Rajasthan High Court - Jaipur

Smt.Santosh Sherry vs R.F.C.Jaipur on 14 May, 2010

Author:
Mohammad Rafiq

Bench:
Mohammad Rafiq

IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN
BENCH AT JAIPUR.

O R D E R

S.B. CIVIL WRIT PETITION NO.4015/1996.
Smt.Santosh Sherry
Versus
The Rajasthan Financial Corporation & ors.
Date of Order:- May 14, 2010.
HON'BLE MR.JUSTICE MOHAMMAD RAFIQ
Shri Sanjeev Prakash Sharma with
Shri Sanuj Kulshreshtha for the petitioner.
Shri R.D. Rastogi with
Shri N.S. Chauhan, for respondent No.1.
Shri Yogesh Kumar Sharma for respondent No.3.
Shri Ankur Srivastava for respondent No.4.
******
Reportable

BY THE COURT:-

This writ petition was filed by petitioner Smt.Santosh Sherry way back on 26/8/1996 inter-alia with the prayer that the order passed by the respondent-Rajasthan Financial Corporation (for short, RFC on 17/8/1996 promoting her juniors respondents No.2 to 4 by superseding her may be quashed and set-aside and the respondent-RFC may be directed to promote her on the post of Manager from the date above referred to respondents No.2 to 4 were promoted, with all consequential benefits and be further directed to redesignate petitioner on the post of Deputy Manager (Stagnation) in the pay scale of 3200-4625 from the date such pay scale was granted to so many of her juniors, with all the consequential benefits. It is also prayed that interest @24% p.a. be awarded to the petitioner with the consequential benefits referred to above.

2) Factual matrix of the case is that petitioner was initially appointed on the post of Junior Assistant with the respondents on 17/6/1972. Lateron, she was promoted on the post of Assistant Manager on 24/11/1980. Petitioner then was promoted to the post of Deputy Manager, on ad hoc basis vide order dated 7/12/1983. It was thereafter that petitioner was promoted as Deputy Manager on substantive basis on the recommendations of the Departmental Promotion Committee vide order dated 17/11/1986 against the quota of the year 1983-84. Respondent-RFC published seniority lists of Deputy Manager working with them on 1/4/1995 and 1/4/1996, respectively. Last seniority list was issued on 29/6/1996, in which, name of the petitioner was included at Sr.No.13 whereas, names of respondent No.2, Shri S.N. Gupta, respondent No.3 A.S. Mathur and respondent No.4 J.N. Sharma were shown at Sr.Nos.14, 15 and 16, respectively below the name of the petitioner in that seniority list. They were also promoted on the post of Deputy Manager against the quota of the year 1983-84. Cause of grievance for the petitioner arose when respondent-RFC promoted private respondents No.2 to 4 on the post of Manager against the quota of the year 1996-97 vide order dated 17/8/1996 whereas, petitioner was left out and superseded by her abovenamed juniors. Petitioner further felt aggrieved by non-grant of status to her of the post of Deputy Manager (Stagnation) in the pay scale of 3200-4625 whereas, Board of Directors of the RFC has taken a decision on 30/5/1996 to grant such higher grade of pay scale to all those Deputy Managers, who had rendered 12 years of service on substantive basis and had satisfactory service record. Several of juniors of petitioner were granted such higher grade on 23/10/1996. Petitioner was eventually promoted on the post of Manager against the quota of the year 2005-06 vide order dated 29/6/2006 during the pendency of the present writ petition. Another significant development which took place in between was that petitioner sought voluntary retirement on 20/11/2006 which respondent-RFC granted on her application vide order dated 27/11/2006 thus, petitioner stood voluntarily retired from service w.e.f. 30/11/2006.

