Haryana State
Warehousing Corporation Vs. Jagat Ram & ANR
Ram Kumar Vs. Jagat
Ram & ANR.
J U D G M E N T
ALTAMAS KABIR, J.
1.
Two
Special Leave Petitions have been filed against the judgment and order dated 11th
October, 22010, passed by the Division Bench of the Punjab & Haryana High Court
in L.P.A. No.490 of 2010, setting aside the promotion granted to the Petitioner
in Special Leave Petition (Civil) No.451 of 2011. While Special Leave Petition (Civil)
No.451 of 2011 has been filed by Ram Kumar, the Respondent No.3 before the High
Court, setting aside his promotion to the post of Assistant Manager (Administration)
in the Haryana State Warehousing Corporation, Special Leave Petition (Civil) No.2659
of 2011 has been filed by the Warehousing Corporation challenging the same
order.
2.
The
facts briefly stated disclose that the Haryana State Warehousing Corporation, hereinafter
referred to as "the Corporation", framed its Rules and Regulations known
as the Haryana Warehousing Corporation (Officers & Staff) Regulations, 1994,
hereinafter referred to as "the 1994 Regulations" in exercise of the powers
conferred by Section 42 of the Housing Corporation Act, 1962, with the previous
sanction of the State Government. Regulation 8 of the 1994 Regulations deals with
promotions in the Corporation. Regulation 8(2) of the 1994 Regulations provides
as follows :- "8(2). All promotions unless otherwise provided, shall be made
on seniority-cum- merit basis and seniority alone shall not confer any right to
such promotions."
3.
The
Respondent No.3, Ram Kumar, was promoted to the post of Assistant Manager (Administration)
in the Corporation on account of his excellent service record in comparison to that
of Jagat Ram, who is Respondent No.1 in both the Special Leave Petitions. Challenging
the said decision, Jagat Ram filed a Writ Petition before the Punjab &
Haryana High Court on 17.11.2009. The learned Single Judge dismissed the Writ Petition
filed by Jagat Ram after taking into consideration the service records of both
Jagat Ram and Ram Kumar and upon holding that the service record of Ram Kumar
was superior to that of Jagat Ram and that the Corporation had not committed
any error in granting promotion to Ram Kumar.
4.
Against
the order of the learned Single Judge, Jagat Ram filed a Letters Patent Appeal,
being 490 of 2010, before the Division Bench of the Punjab & Haryana High Court,
which was allowed. The Division Bench while allowing the Letters Patent Appeal filed
by Jagat Ram held that although promotion to the post of Assistant Manager
(Administration) is to be effected on the basis of seniority-cum-merit and not seniority
alone, the promotion given to Ram Kumar was based on his gradings and on a comparative
assessment of his merit as against the merit of the Respondent No.1, Jagat Ram.
The Division Bench further held that since the criterion for promotion to the post
of Assistant Manager (Administration) was seniority-cum-merit and not merit-cum-seniority,
the promotion given to Ram Kumar was not sustainable since such promotion had
been made predominantly on the principle of merit, in contravention of the
provisions of the Regulations. The Division Bench directed the concerned Respondents
to redo the exercise for promotion to the post of Assistant Manager in accordance
with the provisions of the Regulations in force.
5.
Appearing
for the Special Leave Petitioner in Special Leave Petition (Civil) No.451 of 2011,
Mr. D.P. Mukherjee, learned Advocate, contended that the Division Bench of the High
Court had misunderstood and consequently misapplied the regulation governing appointments
on the ground of seniority-cum-merit, particularly, since it provided that seniority
alone could not confer right to promotions on the basis of seniority-cum-merit.
Mr. Mukherjee submitted that if it was only a question of seniority-cum-merit, then
the reasoning of the Division Bench may have been acceptable. However, such not
being the case and a stipulation having been made that seniority alone would not
govern promotions on the basis of seniority-cum-merit, the Division Bench of
the High Court had erred in giving emphasis to seniority when the Petitioner, Ram
Kumar, possesses far superior qualifications than the Respondent No.1, Jagat
Ram.
