THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Writ Petition No.2632 of 2010 Dt:20-10-2010 Between : D. Venkata Ramana, Hyderabad ..Petitioner And A.P.State Road Transport Corporation, rep. by its Vice-Chairman and Managing Director, Hyderabad, & others .. Respondents Counsel for the petitioner: Sri G. Vidyasagar Counsel for respondents : Sri K. Madhava Reddy < GIST >HEAD NOTE: ? CASES REFERRED : 1995 Supp. (1) SCC 434 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.2632 of 2010 JUDGMENT: The petitioner was initially appointed as Junior Engineer (Civil) on 31-12-1976 in the A.P.S.R.T.C (for short ‘the Corporation’). He was promoted as Deputy Executive Engineer on 24-03-1984 and as Executive Engineer, on 08-01-1999. In the provisional list of Executive Engineers published on 31-03-2006, the petitioner figures at Sl.No.7. The 3rd respondent has also joined the service of the Corporation and he too was promoted as Executive Engineer, but, after the promotion of the petitioner, to that post. He figured at Sl.No.8 in the provisional seniority list. The next higher post is, “Chief Civil Engineer” (CCE). The Corporation considered the cases of the petitioner, the 3rd respondent and one, K. Suryanarayana, for promotion to the post of C.C.E. The 3rd respondent was promoted through orders dated 29-06- 2009. The petitioner feels aggrieved by the same. The petitioner contends that, according to the A.P.S.R.T.C. Recruitment Regulations – 2004 (for short ‘the Recruitment Regulations’), the post of CCE occurs in Section-B of Class-I, and method of appointment of that post is by way of promotion of suitable candidates from the category of Executive Engineers, subject to certain conditions, and the Corporation has adopted a procedure, contrary to the said Regulations, while promoting the 3rd respondent. According to the petitioner, once the incumbents in the feeder category are found suitable, the seniority would become a deciding factor and viewed from that angle, the 3rd respondent, who is junior to him, ought not to have been promoted. Respondents 1, 2 and 4, on the one hand, and respondent No.3, on the other hand, filed separate counter-affidavits. The gist of their contention is that the promotions are guided by the A.P.S.R.T.C. Service Regulations (for short, ‘the Service Regulations’) and Regulation 4 thereof mandates that, in promotions of this nature, merit would be a predominant factor and seniority becomes relevant, only where merit is proximately equal between two or more candidates. Reliance is also placed upon certain resolutions passed by the Corporation, in exercise of power under Regulation 35 of the Recruitment Regulations. Sri G. Vidya Sagar, learned counsel for the petitioner submits that the mode of appointment to the post of CCE under the Recruitment Regulations is by way of promotion, in case a candidate in the feeder category is found suitable, and once an incumbent is found suitable, the seniority would assume significance. He submits that the procedure of arranging the members of the feeder category in order of merit does not apply to appointments of such nature. He further submits that the resolutions passed by the Corporation, from time to time, in a way, have modified the specific regulations, and the mistake was corrected, soon after the 3rd respondent was promoted. Sri K. Madhava Reddy, learned Standing Counsel for the Corporation, and Sri C.A.R. Seshagiri Rao, learned counsel for the 3rd respondent, on the other hand, submit that the CCE is a post, with superior responsibilities, and appointment to it, is by way of selection; seniority becoming relevant, only when merit is found to be equal. They contend that the selection committee has undertaken evaluation of the relative merits of the three candidates, including the petitioner and the 3rd respondent, and the 3rd respondent was awarded 82.36 marks, another candidate by name, K. Suryanarayana, 78.86 marks, and the petitioner, 77.06 marks. They submit that the Recruitment Regulations, read with the resolutions passed by the Corporation have been strictly followed in promoting the 3rd respondent. They place reliance upon certain decided cases. There is no denial of the fact that the petitioner is senior to the 3rd respondent in the category of Executive Engineers, which occurs in Section-C of Class-I. The post of CCE is in Section-B, viz., special scale services in Class-I. The classification of the various posts as well as method of recruitment is provided for, under the Recruitment Regulations. The post of CCE is at Sl.No.5 of Section-B of Class-I. The method of recruitment for this post is mentioned as under: “To be filled by promotion by selection if suitable, and otherwise by direct recruitment by selection.” Under the heading, ‘Qualifications’, the following is mentioned: “FOR PROMOTION: a) Experience: The candidate must have put in six years service in Class-I Senior Scale and have put in a total service of not less than 10 years; b) Experience in specific posts – Executive Engineer; c) Qualification : Degree in Civil Engineering or its equivalent. FOR DIRECT RECRUITMENT: a) Experience: The candidate must have had experience of not less