3) Shri Sanjeev Prakash Sharma, learned counsel for petitioner has argued that supersession of the petitioner was wholly illegal inasmuch as, she was denied reasonable consideration for promotion. The criteria for promotion to the post of Manager was seniority subject to suitability. According to this criteria, a junior person cannot be promoted giving undue weightage to merit over seniority. It was argued that this criteria of seniority subject to suitability is totally a different criteria than the criteria of seniority-cum-merit or merit-cum-seniority which came to be interpreted by this Court in G.S. Rajawat Vs. Rajasthan Financial Corporation & Ors. : 1993(1) WLC (Raj.) 117. On the strength of this judgment, learned counsel for petitioner argued that merit alone cannot out weigh seniority, criteria being seniority subject to suitability and a senior cannot be ignored only on that count.
Learned counsel has also relied on the judgment of Supreme Court in
Valsala Kumari Devi M. Vs. Director
, higher Secondary Education & Ors. : (2007) 8 SCC 533 : JT 2007 (11) SC 305 in which, it was held that on the basis of the criteria of seniority and suitability, suitability has to be understood in the context of fulfilling the qualification and experience, etc. meaning thereby, comparative suitability of candidate has no role to play. It was argued that the order issued by the Rajasthan Financial Corporation dated 23/10/1996 denying the higher grade of pay of the redesignated post of Deputy Manager (Stagnation) to the petitioner was illegal. Petitioner was thus accorded a hostile discriminatory treatment inasmuch as, she had completed requisite and essential 12 years of service on the substantive post and had satisfactory service record with no departmental enquiry being pending against her therefore, she could not be denied such benefit whereas, at the same time, her juniors were granted upgraded scale of pay.

Learned counsel relying on the judgment of Supreme Court in
Union of India & Others Vs. N.P. Dhamania & Others
: 1995 Supp (1) SCC 1 and State Bank of India etc. Vs. Kashinath Kher and others : AIR 1996 SC 1328 argued that the authorities were under obligation to assign reason to substantiate their stand for superseding / ignoring case of the petitioner for promotion.

4) Per contra, Shri R.D. Rastogi, learned counsel for RFC opposed the writ petition and submitted that case of the petitioner was considered by the Departmental Promotion Committee as per the procedure contained in the Circular dated 19/9/1986 where criteria for promotion to the post of Manager is that of seniority subject to suitability as per which, higher the post more the suitability required. Case of the petitioner was considered after examining her entire service record including APARs of the relevant years, which did not adjudge the petitioner suitable for promotion to such post of Manager which is a post of responsibility. It was argued that the meeting of the DPC for such promotion was convened on 3/7/1996 which considered case of the petitioner as well as other four eligible Deputy Managers. While other four were adjudged suitable, the petitioner was not, on the criteria being seniority subject to suitability. Learned counsel referring from the additional affidavit filed by the respondents argued that petitioner had only two satisfactory grading in his APARs of the years 1989-90 and 1990-91, three average grading in the years 1991-92, 1992-93, 1993-94, 1994-95 and 1995-96. Her performance was thus rated average during all the relevant seven years. It clearly shows that petitioner was not suitable to perform the duties of responsible post of Manager. As regards non-grant of upgraded post of Deputy Manager (Stagnation), learned counsel argued that the Board of Directors of the respondent-RFC in its meeting dated 30/5/1996 decided to redesignate 18 posts of Deputy Manager (Stagnation) and considered case of candidates including petitioner and other five respondents which included three senior to the petitioner. She was however not found eligible for redesignation as Deputy Manager (Stagnation) keeping in view her APARs and service record. Petitioner was therefore not redesignated as Deputy Manager (Stagnation). It was argued that redesignation for the upgraded post was also made by adopting the same criteria of promotion which was applicable to the ordinary case of promotion. Only those, who were found fit and fulfilled the requisite eligibility for promotion to such upgraded post were granted the same as the intention was to remove stagnation due to non-availability of higher post.