6.
Mr.
Mukherjee urged that on account of the addition of the expression "seniority
alone would not confer right to promotion", it must be understood that merit
would also require consideration for the purpose of granting promotion, even on
the basis of seniority-cum-merit. Mr. Mukherjee urged that since Ram Kumar had been
assessed as "outstanding" over 10 years, while Jagat Ram had been assessed
"outstanding" only for one year, it was in keeping with Regulation 8
of the 1994 Regulations that Ram Kumar had been preferred to Jagat Ram. In
support of his submissions, Mr. Mukherjee referred to the decision of this Court
in Jagathigowda C.N. & Ors. Vs. Chairman, Cauvery Gramina Bank & Ors.
[(1996) 9 SCC 677], in which this Court held that while granting promotion on the
basis of seniority-cum-merit, the totality of the service record of the eligible
candidates had to be considered and consequently since Ram Kumar had superior credentials
in comparison to Jagat Ram, he had been rightly promoted to the post of Assistant
Manager and the judgment and order of the Division Bench was erroneous and was liable
to be set aside and that of the learned Single Judge was liable to be
sustained.
7.
The
same stand was taken on behalf of the Corporation in Special Leave Petition (Civil)
No.2659 of 2011 and it was urged by Mr. Alok 8Sangwan, learned Advocate, appearing
for the Corporation, that the promotion of Ram Kumar had been effected in
accordance with Regulation 8(2) of the 1994 Regulations and while considering the
seniority of the eligible candidates, the Corporation had given effect to the second
part of the Regulation which categorically indicated that seniority alone would
not be the criteria for promotion. Mr. Sangwan also urged that the order of the
Division Bench of the High Court was liable to be set aside.
8.
The
submissions made by Mr. D.P. Mukherjee and Mr. Alok Sangwan were opposed on behalf
of the Respondent No.1 in both the Special Leave Petitions, Jagat Ram, and it was
urged by Mrs. Kanwaljit Kochar, learned Advocate, that the Division Bench had rightly
interpreted the principle in relation to promotions made on the basis of
seniority-cum-merit. Mrs. Kochar submitted that if merit was to play a larger role
than seniority in effecting such promotions, then the procedure to be adopted would
have been merit-cum-seniority and not seniority-cum-merit. According to her, the
decision in Jagathigowda C.N.'s case (supra) does not really help the case of the
Petitioners since this Court had merely indicated in the facts of that case, based
on the NABARD Circular dated 7.4.1986, that the selection of the eligible candidates
should be based on performance of the respective candidates in the Bank. It was
further observed that the instructions of NABARD being in the nature of guidelines,
the promotions made by the Bank could not be set aside unless the same were
arbitrary and unfair.
9.
The
law relating to promotions to be granted on the basis of seniority-cum-merit has
been settled by this Court in various decisions, including the case of the State
of Mysore vs. Syed Mahmood [AIR 101968 SC 1113], wherein it was observed that when
promotion is to be made by selection on the basis of seniority-cum-merit i.e. seniority
subject to the fitness of the candidates to discharge the duties of the post
from amongst any person eligible for promotion, the State Government had erred in
promoting juniors ranking below the candidates in order of seniority and that such
promotions were irregular. Of course, the question posed in these Special Leave
Petitions gives rise to another question regarding the latter part of Regulation
8(2) of the 1994 Regulations which indicates that seniority alone would not confer
any right to be promoted. In that regard, this Court held in the
above-mentioned case that where the promotion is based on seniority-cum-merit, the
officer cannot claim promotion as a matter of right by virtue of his seniority alone.
If he is found unfit to discharge the duties of the higher post, he may be
passed over and an officer junior to him may be promoted.
10.