than 10 years, out of which six years in a senior position as Executive Engineer in-charge of construction of building and structures. b) Qualification – First Class Degree in Civil Engineering or its equivalent. c) Age – the candidate must not be above 45 years”. The Corporation selected and appointed the 3rd respondent as CCE, on the basis of evaluation made by the Selection Committee. It is pertinent to mention here that the Regulation 35 of the Recruitment Regulations empowers the Corporation to issue instructions for the purpose of giving effect to, and to carry out the purposes under the Regulations, or to secure effective control over the employees to whom the Recruitment Regulations apply. A condition is incorporated to the effect that such instructions shall not be inconsistent with the Recruitment Regulations. The basis for preferring the 3rd respondent to the petitioner appears to be a resolution passed by the Corporation on 9th September, 2008. It reads as under: “Selection Committee noted the existing Guidelines laid down by the Board in Resolution No.75/2004, dated 29- 10-2004 for selection of Officers in Class-I Junior Scale and above for promotion and adopted the same with the following provision added. The names of selected candidates recommended for empanelment in any category of Officers shall be rearranged in the descending order of final marks obtained by each candidate and that shall constitute the panel recommended for operation. However, the rule of reservation shall continue to be followed. However, this will not be applied to those who have already been promoted under Reg.30 in whose case the date on which they have been promoted will be treated as date of commencement of probation”. This was confirmed in a subsequent resolution passed on 13-10-2008. It is also important to note that, after the 3rd respondent was appointed, the Board passed a resolution on 09-02-2010, annulling its resolutions, dated 09-09-2008. It reads as under: “Upon perusal of the agenda note and after detailed discussion, Board took a decision to protect the seniority. While giving promotions, the procedure followed prior to the amendment vide Minute No.1/2008, dated 09-09-2008 has to be followed i.e., for selection of candidates to the various posts in Class-I Services, a minimum of 60 marks out of 100 is prescribed as essential for inclusion of the name of a candidate in the panel (50 marks in respect of SC/ST candidates). In respect of all those who score minimum marks and above, their merit shall be arranged in the seniority in the feeder post”. The respondents have also taken shelter under the Regulation 4(b)(i) of the A.P.S.R.T.C. Service Regulations. It reads; “Promotion is a service or class to a selection category or to Selection Grade shall be made on grounds of merit, seniority being considered only where merit is approximately equal”. It is in this background, that the legality or otherwise of the promotion of the 3rd respondent needs to be examined. Generally there are two principal methods of making appointments to superior posts in an organization from the members of a feeder category: The first is by promoting the incumbents purely on the basis of seniority. The second is through a process of selection, in which the “merit” of the members of the feeder category, who are within the zone of consideration, is assessed by a selection committee; and who ever are found meritorious; are appointed to the superior posts, irrespective of their place in the seniority list of the feeder category. It is not uncommon that certain elements of selection are introduced in the first category, and a limited role is assigned to seniority in the second category. In such cases, almost a hybrid of promotion/selection comes into existence. In case the appointment is either by way of promotion or through selection-simplicitor, no problems would arise. It is only when the employer proposes to introduce the elements of one, into the other, that certain complications arise. Much would depend upon the text of the rule, that is framed for this purpose. In its Recruitment Rules the Corporation provided for the promotion based purely upon seniority for some posts, through selection process for certain posts, and an admixture for yet others. For instance, promotions solely on the basis of seniority are provided for posts, such as Law Officer, occurring at Sl.No.12 of Section-B of Class-I. The provision reads; “By promotion of Senior Law Officer in Class-I Senior Scale Service”. No element of selection is involved in this. The post of Executive Director, which is in Sl.No.1 of Section-A of Class-I falls into the second category. It is to be effected by selection-simplicitor, where seniority has no role to perform. So is the case with the appointment to the post of Regional Manager, occurring in Sl.No.9 of Section-B of Class-I. The relevant provision reads; “To be filled in by promotion, by selection, from among the Officers of the rank of Class-I Special Scale Service who had been appointed to the category of Regional Manager or Head of the Department which is interchangeable with that of Regional Manager”. Into the 3rd category fall, the