 Good evening, one and all, and those who are in from Punjab and Haryana, they would appreciate that during the vacations, you can understand the service law from a person who is known as a join in this field. Understanding service law series, which we started at six today we are and for promotion number one, we are taking the session with Mr. P. S. Rajatapal along with association of three recruitment associates. They say that to understand any particular aspect, if it is being promoted on the social media, it carries a different level. But if you have to understand this concept of promotion, you have to be promoted or prompted by someone who's like Mr. P. S. Rajatapal, who can make you understand what is the subtle difference between seniority and merit. Merit comes in your team. Kota kota, rota kota. Roaster points, though, slightly, there will be less of an interplay of all this. But whether it will be a civil right fundamental right, whether after a superannuation, you can have a claim of promotion, whether you have approached the court earlier in point of time and subsequently, the court has not decided whether your life will lapse, whether third party rights would be created to the effect that you have to complete that person. These all broader loud ideas have come in our mind and we thought that that only a Raja can explain not even a prince can explain. So we had requested sir to explain all this and we were too glad that is well received and sir had some minor operation also but his passion to continue to share the knowledge. As I said prompts us to continue to pick up the topics which can be niche but at the same time clear all the great doubts which are in the mind. I request Trivikram and thereafter we request sir to share his knowledge. Thank you Trivikram and we are so happy that after quite a long gap sir is on board and he is delivering a very interesting topic. Sir first of all a very hearty welcome to you on my personal behalf and on behalf of Beyond Lawside CLC sir. Thank you. And I see a lot of participants. I welcome them also. I also extend my special welcome to Mrs. Ashwini Raj Gopal madam and you also have some of the CD members of the bar. Nataraj Balal sir is there. My colleague Mr. Adwit is there so I welcome each and everybody without taking much time. I think over to you sir. Thank you. I was away almost for about more than five six months and I was feeling that the talks are stagnating because last session I had was about appointment then we shifted to labor law the pension revised pension under the EPS then after making appointment for almost six seven months we are not given them promotion in these talks. Therefore I thought we when because asking it to resume my side the resume from promotion. Now what is this promotion? Normally what we understand in service law what has been said by the courts is also that promotion can be from lower pay scale to higher pay scale, lower grade to higher grade or this is most important if a post of a lower status to a higher status. Sometimes what happens pay scale may be same but the post may be of a higher status. This is very important to understand for the reason. All of us run after a promotion every employee he reasonably expects that he would get promoted. Promotion what is promotion has to be understood first. Now when I started with a very interesting judgment. Though the Supreme Court there did not say so many works that it is promotion. It virtually said that is there was a provision in Bair State University said that Vice Chancellor has got power to transfer any teacher to an equivalent post. The question that came up for the for considering the Supreme Court was what is the concept of equivalent post? Now for example a reader or a professor as the case may be can be posted as a principal. But whether a principal can be posted as a reader or a professor this was the question. Supreme Court said equality of status does not depend upon mere scale of pay. It depends on the type of responsibilities that you disturb type of status you enjoy. The University said equal status. Then the Supreme Court made a very interesting observation that Vice Chancellor has power to transfer any professor as a principal but converse is not true. Once he is transferred as a principal he acquires a status as a principal. He is entitled for he is entitled to be treated as number one in a college. He will be a member of so many committees. He is recognized in the academic circles. Therefore once a person is posted as a principal though in the same scale of pay as that of a professor you cannot bring him back as a professor because that would amount to a reduction in price and the two post cannot be treated equally. Though this question arose before the Supreme Court in transfer jurisprudence. If we understand the essence of this judgment which arose under that Vice Chancellor Eleanor Mitla University it would help us to understand what is promotion. Promotion can be movement or it is definitely a vertical movement, upward movement, upward movement to be carried to a post carrying higher status, higher grade, higher scale of pay. Sometimes only higher scale of pay and sometimes I would add only higher status without changing scale of pay. This is the essence of promotion. What we look for work? We join say as assistant engineer, then we look forward to grow in our career as a student executive engineer, then as executive engineer, then as superintendent engineer, then as chief engineer, engineer in chief. All these posts would be in our contemplation when we join service. There was Supreme Court in the KGS but that is the first time Supreme Court said so. A person is not like employing a person is not like hiring a hand for a job. It is appointing a person for a career. No doubt when I apply for the job under the government or under the any public sector and taking it will be to a post only. It will be to a post carrying a definite scale of pay. There would not be assurance of any promotion but when making a career choice all these aspects go into the making up to the mind of the job seeker. What is the growth opportunity I have here? To what level, what can be the level that I would reach? All these calculations will go into the minds of a candidate applying for a career. Though the advertisement will