That
principle has been followed ever since and was reiterated by a Three-Judge
Bench of this Court in the case of B.V. Sivaiah & Ors. Vs. K. Addanki Babu &
Ors. [(1998) 6 SCC 720], wherein the criterion for promotion on the basis of seniority-cum-merit
fell for consideration with regard to the same-day appointees. It was held that
seniority-cum-merit in the matter of promotion contemplates that given the minimum
necessary merit requisite for efficiency of administration, a senior candidate,
even though less meritorious, would have priority and a comparative assessment of
merit is not required to be made. The said view was again repeated in the case of
K. Samantaray vs. National Insurance Co. Ltd. [(2004) 9 SCC 286]. While
considering the concepts relating to promotion on the basis of seniority-cum-merit
and merit-cum-seniority, reference was made to an earlier decision of this
Court in Sant Ram Sharma vs. State of Rajasthan [AIR 1967 SC 1910], in which it
was observed that the principles of seniority-cum-merit and merit-cum-seniority
are completely different. For the former, greater emphasis is laid on seniority
though it is not the determinative factor while in the latter merit is the determining
factor. A third mode described as "hybrid mode of promotion" contemplates
a third category of cases where seniority is duly respected and at the same
time merit is also appropriately recognized. In yet another decision in the case
of Harigovind Yadav vs. Rewa Sidhi Gramin Bank [(2006) 6 SCC 145], this Court reiterated
the principles explained in B.V. Sivaiah's case (supra) holding that where procedure
adopted does not provide the minimum standard for promotion, but only the
minimum standard for interview and does selection with reference to comparative
marks, it is contrary to the rule of "seniority-cum-merit".
11.
In
applying the principle of granting promotion on the basis of seniority-cum-merit,
what is important is that the inter se seniority of all candidates who are eligible
for consideration for promotion should be identified on the basis of length of
service or on the basis of the seniority list as prepared, inasmuch as, it is
such seniority which gives a candidate a right to be considered for promotion on
the basis of seniority-cum-merit. As was indicated in Syed Mahmood's case (supra)
where the promotion is based on seniority-cum-merit, the officer cannot as a matter
of right claim promotion by virtue of his seniority alone, which principle is also
reflected in Regulation 8(2) of the 1994 Regulations. Consequently, the
candidate had to be fit to discharge the duties of the higher post and if his
performance was assessed not to meet such a requirement, he could be passed
over and those junior to him could be promoted despite his seniority in the
seniority list.
12.
In
the instant case, the only feature which weighed with the Corporation in granting
promotion to Ram Kumar was a comparative assessment between his performance and
that of Jagat Ram. While Jagat Ram had got only one "outstanding" remark
in 10 years, Ram Kumar had obtained "outstanding" remark in all the
10 years. Accordingly, he was preferred to Jagat Ram, whose qualifications were
inferior to that of Ram Kumar by comparison. But, as has been rightly held by the
Division Bench of the High Court, in cases of seniority-cum-merit, the
comparative assessment is not contemplated and is not required to be made.
13.
There
is nothing on record to indicate that Jagat Ram was not capable of discharging his
functions in the promoted post of Assistant Manager (Administration). He was denied
promotion only on 15the ground of the superior assessment that had been made in
favour of Ram Kumar, which, in our view, runs contrary to the concept of seniority-cum-merit.
14.
There
is, therefore, no reason to differ with the views of the Division Bench of the High
Court and both the Special Leave Petitions, filed by Ram Kumar and the Corporation,
are accordingly dismissed.
15.
There
will, however, be no order as to costs.
................................................J.
(ALTAMAS
KABIR)
New
Delhi
Dated:
23.02.2011
Haryana State
Warehousing Corporation & ANR. vs. Jagat Ram & ANR
Ram Kumar Vs. Jagat
Ram & Ors.
J U D G M E N T
CYRIAC JOSEPH, J.
1.
I
had the benefit of reading the judgment of my learned brother Altamas Kabir, J.
I respectfully agree with the decision to dismiss the Special Leave Petitions.
However, I wish to support and supplement the decision through this separate
but concurring judgment.
2.
The
dispute in these Special Leave Petitions relates to the claim of Jagat Ram [Respondent
No.1 in S.L.P. (C) No. 2659 of 2011] for appointment to the post of Assistant
Manager (Administration) in Haryana State Warehousing Corporation [Petitioner No.1
in S.L.P. (C) No.2659 of 2011].
3.
