Madhya Pradesh High Court

Dr. C.P. Chaurasia vs The State Of Madhya Pradesh on 30 March, 2015

Author:
Sanjay Yadav

Bench:
Sanjay Yadav

:: 1 ::

HIGH COURT OF MADHYA PRADESH : JABALPUR
BEFORE HON'BLE SHRI JUSTICE SANJAY YADAV

Writ Petition No.21344/2012
Dr. Vyankatacharya Dwivedi & others
versus
State of M.P. & others
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Shri D.K. Tripathi, learned counsel for the petitioners.
Shri Ashish Anand Bernard, learned Govt. Advocate for
respondent-State.
Shri D.K. Dixit, learned counsel for the intervenor.
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Writ Petition No.21416/2012
Dr. Aditya Pratap Singh & others
versus
State of M.P. & others
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Shri Kishore Roy, learned counsel for the petitioners.
Shri Ashish Anand Bernard, learned Govt. Advocate for
respondent-State.
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Writ Petition No.299/2013
Dr. C.P. Chaurasia
versus
State of M.P. & others
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Shri D.K. Tripathi, learned counsel for the petitioners.
Shri Ashish Anand Bernard, Govt. Adv. for State.
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Writ Petition No.3236/2013
Dr. D.S. Pawar and another
versus
State of M.P. & others
---------------------------------------------------------------------------------------------------------------------
Shri D.K. Tripathi, learned counsel for the petitioners.
Shri Ashish Anand Bernard, Govt. Adv. for State.
Shri Harish Agnihotri, counsel for respondent 4 and 5.
---------------------------------------------------------------------------------------------------------------------
:: 2 ::

ORDER

(30.3.2015)
These batch of writ petitions, at the instance of Senior
Veterinary Surgeons in the Department of Animal Husbandry
and Veterinary Services, Government of Madhya Pradesh, are
directed against order-dated 10.12.2012; whereby, private
respondents have been promoted to the post of Deputy
Director/Civil Surgeon (Veterinary Services)/Animal Breeding
Programme Officers, questioning the criteria for promotion
adopted by the Departmental Promotion Committee.

2. It is not in dispute that services of the petitioners and
private respondents are governed by M.P. Veterinary Services
(Gazetted) Recruitment Rules, 1966 and that the promotions
are governed by the Rules framed under proviso to
Article 309

read with
Article 16
and
of the Constitution of India,
known as Madhya Pradesh Public Services (Promotion) Rules,
2002 (for brevity 'Rules of 2002') and as per Rule 4 read with
Rule 6 thereof, the promotion from the post of Assistant
Veterinary Surgeon (substantive post) to that of Deputy
Director/Civil Surgeon (Veterinary Services), Animal Breeding
Programme Officer, a Class I post is on the basis of "seniority
subject to fitness".

3. That, Departmental Promotion Committee convened its
meeting on 13.9.2012 to consider Assistant Veterinary Surgeon
as on 1.4.2011 for the following vacancies -

Category Actual Anticipated
Vacancies Vacancies
:: 3 ::