be for recruitment to a post, a candidate applies for recruitment to a career. But the first still KGS but the approach of the courts was that promotion is a management function. Promotion is a function of the enterprise. Promotion is a function of the government. The courts have no role to play in so far as the promotional opportunities themselves. This was the attitude. But for the first time Supreme Court said almost 35 years ago that a person is recruited for a career and he is not hired for a job. And later on the HR policy is developed and present policies most of the organizations including the government is that a person who is an average performer without blemish he should be able to get at least three promotions in a career in his career of spanning 25 to 30 years. Every employee should be having an opportunity to get at least three promotions. Then this concept underwent refinement. When the governments were finding that three promotions in some cases may not be available then they introduced this assured career progression. Assured career progression is granting a certain higher pay scale to an employee but it is not a promotion. It is neither functional promotion nor any other promotion. Therefore today we have two concepts in career advancement. One is promotion. Another is stagnation movement that when an employee is stagnating for want of promotion opportunities he should not stagnate. Therefore granting financial accreditation. Under the financial accreditation though he moves to a higher scale of pay his functions remain the same. He continues in the same post but he would draw a higher scale of pay as a stagnation. Therefore we have the two concepts now. One is promotion per se and another is stagnation movement by way of assured career progression. In certain states it is called as a stagnation movement. In certain enterprises it is called as a switch over to a higher scale of pay as a stagnation doing exercise. And now in the governmental sector it was introduced as ACP or assured career progression. And now we have the concept of this modified assured career progression. Difference why we should understand the difference between promotion and accreditation is under ACP reservation will not apply in promotion because strictos and so it is not treated as a promotion. But in the case of promotion per se reservation would be applicable. I am not going to speak on the reservation in promotion that there is a method which I would be taking up in the second session of promotion. Now there are any number of judgments which say there must be promotional opportunities. But there are also judgments which say while promotion is a part of the service conditions that is right to be considered for promotion. Courts have distinguished every employee has a right to be considered for promotion. But he has no right for promotion. But promotion is a condition of service. Conditional service means if the promotional rules are violated to the detriment of an employee or if promotion rules are changed obnoxiously then those are justifiable. With one KVL chances of promotion are not justifiable. Suppose today when I join service five years the qualifying service for the next promotion. Let me assume over a period of time while I am in service the government changes zero and says we have to complete eight years of service in the feeder cater. That will not take away my right to be considered for promotion in accordance with law. But it will reduce my chances of promotion. Supreme court clearly has laid down that chances of promotion are not conditions of service. It is a very tricky statement of law. Concentration for promotion is a fundamental right. Providing a reasonable career growth opportunity is a fundamental right. But chances of promotion as such is not a fundamental right. It is not even a legal right. Now keeping these having understood these concepts what is promotion and what is not. Let me say what is my right for promotion. Right for promotion is linked to or is based on the rules stipulated for promotion. In my earlier sessions I was telling in service principles rules are predominant. It is the rule which governs you. It is a rule made by the employer a valid rule. Valid rule made by the employer will determine our right to promotion. There was total confusion prevailing in the matter of promotions until about January or February of this year as to what rule is applicable to you. That is whether the rule that was in existence on the day when vacancy arose or whether it is the rule that has come into force at the time when DPC meets. Assessment of suitability for promotion will have to be done either by department of promotion committee or selection committee. The question that dogged us for almost four decades was whether which is the rule that is applicable. Suppose in three years back one vacancy as certain vacancies have arisen. They are not filled up. They are taken up for filling up today in the year 2023. The long and short of it was whether rule prevailing in the year in which the vacancy arose will have to be the criteria or the rule that is in force on the day the cases are taken up for consideration for filling up the force whether that will have to be the criteria. All these confusions have now been set at naught by the Supreme Court in a judgment that is rendered on that is on 20th of May 2022 reported with little delay that is State of Himachal Pradesh versus Rajkumar. There is a Supreme Court categorically overruled the earlier decision on Supreme Court in Vaivirangaya and judgments that followed Vaivirangaya and said that in the matter of promotion since the garment is under no obligation to fill up all the force as and when they arise and since garment employment is a question of status and not question of contract. The employer's right to change the applicable rules from time to time being unquestionable. The rules under which promotion has to be considered is the rule in existence on the day when the DPC beats. This is let us have clarity on this because most of the cases that we see is that when a client comes to an advocate his only grievance is sir I have not been promoted then he says till last year this was the rule under that rule if I was promoted if my case was considered I was eligible for promotion but they did