Jagat
Ram had filed Civil Writ Petition No.18891 of 2009 in the High Court of Punjab and
Haryana, challenging the appointment of Ram Kumar [Petitioner in S.L.P. (C)
No.451 of 2011 and respondent No.2 in S.L.P. (C) No.2659 of 2011] as Assistant Manager
(Administration) and seeking a direction to Haryana State Warehousing Corporation
(hereinafter referred to as "the Corporation") to promote Jagat Ram as
Assistant Manager (Administration) w.e.f. 1.8.2009. The said Writ Petition was
dismissed by a Single Bench of the High Court on 9.12.2009. Thereupon, Jagat
Ram filed Letters Patent Appeal No.490 of 2010 before a Division Bench of the High
Court and vide judgment dated 11.10.2010, the Division Bench allowed the L.P.A.
and set aside the promotion of Ram Kumar, with a direction to the Corporation to
redo the exercise and complete the same as expeditiously as possible. Aggrieved
by the judgment of 18the Division Bench, the Corporation and Ram Kumar have
filed these Special Leave Petitions.
4.
Jagat
Ram was first appointed as Godown Attendant-cum-Watchman in the Corporation and
he joined the service on 25.4.1979. He was promoted as Clerk-cum-Typist on
23.12.1981. He was further promoted as Establishment Assistant on 16.5.1996.
5.
Ram
Kumar was first appointed in the Corporation as Junior Scale Stenographer and he
was promoted as Establishment Assistant on 10.11.2004.
6.
Thus,
admittedly, Jagat Ram was senior to Ram Kumar in the cadre of Establishment
Assistant.
7.
A
vacancy of Assistant Manager (Administration) arose on 1.8.2009 due to the
retirement of one V.K. Chakarvarty, Assistant Manager (Administration) on 31.7.2009.
Appointment to the post of Assistant Manager (Administration) is governed by the
provisions of Haryana State Warehousing Corporation (Officers and Staff)
Regulations, 1994 (hereinafter referred to as "the Regulations"). According
to Regulation 8(1) of the Regulations, the method of recruitment to the post of
Assistant Manager (Administration) is by promotion from amongst Establishment Assistants.
Regulation 8(2) of the Regulations provides as follows : "All promotions, unless
otherwise provided, shall be made on seniority-cum- merit basis and seniority
alone shall not confer any right to such promotions."According to Regulation
6 of the Regulations, no person shall be appointed to any post in the service
unless he is in possession of qualification and experience specified in
Appendix-B to the Regulations. As per clause 19 of Appendix-B to the
Regulations, for promotion to the post of Assistant Manager (Administration) 5 years'
experience as Establishment Assistant is required. Thus, it is not in dispute that
as per the Regulations the vacancy in the cadre of Assistant Managers (Administration)
was to be filled by promotion on the basis of seniority-cum-merit from among Establishment
Assistants having the required experience of 5 years.
8.
As
already indicated, a vacancy of Assistant Manager (Administration) arose on 1.8.2009.
As on that date Ram Kumar did not have 5 years' experience as Establishment Assistant,
as he was promoted to the post of Establishment Assistant only on 10.11.2004. However,
Jagat Ram had more than 5 years' experience as he was promoted to the post of
Establishment Assistant on 16.5.1996. The vacancy of Assistant Manager (Administration)
which arose on 1.8.2009 was filled up only on 17.11.2009 by promoting Ram Kumar
as Assistant Manager (Administration). By 17.11.2009, Ram Kumar also had
acquired experience of 5 years in the cadre of Establishment Assistants. But
Jagat Ram was admittedly senior to Ram Kumar.
9.