5) Shri R.D. Rastogi, learned counsel for the respondent argued that case of the petitioner was considered for promotion on the post of Manager against the vacancies of the year 2005-06 in the DPC convened on 29/6/2006 and she on being adjudged suitable, was accordingly promoted vide order dated 29/6/2006. It cannot therefore be said that the respondents had any bias or malice against the petitioner. She secured promotion at later point of time because in the meantime she had improved her performance which reflected in her service record. As regards respondent No.2 Shri S.N. Gupta, it was argued that he had better service record than petitioner because in the same period of seven years, he was rated Average in four ratings, satisfactory in two ratings and above average in one grading in his APARs. The DPC in its meeting made a remark that petitioner was assessed but was not found suitable and therefore was superseded, which was reflected in the minutes of the meeting of the DPC, which the learned counsel for respondent-RFC produced for perusal of the Court during the course of arguments. From the service record of the petitioner, it is clearly evident that she was not capable of holding the responsible post of Manager. Learned counsel in support of his argument has placed reliance on the judgment of Punjab & Haryana High Court in
Mohan Singh Vs. Union of India
: 2003(6) SLR 93 to argue that denial of promotion on the ground of non suitability on the basis of performance of petitioner who was rated 'average' was not justified. This Court cannot sit in appeal for the assessment made by the competent authority to substitute the view of the DPC.

Learned counsel has cited judgment of Supreme Court in
Union of India & Anr. Vs. S.K. Goel
: JT 2007(3) SC 361 to argue that Supreme Court
in that case
held that ordinarily no interference can be made by the Court of Law in proceedings of the DPC unless recommendations of the DPC are made illegally or in gross violation of the rules or there is misgrading of confidential reports.

6) Shri R.D. Rastogi, learned counsel has also cited judgment of the Madras High Court in
S.K. Choudhary Vs. Union of India & Ors.
: 2007(7) SLR 598, judgment of Calcutta High Court in
Deputy Chief Personnel Manager (EE) and Anr. Vs. Priyadeep Ghose & Ors.
: 2005(2) SLR 153 on the scope of interference by this Court in writ jurisdiction.

He has also cited judgment of Supreme Court in
Diploma Engineers Sangh Vs. State of Uttar Pradesh & Ors.
: 2007(13) SCC 300 to argue that the criteria for promotion
in that case
was seniority subject to rejection of unfit which was similar to the criteria of seniority-cum-merit. Wherever therefore criteria of promotion is seniority-cum-suitability, promotion is not automatic on the basis of seniority. It means that a list of candidates in the feeder cadre should be prepared in order of seniority and then such candidate is to be considered on the basis of his merit as per his ranking in such seniority. Whoever is found unfit is rejected. Whether the candidate is fit or unfit is determined by adopting the procedure contained in the rules including assessment of grading assigned in the annual confidential report. Learned counsel in this connection referred to the observations made by the Supreme Court in para 16 of the report. Learned counsel further argued that even when criteria of promotion is seniority-cum-merit, an officer cannot claim promotion as a matter of right by virtue of seniority alone.

7) Shri Ankur Srivastava, learned counsel for respondent No.4 cited judgment of Supreme Court in
State of Mysore and another Vs. Syed Mahmood and others
: AIR 1968 SC 1113. It was argued that the Supreme Court
in that case
set-aside the judgment of High Court which had issued a writ to the State Government for granting promotion to the petitioner on consideration of the fact that criteria of promotion was seniority-cum-merit. It was held that High Court was wrong in issuing such writ petition without giving to State Government opportunity in the first instance to consider their fitness for promotion, in case, candidature shall have to be adjudged on objective consideration of the record of an individual candidate. It is therefore prayed that the writ petition be dismissed.

8) I have given my anxious consideration to the rival submissions of the parties and perused the material available on record.