General Category - 119 112 7

Scheduled Caste - 26 22 4

Scheduled Tribes - 35 35 NIL

4. The criteria adopted by the Departmental Promotion
Committee was -

7- inksUufr dh dlkSfV;ka rFkk lkekU; iz'kklu foHkkx
ds fu;e ^^e/;izn's k yksd lsok ¼inksUufr½ fu;e] 2002 ds
lanHkZ esa oxhZdj.k &
¼v½ U;wure dlkSVh
lfefr us fopkjk/khu inksUufr ds fy, fuEufyf[kr dlkSfV;ka
r; dh &
¼1½ lafu"Bk lansg ls ijs gks ,oa lafu"Bk izekf.kr gks A
¼2½ o"kZ 2007 ls o"kZ 2011 rd ikWp o"kZ ds xksiuh;
izfrosnuksa ds vk/kkj ij lexz ewY;kadu fd;k tk,A lkekU;
iz'kklu foHkkx ds ifji= Øekad lh&3&18&2001&3&,d
fnukad 11 twu 2002 dh df.Mdk 6 dh midafMdk 6
vuq:i tSlk iz'uk/khu frfFk ls 5 o"kksZa ds xksiuh; izfrosnu
ugha gS rks fiNys o"kZ ds miyC/k xksiuh; izfrosnu ij
lfefr us fopkj fd;kA
¼3½ lfefr us ;g ik;k fd foHkkx esa d+ ,oa d Js.kh ds
i;kZIr mEehnokj gSa ,oa inksUufr izFke Js.kh esa gks jgh gSA
vr% ;ksX; ,oa mfpr mEehnokj vk, blhfy, lkekU; Js.kh
ds in ds fy, mi;qDrrk ds ekin.M ds fy, U;wure vad
13 fu/kkZfjr fd, x, fdUrq vuqlwfpr tkfr ds vf/kdkfj;ksa
ds fy, mDrkuqlkj i;kZIr mEehnokj miyC/k u gksus ls
dkj.k mi;qDrrk ds ekin.M dks f'kfFky djrs gq, 10 vad
fu/kkZfjr fd, x,A
¼4½ fu;eksa ds fu;e 7 esa yksd lsod ds mi;qDrrk vFkok
vuqi;qDrrk ds :i esa oxhZd`r djus dk mYys[k gSA lfefr
us ;g /;ku j[kk fd fdlh vf/kdkjh dks flfoy lsok
oxhZdj.k fu;e ds rgr nf.Mr fd;k tk pqdk gS rks mldk
Hkh mi;qDrrk@vuqi;qDrrk fu/kkZj.k esa fopkj fd;k x;kA
¼5½ lfefr us inksUufr fu;e 2002 dh dafMdk 9 dh mi
dafMdk 6 ds vuqlkj inksUufr lfefr }kjk fopkjk/khu vof/k
:: 4 ::

ds xksiuh; izfrosnuksa ds ewY;kaduksa ds vk/kkj ij vadksa dk
fu/kkZj.k LohdkjdrkZ vf/kdkjh }kjk fd, x, ewY;kaduksa ds
vk/kkj ij fd;k tkosxkA ;fn lfefr xksiuh; izfrosnu esa
izfrosnd vf/kdkjh rFkk leh{kd vf/kdkjh }kjk fd, x,
ewY;kadu ds vk/kkj ij Lohd`rdrkZ vf/kdkjh ds ewY;kadu ls
lger ugha gS rks og blds fy, vius dkj.k fyfic) djrs
gq, ewY;kadu djsxh ijUrq lfefr Lohd`rdrkZ vf/kdkjh }kjk
fd, x, ewY;kadu ds vk/kkj ij izkIr vad esa dsoy ,d
vad c<k ldsxh vFkok ?kVk ldsxhA dks Hkh /;ku esa j[kk
x;kA
¼c½ xksiuh; fjdkMZ dk lexz oxhZdj.k
¼1½ ;g oxhZdj.k lkekU; iz'kklu foHkkx ds Kkiu
Øekad lh&3&7@2002@3@1 fnukad 6 tqykbZ] 2002 ds
dafMdk& 9 esa crk, x, vk/kkjksa ij fuEukuqlkj fd;k x;kA
fjdkMZ dk oxhZdj.k oxhZdj.k vad

mRd`"B d+ 4

cgqr vPNk d 3

vPNk [k 2

vkSlr x 1

?kfV;k ?k 0

¼2½ mDr in ij inksUufr ds QhMj in ij i'kq fpfdRlk
lgk;d 'kY;K] i'kq fpfdRlk lsok,a esa fnukad 1-1-2012 dh
fLFkfr esa vgZrk izkIr vf/kdkfj;ksa ds uke fopkj {ks= esa j[ks
x;saA visf{kr la[;k esa vf/kdkjh inksUufr gsrq mi;qDr ik;s
tkus ds mijkar 'ks"k ukeksa ij fopkj ugha fd;k x;k A

5. That, on the basis of these criteria, the Departmental
Promotion Committee enlisted 129 Assistant Veterinary
Surgeon from Serial No.4 to 524 in the Gradation List within
the zone of consideration.