not fill up the post now they have changed the rule under the promotions are being done under the new rule. There was scope for some argument in the earlier period right now it is totally settled that it will be the rule that is existing today if the promotion is being considered today. Now the concept of promotion as because was telling in the is introductory remarks there are I can say four types of rules that are applicable for the purpose of consideration of cases for promotion. Now they can be seniority come merit which is also sometimes called seniority come fitness then there can be another procedure which is called as seniority alone, seniority alone subject to lack of adverse remarks that is pure and simple senior. Second is seniority come merit or seniority come fitness and third is merit come senior or what we call as selection post. If you see the service rules and even the government rules almost in the lower cadres that is say in the governmental parlance if we take assistant engineer to assistant executive engineer in almost all the service rules though they call sometimes they call it as seniority come merit or seniority whatever nomenclature they may give they are strictly seniority promotions subject to absence of demerit as it is very easy for us to understand seniority come merit means seniority merit which sort of come it will be or in Canada you can say seniority cadme merit. Seniority come merit means merit takes a back seat that is one aspect but there is another concept within the seniority come merit where employer can fix at the threshold that is before going into promotion process by a rule they can fix minimum benchmark what is the benchmark and what is this relevance of benchmark seniority come merit envisages employer fixes a benchmark that is benchmark merit against which the suitability of the every employee will be assessed and the moment on such assessment employee is found to possess the benchmark merit thereafter the promotion will be on the basis of interest seniority of all those employees who have crossed the bench to explain it very clearly we can make an appearance with judgment in B.B. Shivaya S.I.V.E.A.E.A.H. B.B. Shivaya where three judge bench after considering the earlier judgments it explained the difference between seniority come merit and merit come seniority the suppose the promotion rule says 40 percent is the minimum merit that is required for promotion how the merit should be assessed that aspect I will come a little later under the system prescribed for assessment of the merit the moment a person an employee is assessed to possess that 40 percent how much above 40 percent he gets is irrelevant all the persons who have secured that benchmark 40 percent they will have their names will have to be arranged in the order of seniority and promotion will take place on the basis of seniority this is called seniority company merit come seniority is totally it is depending upon inter same in this case suppose let us say a written examination performance appraisal interview all these three are there there are cases where they refer promotion there are written exam they were example they very very day to day situation that we come across as advocates is say from clerical level to officer level or from I don't want to use that phrase but then I I have more choice from ministerial cater to suit higher cater a managerial cater when promotions will have to be made there are different aspects to be looked into one is performance appraisal record it will definitely be looked into seniority that will also have to be looked into then in some in services there is interview as for example in promotion to Indian administrative service or Indian police service the Indian administrative service particularly from non SCS state cater there is interview in addition to your performance appraisal report then there was a proposal to introduce written examination also at that stage but that was not favored by most of the state governments there were that proposal by the central government was given but there are cater and enterprises where written examination is also prescribed so any of these that is performance appraisal report written examination interview all these either in combination or either of the two that is written for interview can be adopted with the employee provided it is stipulated in the rules now in the seniority committee as I said you assess the whether the employee reaches benchmark and once a person reaches benchmark then his promotion will be according to senior there is in merit come seniority what happens is on after untaking into account the assessment made under all these three four heads that is for each year of service this many months performance appraisal say these many months then interview and written test if it is there it is all these three or four areas of assessment having done that then in seniority in seniority committee what is done is this in merit come seniority the people are ranked according to the percentage of mark they secured in the appraisal procedure and thereafter the promotion will be only on the basis of aggregate merit that the candidate has secured this is called as either you can call it as selection post or merit come seniority whatever label you may give it remains that it is a merit based promotion in which seniority will give you eligibility to participate and once you participate you will get selected only on the basis of merit is called as merit come the merit come senior so two judgments I would like all of you to go through to understand three judgments the difference between seniority come merit merit come seniority and selection one is the first judgment is bv shivaya versus adhan ke babu that is 1998 6 6 is 720 second is union of india versus deftelman general rajendra singh kadiya 2006 sec 698 these two judgments then there is one judgment of lordship justice ravindra where that is rajendra kumar shri vatsava versus sanjith kshetriya gram in a bank 2010 1 s is the 335 now your rule when it prescribes that promotion shall be on the basis of seniority come merit one question that arises you are saying seniority is predominant but promotion is subject to attaining a minimum benchmark there is no question of it compared to comparing the interstate merit among the eligible