Case: Shri Satish Ramrao Kate Vs. Ms I.B.P. Co. Ltd. And Ors

2. While issuing Rule in this writ petition on 12.06.2007, the challenge raised by the petitioner was restricted to the promotion effected in November, 2005.3. The petitioner is Mining Engineer of 1977. Initially, he was appointed as Areas Sales Manager. Subsequently, he was promoted and worked on different promotional posts. On 1 st May 1996 he was promoted as a Deputy General Manager i.e. G Grade post. At the time of promotion also he was working of G Grade promotion. As per the contention of the petitioner in 1996 he was promoted along with respondent No.3 and respondent No.4 was promoted in 1997. The respondent No.6 was promoted as a Deputy General Manager in the year 2000. It is further contention of the petitioner that he was in the zone of consideration for the post of General Manager. In spite of all contributions he was not considered for promotion but respondent Nos.3 to 6, who are juniors to him in gradation list were promoted.4. Thus, as per the contention of the petitioner the act of respondent Nos.1 and 2 is unfair, arbitrary, if the C.P.P.C. marks were given with extreme care, with fairness considering his achievements, he would have stand on top of the selection list. C.P.P.C. has not made proper appraisal with judicious mind. In the year 2005 promotion policy was approved. But while promoting DGM to General Manager this was changed through interview process without making amendment to aforesaid policy. This arbitrary decision has drastically affected his prospects, opportunity of interview was denied to him. Thus, management has acted illegally and unjustly by deviating from approved promotional policy. The Management resorted to the interview process without calling all eligible candidates for interview. Thus, the act of respondent Nos.1 and 2 is biased, malafide and required to be interfered.

Court's reasoning:
9. Perused the record. Admittedly, the petitioner is senior to the respondent Nos.3 to 6 as per the seniority list. It is also an admitted position that the respondent Nos.1 and 2 has adopted promotion and placement policy for Officers. Admittedly, the promotion process was held for the post of General Manager which is responsible post. Therefore, benchmark is fixed and procedure for promotion and placement was adopted by the Company. In view of said promotion policy, (i) it was decided that the promotion and placement in the Company would be decided normally once in an every year around February for the next financial year. (ii) as per the policy there would be three such company promotions and placement committees.12. In view of said modified promotion and placement policy for Vacancy Based Promotion on Merits i.e. (VBPM) for promotion to Grade D and above, the marking system was adopted. Total matrix of the marks was 100. Said 100 marks are divided as one performance appraisal matrix 40 (last 3 years only). Seniority in present Grade 25 marks (5) marks for each completed year or six months or more in present grade. Potential Assessment is 15 marks and lastly CPPC marks for 20. Said 20 marks will be allotted considering candidates job, knowledge, quality and experience, leadership quality overall suitability to the job. It appears that petitioner has challenged the C.P.P.C. for the year 1998 when respondent No.3 was selected. He also challenged the process upto 2000 when Shri B. Datta and Shri K.K. Banerjee were given promotion and the process carried out in the year 2005 when respondent Nos.5 and 6 were promoted in the month of November 2005. After perusal of the record it appears that in the process of 1998 total 27 candidates were eligible from the grade of Deputy General Manager, out of that 18 were meeting the minimum eligibility criteria of two years service in the grade of Deputy General Managers which can be considered for promotion as General Managers. At the relevant time 4 posts of General Managers were to be filled up by the said Company Promotion Placement Committee and the persons i.e. first four who scored 80 marks and above were selected. In that process of 1998 petitioner could not secured marks more than 75. He only scored 68 marks, therefore, he was not considered. In the second process also C.P.P.C. decided to shortlist candidates who scored 75 marks on the basis of appraisal marks, seniority marks and potential marks. Accordingly, six persons were selected. The petitioner again was not shortlisted as he could get only 64 marks. CPPC has decided to shortlist candidates who secured 69 marks. On the basis of appraisal marks, seniority marks. In the process of 2nd September, 2005 and 5th September, 2005 in line of modified policy for promotion of Grade H factors like appraisal rating by allotting 40 marks, seniority 25 marks, potential 15 marks and sub-total 80 marks. The marks obtained by each candidate out of above 80 marks is placed before the Committee. The Committee on the basis of their performance appraisal ratings for the last three years 22 candidates who completed two years of service are considered, out of them only 9 candidates scored 75 marks and above out of 80 marks and they were considered for being eligible for awarding C.P.P.C. marks by the Selection Committee based on their job, knowledge, quality of experience, leadership quality and overall suitability to the job in order to make the process more transparent. Thus, from the record it reveals that the petitioner could not attend the benchmark whereas the respondent Nos.3 to 6 though they were juniors they have attended benchmarks and were at a higher position than the petitioner in the merit list. The respondents have filed on record the minutes of meeting and the mark list which shows that even if C.P.P.C. has allotted 20 marks to the petitioner he would not have qualified for the interview. On the other