6. Evidently, others like the petitioners, though senior, are
:: 5 ::

declared ineligible as they are not found fulfilling the criteria
7(3), accordingly, superseded.

7. The procedure adopted by the Departmental Promotion
Committee in shortlisting only such Assistant Veterinary
Surgeons/Senior Veterinary Surgeon, having A+ and A, ACR's is
being questioned on the ground that the DPC by introducing
the element of comparative assessment of merits has violated
the norms of selection provided under Rule 4 read with Rule
6(7) of Rules of 2002. It is contended that since these Rules
envisage that promotion from Class II to Class I posts is on the
basis of seniority subject to fitness with rider contained in sub-

rule (7) of Rule 6, the promotion of juniors on the basis of
criteria laid down vide 7(3) deserves to be set aside.

8. State of Madhya Pradesh and its functionaries, on their
turn, however justify the criteria laid down by the DPC as
incumbents and eligible persons were found more in number
than the posts. It is contended that it is within the right of the
DPC to have fixed minimum criteria to adjudge the merit even
where the promotion is based on seniority subject to suitability.

9. Private respondents while adopting the stand taken by
the State Government, raises an objection as to maintainability
of the petitions as all the promotees are not impleaded. It is
further contended that since the petitioners were not having
A+ and A to their credit and juniors like respondents were
fulfilling the criteria, petitioners' supersession cannot be faulted
with. It is urged that the DPC being the best judge to ascertain
:: 6 ::

the criteria for promotion and the promotion being not a right,
no relief can be granted to the petitioners.

10. Considered the rival submissions.

11. As regard to the contention that all the promotees being
necessary parties, having not been impleaded, the petition
cannot be entertained. It is observed that immediate juniors
are impleaded as respondents in each of the petitions. It has
been held in
V.P. Shrivastava v. State of M.P
(1996) 7 SCC 759
that -

"14. The conclusion of the Tribunal that non
inclusion of the affected parties is fatal to the
appellants case is also unsustainable in law. It is to
be stated that the appellants do not challenge the
so called ad-hoc appointments of the promotee
respondents but they do challenge the position of
the said ad-hoc promotee respondents over the
appellants in the seniority list. In other words the
very principle of 'determination of seniority' made
by the State Government is under challenge and
for such a case State is the necessary party who
has been impleaded. It has been held by this Court
in the case of G.M. South Central Rly. v A.V.R.
Siddhanti (1974) SCC 335 -

"As regards the second objection, it is to be
noted that the decision of the Railway Board
impugned in the writ petition contain
administrative rules of general application,
regulating absorption in permanent departments,
fixation of seniority, pay etc. of the employees of
the erstwhile Grain Shop departments. The
Respondents-petitioners are impeaching the
validity of those policy decisions on the ground
of their being violative of
Articles 14
and
of
the Constitution. The proceedings are analogous
to those in which the constitutionality of a
:: 7 ::

statutory rule regulating seniority of government
servants is assailed. In such proceedings the
necessary parties to be impleaded are those
against whom the relief is sought, and in whose
absence no effective decision can be rendered by
the Court. In the present case, the relief is
claimed only against the Railway which has been
impleaded through its representative. No list or
order fixing seniority of the petitioners vis-a-vis
particular individuals pursuant to the impugned
decisions, is being challenged. The employees
who were likely to be affected as a result of the
re-adjustment of the petitioner's seniority in
accordance with the principles
laid down in
the
Board's decision of October 16, 1952 were, at
the most, proper parties and not necessary
parties, and their non-joinder could not be fatal
to the writ petition."

