SBCWP764/2005 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.764/2005 Suresh Durgan Vs. Rajasthan Rajya Vidyut Prasaran Nigam Limited, Jaipur through its Secretary (Administration), Vidyut Bhawan, Jyoti Nagar, Jaipur Date of Order ::: 16.02.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Ms. Shalini Sheron, Counsel for petitioner Shri Virendra Lodha, Counsel for respondent #### //Reportable// By the Court:- This writ petition even though was listed for orders on second stay petition but, with the consent of both the parties, was finally heard and is being decided by this judgment. Petitioner has approached this Court with grievance that he has been overlooked for promotion to the post of Executive Engineer from 28.10.1999, the date when his juniors were promoted, and prayed that he be promoted with effect from that date with all consequential benefits. Ms. Shalini Sheron, learned counsel for SBCWP764/2005 // 2 // petitioner, contended that source of recruitment for appointment on the post of Executive Engineer as per the R.S.E.B. Service of Engineers (Recruitment, Promotion and Seniority etc.) Regulations, 1969, is hundred percent by promotion on the basis of seniority- cum-merit, suitability/seniority-cum-merit, which is further bifurcated to be made 67% by seniority-cum-merit and 33% by merit alone. Petitioner is a degree holder Assistant Engineer having service experience of five years with the Respondent and, therefore, as per Regulations 22 and 24 of the said Regulations, he was eligible for promotion on the post of Executive Engineer (Electrical). A tentative seniority list of Assistant Engineers (Electrical & Mechanical) was published by respondents on 31.03.1984 by R.S.E.B., wherein name of petitioner appeared at Serial No.825, whereas that of Shri Satya Prakash Verma at Serial No.828, Shri Rajendra Kumar Joshi at Serial No.839, Shri Ravindra Pal Singh at Serial No.851, Shri Girish Prasad Garg at Serial No.856, and Shri Mrigesh Kumar Jain at Serial No.868. After dissolution of R.S.E.B. into five different electricity companies, petitioner and all the aforesaid persons became SBCWP764/2005 // 3 // members of Rajasthan Rajya Vidyut Prasaran Nigam Limited (for short, 'RRVPNL'). In above referred to seniority list, their names were placed much lower than petitioner in the seniority, yet they were granted promotion ignoring the petitioner. Reference is made to promotion granted to Shri Satya Prakash Verma, although on adhoc basis, under Regulation 26 of the Regulations with effect from 28.10.1999. Shri Satya Prakash Verma, who was junior from petitioner, was granted promotion by order dated 06.05.2000. Final seniority-list issued by RRVPNL on 31.01.2001 contains name of petitioner at Serial No.28, whereas names of his juniors i.e. Shri Rajendra Kumar Joshi find place at Serial No.30, Ravindra Pal Singh at Serial No.32, Girish Prasad Garg at Serial No.33, Mrigesh Kumar Jain at Serial No.34 and Shri Anil Rastogi at Serial No.55. The respondents again, on recommendation of Selection Committee and with approval of Chairman and Managing Director, RVPNL, made promotions on the post of Executive Engineer under Regulation 25 of the Regulations; and, by order dated 20.08.2001, above referred to juniors of petitioner were promoted on the post of Executive Engineer (E&M). Final seniority SBCWP764/2005 // 4 // list of Assistant Engineer (Electrical & Mechanical) as on 01.01.2003 was published from the office of respondent and therein name of petitioner finds place at Serial No.17 and that of Shri Anil Rastogi at Serial No.32. When Shri Anil Rastogi was superseded by his juniors in the matter of promotion on the ground of penalty of censure awarded against him; he filed S.B. Civil Writ Petition No.6050/2003, which was allowed by a Coordinate Bench of this Court vide judgment dated 16.03.2004, following ratio of Division Bench decision of this Court in State of Rajasthan Vs. Aklanks Kinde & Others reported in 1982 Lab I.C. 1848. Being aggrieved thereby, respondents filed D.B. Civil Special Appeal (Writ) No.279/2004, which was dismissed vide order dated 27.05.2004. Ms. Shalini Sheron, learned counsel for petitioner, submitted that present writ petition is squarely covered by the aforesaid judgment passed by this Court against the respondents themselves, which has even been upheld by the Division Bench. Shri Virendra Lodha, learned counsel appearing on behalf of respondents, opposed the writ petition and submitted that this petition is liable to be dismissed because petitioner SBCWP764/2005 // 5 // has preferred writ petition with an inordinate delay of four years. It is contended that case of petitioner is distinguishable from that of Shri Anil Rastogi, because in Anil Rastogi's case he was awarded penalty of only one censure whereas, in the present case, petitioner has been, on as many