IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY NINETH DAY OF DECEMBER, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.17945 of 1999 Between: K. Vikram Reddy & others. … Petitioners AND A.P. Industrial Development Corporation Ltd., Rep., by its Vice Chairman & Managing Director, Parishram Bhavan, Basheerbagh, Hyderabad & others. … Respondents Counsel for the petitioners : Sri Abhinand Kumar Shavili This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.17945 of 1999 ORDER:- This writ petition is filed for a Writ of Mandamus to declare the action of respondent No.1 in promoting respondent Nos.2 to 4, as illegal and contrary to the provisions contained in judgment dated 27.12.1994 in WA.No.1431 of 1987. The petitioners sought for a consequential direction to respondent No.1 to promote them as Deputy Managers with effect from the date on which their immediate juniors were promoted with all consequential benefits including seniority, pay fixation, payment of arrears of salary and allowances etc. Heard Sri Abhinand Kumar Shavili, learned counsel for the petitioners. At the hearing, it is represented that respondent Nos.2 and 4 took voluntary retirement subsequent to the filing of this writ petition and that respondent No.4 died. As there was no representation for respondent No.1 at the hearing on 23.12.2008, this writ petition has been adjourned for today to enable the learned counsel for respondent No.1 to argue the case. However, despite the name of the learned counsel having been shown in the cause list on both the occasions, he is not present at the hearing. The petitioners entered the service of respondent No.1 Corporation (for short, ‘the Corporation’) as Junior Stenographers. They were promoted to the next higher post, which was re- designated as Assistant Manager. The petitioners averred that the posts of officers up to the Senior Deputy Manager are non- selection posts, to be filled up by following the method of seniority- cum-merit. The petitioners have felt aggrieved by the action of respondent No.1 in not promoting them to the post of Deputy Managers and promoting respondent Nos.2 to 4, who are juniors to them in the feeder category, namely, Assistant Managers. They have pleaded that while the method of promotion is seniority-cum- merit, respondent No.1 has followed the method prescribed for selection post. They have referred to and relied on judgment dated 27.12.1994 of the Division Bench of this Court in K. Satyanarayana vs. A.P. Industrial Development Corporation Limited, Hyderabad (WA.No.1431 of 1987) and also the judgment of the Supreme Court in B.V. Sivaiah and others vs. K. Addanki Babu and others[1] in support of their contention. A counter affidavit has been filed on behalf of respondent No.1. It is inter alia admitted therein that all the posts of officers up to the level of Assistant General Manager shall be treated as non-selection posts and that promotions shall be made on the basis of seniority-cum-merit. It is further stated that the posts in the grades of Deputy General Manager and above shall be treated as selection posts and promotions shall be made purely by selection on merit giving due weightage to the seniority. It is further stated that a selection committee was constituted with four persons headed by Vice Chairman and Managing Director, that due weightage has been given for all the criteria mentioned in the promotion policy such as seniority, merit, suitability, performance appraisal, track record etc., and that the selection was made on a sum total of all the aforesaid criteria. In paragraphs 8 and 9 it is stated as under: “The selection committee has first taken into consideration the length of service of the employee rendered in the Corporation, the overall performance in the post held by them prior to the selection, performance in the interview to assess the suitability for the post and prepared the panel in accordance with the said guidelines. Seniority is not the only criterion in the process of selection. Due weightage was given to seniority. The said selection and appointments made by the Corporation to the post of Deputy Manager on 21.04.1999 are not violative of the decision in writ appeal No.1431/87. In fact the directions given in the said judgment have been followed strictly in appointing in the order of seniority the non-official respondents and others who satisfied the threshold level of merit and suitability of WP.No.14689 of 1999 and para 15 of WP.No.17945 of 1999. In regard to the allegation made in para 11 of the affidavit, it is submitted that confidential reports have been obtained uniformly for all the employees who had been called for interview and as such no irregularities have been committed on this count. Generally the confidential reports are written by the reporting officers and the same are forwarded to HRD Division, which is the controlling authority for all the staff members/ ‘B’ category employees for observations and comments. In the case of the writ petitioners, the DGM (Finance) who is the reporting officer and the controlling authority concerned had rightly written their confidential reports.” In K. Satyanarayana (supra), the appellant therein raised a similar contention as raised in the present writ petition. The Division Bench while allowing the writ appeal held: “According to the policy, promotion to the post of non- selection post had to be made on the basis of seniority-cum- merit which means, the case of the senior most person eligible for promotion category shall be considered first and only when he is found to be