in Act of Parliament. In
Quinn v. Leathem (1901) AC 495 (H.L.), Earl of
Halsbury LC observed that every judgment must
be read as applicable to the particular facts
proved or assumed to be proved, since the
generality of the expressions which are found
there are not intended to be exposition of the
whole law but governed and qualified by the
particular facts of the case in which such
expressions are found and a case is only an
authority for what it actually decides.”

Viewed in the light of the above, in our view, P.P.

Bidyasar’s case can only be treated to be a case decided on

its own facts and not laying down the law of universal

application.

Further we find substance in the submission of the

learned counsel for the petitioner that in P.P.Bidyasar, the

learned Single Judge proceeded rather without taking notice of

the Explanation as applicable because the Explanation

relevant for the year of consideration i.e., 1991-1992 was the

one which was substituted w.e.f. 30.11.1991 and not the

Explanation that is in question in the present case. If the said

Explanation, as existing before 30.11.1991 was applicable, the

decision in P.P.Bidyasar is, with respect, directly hit by the

decision of the Hon’ble Supreme Court in Shambhu Singh

Meena (supra).

The theory adopted in Bidyasar cannot be said to be

applicable to the interpretation of the statutory rule for yet

another reason that what the learned Single Judge purportedly

considered in P.P.Bidyasar was referred as the clause

contained in “executive instructions”, as is apparent from the
28

observations reproduced hereinabove. It is noticed that though

the provision had been referred in P.P.Bidyasar as that of

executive instructions but in fact is verbatim the Explanation

introduced w.e.f. 30.11.1991. However, it appears that the

learned Single Judge proceeded to attach a flexibility to the

provision while taking it to be of executive instructions and not

the statutory rule. Such a flexibility, with respect, is not

available in the operation of the Explanation appended to sub-

rule (11) of Rule 24-A of the Rules of 1954 that lays down

mandatory requirements, as discussed supra.

THE ANSWERS:

In view of what has been discussed above, our answers

to the referred questions are:

(i) The order passed in the case of Prem Prakash

Bidyasar vs. State of Rajasthan: 1996 WLR 197 can neither

be said to be a binding precedent nor as laying down correct

proposition of law for the purpose of interpretation of the

Explanation appended to sub-rule (11) of Rule 24-A of the

Rajasthan Service of Engineers and Research Officers

(Irrigation Branch) Rules, 1954

(ii) In the true operation of the Explanation appended to

sub-rule (11) of Rule 24-A of the Rajasthan Service of

Engineers and Research Officers (Irrigation Branch) Rules,

1954, a candidate, for the purpose of selection for promotion

on the basis of merit, is required to mandatorily possess

“Outstanding” or “Very Good” APAR ratings for the whole of at

least 5 years, out of 7 years preceding the year of selection;
29

and such requirement cannot be diluted by taking APAR

ratings “Outstanding” or “Very Good”, given only for a part of

the year, as the rating for entire year when the ratings are

given in part and a person is rated as “Outstanding” or “Very

Good” only in a part of the year and is rated below “Very

Good” in the remaining part.

The record be now placed before the concerned bench

for decision of the writ petitions on their merits.

MK (DINESH MAHESHWARI),J. (A.M.KAPADIA),J.

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