'Disciplinary Proceedings Contemplated' : What Does 'Contemplate' Mean? Supreme Court Explains
The Supreme Court in its decision on Thursday (December 14), in an appeal against a High Court's Order allowing appointment to a government post, held that to ascertain the cut-off date for eligibility criteria, attention should be given to clarification letters issued subsequently. The Bench comprising Justices M.M. Sundresh and Aravind Kumar further analysed the position of law...
The Supreme Court in its decision on Thursday (December 14), in an appeal against a High Court's Order allowing appointment to a government post, held that to ascertain the cut-off date for eligibility criteria, attention should be given to clarification letters issued subsequently.
The Bench comprising Justices M.M. Sundresh and Aravind Kumar further analysed the position of law for construing the term “Contemplate” in light of eligibility rules that require the candidates to not have any disciplinary proceedings contemplated against them.
In terms of the facts, Respondent no.1 was appointed as a Naib Tehsildar on 12.8.2008 and at the time of filing of the original writ petition was serving in the post of Tehsildar. His appointment to the post in the Haryana Civil Service (Executive Branch) as per the 2008 Rules was not considered on the grounds of ineligibility under Rule 9(1)(a)(iii) as amended in 2017.
The selection process as elaborated under the Haryana Civil Service (Executive Branch) Rules, 2008 requires the person's name to be found in “'one or other of the registers of Accepted Candidates to be maintained under these rules” under Rule 7. Of the various such registers, Rule 8 (a) provides for “Register A-I of District Revenue Officer/Tehsildars accepted as candidates”. It is within this register that the Respondent's selection consideration falls.
Rule 9 deals with eligibility criteria for the selection of candidates whose names will be included in Register A-1. The rule for eligibility under rule 9(1)(a) requires that “ (i) has completed eight years continuous Government service including service rendered as NaibTehsildar; (ii) has not attained the age of fifty years on the first day of November immediately preceding the date of submission of names by the concerned authority; (iii)is not facing disciplinary proceedings and against whom action is being contemplated”
A subsequent communication from the Chief Secretary's Office on 30.5.2019 mentioned, “2. The DROs/Tehsildars whose names are to be recommended should fulfill the following conditions of eligibility as on 01.11.2018:” followed by the abovementioned criteria.
The Respondent, on being absent from acting as Duty Magistrate during the Haryana Teacher's Eligibility Test, 2018 was decided to be chargesheeted on 5.2.2019 and informed to undergo formal inquiry. The Respondent challenged the action of being declared ineligible before the single-judge bench in a writ petition, which was dismissed and his non-consideration was upheld. However, the division bench set aside the single-judge bench's order and directed the State to consider the case of Respondent No. 1 for appointment.
The Appellants mainly contended that the correct cut-off date to consider eligibility would be the date on which the Committee recommended names to the Commission under Rule 9(2), i.e. 30.9.2018 as opposed to the claimed date of 1.11.2018. Reliance was placed on a subsequent clarification issued by the Government on 9.7.2019 which specified that the date 1.11.2018 was only for the purpose of age-related criteria and other conditions were to be seen as on “date of consideration”.
The Respondent on the other hand stressed on the communication dated 30.5.2019 to contend that 1.11.2018 be taken as the uniform cut-off date and that the clarification on 9.7.2019 would amount to changing the rules of the game. It was further submitted that the appellant has not pleaded 31.8.2019 to be the date of consideration before the previous rounds of litigation. Additionally, even assuming 31.8.2019 to be the cut-off date, it cannot be said that any disciplinary action was “contemplated” against the Respondent.
The Court was essentially tasked to examine two key questions, firstly, whether the cut-off date for all criteria be considered as 1.11.2018 or only for the purposes of determining the age criteria; secondly, if 1.11.2018 is considered as the cut-off date, whether it can be said that any disciplinary action was contemplated against him as on such date?
The Cut-off Date is determined in view of the Clarification issued subsequently :
Dissecting the reasoning of the Division Bench of the High Court, the bench observed while the former opined the cut-off date as 1.11.2018, Rule 9(1)(a)(iii) on criteria of disciplinary proceedings does not specify any such date. Agreeing with the Single Judge Bench's order, the Court ruled that the date of 1.11.2018 was to be construed to extend to apply only for age determination criteria and was of a limited purpose. The intention of the lawmakers could be gauged from the clarification letter issued on 9.7.2019.
