Supreme Court of India

Balbir Singh Bedi vs State Of Punjab & Ors on 11 February, 2013

Equivalent citations: 2013 AIR SCW 1479, 2013 (11) SCC 746, 2013 LAB. I. C. 1807, 2013 (4) AJR 208, AIR 2014 SC (SUPP) 1127, (2013) 3 MAD LJ 95, (2013) 2 SERVLJ 351, (2013) 3 KCCR 272, (2013) 2 SCALE 381, (2013) 2 SCT 203, (2013) 3 SERVLR 4, (2013) 136 FACLR 1050, (2013) 1 ESC 217

Author:
B. S. Chauhan

Bench:
V. Gopala Gowda
,
B.S. Chauhan

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1273 OF 2004

Balbir Singh Bedi
…Appellant

Versus

State of Punjab & Ors.
…Respondents

J U D G M E N T

Dr. B. S. CHAUHAN, J.

1. This appeal has been preferred against the impugned judgment and
order dated 9.10.2003 passed by the High Court of Punjab and Haryana
at Chandigarh in Civil Writ Petition No. 15672 of 2003 by way of which
the claim of the appellant for promotion has been rejected.

2. The facts and circumstances giving rise to this case are that:

A. The appellant was appointed as Civil Defence Instructor in the
year 1964, and was promoted as Company Commander in October 1968. He
was later promoted to the post of District Commander in July 1989.
He, then claimed to have become eligible for substantive promotion to
the post of Battalion Commander as per the rules applicable.

B. The case of the appellant was considered alongwith other
eligible candidates, and vide order dated 30.1.2001, a person junior
to him (Respondent No. 5), was promoted to the said post after
considering his past five years’ Annual Confidential Reports
(hereinafter referred to as `ACR’) and other records.

C. The appellant made repeated representations in this regard, but
the same were not considered. Employees of the other department
governed by the same rules, filed Civil Writ Petition Nos. 4491 and
11011 of 2001 in the Punjab and Haryana High Court contending that
their cases for promotion were not to be considered in the light of
executive instructions dated 29.12.2000, as the vacancies on
promotional posts had occurred much before the issuance of said
executive instructions. The said writ petitions were disposed of by
the High Court vide judgment and order dated 14.1.2003, by which the
High Court directed the authorities to consider the promotion of the
parties therein, ignoring the instructions dated 29.12.2000.

D. The appellant retired on 31.12.2001 and filed Civil Writ
Petition No. 15672 of 2003, seeking promotion and quashing of
executive instructions issued on 29.12.2000 as well as on 6.9.2001.
However, the High Court dismissed the said Civil Writ Petition vide
impugned judgment and order dated 9.10.2003.

Hence, this appeal.

3. Shri P.S. Patwalia, learned senior counsel appearing on behalf
of the appellant, has submitted that if the criteria for promotion is
“seniority-cum-merit”, the question of ignoring the seniority does not
arise. Additionally, recruitment to the post of Battalion Commander
is governed by Rule 8 of the Punjab Home Guard, Class-I Rules, 1988
(hereinafter referred to as the `1988 Rules’), which provides that 75
per cent posts of this cadre would be filled up by promotion from the
Battalion 2nd-in-Command consisting of District Commanders, the Chief
Instructor, and Junior Officers at the State Headquarters, working
under the control of the Commandant General, Punjab, all having a
minimum work experience of 8 years. However, it prescribes that
selection to the post must be made on the principle of “seniority-cum-
merit”. The High Court committed an error by not giving weightage to
seniority. Furthermore, as the executive instructions followed
therein were issued subsequent to the date on which the vacancy
occurred, the said instructions must not be applied to the present
case. Appellant was given officiating charge of the post, and he
performed the duties and functions on the said post, he could not be
found unfit for any reason whatsoever, at a later stage. Therefore,
the judgment and order impugned is liable to be set aside.

4. On the other hand, Shri Jagjit Singh Chhabra, learned counsel
appearing on behalf of Respondent Nos. 1 to 4, has submitted that the
aforementioned rule provides for promotion only on the basis of
“seniority-cum-merit”. Therefore, the State, even in the absence of
any executive instructions, could fix the required benchmark. The
same, however, must be fixed prior to considering a case for
promotion, as once the process of promotion begins, it would not be
fair to change the rules of the game. The fixing of such a benchmark
is completely unrelated to the date on which the vacancy occurred.
Appellant, vide order dated 13.5.1997, was authorised only to sign
bills and vouchers relating to the office, which could not confer any
right to the appellant. Moreover, at the relevant point of time,
appellant was facing criminal prosecution under the provisions of the

Prevention of Corruption Act, 1988
(hereinafter referred to as `the
PC
Act
’) as well as for the offences under the
Indian Penal Code
, 1860
(hereinafter referred to as `
IPC
’). In view thereof, no fault can be
found with respect to the judgment of the High Court. The appeal
lacks merit and is liable to be dismissed.

