Uttar Pradesh Vs.
Jalal Uddin & Ors  Insc 611 (5 October 2004)
of 2004 ARIJIT PASAYAT & C.K. THAKKER (Arising out of SLP ) No. 5002 of
2004) ARIJIT PASAYAT, J.
The State of Uttar Pradesh calls in
question legality of the judgment rendered by a Division Bench of the Allahabad
High Court. The writ petition was filed by the present respondent No.1 with the
prayer that he should be promoted as Principal of the Government Degree College. Grievance was
made that though his juniors have been promoted but he had not been promoted.
Relying on earlier judgment of the High Court in N.K. Agarwal v. Kashi Gramin
(2003 (2) UPLBEC 1333), the writ petition was allowed. Direction was given that
present respondent No.1 should be promoted as Principal of a Government Degree College with effect from
the earliest date on which his juniors were promoted, his seniority was to be
fixed with effect from that date and he shall be given arrears within two
months. According to the High Court, the criteria for promotion have to be so
as given in Rule 16 of the U.P. Higher Education (Group A) Service Rules, 1985.
According to the said rules, seniority subject to rejection of unfit was the
criteria in terms of Rule 16(1)(b).
In support of the appeal, learned
counsel for the appellant-State submitted that the High Court completely
ignored the relevant rules and based its judgment on a rule which was no longer
operative. The 1985 Rules had become inoperative in view of the Uttar Pradesh
Government Servant Criteria for Recruitment by Promotion Rules, 1994 (in short
the '1994 Rules') as modified/amended from time to time. The said rules have
been framed in exercise of powers conferred by proviso to Article 309 of the
Constitution of India, 1950 (in short the 'Constitution').
In Rule 2 it was clearly
stipulated that the rules had over-riding effect over any other rules made by
the Government under the proviso to Article 309 of the Constitution or
otherwise. It is clearly stipulated that the rules shall have effect
notwithstanding anything to the contrary contained in any other rules as noted
above. The High Court proceeded to decide the case on the basis of 1985 Rules
which was not permissible to be done.
In response, learned counsel for
the respondent No.1 submitted that even under the 1994 Rules the respondent was
entitled to be promoted and even though specifically the 1994 Rules have not
been referred to, the same was kept in view while deciding the writ petition.
The distinction between the seniority-cum-merit and merit- cum-seniority
consideration is too well known and needs no reiteration.
In all services, whether public or
private there is invariably a hierarchy of posts comprising of higher posts and
Promotion, as understood under the
Service Law Jurisprudence, is advancement in rank, grade or both and no
employee has right to be promoted, but has a right to be considered for
promotion. The following observations in Sant Ram Sharma v. State of Rajasthan and Ors. (AIR
1967 SC 1910) are significant:
"The question of a proper
promotion policy depends on various conflicting factors. It is obvious that the
only method in which absolute objectivity can be ensured is for all promotions
to be made entirely on grounds of seniority. That means that if a post falls
vacant it is filled by the person who has served longest in the post
immediately below. But the trouble with the seniority system is that it is so
objective that it fails to take any account of personal merit. As a system it is
fair to every official except the best ones; an official has nothing to win or
lose provided he does not actually become so inefficient that disciplinary
action has to be taken against him. But, though the system is fair to the
officials concerned, it is a heavy burden on the public and a great strain on
the efficient handling of public business. The problem, therefore, is how to
ensure reasonable prospect of advancement to all officials and at the same time
to protect the public interest in having posts filled by the most able man? In
other words, the question is how to find a correct balance between seniority
and merit in a proper promotion-policy." The principles of
seniority-cum-merit and merit-cum-seniority are conceptually different. For the
former, greater emphasis is laid in seniority, though it is not the
determinative factor, while in the latter merit is the determinative factor. In
The State of Mysore and Anr. v. Syed Mahamood and Ors. (AIR 1968 SC 1113), it
was observed that in the background of Rule 4(3)(b) of the Mysore State Civil
Services (General Recruitment) Rules, 1957 which required promotion to be made
by selection on the basis of seniority-cum-merit, that the rule required
promotion to be made by selection on the basis of "seniority subject to
fitness of the candidate to discharge the duties of the post from among persons
eligible for promotion". It was pointed out 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 and 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. But these are not the only modes for deciding whether
promotion is to be granted or not.
These aspects were highlighted in
K. Samantaray v. National Insurance Co. Ltd. (AIR 2003 SC 4422).
It has to be noticed that in the
counter affidavit filed by the State, a clear reference was made to the 1994
Rules and the amendment made in 1996. Though the High Court referred to some
paragraphs of the counter affidavit, it did not take note of 1994 Rules and its
effect on the controversy. We are therefore of the considered opinion that when
relevant rules have not been kept in view the proper course would be to direct
the High Court to hear the writ petition afresh. The applicability and the
effect of 1994 Rules to the facts of the present case shall be considered by
the High Court in the proper perspective.
We make it clear that we have not
expressed any opinion in that regard.
The appeal is allowed to the
aforesaid extent with no order as to costs.