...

16. Further in view of finding of the Tribunal that
respondents 3 and 4 successfully safeguarded the
interest of the promotees. The Tribunal erred in
law in holding that non-inclusion of the affected
parties is fatal to the proceeding. It has been held
by this Court in the case of
Prabodh Verma v State
of U.P.
(1984) 4 SCC 251 that -

"A High Court ought not to hear and dispose of a
writ petition under
Article 226
of the Constitution
without the persons who would be vitally
affected by its judgment being before it as
respondents or at least some of them being
before it as respondents in a representative
capacity if their number is too large to join them
as respondents individually."

(Emphasis supplied)

12.
In view of the principle of law
laid down in

V.P.
Shrivastava
(supra) and the fact that immediate juniors who
are promoted are impleaded as respondents in each of these
:: 8 ::

petitions, the objection as to maintainability of the petitions for
non-impleading all the promotees is overruled.

13. As regard to contention that it is within the jurisdiction of
the Departmental Promotion Committee to lay down the
criteria, there can be no doubt as to proposition that suitability
for promotion must be left to be decided by the DPC, but
equally settled it is that the DPC must determine suitability
according to the applicable rules (Please see :
Union of India v.
Sangram Keshari Nayak
(2007) 6 SCC 704 wherein it is held -

"11. Promotion is not a fundamental right. Right
to be considered for promotion, however, is a
fundamental right. Such a right brings within its
purview an effective, purposeful and meaningful
consideration. Suitability or otherwise of the
candidate concerned, however, must be left at the
hands of the DPC, but the same has to be
determined in terms of the rules applicable
therefor. .."

14. It is also settled principle of law that when Rule provides
for the criteria to be adhered to and the procedure to be
followed, then it is incumbent that the exercise of power must
be only in the mode provided by the statute (Please see :

Hukam Chand Shyam Lal v. Union of India
AIR 1976 SC 789,
wherein it is held that "where a power is required to be
exercised by a certain authority in a certain way, it should be
exercised in that manner or not at all, and all other modes of
performance are necessarily forbidden".

Further, in

Marathwada University v. Seshrao Balwant Rao Chavan
AIR
1989 SC 582, wherein it is held -

26. These principles of ratification, apparently do
:: 9 ::

not have any application with regard to exercise of
powers conferred under statutory provisions. The
statutory authority cannot travel beyond the power
conferred and any action without power has no
legal validity. It is ab initio void and cannot be
ratified.

(Emphasis supplied)

15. In the case at hand, evidently and undisputedly, the
procedure prescribed under Rule 4 & 6 of Rules of 2002 are
applicable for promotion from Class II to Class I posts. Rule 4
stipulates -

"4. Determination of basis for promotion.- (1)
Promotion from class IV to higher pay scale of class
IV, class IV to class III, class III to higher pay scale
of class III, class III to class II, class II to higher
pay scale of class II and class II to class I posts
shall be made on the basis of "seniority subject to
fitness".

(2) Promotion from class I to higher pay scale of
class I posts shall be made on the basis of "merit-
cum-seniority".

Provided that the Promotion from the post of sub-
Engineer to Assistant Engineer in the Departments
of Public Works, Water Resources, Public Health
Engineering and also Panchayat and Rural
Development shall be made on the basis of "merit-
cum-seniority."

16. Whereas, Rule 6 lays down the procedure to be followed
in case of promotion. Sub-rule (1), (4), (5), (6) and (7), which
are relevant in the context, are extracted below -

"6. Promotion on the basis of seniority subject
to fitness.-

(1) In such cases where the promotion is to be
made on the basis of seniority subject to fitness,
there shall be no zone of consideration for all
:: 10 ::

categories.

...