unsuitable for promotion, the case of the next senior most employee shall be considered. In the present case, this procedure has not admittedly been followed. While testing the suitability of the candidate, the suitability shall not be assessed by comparative standards and it shall be assessed with reference to the merit/fitness of the candidate to hold the higher post on promotion. That procedure has not been followed in the present case. Whereas respondents 2 and 3 had been promoted as Assistant Managers on 09.05.1986, the appellant was promoted only on 25.12.1987 as Assistant Manager. It is stated that respondents 2 and 3 had been further promoted to the post of Deputy Manager in the year 1993. Even the post of Deputy Manager is a non- selection post. As we have already mentioned, the appellant had been working as Personal Assistant since 06.11.1981 whereas respondents 2 and 3 had been working as Accountants from 27.08.1982 and 28.08.1982 respectively. The post of Personal Assistant and that of Accountant are the feeder posts for promotion to the post of Assistant Manager. Thus, the appellant is senior to respondents 2 and 3. By the time the vacancy in the post of Assistant Manager has arisen i.e., by 09.05.1986, the appellant and the respondents 2 and 3 were eligible for consideration for promotion to that post; but overlooking the claim of the appellant, respondents 2 and 3 were promoted. This is clearly in violation of the recruitment and promotion policy formulated by the Corporation in the year 1985. The learned Single Judge, however, dismissed the writ petition on 08.09.1987.” On the above reasoning, the Division Bench gave the following direction: “Therefore, we direct that he shall be promoted to the post of Assistant Manager with effect from 09.05.1986 on which date respondents 2 and 3 had been promoted to that post. In fixing the seniority in the cadre of Assistant Manager among the three candidates, the appellant shall be placed above respondents 2 and 3. He shall be entitled to all the consequential benefits including the seniority with effect from 09.05.1986 except to the arrears of salary for the period from 09.05.1986 to 24.12.1987.” In B.V. Sivaiah (1 supra), the Supreme Court explained the fundamental difference in the method to be followed between a selection post and a non-selection post. It has relied upon its earlier judgment in Union of India vs. Mohan Lal Capoor[2], State of Kerala vs. N.M. Thomas[3] and State of Mysore vs. C.R. Sheshadri[4] and held that in the case of seniority-cum- merit, given the necessary merit requisite for efficiency of administration, the senior, though less meritorious, shall have priority and that the said mode enables an assessment to be made about the minimum necessary requisite for efficiency of administration and it cannot be construed as importing assessment of comparative merit of the officers eligible for promotion. In paragraph 18, the Supreme Court held as under: “We thus arrive at the conclusion that the criterion of “seniority-cum-merit” in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of 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 assessing marks on the basis of appraisal of performance on the basis of service recorded and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit.” (Emphasis added) From a perusal of the counter affidavit, it is evident that respondent No.1 has adopted a method, which is not in consonance with the law declared in the abovementioned judgments. There is no averment as to how many marks were allotted for the length of service, the confidential reports, the performance appraisal etc. The counter is also silent as to the minimum required marks fixed to assess merit, which can be otherwise called a benchmark. No record is produced to satisfy this Court that the limited assessment of merit is only for the purpose of ascertaining whether the candidates had minimum necessary merit requisite for efficiency of administration. In the absence of this material and from the tenor of the contents of the counter affidavit, there is no option for this Court except to construe the method followed by respondent No.1 as intended to assess the comparative merit of the candidates and not the minimum required merit. Respondent No.1 has not stated in the counter affidavit that the petitioners have not possessed the minimum required merit for promotion. Admittedly, they are seniors to respondent Nos.2 to 4. I have therefore no hesitation to hold that respondent No.1 has not followed the method that ought to be followed for the purpose of giving promotion to a seniority- cum-merit post. For the abovementioned reasons, the writ petition is allowed. The learned counsel for the petitioners submitted that petitioner Nos.1, 3 and 4 were promoted on 22.09.2007, petitioner Nos.2 and 6 left respondent No.1 Corporation by obtaining voluntary retirement and petitioner No.5 has not so far been promoted. The proceeding sheet discloses that the writ petition has been dismissed as withdrawn insofar as it relates to petitioner No.2. Respondent No.1 is therefore directed to promote all the petitioners except petitioner No.2 with effect from the date on which respondent Nos.2 to 4 were promoted and give them all the consequential benefits. As a sequel to disposal of the writ petition in the manner indicated above, WPMP.Nos.22370 of 1999 and 22116 of 2000 are disposed of as infructuous. ____________________________ C.V.NAGARJUNA REDDY, J Date: 29.12.2008 ES [1] (1998) 6 SCC 720 [2] (1973) 2 SCC 836 [3] (1976) 2 SCC310 [4] (1974) 4 SCC 308