IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 6821 of 2010-H. Decided on: October 14, 2011. Shyam Sunder Gupta Vrs. Shri Nirmal Kumar Sharma & 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. Varun Thakur, Advocate. For the Respondents: Mr. Deepak Kaushal, Advocate, for respondent No. 1. Mr. Neel Kamal Sharma, Advocate, for respondent No.2. Mr. Romesh Verma, Advocate, for respondents No. 3, 4 & 5. Mr. Lalit K. Sharma, Advocate, for respondent No. 6. ---------------------------------------------------------------------------------------------- Justice Kurian Joseph, C.J. (Oral) The issue raised in this writ petition pertains to the selection to the post of Superintendent Grade-II in District Solan. The following are the main prayers:- “(a) That writ of certiorari may kindly be issued against the respondents No. 1 to 5 and in favour of the petitioner to quash and set aside the provisions of marks for additional qualification prescribed in the Model Scheme for Selection to the Posts of Superintendent Grade-II on promotion at Annexure P-10 or in the alternative the provision of marks for additional qualification may kindly be amended as mentioned in para-(ii) supra or suitably so that difference of marks for basic qualification and marks for additional qualification may not go above two times of the basic qualification. (b) That the writ of certiorari may kindly be issued against the respondent Nos. 1, 3 & 4 to quash and set aside Annexure P-7, the promotional order of respondent No.1 issued by respondent No.4. (c) That the writ of certiorari may kindly be issued against the respondents to quash and set aside the whole proceedings of Departmental Promotion Committee at Annexure P-5, Annexure P-6 and the promotional order at Annexure P-7 and Annexure P- 8 issued by respondent No.4, being wrong and illegal decision of the Departmental Promotion Committee for promoting Respondent No.1 & Respondent No.2.” 2 2. 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 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. 3. Selection is defined 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.” 4. In the year 1999, the High Court framed a Model Scheme for assessment of the merit as per Annexure P-10. 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.” 5. 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 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 post 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”. 6. It is the contention of the learned counsel for the petitioner that once criterion of merit-cum-seniority is prescribed in the Rules, the same cannot be diluted by any other method other than as provided under the Rules. The Model Scheme which permitted awarding of 2 marks for the senior so as to give due consideration to the otherwise meritorious senior is impermissible, it is submitted. We find it difficult to appreciate the above contention. No doubt, the selection is based on merit-cum-seniority. The merit is to be assessed by a transparent process. That transparent process alone is laid down in the Model Scheme. Awarding of 2 marks to avoid heartburn to an otherwise meritorious senior is also an equally transparent process and it is only just, reasonable, proper and equitable to give a little weightage to an otherwise meritorious senior. In the facts of the case, it is seen that all seniors have been granted the grace marks. In any case, we do not find that the petitioner has suffered any prejudice in that regard since even if the senior had not been granted the grace marks of 2 also, he would not have been the candidate otherwise meritorious in terms of the merit as assessed by the Committee. 7. Mr. Varun Thakur, learned counsel appearing for the petitioner has also invited the attention of this Court that the assessment of the merit as per the Scheme does not keep a proper balance in the matter of assessment of merit. Total marks are 50. 25 marks are to be given to the rating in the Annual Confidential Reports and 10 marks for the viva-voce, 15 marks are allocated for the qualification as such. The allocated 15 marks are to be assessed as follows: “(b) QUALIFICATION: 15 Marks. (i) Law Graduate: 15 marks. (ii) Post Graduate: 12 marks. (iii) Graduate: 09 marks. (iv) 10+2 or above (under graduate) 06 marks. (v) Matric or below 10+2 03 marks.” 4 8. The total marks for qualification is only 15 and if there is a Law Graduate, he scores the whole 15 marks, if there is a Post Graduate, he scores 12 marks, if there is a Graduate, he scores 9 marks, if there is a 10+2 or above, he scores 6 marks and if there is a Matric, he scores 3 marks. The qualification under the R& P Rules for the post of Superintendent Grade-II at the relevant time is only matric. The advantage to the additional qualifications should not be grossly disproportionate to the basic qualification. Learned counsel for the petitioner submits that the Rules have since been amended. If that be so and even otherwise also, the Model Scheme requires appropriate modification. While modifying the Scheme, we are of the view that additional qualification shall not carry disproportionate advantage over the marks allotted for the basic qualification. This aspect of the matter will be addressed by the High Court on the administrative side before any further selection is conducted. Subject to the above direction, the Writ Petition is dismissed, so also the pending application(s), if any. (Justice Kurian Joseph), Chief Justice. October 14, 2011. ( Justice V.K. Ahuja), (karan/vs) Judge.