(4) The meeting of the Departmental Promotion
Committee shall be held every year. It shall
consider the suitability of the public servants for
promotion separately with reference to the
vacancies of each year starting with the earliest
year onwards. The Departmental Promotion
Committee shall consider the suitability of the
public servants for promotion to fill up the unfilled
vacancies of the earlier year or years separately
and prepare the select list for the relevant year
accordingly. Thereafter the Departmental
Promotion Committee shall consider the suitability
of the public servants for promotion to fill up the
existing and anticipated vacancies of the current
year.

(5) The Departmental Promotion Committee shall
assess the suitability of the public servants for
promotion on the basis of their service record and
with particular reference to the Annual Confidential
Reports (ACRs) for 5 preceding years. However, in
cases where the required qualifying service is more
than 5 years, the Departmental Promotion
Committee shall see the record with particular
reference to the ACRs for the years equal to the
required qualifying service.

(6) When one or more ACRs are not available for
any reason for the relevant period, the
Departmental Promotion Committee shall consider
the ACRs of the years preceding the period in
question.

(7) For filling up the posts by this method, the
Departmental Promotion Committee shall consider
the case of each public servants separately on the
basis of his own merit , that is to say, that there
shall be no need to make a comparative
assessment of the merits of public servant. The
Departmental Promotion Committee shall consider
the records of each public servant separately and
:: 11 ::

shall categorize them as 'fit' or 'not fit'."

17. Thus, clear it is from these rules that in case of
promotion from Class II to Class I post as, in the present case,
the same is on the basis of 'seniority subject to suitability' and
that there shall be no zone of consideration. And, that the
Departmental Promotion Committee shall assess the suitability
of the public servants from promotion on the basis of their
service record and with particular reference to the Annual
Confidential Reports (ACRs) for five preceding years. And, that
the filling up the posts by the method under Rule 6, the DPC
shall consider the case of each public servants separately on
the basis of his own merit that there shall be no need to make
a comparative assessment of the merits of public servant.

18. Another Rule which needs mention at this stage to
understand the difference in procedure to be followed in case
of promotion on the basis of seniority-cum-suitability and merit-
cum-seniority is sub-rule (9) of Rule 7, which lays down the
procedure to be adhered to in case of promotion on merit-cum-
suitability. It stipulates -

7. Promotion on the basis of merit-cum-
seniority.

...

(9) The Departmental Promotion/Screening
Committee shall make a relative/comparative
assessment of the merits of public servants who
are within the zone of consideration and make an
overall grading of the public servants merit on the
basis of their service records and place them in the
categories as "Outstanding", "Very-Good", "Good",
"Average" and "Poor" as the case may be.

:: 12 ::

However, only those public servants who are
graded as "Very-Good" an above will be included in
the select list, by placing the public servants graded
as "Outstanding" on top followed by those graded
as "Very-Good", subject to availability of vacancies,
with the public servants with the same grading
maintaining their inter-se-seniority in the feeder
cadre/part of the service/pay scales of post.

19. Thus, when compared with, the procedure laid down
under Rule 7(9) aims at elimination by comparative assessment
whereas, Rule 6(7) aims at inclusion of seniors without taking
recourse to comparative assessment by adjudging their
suitability.

20. What then would "seniority subject to suitability" mean ?

21. Observing that in the matter of formulation of a policy for
promotion to a higher post, the two competing principles which
are taken into account are inter-se seniority and comparative
merit of employees who are eligible for promotion, their
Lordships in
B.V. Sivaiah v. K. Addanki Babu
(1998) 6 SCC 720
were pleased to hold -

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
:: 13 ::

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.