5. We have considered the rival submissions made by the learned
counsel for the parties and perused the record.

6. A Seven Judge Bench of this Court in
State of Kerala & Anr. v.
N.M. Thomas & Ors.
, AIR 1976 SC 490, held:

“Seniority cum merit’ means that given the minimum necessary
merit requisite for efficiency of administration, the
senior, though less meritorious, shall have priority. This
will not violate
Articles 14
, 16 (1)
and
16 (2)
of the
Constitution of India.”

Thus, it is apparent that this Court has provided for giving
weightage to seniority, without any compromise being made with respect
to merit, as the candidate must possess minimum requisite merit.
Efficiency of administration is of paramount importance, and
therefore, whilst adequate weightage is given to seniority, merit must
also be duly considered.

7.
In
Sr. Jagathigowda C.N. & Ors. v. Chairman, Cauvery Gramin Bank
& Ors.
, AIR 1996 SC 2733, this Court has observed as under:–
“It is settled proposition of law even while making
promotion 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.”

8.
In
Union of India & Ors. v. Lt. Gen Rajendra Singh Kadyan &
Anr.
, AIR 2000 SC 2513, it was observed as under:–
“Seniority-cum-merit” postulates the requirement of certain
minimum merit or satisfying a benchmark previously fixed.
Subject to fulfilling this requirement the promotion is
based on seniority.

There is no requirement of assessment of
comparative merit both in the case of seniority-cum-merit.”

The said principle has also been approved, reiterated and
followed by this Court in
Syndicate Bank Scheduled Castes and
Scheduled Tribes Employees Association (Regd.) & Ors. v. Union of
India & Ors.
, 1990 Supp.
SCC 350; Govind Ram Purohit & Anr. v.
Jagjiwan Chandra & Ors., 1999 SCC (L&S) 788; The Central Council for
Research in Ayurveda & Siddha & Anr. v. Dr. K. Santhakumari, (2001) 5
SCC 60; and Bibhudatta Mohanty v. Union of India & Ors., (2002) 4 SCC

16.
In view of the aforesaid judgments of this Court, it is evident
that even if a promotion is to be made on the basis of “seniority-cum-
merit”, a person who is lower in the seniority list, can in fact be
promoted, ignoring the claim of the senior person, who failed to
achieve the benchmark i.e. minimum requisite merit.

9.
In
K. Samantaray v. National Insurance Co Ltd.
, AIR 2003 SC
4422, this Court explained the difference between the principles of
“merit-cum-seniority”, and “seniority-cum-merit”, while placing
reliance upon its earlier judgments, and held that for the purpose of
promotion, even on a “seniority-cum-merit” basis, weightage in terms
of numerical marks for various categories is given, and the authority
is permitted to work out the marks for individual as occurring under
each head, otherwise the word ‘merit’ would loose its sanctity.

(See
also:
State of U.P. v. Jalal Uddin & Ors.
, (2005) 1 SCC 169; and

Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya Gramin Bank &
Ors.
, AIR 2007 SC 994).

10. This Court in
Harigovind Yadav v. Rewa Sidhi Gramin Bank & Ors.
,
AIR 2006 SC 3596, held that promotion, if to be made on the criterion
of “seniority-cum-merit”, must not be made exclusively on the basis of
merit. The Court negatived the idea of selecting the more meritorious
where Rules provided for the criterion of “seniority-cum-merit”, but
did not rule out the laying down of criteria for fixing a minimum
benchmark. In paragraph 17 of
the said judgment
, the Court has
observed as under:–
“Interviews can be held and assessment of performance can be
made by the Bank in connection with promotions. But that can
be only to assess the minimum necessary merit.”

11. The principle of “seniority-cum-merit” and “merit-cum-seniority”
are conceptually different, as in the case of the former, there is
greater emphasis upon seniority even though the same is not the
deciding factor, while the case of the latter, merit is the deciding
factor.

12.
In
Rajendra Kumar Srivastava & Ors. v. Samyut Kshetriya Gramin
Bank & Ors.
, AIR 2010 SC 699, while considering the aforementioned
issue, this Court held that when a promotion is to be made on the
principle of “seniority-cum-merit”, then the said promotion must be
made only after assessing the minimum necessary merit for such
promotion. This must be done on the basis of seniority among the
candidates possessing such minimum necessary merit, additionally, it
must be ensured that the benchmark fixed is bonafide and reasonable.
Fixing the benchmark cannot be challenged as being opposed to the
principle of “seniority-cum-merit” and further, cannot be held to be
violative of the concept of promotion by “seniority-cum-merit”
considering the nature of duties and functions to be performed on the
promotional post. The criteria for selection is not subject to
challenge generally as it falls within the area of policy making.
Therefore, the criteria for adjudging claims on the basis of the
principle of “seniority-cum-merit”, depends upon various factors which
the employer may determine depending upon the class, category and
nature of posts in the hierarchy of administration, and the
requirements of efficiency for the posts.

