IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 WP(C).No. 28179 of 2007(D) ---------------------------------- PETITIONER(S): ------------------- B.R.NAIR, ASSISTANT BRANCH MANAGER (SALES),S.R.NO.536768, LIFE INSURANCE CORPORATION OF INDIA, CITY BRANCH OFFICE-III, PATTOM, THIRUVANANTHAPURAM. BY ADVS. SRI.GEORGE JACOB (JOSE) SMT.RESHMI POULOSE RESPONDENT(S): --------------------- 1. THE LIFE INSURANCE CORPORATION OF INDIA, 'YOGAKSHEMA', JEEVAN BHIMA MARG., MUMBAI, REPRESENTED BY MANAGING DIRECTOR. 2. THE CHAIRMAN, LIFE INSURANCE CORPORATION OF INDIA, YOGAKSHEMA', JEEVAN BHIMA MARG., MUMBAI. 3. THE EXECUTIVE DIRECTOR (PERSONNEL), LIFE INSURANCE CORPORATION OF INDIA, 'YOGAKSHEMA', JEEVAN BHIMA MARG., MUMBAI. R1 TO 3 BY ADVS. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.S.EASWARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs WP(C).No. 28179/2007(D) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LIST OF PROMOTEES TO THE CADRE OF BRANCH MANAGER / ADMINISTRATIVE OFFICER. P2: COPY OF THE LIST AS PER OFFICE ORDER NO.PR.ADMN./2007-08/ P.O. 29 DATED 27/04/2007, OF PROMOTEES TO THE CADRE OF ADMINISTRATIVE OFFICERS. P3: COPY OF THE REPRESENTATION DATED 03/05/2007 OF THE PETITIONER. P4: COPY OF THE OFFICE ORDER DATED 10/07/2007. P5: COPY OF THE OFFICE ORDER DATED 12/07/2007. P6: COPY OF THE JUDGMENT DATED 25/06/2007 IN WPC.NO.15891/2007 P7: COPY OF THE ORDER DATED 03/09/2007 RECEIVED FROM THE 2ND RESPONDENT. P8: COPY OF THE PHOTOGRAPH TAKEN ON 28/03/2007. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 28179 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of January, 2011 J U D G M E N T The petitioner is an Assistant Branch Manager (Sales) in the service of the Life Insurance Corporation of India. He is presenting a grievance in this writ petition regarding his promotion to the next higher grade post of Branch Manager. He was promoted as Assistant Branch Manager (Sales) on 2.11.1998. In 2005, the 1998 batch of Assistant Branch Managers (Sales) were considered for promotion along with the petitioner. But the petitioner was not given promotion and his juniors were promoted. Again in 2006, the 1999 batch of Assistant Branch Managers (Sales) were enbloc promoted as Branch Manager included the petitioner. Still again in 2007 also, he was overlooked and others were promoted. The petitioner's contention is that the respondents have considered the case of the candidates for promotion under Clause 7 (3) of the Staff Regulations as per which the promotion shall be based on merit, suitability W.P.(C)No. 28179 of 2007 -2- of the candidates for the particular post and seniority. The regulation stipulates that merit and suitability may be judged by confidential reports and/or interviews and/or examinations. The petitioner would contend that in this case for deciding merit and suitability there were no interviews or examinations and the consideration for promotion was solely based on confidential records. According to the petitioner, no adverse entries in his confidential records have been communicated to him and according to his information in the confidential records, his performance has been assessed as exemplary. As such, according to the petitioner, there is no proper assessment of his merit and he has been mechanically overlooked. He would contend that around 900 persons have been promoted in 2007 alone. Most of them were juniors to the petitioner. According to the petitioner for all the years put together more than 2000 juniors have been promoted overlooking the petitioner. He would point out that it is against commonsense that a person having very good confidential records can be W.P.(C)No. 28179 of 2007 -3- overlooked in favour of almost 900 persons simply on the ground that on assessment of merit and suitability, the juniors were found demonstrably superior to him. Since the petitioner's representations were not favourably considered the petitioner filed W.P. (C) No.15891/2007 in which this court by Ext.P6 judgment directed the 2nd respondent pass orders on the representations of the petitioner. Pursuant to the same the 2nd respondent passed Ext.P7 order rejecting the claims of the petitioner. The petitioner therefore seeks the following reliefs: “i) to issue a writ in the nature of certiorari or other appropriate writ or order quashing Exts.P1, P2, P4 and P5 lists to the extent the same include the name of the petitioner for promotion to the cadre of Branch Manager. ii) to issue a writ in the nature of mandamus or other appropriate writ or order directing the respondents to promote the petitioner to the cadre of Branch Manager with effect from April, 2005 when his batch-mates were promoted to the cadre of Branch Managers, with all consequential benefits. iii) to issue a declaration that the petitioner is entitled to be promoted to the cadre of Branch Manager with effect from April, 2005 when his batch-mates had been promoted to the cadre of Branch Manager with all consequential benefits; iv) to issue a writ in the nature of certiorari or other appropriate writ or order quashing Ext.P7 order of the 2nd respondent.” W.P.(C)No. 28179 of 2007 -4- 2. A counter affidavit has been filed wherein the petitioner's specific averments regarding his confidential records have not been denied. Their only contention is that going by the rule, essentially the promotion is by selection and only when the merit of the candidates are equal consideration of seniority would come into play. It is submitted that, the comparative merit of all the candidates were suitably assessed and the better among them on merit have been preferred in which process the petitioner had to be excluded. It is submitted that the petitioner had not challenged the initial two promotions. But he challenged the third promotion by filing a writ petition, the judgment in which is Ext.P6 directing consideration of representations filed by him. In accordance with that judgment, the Chairman of the LIC appointed an Assisting Committee in accordance with the rules to assist him in the matter of consideration of the matter and after going through the report of the Assisting Committee, the petitioner's contentions did not find any favour with him and W.P.(C)No. 28179 of 2007 -5- accordingly the same was rejected by Ext.P7. 