candidates only test is issued the cross the benchmark so suppose benchmark is fixed say on a hundred point scale benchmark is fixed as 90 percent in the in the assessment process you will have to secure say 90 percent then only we will promote and it is called as the rule says it is seniority come merit and minimum required merit is prescribed as say 90 marks for that the supreme court has answered benchmark should be benchmark only not like your high jump hurry it cannot be a hurry the benchmark should be not too high how high he is too high how much is too much supreme court has left that aspect to be because even in a seniority come merit promotion suppose the promotions are being considered at higher levels of the enterprise then a higher benchmark may be permissible but if it is in the lower straight up in the organization the benchmark will have to be relatively low in in one case that is in bhoishvaya's case where the benchmark fixed was about 70 percent it was found to be too high and supreme court said you call it a seniority come from merit promotion but actually by fixing too high a benchmark you have eliminated most of the eligible candidates from getting promotion therefore it is a seniority you have converted a merit seniority come merit process into a merit based process therefore it is that rule is bad in another case 75 percent benchmark was held to be bad but in the last of the cases the last of this is reading the judgment there's the law laid down in how much is too much will depend on the cater from which promotions are being and cater to which promotions are being this is very this is the difference between seniority come merit and merit come senior seniority come fitness means fit in all respects and most of the times fitness is taken as absence of unfitness that is absence of any adverse remark in the last five or six or ten annual performance of this brings me to the question of which performance of personal reports can be considered traditional view was that adverse remarks in the annual performance reports if it is not communicated to an employee those uncomminicated adverse remarks should not be the light on these are the older school of thought over a period of time they were a concept of performance of present under way to change from a confidential report if you remember olden days they were called as annual confidential reports acr from acr we transform to or we democratized the system to apr what is this apr this is annual performance of present in performance in annual performance of present before certain amount of openness was sought to be achieved openness is employee should know at the beginning of the review period or performance of present period what are the objectives of target set before him because there is no point in telling him at the end of the year you have not reached the targets what was his target nobody knows what was his key responsibility area nobody knows but at the end of the year if you want to penalize him you say that Mr Rajupal I have not reached the key areas of responsibility there were I am not able to give you I have given you adverse there were certain amount of accountable open system was sought to be introduced there also the concept was if somebody is given below average ranking below average grading only that will have to be communicated other things need not be committed then the concept of adverse mark underwent a qualitative change in our service to jurisprudence with the judgment of supreme court in devudas in devudas the benchmark fixed for promotion was getting very good rating in a performance of present that is all those who get the performance grading of very good or above will be promoted according to their senior this was the promotion in one year out of the five years that were to be recorded empire had been given a rating of good then the question that was considered by the supreme court was whether this rating good in one year that is 93 94 if I remember whether that could have been taken into account by the DPC to deny information the supreme court went into the question what is adverse the argument is the government of India was that look he is rated as good it is not adverse to him supreme court said nomenclature is not relevant the impact of that grading or the career prospects of the employee is the touchstone to determine whether it is adverse or not in a in a system where very good rating is the minimum required for promotion grading as good has to be treated as adverse remark and that coming that grading you could not have read upon to deny him promotion when you are not communicated that grading of good to the employee and when you are not given him an opportunity to make a representation against that good rating which is called as adverse rating in the light of the promotion there were two important aspects while considering the performance of prize if the grading given to an employee is below the benchmark fits for promotion it has to be considered as an adverse remark and it should not be relied upon unless that adverse remark has been communicated to the employee and he has been given an opportunity to represent against it second not only uncommunicated adverse remarks adverse remarks against which employee has submitted a statutory representation and that representation is disposed of not disposed of those remarks also cannot be relied this is the safeguard that an employee has about the adverse remarks in the annual performance reports then in the matter of selection post it is not that every employee has to be put for selection however junior most he may be he need not be fielded for selection therefore the service rules usually prescribe a ratio suppose there are five posts to be filled by selection to be filled by merit come seniority how many people you can consider while fixing this ratio two aspects will have to be borne into mind one is by enlarging the zone of consideration you are perhaps giving a handle to promote the junior most to the explosion of the senior but that is the another aspect if the zone of selection is too small then the purpose of object of getting most merited in the organization the promotion that may not be subservient therefore various ratios have been worked out but mostly the zone of consideration in all these service