>  Carrporate Law   >  2022 S C M R 448

2022 S C M R 448

2022 S C M R 448

(a) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973—
—-R. 8-B— Acting charge appointment— Scope—Acting charge appointment does not amount to an appointment by promotion on regular basis for any purpose including seniority, and also does not confer any vested right for regular promotion to the post held on acting charge basis.

(b) Civil service—
—-Promotion—‘Eligibility’ and ‘fitness’—Factors to be considered—Eligibility itself is not the benchmark for promotion, rather the most vital yardstick is fitness, which can be judged from the service record which includes ACRs, qualification, length of service in a particular grade/scale, integrity, knowledge and proficiency in the work/ assignments, all of which are essential dynamics for weighing and appraising the merits for promotion to the selection post which is quite common procedure and practice articulated under the law for considering the promotions on merit.

(c) Civil service—
—-Promotion—Eligibility and fitness—Distinction—Question of eligibility is different from the question of fitness—Concept of eligibility implies a qualification to be appointed or promoted, whereas that of fitness encompasses a person’s competence to be chosen or selected for appointment or promotion—Question whether a person is legally qualified for appointment or promotion to a particular post and grade is relatable to the factum whether he possesses the requisite qualifications for consideration, whereas the question of fitness pertains to the competency of the person concerned, which is to be decided by the competent authority—Question of fitness for being appointed is to be determined by the functionaries mentioned therein—Person may be eligible for consideration for a particular post, but may not be fit to be appointed—Tests for eligibility are objective and open to scrutiny by a judicial forum—However, even in the matters involving fitness to be appointed or promoted to a particular post or grade there has to be necessary material on the basis of which an opinion, one way or the other, is to be formed.

(d) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973—

—-R. 19—Ad-hoc employee—Seniority—Seniority in the grade to which a civil servant is promoted is to take effect from the date of regular appointment to a post in the grade—Services rendered by the employees on ad-hoc basis prior to their regularization cannot be counted for the purpose of their seniority but their seniority will be counted from their substantive/regular appointments—Ad-hoc employees cannot claim precedence in seniority over the regularly appointed employees; their status will be reckoned with their batch mates and after regularization their seniority will be fixed accordingly.

(e) Civil service—
—-Seniority—Retrospective effect—Seniority with retrospective effect cannot be conferred unless such right was established.

(f) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973—
—-R. 19—Ad-hoc employee—No vested right of regular appointment—Scope—Ad hoc appointment is an appointment of a duly qualified person made otherwise in accordance with prescribed method of recruitment and is made only in exceptional circumstances—Such stopgap arrangement as a temporary measure for a particular period of time does not by itself confer any right on the incumbent for regular appointment or to hold it for indefinite period but at the same time if it is found that incumbent is qualified to hold the post despite his appointment being in the nature of precarious tenure, he would carry the right to be considered for permanent appointment through the process of selection as the continuation of ad hoc appointment for considerable length of time would create an impression in the mind of the employee that he was being considered to be retained on regular basis.

(g) Civil service—
—-Antedated promotion—Departmental Promotion Committee (DPC)—Delay in holding DPC meeting—Effect—Where the meeting of DPC scheduled to be held is postponed or adjourned without announcing any future date or not convened within reasonable period to the prejudice of an officer/employee, the competent authority in order to foster justice may grant antedated promotion to the higher post bearing in mind the eligibility and fitness in the DPC so that such officer/employee may not be subjected to a lower position in his/her seniority list or become victim of unwarranted delay in holding DPC by the competent authority.

(h) Judgment—
—-Merger, doctrine of—Scope and applicability—In case an appeal or revision is provided before a superior court against an order passed by any Court or Tribunal or any other authority and the superior court where the appeal is preferred modifies, reverses or affirms the decision of lower fora then the order or decision passed by subordinate or lower forum is merged into the decision rendered by superior courts which will remain operative for enforcement in accordance with law—In order to apply the doctrine of merger in letter and spirit, there must be a decision of a subordinate forum or Tribunal and against any such decision, there must be a right of appeal or revision provided under the relevant law—While deciding any such appeal or revision, the appellate forum must have affirmed, modified or reversed the order or judgment of the court below.

(i) Civil service—
—-Judgment in rem—Scope—Where the Tribunal or the Supreme Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken up legal proceedings, in such a case, the dictates of justice and rules of good governance demand that the benefit of the judgment be extended to other civil servants, who may not be parties to the above litigation, instead of compelling them to approach the Tribunal or any other legal forum.

(j) Administration of justice—
—-Cause of action—Scope—Cause of action is predominantly a technical legal term meant for the set of circumstances and facts which give rise to institute and lodge the claim in the court of law but not any premature claims or grievances—Right to sue originates and is triggered by a wrongdoing—Court cannot hear any case nor render any decision without a valid cause of action or without accrual of right to sue or in other words without accrual of cause of action to set the law into motion—Court of law does not decide the lis on mere sentiment, presumption or mere apprehension but the cause of action should be based on a real cause for remedying the wrong into right—Not only the party seeking relief should have a cause of action when the transaction or the alleged act is done but also at the time of the institution of the claim.

× How can I help you?