3. The petitioner while reiterating the contentions in the writ petition, brings to my attention a Division Bench judgment of this court in W.A. No.568/2007 wherein this court considered the case of a similar Assistant Branch Manager who had in fact been accused in a criminal case in which he was later acquitted. There also no adverse entries were in the confidential records. After considering the case of that person in the light of the rules, a learned Single Judge of this court quashed the similar orders and directed consideration of that person for promotion with reference to his seniority on par with his juniors. According to the petitioner, the petitioner's case is in any way better than that of the officer involved in that case, insofar as the petitioner had excellent reference in his confidential records. The petitioner submits that in ground “G” of the writ petition it is specifically stated that he bonafide believes that his superior officer has recommended his case for promotion reckoning discharge of his official duties and W.P.(C)No. 28179 of 2007 -6- his business performance. It is pointed out that in answer to same in paragraph 22 of the counter affidavit the respondents have stated that merely because a Senior Officer of the petitioner had recommended his case for promotion cannot be a ground to have the case considered for promotion automatically which according to the petitioner is an admission of the fact that the case of the petitioner has been recommended by his superior officer for promotion. The petitioner would therefore argue that the petitioner has been unjustly overlooked for promotion for all the three years. 4. The counsel for the respondents would contend that in view of the specific rule regarding promotion what has to be considered is not seniority at all. Seniority comes into play only if the merit and suitability of all the candidates are equal. In respect of the law relating to merit-cum-seniority the counsel would refer me to the decisions of the Supreme Court in B.V. Sivaiah & Ors. vs. K. Addanki Babu & Ors. (1998) 6 SCC 720 and W.P.(C)No. 28179 of 2007 -7- N. Suresh Nathan & Ors. v. Union of India & Ors. (2010) 5 SCC 692 wherein the Supreme Court has laid down the principles governing promotion on the basis of merit-cum-seniority. They would reiterate the contention in the counter affidavit that the case of the petitioner was considered along with other officers objectively and the others were found to be superior in merit to the petitioner and that is why others were promoted and the petitioner has been overlooked. 5. I have considered the rival contentions in detail. 6. The relevant rule for promotions of officers in LIC reads thus: “Promotion shall be based on merit, suitability of the candidate for a particular post and seniority. Merit and suitability may be judged by confidential reports and/or interviews and/or examinations” Nobody can now quarrel with the law relating to consideration of promotion on the basis of merit and seniority as laid down by the decisions of the Hon'ble Supreme Court referred to by the learned counsel for the W.P.(C)No. 28179 of 2007 -8- respondents. But in this case the respondents have not specifically averred that consideration for promotion was not to a definite number of vacancies available. A batch of officers were considered for promotion. Almost all of them were promoted except petitioner and some others. It does not stand to commonsense that on consideration of merit and seniority a person who has excellent reference admittedly would be simply be found inferior to almost 900 others for a single year. It is difficult to believe that at least 883 juniors (as admitted in the counter affidavit) were found to be more meritorious than the petitioner. Of course, the learned counsel for the respondents would contend that it is to a definite number of vacancies promotions have been made. But that is not evident from the pleadings at all. The petitioner has specifically contended that entire batch of Assistant Branch Managers of a particular year have been enmasse promoted as Managers. Even assuming that the consideration was for a definite number of vacancies, it militates against commonsense that the petitioner who had W.P.(C)No. 28179 of 2007 -9- excellent references in the confidential reports, which is not disputed in the counter affidavit, would be inferior to 883 officers. In fact in the Division Bench decision in W.A. No.568/2007 the Division Bench was considering the case of a much less meritorious person and even then the Division Bench considered it prudent to direct promotion of that person. I am of opinion that the same standards have to be followed in the matter of assessing the petitioner also. In the counter affidavit filed, there is absolutely no reference to any adverse entries against the petitioner. The definite averment in the writ petition that in the confidential reports the petitioner had excellent references is also not disputed. The fact that the superior officer of the petitioner recommended him for promotion is also not disputed. The respondents have not chosen to produce before this court any materials whatsoever in support of their contention that all those who were promoted in preference to the petitioner were demonstrably superior to the petitioner. I am of opinion that when the respondents did not dispute the fact W.P.(C)No. 28179 of 2007 -10- that the petitioner had excellent references in his confidential records, the respondents had a duty to show to this court how those selected were demonstrably superior to the petitioner despite the excellent entries in the petitioner's confidential records, which they had not even attempted to do, except asserting in the counter affidavit that on assessment the promoted persons were found more meritorious than the petitioner. In such circumstances, I am not satisfied that the petitioner's merit for promotion has been assessed in the right perspective by the respondents in the matter of promotion. Years have gone by. It is not now practicable to direct reconsideration of the merit of the petitioner vis-a-vis the others. I am of opinion that, the petitioner should be in the said circumstances given promotion in accordance with the seniority as done by this court in the case of a similarly placed person in W.P. (C) No.26520/1999 which course was affirmed in W.A. No.568/2007 by the Division Bench. Accordingly, the writ petition is allowed. Ext.P7 is quashed. W.P.(C)No. 28179 of 2007 -11- The respondents are directed to promote the petitioner as Branch Manager with effect from the date when his immediate junior has been promoted. Orders in this regard shall be passed and the monetary benefits due to the petitioner arising out of such promotion shall be paid to him as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/