In
the Writ Petition filed by Jagat Ram, he had contended that the promotion of
Ram Kumar to the cadre of Assistant Managers (Administration) was illegal as he
did not possess the required experience of 5 years on the date of occurrence of
the vacancy i.e. 1.8.2009. It was alleged that the vacancy which arose on 1.8.2009
was deliberately kept vacant for more than 3 months and that the filling up of
the vacancy was purposefully delayed to enable Ram Kumar to acquire the minimum
required experience of 5 years as Establishment Assistant. It was also alleged that
since Ram Kumar was working as Junior Scale Stenographer-cum-Personal Assistant
to the Managing Director of the Corporation, the action of the respondents in
delaying the filling up of the vacancy of Assistant Manager (Administration) was
mala fide. Jagat Ram also claimed that being the senior-most and meritorious amongst
the Establishment Assistants, he was the only eligible candidate for promotion to
the post of Assistant Manager (Administration) when it fell vacant on 1.8.2009.
10.
The
Writ Petition filed by Jagat Ram was dismissed on 9.12.2009 by a Single Bench of
the High Court apparently even without issuing notice to the respondents. In the
judgment dated 9.12.2009, the learned Single Judge held that Ram Kumar was
eligible for promotion on the date when the case for promotion was considered. It
was also observed that the service records placed on record by the petitioner (Jagat
Ram) clearly showed that the record of Ram Kumar was much better than that of Jagat
Ram. The learned Single Judge rejected the contention that undue favour was shown
to Ram Kumar by the Managing Director. Aggrieved by the judgment of the learned
Single Judge, Jagat Ram filed L.P.A. No. 490 of 2010 which was allowed by the
Division Bench of the High Court.
11.
In
the impugned judgment dated 11.10.2010 in L.P.A. No.490 of 2010, the Division
Bench of the High Court held that as per the Regulations governing promotion to
the post of Assistant Manager (Administration), the criterion for promotion is
seniority-cum-merit, but Ram Kumar was wrongly and illegally given promotion following
the criterion of merit or even merit-cum-seniority. Relying on the judgment of this
Court in State of Mysore and another v. Syed Mahmood and others (AIR 1968 SC 1113),
the Division Bench pointed out that when promotion is to be made on the basis
of seniority-cum-merit, a senior can be overlooked only when he is found unfit
for the higher post. The Division Bench rejected the contention of the Corporation
that the words "seniority alone shall not confer any right to such
promotions" appearing in Regulation 8(2) of the Regulations indicated that
a junior can be preferred to a senior on the basis of merit. According to the
Division Bench, the words quoted above only clarify and fortify that promotion is
required to be made by applying the criterion of seniority-cum-merit. The
Division Bench found that the selection and promotion of Ram Kumar was predominantly
on the principle of merit and hence it was in contravention of the provisions
contained in the Regulations. Accordingly, the promotion of Ram Kumar was set aside
and the Corporation was directed to redo the exercise and complete the same as
expeditiously as possible but strictly in accordance with the Regulation in force.
It may be observed that the Division Bench did not consider the question whether
eligibility of the candidates should have been considered with reference to the
date of occurrence of the vacancy.
12.
The
first issue that arises for consideration in these Special Leave Petitions is the
effect of the words "seniority alone shall not confer any right to such
promotions" appearing in Regulation 8(2) of the Regulations.
13.
The
learned counsel for the petitioners in the Special Leave Petitions contended
that those words gave freedom or right to the Corporation to prefer a junior to
his senior on the basis of better merit. It was contended that in view of those
words, quoted above, seniority should yield to merit. The contention of the learned
counsel for the petitioners is devoid of merit. As rightly held by the Division
Bench of the High Court, the words "seniority alone shall not confer any right
to such promotions" only clarify the earlier part of Regulation 8(2), which
stipulates that "all promotions, unless otherwise provided, shall be made
on the seniority-cum-merit basis". The clear mandate of Regulation 8(2) is
that promotions shall be made on seniority-cum-merit basis and not on the basis
of seniority alone or merit alone. To emphasise that promotion cannot be claimed
as a matter of right on the basis of seniority and that along with seniority, merit
also will be considered, it is clarified in the Regulation itself that
"seniority alone shall not confer any right to such promotions". The
above quoted words do not in any way dilute or vary the principle that
promotions shall be made on seniority-cum-merit basis. They only clarify the
meaning or implication of the expression "seniority-cum-merit". In this
context, it may be pointed out that in State of Mysore and another v. Syed
Mahmood and others (AIR 1968 SC 1113), this Court has held as follows: "(4)
..... Where the promotion is based on seniority-cum-merit, the officer cannot claim
promotion as a matter of right by virtue of his seniority alone. If he is found
unfit to discharge the duties of the higher post, he may be passed over and an officer
junior to him may be promoted."