9) Question of grant of redesignated post in upgraded pay scale need not be considered in the first instance because if petitioner succeed on the first prayer, occasion for considering second prayer would not arise. The first prayer concerns supersession of petitioner by three of her juniors in the matter of promotion to the post of Manager vide order dated 17/8/1986. Indisputably, as per the promotion policy of the respondent-RFC contained in their Circular dated 19/9/1986, criterion of promotion was on seniority subject to suitability. Supersession of an employee of the respondent-RFC exactly on the same criteria came to be challenged before this Court in G.S. Rajawat supra. In that case also, dispute arose between petitioner-G.S. Rajawat and respondent-RFC regarding promotion on the post of Deputy Manager and the criteria of promotion was the same viz. seniority-cum-suitability. This Court after considering number of Supreme Court judgments and judgments of High Courts, allowed the aforesaid writ petition. Ratio of the judgment of this Court in G.S. Rajawat supra clearly shows that a senior cannot be ignored even if his junior has better service record. This Court held therein that when the criteria is seniority-cum-fitness or seniority-cum-suitability, then a senior person can be ignored only if it is found that he is unfit. Consideration of better merit cannot weigh when recommendations are required to be made on the basis of seniority-cum-fitness or seniority-cum-suitability or seniority subject to suitability. Though stand of respondent-RFC, as has been argued on their behalf is that petitioner was not suitable for promotion to the post of Manager because the post of Manager carries higher responsibilities. But this cannot be accepted on their mere ipse-dixit that higher the post, greater the amount of suitability required. What is to be examined is whether the fact that petitioner had five average gradings and two satisfactory gradings during seven relevant years, would by itself is sufficient to hold that she was not suitable for promotion. In other words, the scope of examination would be whether the DPC correctly understood, analyzed and applied the criteria of seniority subject to suitability on the facts of the present case. When Shri S.N. Gupta, respondent No.3, who has been adjudged suitable by the DPC for promotion having four average, two satisfactory and one above average rating in the relevant seven years, why the petitioner who had five average gradings and two satisfactory gradings during the same seven years, has not been considered suitable by the DPC? This Court in G.S. Rajawat supra has clearly noticed that criteria of seniority subject to suitability holding that it cannot be routed through the level of seniority-cum-merit or merit-cum-seniority. It is just like seniority-cum-fitness. When the criteria of promotion is merit then the best amongst the candidates falling within the zone of consideration or those fulfilling a particular yard-stick laid down for determination of merit can be picked up for promotion. When the criteria is merit-cum-seniority, preponderance of weight is to be given to the consideration of merit and even junior person having better record than the senior person, can be promoted. When however the criteria is seniority-cum-merit, more weightage is to be given to the seniority and a person who is otherwise suitable cannot be denied promotion merely because, a junior person is considered to be more meritorious. If however the criteria is seniority-cum-fitness or seniority-cum-suitability then, a senior person can be ignored only if it is found that he is unfit. Consideration of better merit cannot be weighed when recommendations are required to be made on the basis of seniority-cum-fitness or seniority-cum-suitability or seniority subject to suitability.

10) Supreme Court in
B.V. Sivaiah and others Vs. K.Addanki Babu and others
: (1998) 6 SCC 720 was considering the case for promotion to the post of Area Manager/Senior Manager in the regional rural banks. In that case, criteria for promotion as
laid down in
the rules was seniority-cum-merit. It was held by the Supreme Court that the criterion for promotion seniority-cum-merit implies fulfillment of minimum prescribed standard of merit by candidates eligible for consideration and then making promotion out of them on the basis of their inter-se seniority irrespective of their comparative merit. 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. While however 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. The principle of merit-cum-seniority lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal. On the other hand, as between the two principles of seniority and merit, the criterion of seniority-cum-merit lays greater emphasis on seniority. But an officer cannot claim promotion as a matter of right by virtue of his seniority alone if he is found unfit to discharge the duties of the higher post.

11) In Het Ram Dudi Vs. State of Rajasthan & Another : 1992(3) WLC (Raj.) 726, it was held by this Court that the criteria of seniority-cum-fitness or seniority-cum-merit has to be so applied that if a senior person possess as much element of merit which makes him efficient for discharge of duties, his seniority must over weigh better merit of a junior person. Relevant part of assessment of merit is absent when promotion is made on the basis of seniority-cum-merit. At the same time by adopting the criteria of merit or merit-cum-seniority for higher promotion, better and best can be chosen to serve the larger public interest.