as four occasions, awarded such penalties. Decision of this Court in Anil Rastogi's case, relied on by learned counsel for petitioner, would therefore be not applicable in the present case. The departmental promotion committee is entitled to take into consideration the entire service record including penalty of censure and on that basis if it adjudged the petitioner not suitable for promotion, he cannot claim promotion because the only right which he has is of consideration of his case for promotion. The writ petition be therefore dismissed. Learned counsel for petitioner rejoined and submitted that objection of delay raised on behalf of respondents cannot come in the way of petitioner because he filed representation against his supersession by juniors and that was rejected by respondents on 10.12.2004 and thereafter he filed writ petition in the month of January, 2005 itself. SBCWP764/2005 // 6 // What is not disputed is that method of filling up the post of Executive Engineer is by way of promotion which has further been bifurcated by 67% on the basis of seniority- cum-merit and 33% on merit alone, and claim of petitioner is against 67% quota to be filled in by the criterion of seniority-cum-merit and his grievance is that he has been superseded by his juniors while filling up the posts against that quota. This Court while dealing with case of Anil Rastogi had the occasion to deal with the case relating to respondents themselves. The only difference between the petitioner's case and that of Anil Rastogi's case is that Anil Rastogi was awarded penalty of censure only once whereas the petitioner herein has been awarded number of penalties of this nature, but nevertheless the fact remains that penalty that was awarded to him is that of censure and not any other penalty. This fact is borne out from the order dated 10.12.2004 whereby representation of the petitioner was rejected and which order is assailed in the present writ petition. This court in Anil Rastogi's case followed the decision of Division Bench of this Court in State of Rajasthan Vs. Aklanks Kinde & Others (supra) wherein it was held that “even SBCWP764/2005 // 7 // if for arguments sake, it may be accepted for a moment that the fact of adverse A.C.R. in 1973- 74 and the punishment of stoppage of two grade increments was not considered by the DPC of 1976 and these factors were taken into consideration by the DPC of 1978, in our view, the DPC of 1978 was not justified to supersede the claim of Shri Jindal on seniority-cum- merit, merely on account of these factors.” It would thus be evident that not only the penalty of censure or adverse remarks in A.C.R. but also the punishment of stoppage of two grade increments was held (obviously without cumulative effect) not to justify supersession of senior by his senior where the criterion for promotion is seniority-cum-merit. A coordinate Bench of this Court in B.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 was seniority subject to suitability, held that when criteria was based on merit of those falling within zone SBCWP764/2005 // 8 // 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. 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 or any other adverse material, the SBCWP764/2005 // 9 // employee is to be supersed or denied promotion, the competent authority must record reasons in support of its decision. Recording of reasons is a must for fairness in the decison of the competent authority. In a recent judgment in Rupa Rani Rakshit and Others v. Jharkhand Gramin Bank and Others – (2010) 1 SCC 345, the Supreme Court held that considerations for promotion on criterion of seniority-cum-merit would be materially different from those where crieterion 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 in the seniority to get promotion. In B.V. Sivaiash and Others Vs. Kaddanki Babu & 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 Para 17 and 18 of the judgment, held as under:- “17. On behalf of the promoted officers, it was urged that for the SBCWP764/2005 // 10 // 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 the 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 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 SBCWP764/2005 // 11 // 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.” In view of above discussion, this writ petition deserves to be partly allowed and it is accordingly partly allowed. The petitioner is held entitled to promotion against the vacancy of the year 1995-96, if his juniors were promoted on the criteria of seniority- cum-merit from such date. The petitioner shall also be entitled to get all the consequential benefits with interest at the rate of 6% per annum. Compliance of this judgment be made within a period of three months from the date its copy is produced before the respondents. (Mohammad Rafiq) J. //Jaiman//