SBCWP NO.6693/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.6693/1997. Narendra Singh Tomar Vs. Baran Nagrik Sahakari Bank Ltd. & Ors. Date of Order:- February 5, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Dr. Saugath Roy for the petitioner. Shri Sandeep Mathur for the respondents. Shri Sanjeev Prakash Sharma for private respondents. ***** BY THE COURT:- This writ petition has been filed by petitioner Narendra Singh Tomar challenging the order dated 31/7/1997 whereby, promotion was granted to respondent No.2, who according to the petitioner is junior to him. Petitioner has prayed that respondents may be directed to promote him on the post of Officer w.e.f. 31/7/1997, the date on which, respondent No.2 was promoted with all consequential benefits. 2) Petitioner was appointed as a Clerk in the services of respondents on 17/8/1981 and SBCWP NO.6693/97. 2 respondent was also appointed as a Clerk on 1/4/1982. Selection Committee adjudged him suitable for regularization in the service as per merit secured in the select list and recommendations were made for his regularization. Petitioner was posted as a Cashier-cum-clerk on 1/4/1982. Both, the petitioner as well as respondent No.2 were confirmed in the services of the respondents vide order dated 10/9/1982. While name of the petitioner shown at Sr.No.3 in that order, name of respondent No.2 appears at Sr.No.4. Petitioner vide order dated 22/11/1984 was placed at Sr.No.6 in the seniority list whereas respondent No.2 was placed at Sr.No.7. Respondent No.2 however was promoted on the post of Officer vide order dated 30/7/1997 but the petitioner was not. Petitioner therefore submitted representation to the respondents on 8/12/1994 followed by similar representations dated 19/12/1984, 4/1/1995 and 16/5/1995 but no action was taken. Petitioner served upon the respondents legal notice for demand of justice dated 16/8/1991, then filed writ petition. 3) Dr.Saugath Roy, learned counsel for petitioner has argued that respondents published SBCWP NO.6693/97. 3 seniority list on 13/10/1984 and invited objections from the affected persons and final seniority list was published on 22/11/1984, in which, name of the petitioner was shown atSr.No.6 whereas name of respondent No.2 was shown at Sr.No.7. That seniority attained finality and no challenge was made thereto by respondent No.2. Petitioner is a graduate and fully qualified and eligible for appointment. In the recommendations of the selection committee, on the basis of which, petitioner and respondent No.2 were regularized, name of the petitioner was shown above respondent NO.2 because his date of initial appointment was earlier than him. He is senior to respondent No.2 yet, respondent No.2 was promoted in preference to the petitioner without adhering to the criteria for promotion which is seniority-cum-merit, where seniority has to be given due weightage over merit. Even otherwise, there is no other such adversity against the petitioner so as to deprive him of promotion. Learned in support of his argument has relied on the judgment of Hon'ble Apex Court in B.V. Sivaiah and others Vs. K.Addanki Babu and others : (1998) 6 SCC 720. SBCWP NO.6693/97. 4 4) Shri Sandeep Mathur, learned counsel for the respondents has opposed the writ petition and submitted that Departmental Promotion Committee recommended case of respondent No.2 because there was adverse remarks against the petitioner in his APAR of the preceding five years. Learned counsel has produced for perusal of the court statement containing the marks and APARs of those who fell within the zone of consideration. Learned counsel submitted that even if criteria of promotion is seniority-cum- merit, merit of a candidate still shall have to be seen and if respondent No.2 was adjudged more meritorious than petitioner, he was promoted strictly as per rules. 5) Shri Sanjeev Prakash Sharma, learned counsel appearing for respondent No.2 has opposed the writ petition and submitted that petitioner was having alternative remedy of getting reference made under the provisions of Section 75 of the Arbitration and Reconciliation Act, 1940. It was argued that according to clause (11) of the Urban Cooperative Banks Employees Service Rules, 1987, petitioner was junior to respondent No.2. Respondent No.2 was regularized on the same day as Clerk in the SBCWP NO.6693/97. 5 services of the respondents on which, petitioner was regularized. In the order, name of petitioner appears at Sr.No.5 whereas, respondent No.2 was at Sr.No.3. He should therefore be treated as senior to the petitioner. It is argued that final seniority list dated 22/11/1984 has lost its efficacy and force after promulgation of the Rules of 1987. Rule 11 of the Rules of 1987 would hold the field now, according to which, seniority has to be determined with reference to the date of substantive appointment on a particular post or grade or in an equivalent post or grade. It is submitted that petitioner has also been later promoted vide order dated 19/6/2006. It is, therefore, prayed that the writ petition be dismissed. 6) I have given my anxious consideration to the rival submissions of the parties and perused the material on record. 7) What is not and cannot be disputed is the fact that respondent-Bank issued seniority list on 22/11/1984 placing the petitioner above respondent No.2. While petitioner was appointed as Clerk with the respondent-Bank on 17/8/1981 and the date of initial appointment of SBCWP NO.6693/97. 6 respondent No.2 is 20/8/1981. They were regularized pursuant to the recommendations of the Selection Committee. Selection committee while recommending their regularization placed petitioner above respondent No.2. In fact, prior to issuance of final seniority list dated 22/11/1984, respondents issued provisional seniority list on 13/10/1984 and invited objections. It is not on record that respondent No.2 submitted any objection to the provisional seniority list regarding placement of the petitioner above him. It has to be therefore accepted that petitioner was senior to respondent No.2. 