rules ranges from one is to four to one is to eight not beyond them because if one is to eight if that ratio is exceeded what happens is in the phrase merit come seniority seniority would be rendered virtually redundant if you make the make the ratio higher than one is to eight or like that in such case in the cave now what are the permissible classification suppose now consideration for promotion is a fundamental right with a rider that consideration in accordance with law is a fundamental right and law in this seniority is the recruitment rule or the promotion rule I should say now promotion rule suppose let us say the question is whether the employer can exclude a class of persons from consideration for promotion this question we come across normally in the engineering cadres earlier it was there in some other cadres also now that has virtually gone still we come across this issue between diploma engineers and graduate engineers now at the entry level graduate engineers they enter service as assistant engineers diploma holders they enter as junior engineers from junior engineers they get promoted to assistant engineers and there the diploma engineers and graduate engineers they arrive at they join a stream in Roshanlal tundra where the Roshan put said that once you come into a common cater you cannot be discriminated on the basis of your birthmarks that is birthmark loses its relevance once you come to a common cater but non-discrimination on the basis of birthmarks does it mean that no higher educational qualification can be prescribed for promotion this question allows before the supreme court in Trilokinath Kosa where for the first time a rule was made that only graduate engineers will be eligible for promotion to superintendent engineers cater the argument that was advanced was threefold one is we have joined a common cater birthmark whether we are graduate engineers or whether it is diploma engineer that should not be criteria to exclude from consideration second when I joined service the diploma holders were also entitled to be promoted now by saying that only graduate engineers will be eligible you have made the rule retrospective that is it applies to a person who has become say executive engineer or a strength engineer whatever it is they are few years back therefore the rule is retrospective supreme court answered all the three questions birthmark it rejected and it says classification on the basis of education of qualifications for the purpose of promotion is a valid classification graduates and diploma holders they belong to two distinct classes and classification is not discrimination second it said there is no retrospectivity in the rules merely because the rule made today applies to your past service also it does not have retrospective effect third is there is no vested right in promotion your constitutional right is consideration for promotion therefore your rights are not affected vested right under right to be considered in future they are different in for example in the SS Bola where the supreme court said even a retrospective amendment can be made to seniority rule provided it does not accept promotions already made therefore the promotion already made is not being disturbed therefore it is not retrospective it is not taking away any vested right therefore such a classification is valid subsequently there have been any number of judgments which say that the classification for promotion on the basis of education qualifications is a valid classification then there are service rules which prescribe higher length of service for diploma holder engineers and lower length of service a little lesser length of service for graduate engineers in the matter usually eight years for the diploma engineers five years for graduate engineers subject to the condition that if eight years and five years are not available you can consider five years and three years these then most of the service rules may be a year here and a movie here less in one state it may be more in another state those things the those have also been approved by the supreme court as non-discriminatory in as much as the classification is based on a valid test which has something to do with the efficiency the third type of discrimination that is sometimes complained of is as because we were studying this photo photo becomes relevant while working about senior normally there will be delay in making direct recruitment to the lower kids in such cases what happens is a direct group with lesser number of years of service may become senior to a promoter with longer number of years of service this arises because suppose direct recruitment has not taken place for about 10 years and promotions have been made in excess of the quota then what happens is in computing seniority later a direct route will go above the earlier day promotion but their length of service would have a promoter will have higher length of longer length of service in that case and direct recruit may be having lesser number of years of service in our Prabhupada with this question came what happened was in the senior to this direct recruits were placed here but they did not process the required number of years of service stipulated for the next month promoters were placed lower in the senior to this but they had completed the required number of years of service for promotion then the direct recruits case before the Supreme Court was look I am senior I have not been considered for promotion I am excluded promoter who is my junior he is concerned for promotion then Supreme Court made a very categorical statement of law seniority is relevant only amongst those who are eligible seniority is relevant only amongst those eligible for promotion and you do not possess the requisite years of service in the feeder cadre therefore your seniority is relevant for the purpose of concentration of your case for so in the I will just cover one more aspect of the matter and then conclude for today the question is suppose we are as the the selection the DPC or the selection committee is assessing the merit of a can overall suitability for promotion giving marks for various flights giving marks under various sets and then totaling up the lower a person with lesser seniority or the lower in the senior may get higher marks a senior may get lower marks