13.
In
Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bank & Ors.
,
AIR 2010 SC 787, this Court while considering the earlier judgments of
this Court, held that where promotion is made on the principle of
“seniority-cum-merit”, such promotion cannot be made on the basis of
seniority alone. Merit also plays some role. The standard method
adopted by the principle of “seniority-cum-merit”, is to subject all
eligible candidates in the feeder cadre to a process of assessment of
a specified level of minimum necessary merit, and then to promote
candidates, who are found to possess the minimum necessary merit,
strictly in order of seniority. The minimum merit necessary for
promotion to the said post may be assessed either by subjecting
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 of the above, or of all the aforesaid methods.
There cannot be any hard and fast rule with respect to how minimum
merit should be ascertained. For the purpose of assessing the merit
of employees, the employer may proceed with reference to four criteria
(Period of service, educational qualifications, performance during
last three years and interview) allocating separate maximum marks as
regards each of the aforesaid counts.

14.
In
Haryana State Warehousing Corporation & Ors. v. Jagat Ram &
Anr.
, (2011) 3 SCC 422, this Court considered a similar issue and
reiterated a similar view. The Court also observed that, for the
purpose of according promotion on the principle of “seniority-cum-
merit”, a comparative assessment of all eligible candidates is not
permissible. Once a person has secured minimum marks with respect to
merit, his seniority would play a significant role. Thus, in the event
that an employee is found to possess minimum requisite merit, he is
entitled to be considered for promotion on the basis of his seniority.

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 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. It must also take into account his period
of service, educational qualifications, his performance during his
past service for a particular period, his written test, interview,
etc. The authority must further be competent to allocate separate
maximum marks on each of the aforesaid counts. Fixing such criteria,
or providing for minimum necessary merit, falls within the exclusive
domain of policy making. Thus, it cannot be interfered with by courts
in the exercise of their judicial powers, unless the same is found to
be off the mark, unreasonable, or malafide.

16. The relevant portions of the executive instructions dated
29.12.2000 read as under:

“(iii) In the case of promotion to posts with pay scales less
than Rs.12000-16350, the benchmark will be ‘Good’. This
benchmark will determine the fitness of the officer and person
graded ‘Very Good’ or ‘Outstanding’ will not supersede persons
graded ‘Good’.

iv) Henceforth each Annual Confidential Report will be
evaluated as under:-

Outstanding : +A ……………..4 Marks

Very Good : A ………………3 Marks

Good : +B ……………….2 Marks

Average : B ……………….1 Mark

ACRs for 5 years are taken into consideration for promotion. Out
of a total of 20 marks, officers earning 0 to 14 marks will be
graded overall ‘Good’ and those earning 15 to 17 marks will be
graded overall ‘Very Good’. Those earning 18 to 20 marks will
be graded as ‘Outstanding’. Departmental which are ‘Outstanding’
must have been out of the ordinary and reasons for giving
grading must be cogent and well spelt out, to be accepted and
outstanding. If the ACR does not fulfill the above criteria, the
entry of the ‘Outstanding’ should be read as ‘Very Good’ only.
An officer will not be fit for promotion if he is rated ‘below
average’ in any of the 5 years.”

17. Similarly, the executive instructions dated 6.9.2001 so far as
applicable in the instant case, read as under:

“3. In the case of promotion to posts falling in Group ‘B’ the
minimum benchmark will be ‘Good’ and there would be no
supercession i.e. promotions would be made strictly on seniority-
cum-merit.

4. For making promotion in all the categories there should not
be any adverse remarks in the ACRs under consideration.”

18. If, the instant case is examined in light of the aforesaid
settled legal propositions, it becomes evident that even in the
absence of the executive instructions, the State/employer has the
right to adopt any reasonable and bonafide criteria to assess the
merit, for the purpose of promotion on the principle of “seniority-cum-

merit”. The aforesaid executive instructions are nothing but
codification of directions issued by this Court in the cases referred
to hereinabove. Therefore, a challenge made to the executive
instructions on the ground that they were issued at a date subsequent
to the date on which the vacancy arose, is meaningless. The present
case is not the one where, Respondent No. 5 was found to be more
meritorious, in fact, the same is admittedly a case, where the
appellant was unable to achieve the benchmark set, as it is evident
from the record that his ACRs were average, and the benchmark fixed
by the State was `Good’.

19. It is evident from the material on record i.e. from the counter-
affidavit filed by the State that appellant faced criminal prosecution
as FIR No. 25 dated 12.4.1996 had been lodged against him under

Sections 7
&
13(ii)
of the PC Act, 1988 and
Sections 467
/
/
/
120-B

IPC, at Police Station: Vigilance Bureau, Patiala, wherein the
appellant faced trial though, acquitted as is evident from the
judgment and order dated 2.5.2006 passed in Sessions Case No. 5 of
10.5.2001. His acquittal took place after five years to his
retirement.

Be that as it may, for the reason best known to the appellant,
this fact was not disclosed by him either before the High Court or
before this Court. It is another matter as what could have been the
effect of pendency of the said criminal case so far as this case is
concerned. Thus, we are of the view that the appellant did not
approach the court with clean hands, clean mind and clean objective.

20. In view of the aforesaid settled legal proposition, in the facts
of this case, we have no hesitation in holding that no fault can be
found with the High Court’s judgment impugned before us. The appeal
lacks merit and is, accordingly, dismissed.

………………………J.
(Dr. B.S. CHAUHAN)

………………………J.
(V. GOPALA GOWDA)

New Delhi,
February 11, 2013

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