- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Vishambhar Dayal Parashar vs. Union of India & Ors. S.B.CIVIL WRIT PETTIION NO. 3158/2003. DATE OF ORDER : May 13, 2008 REPORTABLE P R E S E N T HON'BLE JUSTICE GOPAL KRISHAN VYAS Mr.Jagdish Vyas, for the petitioner. Mr.Arun Bhansali, for the respondent. Mr.V.K.Mathur for Union of India. In this petition petitioner has prayed for quashing the promotion order dated 21/5/2003 (Anex.9) by which respondents No.4 to 6 were promoted as SRA-II. Without prejudice to the above relief, it is prayed that by way of writ order or direction respondents may be directed to consider the case of petitioner for promotion to the post of SRA II and grant him promotion over and above respondents no.4 to 6 with retrospective effect from 13/7/1998 with all consequential benefits at par with respondents no.4 to 6. Further, it is prayed that impugned order dated 16/6/2003 (Annex.11) may also be - 2 - quashed and Policy Annex.12 prescribing criteria for promotion under the category of seniority cum fitness (SCF) may kindly be declared illegal and ultravires. The facts of the case are that petitioner was initially appointed as Senior Accounts Clerk vide order dated 12/12/1989 in Nuclear Power Corporation of India Limited. Thereafter, petitioner being eligible for next promotion to the post of Assistant Accountant was to be granted promotion on the said post but promotion was denied to petitioner in spite of repeated representations from time to time and vide communication dated 5/3/1991 he was informed that his case for promotion shall be considered at appropriate time against future vacancies. On 11/5/1994 when his junior Shri D.K.Sharma was promoted on adhoc basis then petitioner preferred original application before Central Administative Tribunal, Jodhpur and the said Original Application was registered as O.A.No.272/1994. After issuance of notice in the O.A., a reply was filed by the respondents whereby Tribunal was informed that Shri D.K.Sharma, who was allowed adhoc promotion has been reverted to the post of Senior Accounts Clerk and petitioner's case for promotion shall be considered at appropriate time against future vacancies. The said original application was - 3 - disposed of vide order dated 23/3/1998. It is stated in the writ petition that post of Senior Accounts Clerk was redesignated as Accounts Assistant w.e.f. 1/12/1995 and subsequently vide order dated 13/2/2001 the post of Accounts Assistant was redesignated as Senior Assistant-I (SRA- I) and the post of Assistant Accountant was redesignated as Senior Assistant-II (Finance) (SRA-II) vide order dated 18/9/2001. According to the petitioner, a seniority list was published for the post of SRA-I on 7/2/2003 in which name of petitioner was shown at serial no.1, which is evident from Annex.7 filed along with the writ petition. Upon perusal of Annex.7, it is further revealed that names of respondents no.4 to 6 were appearing at serial nos. 2, 3 and 4 in the seniority list. Meaning thereby, as per petitioner, he was senior most SRA-I in the department and was entitled for promotion to the post of SRA-II as per his seniority. According to petitioner, vacancy of SRA-II occurred on 13/7/1998 but his case was not considered despite assurance was given by the respondents earlier so also directions of the Tribunal, therefore, a representation was made by the petitioner - 4 - for considering his case for promotion to the post of SRA-II but reasons best known to respondents, case of petitioner was not considered. However, an order was issued on 21/5/2003, whereby, respondents no.4 to 6 namely Shri S.L.Kerwal, Shri M.C.Bairwa and Shri D.K.Sharma were promoted by way of upgradation to the post of SRA-II and benefits were given notionally w.e.f. 13/7/1998 along with financial benefits w.e.f. 7/6/2001. As per petitioner, in Annex.9 it is stated that respondents no.4 to 6 were given benefit of promotion by way of upgradation as SRA-II in Finance but petitioner was denied promotion without assigning any reason though he was senior most candidate in the cadre of SRA-I. When petitioner was denied promotion and his juniors were promoted, he immediately made a representation to respondent no.3 and vide communication dated 16/6/2003 petitioner was conveyed that his case for promotion was considered by the DPC but he was not promoted on the ground that he was not meeting the bench marks of CR Gradings required for promotion. According to petitioner, he has been refused promotion on the basis of circular issued by the respondents in which criteria for the purpose of promotion and upgradation to the post of SRA-II was `seniority cum fitness'. As per para no.2.4 of the circular candidate is required to complete ten