and in the merit come seniority system junior with higher marks amongst the eligible will get promoted two questions arise one is whether whether it amounts to superstition normal come what you do in the evening when you sit in my office it is on a Saturday or Sunday morning when I sit the complaint that comes to me is sir I am senior I have been superseded what is question of what is the meaning of the word superseded superseding as we understand is preferring a junior over a senior for the purpose of promotion where an element of selection is involved there is no question of superstition this we have to clearly understand of course in seniority come merit where a senior has crossing the benchmark if a junior with higher marks is that amounts to superseded otherwise it will not happen second is no reason is given for not promoting no reason is given this was answered by the supreme court in number of cases where it said selection committee's job is administrative job though it may be awarding marks determining b is more suitable than a and I rank in number one what it performs is an administrative job therefore there is no compulsion for the selection committee to record reasons unless the rule itself says that reasons are to be recalled if the rule does not require the selection committee to record reasons for its rating no such requirement can be read into by a process of interpretation that is why what the most of the at least some of the service rules now do is that while awarding too high a mark or too low a mark in the interview this applies only to the interview suppose you are awarding more than 80 percent or less than 40 percent to your candidate in either case the selection committee has to record its reasons so what the selections selection companies do they give for the preferred candidates signed by 79 percent so that they need not record and for the candidates they want to say they can give 41 percent and say that I need not give reasons at least the scope of manipulation is reduced but it is not eliminated and this manipulative ingenuity will prevail or will work or will have its say to some extent as long as merit-based promotions are there that is the reason why most of the civil servants prefer seniority-based promotion and I have seen employees who will be anchoring for merit-based promotions coming and telling me after the promotion results are out sir you were right seniority-based promotions at least give us certainty and this merit-based promotion is always uncertain but certain levels merit-based promotions are necessary rest of the things are there several aspects about reservation in promotion then sealed cover procedure several such topics including within how long a period you will have to challenge the if you are agreeing that is why I am having promotion too in my next session where the uncovered aspects of the promotion I have I will complete definitely try to complete ultimately promotion whatever we look at it whether it is seniority unless they are seniority-based to the exclusion of those with adverse remarks litigation in promotion area would definitely continue and if the audience consists more of advocates you can take it that you will not be left without any work in the matter of promotions for those who are non-advocates I can tell that there is no insulation against dishonesty in office as long as human likes and dislikes are there there will be disputes in the matter of assessment of performance and assessment of merit endeavor is only increasingly and see the rules are making a progress towards reduction of discretionary element but as long as the concept of merit is there element of discretion will remain and the persons for victims of discretion will always feel that they have been unjustly denied permission sometimes it will be true sometimes it will be wrong but all times one thing is true it plays with the legitimate aspirations of every employee because every employee he legitimately aspires to grow and we as advocates have a role to see that when we argue a case we have to bring in the element of justice to be built into every promotion policy at a very pro that I conclude now now whatever I have spoken on those aspects of the promotion if there are questions I would be yes so on the next time we will take these aspect as to what is the seal cover process to be adopted and when it is being adopted yes but Janki Raman process and all now Janki Raman has been diluted and developed you have already discussed there was a cover today because that is a landmark judgment sealed cover procedure and then reservation in promotion these are the two things that will have to be covered and then how long the result can remain in sealed cover that is also another important aspect whether it is sealed cover or sealed fate that has to be discussed of the and then this part also as to what is the effect of the flow flows from Janki Raman itself what is the effect of a charge sheet on a chalhan in a criminal case yeah that is a charge sheet and criminal case I think yes for sealed cover procedure but in distinction I can definitely tell leading cases of from your state Deewan Chinnila where a jailer was put in sealed cover promotion and some very interesting resolution of dispute took place at the end of the Supreme Court but Janki Raman also explains very beautifully like Janki Raman full bench judgment of tribunal that is I think the one case where full bench judgment of the CEAT was totally approved by the Supreme Court but subsequently there was some deviation from that at the hands of person who says Kerala Swami where is that charge sheet need not have been issued a decision since a decision to issue a charge sheet precedes the charge sheet it would be enough if a decision had been taken to issue the charge that was again reversed in not explicitly but in the resultant what it in Anil Kumar Sarkar the law I think law in Anil Kumar Sarkar as on date maybe after two weeks when I speak to you I don't know whether the law would have undergone any change in service of this is the most difficult thing the law is moving more violently than title rules in one of the senior councils out here he has written just when you have to about to enter the office he has written that the judge the judgment the law is what the judge