14.
The
next issue that arises for consideration is whether the impugned promotion of Ram
Kumar was on the basis of seniority-cum-merit as required by Regulation 8(2) of
the Regulations. For deciding the said issue, it is necessary to understand the
meaning of the expression "seniority-cum-merit".
15.
In
State of Kerala and another v. N.M. Thomas and others [(1976) 2 SCC 310], this
Court held that seniority-cum-merit means that given the minimum necessary merit
requisite for efficiency of administration, the senior though less meritorious
shall have priority.
16.
In
B.V. Sivaiah and others v. K. Addanki Babu and others [(1998) 6 SCC 720], a three
Judges' Bench of this Court considered the question "what is meant by
seniority-cum-merit?" and held as follows : "18. We thus arrive at the
conclusion that the criterion of "seniority-cum- merit" in the matter
of promotion postulates that given the minimum necessary merit requisite for efficiency
of administration, the senior, even though less meritorious, shall have priority
and a comparative assessment of merit is not required to be made. For assessing
the minimum necessary merit, the competent authority can lay down the minimum 26
standard that is required and also prescribe the mode of assessment of merit of
the employee who is eligible for consideration for promotion. Such assessment can
be made by assigning marks on the basis of appraisal of performance on the basis
of service record and interview and prescribing the minimum marks which would entitle
a person to be promoted on the basis of seniority-cum-merit.
17.
In
Union of India and others v. Lt. Gen. Rajendra Singh Kadyan and another [(2000)
6 SCC 698], this Court held that "seniority-cum-merit" postulates the
requirement of certain minimum merit or satisfying a benchmark previously fixed,
and subject to fulfilling the said requirement, the promotion is based on seniority.
It was also held that the requirement of assessment of comparative merit was
absent in the case of "seniority-cum-merit".
18.
Following
the decision in B.V. Sivaiah (supra), this Court in Harigovind Yadav v. Rewa Sidhi
Gramin Bank and others [(2006) 6 SCC 145] held that where the procedure adopted
did not provide the minimum standard for promotion, but only the minimum standard
for interview, and did the selection with reference to comparative marks, it was
contrary to the rule of "seniority-cum-merit". This Court in that case
found that the procedure was not one of ascertaining the minimum necessary
merit and then promoting the candidates with the minimum merit in accordance with
seniority, but assessing the comparative merit by drawing up a merit list, the assessment
being with reference to marks secured for seniority, performance, postings at
rural/difficult places and interview.
19.
In
Rajendra Kumar Srivastava and others v. Samyut Kshetriya Gramin Bank and others
[(2010) 1 SCC 335], while considering the question "whether minimum qualifying
marks could be prescribed for assessment of past performance and interview, where
the promotions are to be made on the principle of seniority-cum-merit?", this
Court observed as follows : "11. It is also well settled that the principle
of seniority-cum-merit, for promotion, is different from the principle of
"seniority" and the principle of "merit- cum-seniority". Where
promotion is on the basis of seniority alone, merit will not play any part at
all. But where promotion is on the principle of seniority-cum-merit, promotion is
not automatic with reference to seniority alone. Merit will also play a significant
role. The standard method of seniority-cum-merit is to subject all the eligible
candidates in the feeder grade (possessing the prescribed educational qualification
and period of service) to a process of assessment of a specified minimum necessary
merit and then promote 28the candidates who are found to possess the minimum necessary
merit strictly in the order of seniority. The minimum merit necessary for the post
may be assessed either by subjecting the candidates to a written examination or
an interview or by assessment of their work performance during the previous
years, or by a combination of either two or all the three of the aforesaid methods.
There is no hard-and-fast rule as to how the minimum merit is to be ascertained.
