IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 439 of 2007-B. Decided on: October 14, 2011. Sukhdev Singh. Vrs. Hon’ble High Court of H.P. & ors. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: Mr. T.C. Sharma, Advocate. For the Respondents: Mr. Atul Jhingan, Advocate, for respondents No. 1 & 2. Mr. Ajay Sharrma, Advocate, for respondent No. 4. ---------------------------------------------------------------------------------------------- Justice Kurian Joseph, C.J. (Oral) What is the subtle difference between merit-cum-seniority and seniority-cum-merit in the matter of selection for appointment? 2. The issue raised in this writ petition pertains to the selection to the post of Superintendent Grade-II in District Sirmour at Nahan. The following are the main prayers:- “(i) That this Hon’ble Court may kindly be pleased to call for the record of this case and pass appropriate orders in the facts and circumstances of the matter and issue appropriate directions. (ii) That the viva-voce conducted by the respondents for selection to the post of Superintendent Grade-II, in terms of Annexure P3, dated 15.6.2006, having being conducted in violation of the law and procedure, may kindly be quashed and set aside. (iii) That the selection of respondent No. 3 and 4, to the post of Superintendent Grade-II, may also be quashed and set aside having been selected in violation of the rules. (iv) That the respondent be directed to consider the case of the petitioner for further selection to the post of Superintendent Grade- II, in terms of his merit and seniority by initiating fresh selection process as per the rules.” 3. The selection to the post of Superintendent Grade-II is made in terms of the Himachal Pradesh Subordinate Courts’ Staff (Recruitment, Promotion and Conditions of Service) Rules, 1997. Schedule-II of the Rules 2 provides for the post of Superintendent Grade-II and method of recruitment is as follows:- SCHEDULE-II Sr.No. Name of the post. Classification. Scale of pay Method of recruitment, qualification for the post/grade from which the promotion is to be made. 1. 2. 3. 4. 5. 1. Superintendent Grade-II. Class-III Non-gazetted. 2000-3500 By selection from amongst the Senior Assistants, Civil Nazirs and Translators having minimum qualification of Matriculation with 10 years service in the feeder post. Note: The term ‘Senior Assistant’ includes all equivalent posts except Senior Scale Stenographers. 4. Selection is defined at Rule at Rule 2(16), which reads as follows: “Selection” means promotion to a post or class of posts by selection based on merit with due regard to seniority.” 5. It is seen that the High Court had framed a Scheme to assess the merit in the year 1999, which is known as the Model Scheme. Though, there is no challenge to the Scheme as such in the Writ petition, we may note that the Scheme was under challenge in another Writ Petition, CWP No. 514 of 1999, which was decided on 29.8.2005, holding that “the Model Scheme is not contrary to the provisions of Rules, 1997. It lays down guidelines to be adopted by the Selection Committee for promotion of the incumbent to the post of Superintendent Grade-II.” 6. The grievance of the petitioner is that being the senior most, he should not have been ignored. It is submitted that the Rules having not provided for the assessment of merit, there cannot be any other mode of selection other than as contemplated and permitted under the Rules. We are afraid, the contention cannot be appreciated. For one thing, it has to be seen that the Scheme is not in violation of the Rules. The Scheme itself is titled as : 3 “ A Model Scheme for selection to the posts of Superintendents Grade-II other than the Superintendent to the District and Sessions Judges, framed by the High Court within the ambit of the “Himachal Pradesh Subordinate Courts Staff (Recruitment, Promotion and Conditions of Service) Rules, 1997”. 7. Once the selection is made based on merit-cum-seniority, the comparative merit of the seniors has to be assessed. The purpose in this mode of merit-cum-seniority selection is to appoint the most meritorious amongst the eligible candidates only in a situation of merit being equal, the senior gets precedence. In the case of seniority-cum-merit selection, the merit of all candidates is assessed on fixing a bench mark for merit and the senior most among those who have crossed the bench mark is selected. The Scheme is intended only for the assessment of comparative merit of the seniors as held by L.S.Panta, J. in Civil Writ Petition, judgment referred to above. Moreover, the Model Scheme is not meant to supplant the Rules but to supplement the Rules. By the Scheme, the appointing authority has only made the process more transparent by laying down the guidelines for assessment of the merit. Going by the merit as assessed by the Committee, it is seen from the reply that the petitioner is nowhere near to the other meritorious candidates. 8. It was also contended that the Scheme has provided for arbitrary powers on the appointing authority, as can be seen from paragraph 7, which reads as under: “7. It shall be discretionary for the District and Sessions Judge to accept or reject or modify the recommendations in accordance with the “Himachal Pradesh Subordinate Courts Staff (Recruitment, Promotion and Conditions of Service) Rules 1997” and the present Scheme”. 9. We are afraid, that contention also cannot be appreciated. The residuary power conferred upon the appointing authority either to accept, reject or modify the recommendation of the Committee, is only to be exercised in accordance with the Rules and the Scheme itself. Therefore, paragraph 7 of the 4 Scheme does not in any way confer any arbitrary, unguided or unbridled power on the appointing authority. 10. Learned counsel for the petitioner further contended that as on the date of selection, there was only one vacancy in the post of Superintendent Grade- II whereas in the selection process 6 have been participated. The Model Scheme provides for participation only of 3 candidates. Learned counsel appearing for the respondents submits that 6 candidates were participated in the process in view of the anticipated vacancies as well. The notified vacancy was only one, but it is seen from the files that there was an anticipated vacancy as well on account of retirement in the year of selection and since the selection was for anticipated vacancy as well only, 6 were participated. All that apart even if there had been only 3 also, going by the marks scored by the petitioner, he would not have been the beneficiary in any case. Thus, there is no merit in any of the contentions taken in the Writ Petition and it is accordingly dismissed. (Justice Kurian Joseph), Chief Justice. October 14, 2011. ( Justice V.K. Ahuja), (karan/vs) Judge.