decides on that particular day so that you have brought something by the time of a flux of time something is decided so you can't say that you had promised me something because law keeps on as you say it grows organically and in service life most of it is judgment law this is what is the selection process according to me this is Sakthi selection process over when the recruitment agency is called for a certificate verification as per notification we can see but public service commission says it is extended till issues the appointment order by the notification the recruitment and appointment they are two different concepts recruitment ends on the day the select list is notified then about the verification of cash and reservation certificates there are different rules in different states but predominant status is like this the selecting body makes the selection list notifies it forwards it to the appointing authority then it is for the appointing authority to get the reservation certificates the experience certificates help their genius to be verified selecting body has to see the regularity of those certificates before including the name in the select list regularity and genius they are two different areas regularity is suppose a sub-tribunal magistrate or to have issued cash certificate it is called as different names in the different states for example in the state of Andhra Pradesh until few decades ago it was called as that was called as Mun Sabhu that is a Telugu word of Munshif Munshif in Telugu in English becomes Mun Sabhu in Telugu then in some areas it was called as a sub-tribunal magistrate also for example in the in the states where deputy commissioner of a district is called as district magistrate that was the sub-tribunal magistrate the ultimately a revenue officer prescribed for issuance of the cash certificate will be there job of the public service commissioner selecting body is to see whether competent authority as issued the cash certificate and whether cash certificate or the income certificate is within the timeline limit prescribed by the move then whether it has been submitted in time these are the three the selecting body has to see that is about the regularity then genius whether the cash claim is valid income claim is valid whether it is a false declaration has been made this cannot be gone into by a selection body because it is not its mandate and it has no missionary to test it that can be tested only by specified agencies nominated by the state for that purpose in most of the cases the states there is a state enactment which prescribes what is the procedure to be followed for verification of genius of the claims in Maharashtra because the Maharashtra was one of the earlier states to make such an enactment there is a similar portion in the Karnataka Act also and in most of the states now they are having legislative enactments setting up a missionary for verification of the genius of the claim so the moment select list is published and forwarded to the appointing authority that is the end of the recruitment process if any public service commission is saying that it extends until the date of appointment I don't know if that public service commission has been the designated as the agency to verify the genius of reservation by the state I do not know if there is such an empowerment then we will write but I don't whether there is such a problem sir because I would request you to unmute Mr Chandan Bhatt was my colleague he has a question and he wants to go into senior meanwhile we'll take up the Mr Chandan Bhatt my colleague he has a question now meanwhile we'll take up this question by Mr Venkesha of course sir told that in the next session he would be covering regarding the Charsheet on Chalal nevertheless he has a question sir one of the one good evening sir C.R.S. were called to give promotion from DDPI post to DDPI after that Charsheet was issued to one officer but in spite of repeated requests documents that prove the charges are not provided promotion orders are issued to others by passing this person what can be done please suggest if the Charsheet itself is contrary to law that can be questioned with a prayer that set aside the Charsheet and open the shield cover or where the Charsheet is kept pending for unreasonably long period then also the judicial review is available you know these aspects I will deal with particularly with reference to the cases and all that but if the if according to the question with your what I understand it a Charsheet has been issued without there being any material support in such case depending upon what are the documents they have listed in the Charsheet we need not go into defense evidence because the jurisdiction to analyze Charsheet is somewhat akin to 482 jurisdiction recommended that is on the basis of what is stated especially in the Charsheet whether a misconduct is made out or not if on the basis of contents of the Charsheet memo and documents refer to there is there is absolutely no misconduct made out then it is a case where it can be questioned even on the ground of malefiles alleging that this Charsheet memo has been issued only to stop me in my traps so that my career for progression would not be what it should be to my detriment and to favor my junior all those grounds would be avoided. So what I get but to what I gather from the question is Venkateshwak is clear surprised that the confidential reports have been called to get promotion and after that the Charsheet was issued so that has been set into motion on the date of consideration. The question is not when you call for the answer the confidential reports on the day the DPC admits whether there is a Charsheet pending action. That Janki Raman you will discuss that day. Not only that you will be amazed to see most of the Charsheets are issued on the basis of anonymous complaints it is not really anonymous civil servant concerned will be able to move away from that complaint but technically anonymous complaint just in two or three months before the onset of promotion process the moment these people call APRs for DPC from that date to the meeting of the DPC there were about three months time because large number of APRs would have to be collected some of the APRs would be incomplete of them they would not be traceable this is one the