22. Following decisions can also be taken note of on the
aspect of promotion based on seniority-cum-merit.

(i) In
Rajendra Kumar Srivastava v. Samyut Kshetriya
Gramin Bank
AIR 2010 SC 699, it is held -

10. Thus it is clear that a process whereby
eligible candidates possessing the minimum
necessary merit in the feeder posts is first
ascertained and thereafter, promotions are made
strictly in accordance with seniority, from among
those who possess the minimum necessary merit is
recognised and accepted as complying with the
principle of 'seniority-cum-merit'. What would
offend the rule of seniority-cum-merit is a process
where after assessing the minimum necessary
merit, promotions are made on the basis of merit
(instead of seniority) from among the candidates
possessing the minimum necessary merit. If the
criteria adopted for assessment of minimum
necessary merit is bona fide and not unreasonable,
it is not open to challenge, as being opposed to the
principle of seniority-cum-merit. We accordingly
hold that prescribing minimum qualifying marks to
ascertain the minimum merit necessary for
discharging the functions of the higher post, is not
violative of the concept of promotion by seniority-
cum-merit.

(ii) In
Rupa Rani Rakshit v. Jharkhand Gramin Bank

AIR 2010 SC 787, it is held -

"7. ... On the other hand, the Bank proceeded to
assess their inter-se-merit with reference to four
criteria (period of service, educational qualification,
performance during three years, and interview) by
allocating respectively maximum marks of 40, 6, 24
and 30 (out of a total 100 marks) and then
:: 14 ::

proceeded to promote those who had secured the
highest marks in the order of merit. Thus there
were two violations of the relevant rules : (i)
promoting candidates on merit-cum-seniority and
not on seniority-cum-merit; and (ii) assessing inter-
se merit, inter alia with reference to marks
allocated to different educational qualifications. It
cannot, therefore, be said that the promotions
made on 20.11.1990 were on the basis of seniority-
cum-merit. Though the period of service was also
considered as one of the factors for assessment of
comparative merit, the procedure adopted for
promotion was merit-cum-seniority. The High Court
was, therefore, justified in interfering with the
promotions. The directions given by the High Court
for fresh process of promotion were in consonance
with the Rules and principles of seniority-cum-
merit. The appeals, therefore, have no merit.
...

10. .... Whenever a person is promoted to a post
without following the rules prescribed for such
promotion, he should be treated as a person not
regularly promoted to that post. Consequently,
where promotions are governed by Rules, in
computing the length of service, in the post to
which an employee is promoted, it is not
permissible to include the period of service
rendered in pursuance of an illegal promotion
which is subsequently set aside."

23. Thus, when promotion is on the basis of seniority-cum-
merit, there is greater emphasis upon seniority even though
the same is not the deciding factor.
In
Balbir Singh Bedi v.
State of Punjab
, (2013) 11 SCC 746, it is held -

"15. In view of the above, the law as regards this
point can be summarised to the effect that, where
a promotion is to be given on the principle of
"seniority-cum-merit", such promotion will not
automatically be granted on the basis of seniority
:: 15 ::

alone. Efficiency of administration cannot be
compromised with at any cost. Thus, in order to
meet said requirements, all eligible candidates in
the feeder cadre must be subject to a process of
assessment to determine whether or not an
individual in fact possesses the specified minimum
necessary merit, and in the event that he does
possess the same, his case must be considered
giving due weightage to his seniority. Furthermore,
the statutory authority must adopt a bonafide and
reasonable method to determine the minimum
necessary merit, as is required to be possessed by
the eligible candidate."

24.
In the context, reference can also be had of the decision
in
Rajendra Kumar Srivastava v. Samyut Kshetriya
(2010) 1
SCC 335 wherein their Lordships were pleased to hold -

"11. It is also well settled that the principle of
seniority-cum-merit, for promotion, is different
from the principle of 'seniority' and principle of
'merit-cum-seniority'. Where promotion is on the
basis of seniority alone, merit will not play any part
at all. But where promotion is on the principle of
seniority-cum-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 post may be
assessed either by subjecting the candidates to a
written examination or an interview or by
assessment of their work performance during the
previous years, or by a combination of either two
or all the three of the aforesaid methods. There is
:: 16 ::

no hard and fast rule as to how the minimum merit
is to be ascertained. So long as the ultimate
promotions are based on seniority, any process for
ascertaining the minimum necessary merit, as a
basic requirement, will not militate against the
principle of seniority-cum-merit.