years continuous service in existing cadre and required to maintain atleast “good” rating in - 5 - preceding five years appraisal report and this condition has been made mandatory for upgradation and promotion subject to availability of vacancies. Petitioner is challenging para 2.4 of the norms of eligibility for group `C' of Annex.12. Learned counsel for the petitioner while inviting attention of this Court towards three judgments of Hon'ble Apex Court reported in AIR 1998 SC 2565 (B.V.Sivaiah & Ors. vs. Addanki Babu & ors.), (2006) 6 SCC 145 (Hargovind Yadav vs. Rewa Sidhi Gramin Bank & Ors.) and AIR 2007 SC 994 (Bhagwandas Tiwari & Ors. vs. Shajapur Kshetriya Gramin Bank & Ors.) followed by Division Bench of this Court in D.B.Civil Special Appeal No.709/1995 decided on 21/9/2004 and further followed by learned Single Judge in S.B.Civil Writ Petition No.1614/2003 decided on 16/11/2006 (H.S.Ranawat & Ors. vs. Marwar Gramin Bank & Ors.) submitted that criteria which is prescribed in this case by the respondents department for assessing suitability of candidate for upgradation/promotion is contrary to the law laid down by Hon'ble Apex Court. While challenging the said criteria which is prescribed for promotion, it is submitted by the petitioner that denial of promotion to petitioner to the post of SRA-II is totally illegal and without any foundation so also contrary to the law laid down by - 6 - Hon'ble Apex Court. While inviting attention towards basic judgment in case of B.V.Sivaiah's case (supra) which is subsequently followed by Division Bench and Single Bench of this Court, it is vehemently argued that as per verdict of Hon'ble Apex court that criteria of seniority cum merit in the matter of promotion postulate that given the minimum necessary merit requisite for efficiency of administration the senior, even though less meritorious, shall have priority and comparative assessment of merit is not required to be made. Learned counsel for the petitioner Shri Jagdish Vyas argued that earlier petitioner was assured that his case will be considered for promotion against future vacancy but at the time of consideration he has been denied promotion while applying the illegal criteria which is prescribed for promotion under the category of seniority cum fitness. According to petitioner, in the said criteria no weightage has been given to seniority and merely on the basis of comparative merit of candidates, petitioner has been denied promotion, though he is senior most SRA-I, therefore, the criteria in which no weightage has been given to seniority is arbitrary, illegal and contrary to the law laid down by Hon'ble Apex Court. - 7 - Further it is argued by learned counsel for the petitioner that as per policy Annex.12 a candidate is eligible for consideration only after completing ten years of service in existing cadre but no marks are provided for length of service, meaning thereby, due weightage has not been given to the seniority in the policy/criteria which renders the policy illegal and ultra vires. As per petitioner's counsel prescribing at least “good” rating in preceding five years' CR is contrary to the principle of seniority cum fitness because by prescribing said criteria it tentamounts to non-consideration of other aspects, whereas, for the purpose of upgradation/promotion seniority is also required to be given due weightage, which is not given in the criteria, therefore, criteria/policy framed by the respondents is illegal and have no foundation to stand before eye of law. As per petitioner, upon perusal of said criteria it is obvious that this criteria cannot be termed as criteria for seniority cum fitness but it is a criteria apparently for promotion under merit cum seniority. The essence of criteria prescribed in this case is merit only because as per criteria a candidate is required to have to his credit at least “good” rating in the CRs of preceding five - 8 - years, which is contrary to the principle of seniority cum fitness as held by the Hon'ble Apex Court in the aforesaid judgments. It is further submitted that the criteria prescribed in the present case completely ignores the seniority because no weightage is given to the seniority and since the petitioner is not having “good” rating in his CRs of preceding five years, therefore, petitioner has been deprived of his right of promotion though no adverse remarks were communicated to petitioner and he is the senior most SRA-I. The criteria adopted by the respondents is for assessing merit only but under the rules promotions are required to be made on the basis of seniority cum merit, therefore, obviously first seniority should be the basis for consideration and for assessing merit eligibility is to be seen but as per para 