posts, such as C.C.E. The Corporation wanted to inject an element of selection, even while providing for appointment by way of promotion. For these posts, the relevant regulation reads; “to be filled by promotion by selection, if suitable, and otherwise by direct recruitment by selection”. The expression used is “to be filled by promotion by selection, if suitable”. Selection is assigned the limited role of finding or verifying the suitability of the candidates. Once a candidate, within the zone of consideration is found suitable, the seniority would come into play. Take for example, there are two vacancies of this category. Recruitment Regulations mandate that for each post, three candidates shall be considered. The first six in the list of seniority would be in the zone of consideration. If the selection committee finds that four of them are suitable, the two senior-most among the four, must be appointed. In the instant case, the procedure adopted by the Corporation was some-what different. The selection committee assigned marks to the three candidates, including the petitioner and the 3rd respondent, who are within the zone of consideration. The names of the three candidates were arranged in the descending order of merit. Such a course would be applicable only when the appointment is to be made purely on the basis of merit, and not in cases, where selection is assigned the limited role of finding out the suitability of the candidates. “Merit”, on the one hand, and “suitability”, on the other hand, connote substantially different phenomenon. Whenever merit is assessed by the selection committee, the candidates are arranged according to the marks assigned to them, irrespective of seniority. In the case of suitability, the selection committee would fix a bench mark, and who ever, within the zone of consideration is found to have crossed it, is treated as suitable, and their precedence determined by their seniority. Broadly, it can be said that the arrangement of candidates where merit is the criterion, is vertical in nature, and of those, in the method of suitability, is horizontal. In the case on hand, the relevant Regulation does not refer to the word “Merit”, and still the Corporation adopted the procedure prescribed for such cases. The resolution passed by the Corporation on 09-09-2008, in exercise of power under Regulation 35, constituted the basis for the promotion of 3rd respondent. It has clearly changed the very purport of the Recruitment Regulations in respect of the appointment to the post of CCE. The regulation provided for promotion by seniority, subject to the assessment of suitability of the candidates, by the selection committee. That was transformed into the one, of promotion based on merit. The resolution is completely outside the power, conferred upon the Courts under Regulation 35. Reliance is placed upon Regulation 4(b)(i) of the Service Regulations. The said Regulation is general in nature and would apply where no specific regulation is made by the Corporation. At the most, it would operate, when the other Regulations are silent. It has no role to play, where a specific regulation covering a situation is made. The specific regulation which covers the post of C.C.E. has already been extracted. The principle of the special, prevailing over the general, gets attracted. Respondents-Corporation relies upon the judgment of the Division Bench of this Court in Writ Appeal No.1731 of 1998, dated 01- 05-2003. That is a case, purely within the scope of Regulation 4(b)(i) of the Service Regulations. The purport of the Recruitment Regulations did not arise for consideration, in that case. The judgment of the Hon’ble Supreme Court in SARAT KUMAR DASH v. BISWAJIT PATNAIK[1] is cited. The Supreme Court explained the purport of appointment/promotion on the basis of “merit-cum-suitability, with due regard to seniority”. It was observed that seniority would come into play, only when merit is found to be almost equal. It was contrasted with the appointments by way of “seniority-cum-suitability”. The instant case falls under the category of seniority-cum-suitability. The relevant Recruitment Regulations nowhere mention the word “merit”. Therefore, it emerges that the exercise undertaken by the Corporation in promoting the 3rd respondent cannot be countenanced. As a matter of fact, the Corporation itself has realized its mistake in adopting a resolution dated 09-09-2008, that constituted the basis for selection of the 3rd respondent, and restored the status quo ante, through a resolution dated 09-02-2010. That being the case, the 3rd respondent cannot be permitted to retain the benefit that has flown from an illegality. For the foregoing reasons, the writ petition is allowed, and the appointment of the 3rd respondent as Chief Civil Engineer is set aside. The Corporation shall undertake exercise for appointment to that post, strictly in accordance with the Recruitment Regulations, as explained hereinabove, within two months from today. There shall be no order as to costs. ________________________ L. NARASIMHA REDDY, J. Dt.20-10-2010. Note: 1) L.R copy to be marked. 2) CC within ten days. (B/O) KO [1] 1995 Supp (1) SCC 434