Case: RAMA NEGI Vs. UNION OF INDIA &amp; ORS

take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. … 20. On the same aspect, Justice Kuldip Singh, also held for a Division Bench in Jagathigowda C.N. v. Chairman, Cauvery Gramina Bank & Ors. (1996) 9 SCC 677 ,that the totality of the circumstances factor as a pivotal consideration with respect to seniority cum merit, 8. ... It is settled proposition of law that even while making promotions on the basis of seniority-cum-merit the totality of the service record of the officer concerned has to be taken into consideration. The performance appraisal forms are maintained primarily for the purpose that the same are taken into consideration when the person concerned is considered for promotion to the higher rank. ... (emphasis added) For a Division Bench in Haryana State Electronics Development Corporation Limited & Ors. Vs. Seema Sharma & Ors. (2009) 7 SCC 311, Justice A.K. Ganguly also reiterated the distinguishable features for the criterion of seniority cum merit, and the requirement to consider the entirety of the candidates service record, 8. The principle of merit-cum-seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted. 9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority and promotion to a senior person cannot be denied unless the person concerned is found totally unfit on merit to discharge the duties of the higher post. The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum-merit (see Jagathigowda, C.N. v. Cauvery Gramina Bank [(1996) 9 SCC 677 : 1996 SCC (L&S) 1310: AIR 1996 SC 2733 ] ). (emphasis added) 21. While rejecting the appellants seniority claim in the feeder cadre by virtue of her higher salary vis-à- vis the respondent no.3, the Division Bench, unfortunately, referred to the incorrect O.M. (dated 10.9.1985), overlooking the applicable O.M. (dated 12.12.1988) of the Ministry of Personnel. In this O.M., as noted earlier, it was clearly stated that the persons in the feeder cadre drawing higher scale will rank senior to those drawing lesser pay scale. Admittedly, the pay scale drawn by the appellant as an Accountant in the feeder cadre was higher than the respondent no.3 and therefore the benefit of O.M. (dated 12.12.1988) would surely accrue to the appellant, in the determination of her inter se seniority. However, the learned Division Bench by adverting to the incorrect O.M., wrongly rejected the contention that the higher pay scale can be the basis for claiming the seniority in the feeder cadre in the circumstances referred to in the O.M. dated 12.12.1988. 22. In the present case, the Cantonment Board in their deliberations made on 11.1.2012 not only considered the appellant to be senior to the respondent no.3 but also considered her to be more deserving for promotion as the best, suitable and fit candidate, for the responsible post. The respondent no.3 was penalized pursuant to the disciplinary proceeding for dereliction of duty and misconduct and he suffered the penalty of recovery of Rs.10,000/- from his salary. Seen in this context, the appellant was more deserving. That apart, the disciplinary action was not challenged by the respondent no.3. He cannot therefore set up a better claim for promotion, to a selection category post. 23. Insofar as the contention of the respondent no.3 that the issue of selection category post was not argued before the High Court, it is necessary to bear in mind that arguments based on the Rules were advanced by all the contesting parties before the High Court. Therefore, the status of the promotion post and the criterion for promotion specified in the Rules, must in our opinion, receive due consideration. 24. As far as the issue of higher pay scale being the basis for seniority in the feeder cadre, the same is clearly provided in the O.M. dated 12.12.1988. The issue received due consideration by the Cantonment Board and was answered in favour of the appellant. But this aspect was held against both the appellant and the Board, due to an inadvertent reference to the wrong Office Memorandum dated 10.09.1985 by the High Court. Having regard to the manner in which the issue was examined and decided by the Board, we deem it appropriate to endorse the Boards declaration of seniority in favour of the appellant, based on the reasoning contained in the Boards Resolution dated 25.3.2013. 25. This Court must also be mindful of the fact that the Cantonment Board applied the criterion of seniority-cum-merit and treated the post to be of the selection category. Moreover, the unblemished service record of the appellant vis-à-vis the pending disciplinary proceedings against the respondent no.3, (eventually resulting in penalty), were taken into account. All these circumstances in our opinion, weigh in favour of the appellant Rama Negi. Her Suitability for the selection post was attributable to two factors i.e. merit of the candidate and the inter-se seniority. Despite the difficulty in encapsulating the parameters for merit, a significant marker can be found in the unblemished record of the employee. A marred service record, though not an insurmountable bar, must carry some consequences, and it could be a comparative disadvantage in promotion for a selection post. The employers preference for a person with a clean service record can be well appreciated. 26. Moreover, the higher pay in the same grade as per the applicable O.M., is a reliable indicator for determining inter-se seniority. In this Courts perception, the decision to prefer the appellant over the respondent no.3 for promotion is in tune with the applicable parameters. As such the contrary opinion by the High Court does not merit our approval.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. The Rule 5-B (8) read with Annexure E of the Rules makes it clear that the post of Office Superintendent is a selection post and the criterion for promotion is seniority-cum-merit. The parameters for determining promotion based on such criterion are well established by this Court. Justice S.C. Agrawal in B.V. Sivaiah v. K. Addanki Babu (1998) 6 SCC 720,  speaking for a three Judges Bench, held that,10. On the other hand, as between the two principles of seniority and merit, the criterion of seniority-cum-merit lays greater emphasis on seniority. In State of Mysore v. Syed Mahmood [AIR 1968 SC 1113  : (1968) 3 SCR 363  : (1970) 1 LLJ 370 ] while considering Rule 4(3)(b) of the Mysore State Civil Services General Recruitment Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, this Court has observed that the Rule required promotion to be made by selection on the basis of seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion. It was pointed out that where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.11. In State of Kerala v. N.M. Thomas [(1976) 2 SCC 310  : 1976 SCC (L&S) 227] A.N. Ray, C.J. has thus explained the criterion of seniority-cum- merit: (SCC p. 335, para 38)With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum- merit. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority.17. ... 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. ...18. 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 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.Justice Arijit Pasayat, speaking for a Division Bench in K. Samantaray v. National Insurance Co. Ltd. (2004) 9 SCC 286,  noted the following distinction,7. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the latter, merit is the determinative factor.18. The appraisal of the facts before us reveals that the respondent no.3 faced a disciplinary proceeding following the chargesheet issued against him on 28.11.2011. But the High Court questioned the timing of the disciplinary action and observed that the same was issued to deny promotion to the respondent no.3. On this, the inquiry report finding (17.8.2016) is important, which indicates that the Cantonment Board suffered a pecuniary loss of Rs.3,50,000/- due to dereliction of duty by the delinquent. Significantly, the respondent no.3 accepted the charge and the disciplinary authority imposed the penalty of Rs.10,000/- recoverable from his salary.19. It was a selection post and the appellant contrastingly had an unblemished service record all throughout her career. Moreover, she was found to be senior by the Board on 11.1.2012 and for this reason was recommended for promotion, in preference to the respondent no. 3. Adverting to the role of promotion committees, Justice P.B. Sawant, speaking for a three Judges bench in Union of India & Ors. vs. K.V. Jankiraman & Ors. (1991) 4 SCC 109  has emphasized the necessity to consider the entire service record of the candidates in line for promotion,29. …In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. …For a Division Bench in Haryana State Electronics Development Corporation Limited & Ors. Vs. Seema Sharma & Ors. (2009) 7 SCC 311,  Justice A.K. Ganguly also reiterated the distinguishable features for the criterion of seniority cum merit, and the requirement to consider the entirety of the candidates service record,8. The principle of merit-cum-seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted.9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority and promotion to a senior person cannot be denied unless the person concerned is found totally unfit on merit to discharge the duties of the higher post. The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum-merit (see Jagathigowda, C.N. v. Cauvery Gramina Bank [(1996) 9 SCC 677 : 1996 SCC (L&S) 1310: AIR 1996 SC 2733 ] ). (emphasis added)21. While rejecting the appellants seniority claim in the feeder cadre by virtue of her higher salary vis-à- vis the respondent no.3, the Division Bench, unfortunately, referred to the incorrect O.M. (dated 10.9.1985), overlooking the applicable O.M. (dated 12.12.1988) of the Ministry of Personnel. In this O.M., as noted earlier, it was clearly stated that the persons in the feeder cadre drawing higher scale will rank senior to those drawing lesser pay scale. Admittedly, the pay scale drawn by the appellant as an Accountant in the feeder cadre was higher than the respondent no.3 and therefore the benefit of O.M. (dated 12.12.1988) would surely accrue to the appellant, in the determination of her inter se seniority. However, the learned Division Bench by adverting to the incorrect O.M., wrongly rejected the contention that the higher pay scale can be the basis for claiming the seniority in the feeder cadre in the circumstances referred to in the O.M. dated 12.12.1988.22. In the present case, the Cantonment Board in their deliberations made on 11.1.2012 not only considered the appellant to be senior to the respondent no.3 but also considered her to be more deserving for promotion as the best, suitable and fit candidate, for the responsible post. The respondent no.3 was penalized pursuant to the disciplinary proceeding for dereliction of duty and misconduct and he suffered the penalty of recovery of Rs.10,000/- from his salary. Seen in this context, the appellant was more deserving. That apart, the disciplinary action was not challenged by the respondent no.3. He cannot therefore set up a better claim for promotion, to a selection category post.23. Insofar as the contention of the respondent no.3 that the issue of selection category post was not argued before the High Court, it is necessary to bear in mind that arguments based on the Rules were advanced by all the contesting parties before the High Court. Therefore, the status of the promotion post and the criterion for promotion specified in the Rules, must in our opinion, receive due consideration.24. As far as the issue of higher pay scale being the basis for seniority in the feeder cadre, the same is clearly provided in the O.M. dated 12.12.1988. The issue received due consideration by the Cantonment Board and was answered in favour of the appellant. But this aspect was held against both the appellant and the Board, due to an inadvertent reference to the wrong Office Memorandum dated 10.09.1985 by the High Court. Having regard to the manner in which the issue was examined and decided by the Board, we deem it appropriate to endorse the Boards declaration of seniority in favour of the appellant, based on the reasoning contained in the Boards Resolution dated 25.3.2013.25. This Court must also be mindful of the fact that the Cantonment Board applied the criterion of seniority-cum-merit and treated the post to be of the selection category. Moreover, the unblemished service record of the appellant vis-à-vis the pending disciplinary proceedings against the respondent no.3, (eventually resulting in penalty), were taken into account. All these circumstances in our opinion, weigh in favour of the appellant Rama Negi. Her Suitability for the selection post was attributable to two factors i.e. merit of the candidate and the inter-se seniority. Despite the difficulty in encapsulating the parameters for merit, a significant marker can be found in the unblemished record of the employee. A marred service record, though not an insurmountable bar, must carry some consequences, and it could be a comparative disadvantage in promotion for a selection post. The employers preference for a person with a clean service record can be well appreciated.26. Moreover, the higher pay in the same grade as per the applicable O.M., is a reliable indicator for determining inter-se seniority. In this Courts perception, the decision to prefer the appellant over the respondent no.3 for promotion is in tune with the applicable parameters. As such the contrary opinion by the High Court does not merit our approval.