usual praise in the governmental government and governmental sector records are not traceable as if they were in micro study and I have the three months time period they utilize to generate all these complaints and initiate charges I always sometimes feel when you talk of efficiency in government why not the DPC be meeting every three months so that wrongs would be exposed and government will always be exposed but unfortunately most of these charges are trumped up only to stall the promotion and maybe after about three or four months of the DPC meeting the person the charges the the charges would end up as baseless but the damage would have been done to the reputation that's why in the un-india services seniority rules there is one very nice nice function suppose a person is overlooking for promotion this year for this year he may be pushed down in the seniority list but once he gets the promotion even one year later his mother seniority will be restored mother seniority he is UPSC ranking list when he first entered the IIS that type of provisions we should work to get incorporated in every service what is the question of you said Chandan but Chandan but do it yourself I think yes so my question is what if an officer is biased and he doesn't give proper appraisal to his subordinate so what are his remedies to the subordinate officer against the officer who has a bias against them against bias if we have evidence we can question number one number two the present performance appraisal rules in most of the states they provide a detailed step by step procedure for writing of APRs review of APRs and acceptance of APRs if any provision of those APR rules has been violated that can be successfully questioned before the tribune but only thing is for a short while that agony will have to be undergone because unfortunately there is no anticipatory bail in civil law it is there only in criminal law the tragedy is we have to suffer and then question that is what I was telling as long as likes and dislikes and human element of discretion is there operations are bone to occur and it is the duty of the lawyers and law courts to see that those operations are limited right for that you have to what you said there are two aspects what I could gather was that you can show by malafide in law or malice in fact yes and somewhat akin to that judgment of state of Tamil Nadu versus Badrinath Badrinath is a Badrinath is a glorious judgment for more than one reason Badrinath said if the foundation falls superstructure falls that is dependent order second thing it explained every civil servant has a right to be considered for promotion more importantly right to be considered for promotion in accordance with law that phrase has been very beautifully explained by lordship this is Jagannath Rao in Badrinath Badrinath then about adverse remarks Badrinath is an authority Badrinath though it is little lengthy judgment I would request everyone of you to read Badrinath versus state of Tamil who is in the mat in the matter of censure once you read that how censure can kill a man you will understand if you read Badrinath censure is the most minimum canary it is one it is a glorious judgment in service the son also writes very beautiful judgments we had the occasion now is the chief justice of Himachal justice Rao just is Rao just MS Rao writes it's extremely good judgments Yes we had an occasion that I will tell you about Justice Edmund Rao one experience in Sampath Kumar's Supreme Court has said it had said so I'm saying Justice Jagannath Rao's son MS Rao who is the Chief Justice of Himachal he also writes we had an occasion that he was a judge for good eight months but the on the hearts of many and Badrinath also discusses one of the issues that you can the under the civil court jurisdiction you can also give a leave which has not been contemplated or sought for when the court itself can order motion instead of directing reconsideration that is also discussed in Badrinath it's a beautiful judgment one appeal to again just read the judgment and not the head but in our language they used to say that don't read the telegrams read the letter full don't read the telegrams telegrams can be confusing so headnotes are like telegrams but to understand you have to read the full letter it's just like in Hindi what they say so that entire contours of hyphens in the what do you say in the headnotes changes the entire contour of the judgment and context and you had also explained in one of the part where you decided the judgment you had argued the judgment on the basis of judgments of the headnotes and ultimately you realized that the context and the contour of the judgment was different we had discussed in one of the sessions that is the national textile corporation in NTC headnotes says if something is not prohibited that right is vested that paragraph I don't find anywhere in the judgment yes sir next time we will also be discussing this what is the effect of a roster point and principle of catching up because principle of catching up in the promotion would also people would like to understand there is a principle of catching up is a but I will definitely say how this roster point will have to be worked out in the promotions and rota rota rota rule is virtually not available anywhere what is available is caught up and the most important thing is the roster points provided and for the promotion let's assume that roster point and ultimately you have succeeded and how does it but you think to come into being principle of catching I would definitely be discussing that I'm just giving the teaser that on the subsequent people can actually catch up and much like Shah Rukh Khan said and we wish you all the best and we are thankful to Tritram also and it was truly we felt that we got a promotion today sir after hearing you for such a long gap we felt that we are promoted thank you a truly enriching session sir thank you thank you and in fact tomorrow friends we will have a session on transfer of property act in production to basics one of the finest speakers that is by Venkat Sudarshan DR who is the former principal and district session judge from Karnataka so do stay connected with us tomorrow at 6 p.m. everyone stay safe stay blessed and thank you and thank you Raju Gopal sir and Tritram once again thank you