12) In
Diploma Engineers Sangh Vs. State of Uttar Pradesh & Others
: 2007(13) SCC 300, Supreme Court had the occasion to consider the case of promotion where criteria was seniority subject to rejection of unfit. It was held that this is similar to as seniority-cum-merit and seniority-cum-suitability. Application of such criterion does not mean that promotion is automatic on the basis of seniority. It means that a list of all candidates in the feeder post should be prepared in the order of seniority and each candidate as per the rank in seniority is considered on merit. Whoever is found unfit is rejected. Whether the candidate is 'fit' or 'unfit' is determined by adopting the procedure prescribed by the Rules. It can be done by requiring the candidates to undergo a qualifying examination and also by interview. It can be with reference to the grades assigned in the annual confidential reports and by any other reasonable and relevant method prescribed. No such laid criteria in the rules or otherwise has been cited to show as to how and why petitioner was not fit or was unfit to be promoted.

13) If according to the perception of respondent-RFC, the post of Manager being a higher post, only persons with high amount of merit should be promoted thereto. Nothing prevented it from changing the criteria of promotion from seniority subject to suitability to merit-cum-suitability or merit alone thereby making it a selection post. So long as the criteria of promotion was seniority subject to suitability, the DPC could not have exceeded in its jurisdiction by re-writing the criteria of promotion to say that only more or most meritorious candidates could be promoted and thus assuming the criteria to be merit-cum-suitability, which was not existing. Therefore a junior person could be promoted on higher post ignoring candidature of a senior only on the ground that senior was unfit. Nothing has been shown as to if petitioner was unfit for promotion nor any such reason has been mentioned even in the proceedings of the DPC.

14) Judgments of various High Courts cited by the learned counsel for respondents are all distinguishable and are not attracted to the fact substantially of the present case as all those judgments were rendered prior to the judgment of Supreme Court in
B.V. Sivaiah
supra, and therefore, cannot be considered. All those judgments in any case are on different criteria of promotion emanating from the rules in different services. Scope of interference in the matter of promotion indeed is quite restricted in the writ jurisdiction of this Court. But then, when it is found that the DPC has committed a manifest error in applying the criteria of 'seniority subject to suitability' while denying promotion to the petitioner and superseding her by many of her juniors, action of the DPC does not become immune from judicial review and such action has to be scrutinized on the basis of the laid down criteria in the relevant rules.

15) Cited judgment of Supreme Court in
State of Mysore and another Vs. Syed Mahmood and others
: AIR 1968 SC 1118 is distinguishable wherein, two employees were working as Junior Statistical Assistants. They were promoted at later point of time and therefore filed writ petition claiming such promotion on the post of Senior Statistical Assistant from an earlier date. Writ petition was allowed with direction to the Government to promote them with retrospective effect. In that context, Supreme Court held that the High Court could merely direct the government to consider their candidature for promotion in that particular year. An officer cannot claim promotion as a matter of right by virtue of seniority alone. It was in that context, above referred to observations were made by the Supreme Court.

16) In view of what has been discussed above, action of the respondents in not promoting petitioner on the post of Manager and superseding her by three of her juniors i.e. respondents No.2 to 4, thereby promoting them vide order dated 17/8/1996 despite criteria of promotion being seniority-cum-suitability is accordingly held illegal and arbitrary exercise of powers in violation of
Articles 14
and
of the Constitution of India.

17) Keeping in view however length of time of one and a half decade that has elapsed in between filing of the present writ petition and decision thereof, I refrain from quashing the order of promotion of the private respondents, who in the meantime may have retired from service. However, the respondents are directed to re-consider the candidature of the petitioner for promotion on the post of Manager against the quota of the year 1996-97 by creating a supernumerary/shadow post in the light of discussions made above and if adjudged suitable, grant her promotion to such post with effect from the date her above referred to juniors were promoted vide order dated 17/8/1996, with all consequential benefits.

18) Writ petition is accordingly allowed however, with no order as to costs.

(MOHAMMAD RAFIQ), J.

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