..

13. Thus it is clear that a process whereby
eligible candidates possessing the minimum
necessary merit in the feeder posts is first
ascertained and thereafter, promotions are made
strictly in accordance with seniority, from among
those who possess the minimum necessary merit is
recognised and accepted as complying with the
principle of 'seniority-cum-merit'. What would
offend the rule of seniority-cum-merit is a process
where after assessing the minimum necessary
merit, promotions are made on the basis of merit
(instead of seniority) from among the candidates
possessing the minimum necessary merit. If the
criteria adopted for assessment of minimum
necessary merit is bona fide and not unreasonable,
it is not open to challenge, as being opposed to the
principle of seniority-cum-merit. We accordingly
hold that prescribing minimum qualifying marks to
ascertain the minimum merit necessary for
discharging the functions of the higher post, is not
violative of the concept of promotion by seniority-

cum-merit."

25. Keeping in mind the principle of law laid down as regard
to promotion on the basis of seniority-cum-suitability/seniority-
cum-merit, in the case at hand, the relevant rules adverted to
i.e. Rule 4 and the procedure required to be adhered to as
stipulated under Rule 6 of Rules of 2002, the fixing of bench
mark A+ and A for adjudging the eligibility as observed earlier
has led to elimination of such seniors who does not have these
gradings. Thus, an element of merit over seniority has been
:: 17 ::

introduced by the DPC. This is further established by sub-
clause (5) of Clause 7 of the criteria
laid down by
DPC, which
envisages -

¼5½ lfefr us inksUufr fu;e 2002 dh dafMdk 9 dh mi
dafMdk 6 ds vuqlkj inksUufr lfefr }kjk fopkjk/khu vof/k
ds xksiuh; izfrosnuksa ds ewY;kaduksa ds vk/kkj ij vadksa dk
fu/kkZj.k LohdkjdrkZ vf/kdkjh }kjk fd, x, ewY;kaduksa ds
vk/kkj ij fd;k tkosxkA ;fn lfefr xksiuh; izfrosnu esa
izfrosnd vf/kdkjh rFkk leh{kd vf/kdkjh }kjk fd, x,
ewY;kadu ds vk/kkj ij Lohd`rdrkZ vf/kdkjh ds ewY;kadu ls
lger ugha gS rks og blds fy, vius dkj.k fyfic) djrs
gq, ewY;kadu djsxh ijUrq lfefr Lohd`rdrkZ vf/kdkjh }kjk
fd, x, ewY;kadu ds vk/kkj ij izkIr vad esa dsoy ,d
vad c<k ldsxh vFkok ?kVk ldsxhA dks Hkh /;ku esa j[kk
x;kA

- which is in consonance with the procedure laid down
under Rule 7(9) for promotion on merit-cum-suitability but is
not in conformation with Rule 6 of Rules of 2002. Rather, the
criteria laid down under sub-clause (3) and (5) of Clause 7 is
antithesis to the basic rule of seniority subject to suitability as
envisaged under Rule 4 read with Rule 6 of Rules of 2002.

26. Considered thus the procedure adhered to by the
Departmental Promotion Committee by laying down the criteria
introducing the element of merit having overriding effect on
seniority cannot be given the stamp of approval and the non-
promotion of seniors as compared to juniors on the basis of
these criteria deserves reconsideration on the basis of above
analysis by holding a review Departmental Promotion
Committee, wherein if seniors are adjudged suitable, the
juniors who were promoted on the basis of criteria found to be
:: 18 ::

contrary to Rule 4 and 6 of Rules of 2002 will have to give way.
For that, no separate notice need be issued to the juniors as
their promotion were subject to final outcome.

27. Let the action be taken within three months from the
date of communication of this order.

28. Petitions are allowed to the extent above. However, there
shall be no order as to costs.

29. Let a copy of this common order be retained in connected
petitions.

(SANJAY YADAV)
JUDGE
vinod