8) Undisputedly, criteria for promotion was seniority-cum-merit in the Rules of 1987. What has to be seen is whether on mere basis of the fact that in relation to some of the years, remarks given to the petitioner are merely satisfactory, was the DPC justified in not recommending promotion of the petitioner notwithstanding criteria for promotion being seniority-cum-merit. Record which has been produced by the respondents indicates that out of relevant five years, petitioner was awarded “very good” grading in one year, “good” in two SBCWP NO.6693/97. 7 years, and “satisfactory” in remaining two years, as against which, respondent No.2 was awarded “very good” grading for one year, “good” for one year and “satisfactory” for three years. What however respondents contend is that since in the APARs of preceding two years, remarks were made requiring the petitioner that he did not deserve promotion, therefore he was not promoted. In the first place, it is not on record that such remarks were communicated to the petitioner so as to enable him to represent thereagainst and therefore such remarks could not be considered against him. Even if accepting such remarks, petitioner could not be denied promotion because criteria of promotion indeed was seniority-cum- merit. In such criteria, entire service record of an employee will have to be examined by the DPC. Even minor penalty could not have come in the way of his promotion. 9) This Court in G.S. Rajawat Vs. Rajasthan Financial Corporation & Others – 1993(1) WLC (Raj.) 117 while considering the similar controversy where promotion was denied to petitioner on account of the penalty of stoppage of one annual grade increment without cumulative effect and the criteria for promotion therein SBCWP NO.6693/97. 8 was seniority subject to suitability, held hat when criteria was based on merit of those falling within zone of consideration, those who fulfill the yardstick for merit shall have to be promoted. However, when the criteria is seniority-cum-merit, more weightage has to be given to a person who is senior and he cannot be denied promotion merely because his junior is more meritorious. When the criteria is seniority cum suitability then senior person can be ignored only if it is found that he is unfit. 10) In Het Ram Dudi Vs. State of Rajasthan & Another – 1992 (3) WLC (Raj.) 726, a co- ordinate bench of this court again had the occasion to consider a case where on account of penalty of withholding of one annual grade increment without cumulative effect, petitioner was not granted promotion and was superseded by his junior. Criteria of promotion in that case too was seniority cum merit. It was held that although, DPC is entitled to take into consideration the entire relevant record including the penalty order but ordinarily a person has right to be promoted. In Het Ram Dudi's case supra, this Court further held that if on the basis of punishment SBCWP NO.6693/97. 9 or any other adverse material, the employee is to be superseded or denied promotion, the competent authority must record reasons in support of its decision. Recording of reasons is a must for fairness in the decision of the competent authority. 11) In B.V. Sivaiah and others Vs. K.Addanki Babu and others : (1998) 6 SCC 720, again same question fell for consideration before the Supreme Court as to what would be the impact of seniority cum merit criteria vis-a-vis merit cum seniority criteria. Their Lordships in Paras 17 and 18 of the judgment, held as under:- “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 made on a comparative assessment of merit of such officers. We are unable to agree. While applying he principle of seniority- cum-merit for the purpose of promotion, what is required to be considered is the 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, it is generally determined on the basis of placement in the select list for appointment. Such determination of seniority confers certain rights and the SBCWP NO.6693/97. 10 principle of seniority-cum-merit gives effect to such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion on the basis of seniority-cum-merit, seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service. 18. We thus arrive at the conclusion that the criterion of “seniority-cum- merit” in the matter of promotion postulates that even the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment or merit is not required to be made. 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 on the basis 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.” 12) In Rupa Rani Rakshit and others Vs. Jharkhand Gramin Bank and others : (2010) 1 SCC 345, Supreme Court held that considerations for promotion on criterion of seniority-cum-merit would be materially different from those where criterion is merit-cum-seniority. In a case where criterion for promotion is seniority-cum- merit, what is required is that candidate must possess minimum merit if he is sufficiently high SBCWP NO.6693/97. 11 in the seniority to get promotion. 13) In view of above discussion, writ petition deserves to be allowed and is hereby allowed. Petitioner is accordingly held entitled to be promoted against the vacancies of the year 1997-98 w.e.f. 30/7/1997 when his junior respondent No.2 was promoted with all consequential benefits with interest @6% p.a. 14) Compliance of the judgment shall be made within a period of three months from the date copy of this judgment is produced before the respondents. (MOHAMMAD RAFIQ), J. anil