2.4 of the circular the department has assessed the merit while considering comparative merit of the candidates as per their service record which is not permissible as per law laid down by Hon'ble Apex Court. Per contra, learned counsel for the respondent Shri Arun Bhansali vehemently argued that in this case certain posts of SRA-I were upgraded to SRA-II (Finance) and in all four posts of SRA -II were made available for upgradation and after considering the candidature of petitioner while applying the criteria issued by the department seniority cum fitness petitioner - 9 - was not found suitable for promotion though he is senior to respondents no.4 to 6 because he is not having “good” rating in his preceding five years ACRs, whereas, respondent nos. 4 to 6 were having “good” or “very good” rating to their credit in preceding five years from the date of promotion, therefore, they were found suitable for promotion as per the policy/criteria of seniority cum fitness prescribed by the department. Further it is argued that even if as per the judgment cited by learned counsel for the petitioner reported in AIR 1998 SC 2565, which is the basic judgment, in para no.18 it is specifically provided by Hon'ble Apex court that 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 employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance 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, therefore, the criteria/policy (Annex.12) laid down by the respondents is in consonance with the judgment rendered by Hon'ble Apex Court and petitioner has no case because he is not having “good” rating in the preceding five years ACRs from the date of consideration, whereas, - 10 - respondents no.4 to 6, who were promoted by the department were having “good” or “very good” in their appraisal reports of preceding five years. It is also argued that even for assessing suitability of the candidate for promotion amongst the employees who are within consideration zone the respondents have prescribed reasonable criteria which is within the law laid down by the Apex Court. In these circumstances, no case is made out by the petitioner for interference in this case, therefore, writ petition deserves to be dismissed. I have heard both the learned counsel for the parties and considered the material on record so also the judgments cited by learned counsel for the petitioner. In this case petitioner is challenging the policy/criteria which is prescribed by the respondents for considering the case of employees for promotion under the category of seniority cum fitness and according to him said policy/criteria is not in consonance with the law laid down by the Hon'ble Apex Court in case of B.V.Sivaiah, therefore, first of all the policy/criteria is required to be examined. The said policy/criteria was made effective from 1.4.1996 and further reviewed on 1.4.1999. In appendix (1) of Annex 12 (page 45 of paper book) norms of eligibility of Group `C' is prescribed and para 2.4 is relevant for the purpose of promotion under the quota of “seniority cum fitness”, which reads as under: - 11 - “2.4 Seniority cum fitness (SCF) Those who complete ten years in the existing grade and maintain atleast “Good” rating in preceding last 5 years appraisal reports, may be given next pay scale and the position subject to the vacancies being available for promotion of which 20% posts will be filled in through SCF.” Upon perusal of above criteria, it is apparently clear that at the time of consideration the Departmental Promotion Committee is required to assess the suitability of the candidate only on the basis of appraisal report of preceding five years because in the criteria it is specifically provided that only those who completes ten years in existing grade and maintain atleast “Good” rating in preceding five years appraisal reports are entitled for next pay scale. It is no where provided that how much weightage will be given to seniority. The whole basis for consideration and adjudging suitability under this criteria is that candidate must have atleast “Good” rating in preceding five years in appraisal reports. Meaning thereby, though the promotions are to be made under the category seniority cum fitness but no weightage has been given to the seniority and promotions were made on the basis of comparative assessment of five years “good” rating appraisal records of preceding five - 12 - years from the date of actual promotion. In my opinion, there is force in the argument of learned counsel for the petitioner that this criteria is totally arbitrary, illegal and in contravention of basic principle of seniority cum fitness and law laid down by the Apex Court. Admittedly, petitioner is senior most person and after acquiring eligibility