It was observed, “ The cut-off date (01.11.2018) was relevant only to decide the question of how much of the ACR and experience had to be considered and till what period. Such date was never meant to operate as the date against which all the eligibility criteria had to be measured against. This fact stands clarified from the last paragraph of the letter dated 09.07.2019, whereunder it has been stated that the eligibility criteria concerning 'pending disciplinary proceedings, vigilance clearance and integrity' was to be considered up to the date of consideration in both cases.”
Addressing the State Government's letter dated 30.5.2019 which the respondent relied upon to establish the cut-off date as 1.11.2018, the Court viewed the subsequent clarification 9.7.2019 as the Government's reconsideration of the former. It was held, “ What we notice here is that the uniform application of the cut-off qua all eligibility conditions was deleted and the cut-off was restricted to the condition relating to the age of the candidate. Thus, the Respondent cannot take umbrage under the contents of letter dated 30.05.2019, when it had been followed up with another letter on the same subject and with specific clarification regarding the scope and relevance of the date 01.11.2018.”
It was thus concluded that the correct cut-off date would be the date when the committee recommends names to the Commission under Rule 9(2), i.e. 31.8.2019.
Understanding 'Contemplation'- a probable intention, ahead of possibility :
In answering the second question, the Court analyses the meaning of the term 'Contemplate'. To contemplate as per the English Dictionary would mean “to have in view as a probable intention'; to think about”. It was further held the term connotes a sense of a probable view, with a high calculation than mere possibility but not of complete certainty.
“Probability is a step ahead of possibility but falls short of certainty.”
This analysis was supplemented by the Court's reliance on the decision of Karnataka High Court in H.Surendra Shetty v. Vijaya Bank, MG Road Bangalore & Ors., ILR 2000 Kar 2883, which held : “20…Thus, contemplation is a process that goes on in the mind and falls far short of a 'decision' which refers to the culmination of the process of contemplation in arriving at a definite conclusion as to the next course of action to be taken under a set of facts with the intention of carrying out a certain act.”
For a deeper legal understanding of the term, the bench relied upon the Delhi High Court's observations in Kul Bhusan Chopra v. Punjab National Bank and Ors. (1979) IILLJ 86 Del wherein it was stated that “ The proper meaning which could be assigned to the word “contemplated” in the context of the aforesaid rule was when it was in the mind of the appointing authority that in due course a formal departmental enquiry shall be held or there existed a contingency for such an enquiry. It was observed that a departmental enquiry could be said to be contemplated when on objective consideration of the material, the appointing authority considered the case as one which would lead to a departmental enquiry irrespective of whether any preliminary enquiry summary or detailed, had or had not been made or if made is not completed, and that there could be suspension pending enquiry even before a final decision was taken to initiate the disciplinary proceedings i.e. even before the framing of the charge and the communication thereof to the Government servant.”
A similar observation was also found in the decision of Allahabad High Court in State of U.P. v. Jawahar Lal Bhargava, 1974 SCC OnLine All 45 which held the phrase 'against whose conduct an inquiry is contemplated' means when a decision is taken based on material collected on preliminary investigation and the authority is prima facie satisfied that they hace substance and initiation of formal proceedings would be justified.
Applying the settled interpretation to the present facts, the Court held that the authorities had sufficiently contemplated tinitiating disciplinary action against the respondent as reflected by the fact that “The Deputy Commissioner, Kurukshetra wrote a letter dated 9.01.2019 to the Additional Chief Secretary and Finance Commissioner, Government of Haryana, Department of Revenue and Disaster Management in this regard and recommended that formal inquiry be initiated against the Respondent. In view of this communication, a decision was taken on 05.02.2019 to charge-sheet Respondent No. 1”.
The respondent on affidavit had also admitted the same and at no point did he assert an absence of such disciplinary proceedings contemplated against him.
The Court in its final conclusion held that the Respondent as on the date of consideration before the commission was ineligible for selection under the 2008 Rules. The appeal was accordingly allowed.
Case Details : State of Haryana and Ors v. Dinesh Singh and Anr. SPECIAL LEAVE TO APPEAL(C) NO. 21335 OF 2022
Citation : 2023 LiveLaw (SC) 1065