hand, other candidates have scored marks more than the petitioner and, therefore, they are considered for promotion.13. Learned counsel for the petitioner relied upon Dev Dutt Vs. Union of India and others, reported in (2008) 8 SCC 725 ,wherein Honble Apex Court has considered the issue of adverse entries remarks – and held that whether an entry is adverse or not depends upon its actual impact on employees career and not on its terminology. So even a good entry can be adverse in the context of eligibility for promotion. These facts of the cited case are not identical with the present case. He also relied upon Abhijit Ghosh Dastidar vs. Union of India and others, reported in (2009) 16 SCC 146,  wherein the issue of gradation in ACR was discussed and it is held that since Good grading was not communicated to the appellant this grading should not have been taken into consideration for promotion. No such stand is taken by the petitioner that grading was not communicated to him and, therefore, said grading should not have taken into consideration.14. It is well settled that while carrying out the promotion process it is to be carried out either on senioritycum-merit basis or on merit-cum-seniority basis. It is also well settled that what should be minimum necessary merit for promotion is a matter which is decided by the management, having in mind the requirements of the posts to which promotions are to be made. The employer has the discretion to fix different minimum merit for different categories of posts, subject to the relevant rules. For example, for promotions at lower levels, it may fix a lesser minimum qualifying marks and fix a comparatively higher minimum qualifying marks for higher posts. Admittedly, in the present case the process was carried out for higher posts like General Manager. The said posts carries the higher responsibilities and therefore Management has fixed the marking system and considered the candidates who scored higher marks. It is also well settled that the principle of seniority-cum-merit for promotion is different from the principle of merit-cumseniority. Where promotion is on the principle of senioritycum-merit, promotion is not automatic with reference to seniority alone. Merit will also play a significant role. The standard method of seniority-cum-merit is to subject all the eligible candidates in the feeder grade possessing the prescribed educational qualification and period of service to a process of assessment of a specified minimum necessary merit and then promote the candidates who are found to possess the minimum necessary merit strictly in the order of seniority. The minimum merit necessary for the posts may be assessed either by subjecting the candidates to a written examination or an interview or by the assessment of their work performance during the previous years which is considered in the present case. Here in the present case while selecting the candidates the assessment of their work performance during the previous years was considered. Thus, the criteria of seniority-cummerit in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the meritorious candidates shall have the priority. Thus, it is clear that a process whereby eligible candidates possessing minimum necessary merit in the feeder post is to be first ascertained and thereafter promotions are to be made strictly in accordance with the seniority from among those who possess the benchmark which was fixed. It is observed by the Honble Apex Court in the case of K. Samantaray vs. National Insurance Co. Ltd. Reported in AIR 2003 SC 4422  that it is for the employer to stipulate the criteria for promotion, the same pertaining really to the area of policy making. It was, therefore, permissible for the respondents to have their own criteria for adjudging claims on the principle of seniority-cum-merit giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and requirements of efficiency for such posts.Admittedly, the posts for which the promotion process is carried out is a post of responsibility. The Management by considering the responsibility of the said post fixed the criteria by considering previous record such as appraisal ratings, seniority, potential, wherein petitioner could not attend the benchmark of 75 out of 80 marks and he had only secured 64 marks and therefore he was not considered for the promotion to the post of General Manager in the C.P.P.C. meeting. In the next promotion process also he could not attend benchmark and, therefore, he was not considered for the promotion of General Manager and therefore the candidates who possessing the minimum qualifying marks were then promoted. The minimum necessary merit for promotion is decided by the Management considering the requirement of the posts to which the promotions are to be made. Admittedly, the employer has the discretion to fix different minimum merit, for different categories of posts. The posts of General Manager shouldering higher responsibility and therefore it cannot be said that the fixing the minimum qualifying marks at 75 is excessive and unreasonable or arbitrary.16. We have carefully examined the facts of the present case and the documents on record. As per the rules framed for promotion and placement and modified rules of promotion and placement, it would be seen that the schemes for excess minimum marks was adopted, cut of marks decided by CPPC being 75 and therefore candidates scored 75 marks were only called before the CPPC for awarding CPPC marks and eventual selection. Thus, it appears that the action on the part of the respondents does not appears to be arbitrary or unjust as the petitioner has been found to be ineligible and therefore has not been granted promotion. Therefore, the case of the petitioner deserve no interference at the hands of this Court and therefore the petition deserves to be dismissed.