repeatedly he made representations to the respondents and he was assured that his case will be considered for promotion as and when vacancy arises in future. In the year 1994 when junior person was promoted on adhoc basis, petitioner filed original application before Central Administrative Tribunal, Jodhpur and upon objection raised by the petitioner, his junior Shri D.K.Sharma was reverted and by way of filing reply it was submitted by Assistant Personnel Officer before the Tribunal that petitioner shall be considered for regular promotion at an appropriate time against future vacancy. The original application was decided in 1994, thereafter, the policy for promotion was framed in 1996 further reviewed in 1999 in which the aforesaid criteria was prescribed and now petitioner's candidature has been rejected on the ground that at the time of consideration he was not meeting the bench marks of CR grading required for promotion. Meaning thereby, the whole basis for promotions under the category of `seniority-cum-fitness' to the - 13 - post of SRA-II is “Good” rating in appraisal reports of preceding five years from the date of consideration. In my opinion such criteria cannot be termed as criteria for promotion under the category of seniority cum fitness but it is criteria for `merit-cum- seniority' because at the time of consideration under the category seniority cum fitness due weightage to seniority has to be given as per law laid down by Hon'ble Apex Court in B.V.Sivaiah's case (supra). The relevant paras 12, 13, 14, 15, 16, 17 & 18 of the said judgment are as follows: “ 12.The learned counsel for the Regional Rural Banks and the promoted officers have, however, placed reliance on Para 7(c) of the Second Schedule to the Rules which prescribes that the mode of selection for promotion would be interview and assessment of performance reports for the preceding three years periods and have submitted that under the criterion of 'seniority-cum-merit', as prescribed under the Rules, comparative merit has to be assessed for the purpose of promotion. Reliance has been placed on the following observations in State of Mysore v. C.R. Seshadri & Ors.,1974 (3) SCR 87 : - "However,if the criterion for promotion is one of the seniority-cum-merit,comparative merit has to be assessed if length of service is equal or an outstanding junior is available for - 14 - promotion." 13. The learned counsel for the Regional Rural Banks and the promoted officers have also placed reliance on the decision of this Court in Jagathigowda, C.N. & Ors. v.Chairman, Cauvery Gramina Bank & Ors., 1996 (9) SCC 677. 14. Para 7(c) of the Second Schedule to the Rules does not,in our opinion, lend support to the contention that the criterion of seniority- cum-merit envisaged by the Rule making authority involves assessment of comparative merit for the purpose of promotion. The word "selection" has been used in the sense of selecting an officer for promotion on the basis of the criterion of seniority-cum-merit. The requirement that such selection shall be made on the basis of interview and assessment of performance reports for the preceding three years is consistent with the criterion of seniority-cum-merit as explained in the state of Kerala & Anr. v. N. M.Thomas & ors. (supra) that "given the necessary merit requisite for efficiency of administration"the senior though the less meritorious shall have priority. The said mode enables an assessment to be made about the minimum necessary merit requisite for efficiency of administration and it cannot be construed as importing assessment of comparative merit of the officers eligible for promotion. - 15 - 15. In C.R. Seshadri (supra) the Court was considering the question whether High Court could have given a direction to the State to give to the respondent therein notional promotion to the post of Deputy Secretary with effect from the date on which his junior secured such promotion. This Court said that such a direction could not be given by the High Court because promotion of a government servant was basically in government's discretionary power and that in the absence of positive proof of the relevant service rules it was hazardous to assume that by efflux of time the respondent would have spiralled upto Deputy Secretaryship and that the proper direction could only be that government would reconsider the case of the respondent afresh for purpose of notional promotion. In that context, this Court pointed out that if the rule of promotion is one of 'sheer seniority' it may well be that promotion is a matter of course and that if seniority-cum-merit is the rule, promotion is problematical. Since the relevant rule governing promotion to the post of Deputy Secretary had not been placed