So long as the ultimate promotions are based on seniority, any process for ascertaining
the minimum necessary merit, as a basic requirement, will not militate against
the principle of seniority-cum-merit.12. xxx xxx xxx13. Thus it is clear that a
process whereby eligible candidates possessing the minimum necessary merit in
the feeder posts is first ascertained and thereafter, promotions are made
strictly in accordance with seniority, from among those who possess the minimum
necessary merit is recognised and accepted as complying with the principle of "seniority-cum-merit".
What would offend the rule of seniority-cum-merit is a process where after
assessing the minimum necessary merit, promotions are made on the basis of merit
(instead of seniority) from among the candidates possessing the minimum
necessary merit. If the criteria adopted for assessment of minimum necessary merit
is bona fide and not unreasonable, it is not open to challenge, as being
opposed to the principle of seniority-cum-merit. We accordingly hold that prescribing
minimum qualifying marks to ascertain the minimum merit necessary for discharging
the 29 functions of the higher post, is not violative of the concept of promotion
by seniority-cum-merit."
20.
In
Rupa Rani Rakshit and others v. Jharkhand Gramin Bank and others [(2010) 1 SCC 345],
the Bank did not subject eligible candidates to any process of assessment to
ascertain any specified minimum merit, for the purpose of promoting candidates who
possessed the minimum merit, on the basis of seniority. On the other hand, the Bank
proceeded to assess their inter se merit with reference to four criteria (period
of service, educational qualification, performance during three years and
interview) by allocating respectively maximum marks of 40, 6, 24 and 30 and thus
proceeded to promote those who had secured higher marks in the order of merit. This
Court held that such promotions were not on seniority-cum-merit basis.
21.
Though
learned counsel for the petitioners relied on the decision of this Court in Jagathigowda,
C.N. & Others v. Chairman, Cauvery Gramina Bank & Others [(1996) 9 SCC
677], the said decision cannot support the case of the petitioners, because, in
the said case the guidelines applicable to the promotions had specifically
provided that "the selection of the eligible candidates should be based on
performance of the respective candidates in the Bank". However, learned counsel
invited our attention to the following observation in paragraph 8 of the
judgment: "... It is settled proposition of law that even while making promotions
on the basis of seniority-cum-merit, the totality of the service record of the
officer concerned has to be taken into consideration. ..."The above observation
only means that, for the purpose of considering whether the officer fulfils the
requirement of minimum merit or satisfies the benchmark previously fixed, the totality
of his service record has to be taken into consideration. It does not mean that
a further assessment of comparative merit on the basis of the service record is
warranted even after the officers are found to fulfil the requirement of minimum
merit and satisfy the benchmark previously fixed.
22.
Thus
it is the settled position that the criterion of seniority-cum-merit is different
from the criterion of merit and also the criterion of merit-cum-seniority. Where
the promotion is based on seniority-cum-merit, the officer cannot claim promotion
as a matter of right by virtue of his seniority alone. If he is found unfit to
discharge the duties of the higher post, he may be passed over and an officer
junior to him may be promoted. Seniority-cum-merit means that, given the
minimum necessary merit required for efficiency of administration, the senior, though
less meritorious, shall have priority in the matter of promotion and there is no
question of a further comparative assessment of the merit of those who were
found to have the minimum necessary merit required for efficiency of
administration. For assessing the minimum necessary merit, the competent authority
can lay down the minimum standard that is required and also prescribe the mode
of assessment of merit of the employees. Such assessment can be made by
assigning marks on the basis of appraisal of performance on the basis of service
record and interview and prescribing the minimum marks which would entitle a person
to be considered for promotion on the basis of seniority-cum-merit. The concept
of "seniority-cum-merit" postulates the requirement of certain minimum
merit or satisfying a benchmark previously fixed and, subject to fulfilling the
said requirement, promotion is based on seniority. There is no further
assessment of the comparative merits of those who fulfil such requirement of
minimum merit or satisfy the benchmark previously fixed. On the other hand, the
principle of "merit-cum-seniority" puts greater emphasis on merit and
ability and seniority plays a less significant role. Seniority is given weightage
only when merit and ability are more or less equal among the candidates
considered for promotion.