before it, the Court was not required to define the criterion of 'seniority-cum-merit' and to delineate the fine distinction between the criterion of 'seniority- cum- merit' and the criterion of 'merit-cum- seniority' in the matter of promotion. In the observations on which reliance has been placed - 16 - by the learned counsel for the Rural Banks and the promoted officers the distinction between 'seniority-cum-merit' and 'merit-cum-seniority' has been obliterated and both the criterion have been equated.Since comparative assessment of merit is required to be made while applying the criterion of 'merit-cum- seniority' has been obliterated and both the criterion have been equated. Since comparative assessment of merit is required to be made while applying the criterion of 'merit-cum- seniority' and for 'seniority-cum-merit' no such comparative assessment is required, the aforementioned observations in the case of C.R. Seshadri (supra) on which reliance has been placed cannot be regarded as correctly reflecting as to what is meant by the criterion of 'seniority-cum-merit'. 16. In Jagathigowda , C.N. (supra) this Court was dealing with promotion made to the post of senior Manager in a rural bank which promotion was made prior to the Rules and was governed by circulars of the National Bank dated December 31, 1984 and April 7, 1986. Circular dated December 31,1984 provided that promotion to the post of Area Manager/Senior Manager should be on the basis of seniority- cum-merit. By circular dated April 7, 1986 it was prescribed that selection of the eligible candidates should be based on performance of respective candidates in the bank to be - 17 - assessed by a Staff Selection Committee after interviewing the candidates. The selection was made by the selection Committee after calling the eligible officers for interview in accordance with their seniority and in the interview the marks were awarded according to the performance appraisal forms. The officers who obtained 85 marks out of 150 were shortlisted for promotion. The performance appraisal comprised of matters such as dimension of work, general intelligence, job knowledge, initiative and resourcefulness etc. The service record of the officers who assailed the promotion before the High Court was adverse. In the judgment under appeal the High Court had set aside the promotion on the ground that service record of the recent past should have been taken into consideration and in case there was nothing adverse against an officer he could not be denied promotion on the ground that some other junior to him was more meritorious and that promotions were made on the basis of selection inasmuch as marks were assigned on the basis of performance appraisal and interview. The said judgment of the High Court was reversed by this Court. It was observed that the circular dated April 7, 1986 issued by the National Bank specifically provided that 'the selection of the eligible candidates should be based on performance of respective candidates in the bank'. It was held that the High Court was not justified in holding that the - 18 - performance appraisal could not be taken into consideration while considering the officers for promotion to the higher rank. It was also observed that "while making promotion on the basis of seniority-cum-merit the totality of the service record of the officer concerned has to be taken into consideration". This judgment, in our opinion, does not make a departure from the law laid down by this Court in the earlier judgments explaining the criterion of 'seniority-cum-merit' because in this case the selection had been made by taking into account the seniority as well as performance and performance was appraised by assigning marks on the basis of performance appraisal and interview. Those who secured 85 marks out of 150 marks were shortlisted for promotion which shows that securing 85 marks out of 150 marks was treated as the minimum standard of merit for purposes of promotion and those who satisfied the said minimum standard were selected for promotion on the basis of seniority. 17. On behalf of the promoted officers it was urged that for the purpose of promotion on the basis of seniority-cum-merit, seniority means the length of service and that among officers who were appointed on the same date and have the same length of service seniority can have no bearing and promotion has to be - 19 - made on a comparative assessment of merit of such officers. We are unable to agree. While applying the principle of seniority-cum-merit for the purpose of promotion what is required to be considered is inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the selected list for appointment. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to