23.
In
the light of the above legal position with regard to the principle of
"seniority-cum-merit", it is clear that the impugned promotion of Ram
Kumar was not on the basis of seniority-cum-merit but was on the basis of merit.
The written statement filed by the Corporation in L.P.A. No. 490 of 2010 reveals
that while considering the candidates for promotion, both Jagat Ram and Ram Kumar
were found suitable for promotion and that even though Jagat Ram was senior to
Ram Kumar, Ram Kumar was given promotion on the ground that he had better
merits. Justifying the promotion of Ram Kumar in preference to the appellant
Jagat Ram, it was stated in the written statement as follows : "2. xxx xxx
xxx As is evident from a perusal of Annexure P-4, all the Assistants who were eligible
for promotion to the rank of Assistant Manager (Administration) having completed
5 years of service as Assistant were considered on the basis of seniority-33 cum-merit
by the competent authority. The senior most candidate i.e. Shri R.K. Nayyar had
bad service record in as much as there were three charge-sheets pending under Rule-7
against him besides penalty imposed upon him. The second candidate in seniority
was the petitioner Shri Jagat Ram, whose ACR dossier for the last 10 years contained
one grading as Very Good and 9 were good. The third candidate, Smt. Pushpa Devi
again has 8 very good, = outstanding, one good and = average grading in her ACR
resume. Penalty of stoppage of one increment without cumulative effect was imposed
upon her on 18.12.2008. She was also issued a warning on 04.12.2008. The respondent
No.3, Shri Ram Kumar, had all the 10 Annual Confidential Reports as Outstanding
and there were no departmental proceedings pending or concluded against him and
thus on the basis of seniority-cum- merit as provided in the Regulations, the candidature
of respondent No.3 was found to be most suitable and accordingly the competent authority,
vide detailed and reasoned orders, promoted the respondent No.3 to the rank of Assistant
Manager (Administration). ..."In reply to Jagat Ram's contention that
selection had to be made from a panel of three suitable officials and that Ram
Kumar could not have been considered as he was at serial No.4, the Corporation stated
in the written statement as follows :
"The contention is
totally devoid of merits. The Chief Secretary Punjab vide Notification dated 28.06.1961,
copy of 34 which is attached as Annexure R-1/1 had clarified the issue and has
ordered that in the first instance, list of eligible officers/officials, who fulfil
the prescribed experience etc. for promotion is to be drawn up and then out of
this list, such officers/officials as are considered unsuitable for promotion are
to be weeded out and a list of only those who are suitable for promotion has to
be drawn up. Selection thereafter is to be confined to three suitable officers/officials
of the list Selection for every vacancy has, therefore, to be made from the slab
of three officers/officials, who are considered fit for promotion and unless a junior
among them happens to be of exceptional merit and suitability, the senior-most
will be selected. In the present case, in the Corporation there were only four Establishment
Assistants who were eligible and the candidature of all the four was considered.
Out of four, two were found unsuitable and out of the remaining two suitable officials,
the respondent No.3 being most suitable and meritorious was selected and promoted
to the post of Assistant Manager (Administration)."Therefore, it is clear that
even according to the Corporation, both Jagat Ram and Ram Kumar fulfilled the
requirement of minimum merit and were suitable for promotion but Ram Kumar,
though junior, was preferred as he was found to be more meritorious. This was obviously
in violation of the principle of seniority-cum-merit. Since both Jagat Ram and Ram
Kumar fulfilled the requirement of minimum merit and were found suitable for promotion
and since Jagat Ram was senior to Ram Kumar, Jagat Ram was entitled to be promoted
on the basis of seniority-cum-merit. Consequently, the promotion of Ram Kumar
was liable to be set aside as was rightly done by the Division Bench of the
High Court.
24.
In
the light of the discussion above, the Special Leave Petitions are devoid of merit
and hence they are dismissed.
25.
There
will, however, be no order as to costs.
...............................J.
CYRIAC JOSEPH
New
Delhi;
February
23, 2011.
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