AI Structured Summary
Not yet generated for this judgment
Judgment
J.B. Pardiwala, J.—1. Draft amendment is allowed.
By this writ application under Article 226 of the Constitution of India, the petitioner serving as a Clerk with the Jetpur Nagarpalika and desirous of seeking promotion on the post of the ''Shop Inspector'' has prayed for the following reliefs:
"14. A) Your Lordships may be pleased to admit and allow this Special Civil Application;
B) Your Lordships may be pleased to issue appropriate writ, order or direction, quashing and setting aside the Yadi issued by the Collector, Rajkot at Ann: ''D''
C) Your Lordships may be pleased to issue appropriate writ, order or direction directing the respondent No. 1 to 4 not to issue promotion order in favour of respondent No. 5;
D) Your Lordships may be pleased to issue appropriate writ, order or direction, declaring that, the promotion of respondent No. 5 on the post of Shop Inspector is illegal and no effect whatever may be given;
E) Your Lordships may be pleased to issue appropriate writ, order or direction, directing the respondents No. 1 to 4 to constitute a fresh committee for appointment of the post of Shop Inspector as per prevailing rules;
F) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to pass an order restraining the respondent Nos. 1 to 4 from giving appointment to respondent No. 5 on the post of Shop Inspector;
G) Be pleased to grant such other and further relief that may be deemed fit and proper in the facts and circumstances of the case."
The facts of this case may be summarized as under:
"3.1 The petitioner was appointed on 17th October, 1985 as a Clerk on the establishment of the Jetpur Navagadh Nagarpalika.
3.2 It is his case that he is serving as a Clerk past thirty years without any promotional avenue. He seeks promotion on the post of the ''Shop Inspector'' from his current post of the Clerk.
3.3 It is his case that he is the seniormost employee in the cadre of Clerk. So far there has been no adverse remark or any departmental chargesheet, etc. against him.
3.4 It is his case that past two and half years before the respondent No. 5 came to be promoted on the post of Shop Inspector, he was holding the additional charge of the Shop Inspector.
3.5 On 24th November, 2014, the Nagarpalika issued notice inviting applications for the purpose of promotion on the post of Shop Inspector.
3.6 It is the case of the petitioner that although he being the seniormost Clerk, the respondent No. 5 came to be promoted as the Shop Inspector.
3.7 It is his case that the rule governing the promotion provides that the promotion on the post of ''Shop Inspector'' shall be on the basis of seniority-cum-merit. He seeks to rely on the rules framed by the Nagarpalika in exercise of its power under Section 271 (g) of the Gujarat Municipalities Act, 1963 called "the Jetpur Nagagadh Nagarpalika Employees Recruitment, Promotion and Service Rules, 2007"."
Mr. Bipin Mehta, the learned counsel appearing for the petitioner submitted that the criteria for promotion being seniority-cum-merit, the Nagarpalika could not have promoted the respondent No. 5 on the post of Shop Inspector. He submitted that his client is the seniormost Clerk serving with the Nagarpalika, and in the absence of any specific demerit being noted by the Committee constituted for the purpose of promotion, his client should have been promoted on the post of ''Shop Inspector''.
In such circumstances referred to above, Mr. Mehta prays that the promotion of the respondent No. 5 be declared as illegal and the Nagarpalika be directed to consider the case of the petitioner for promotion on the post in question.
On the other hand, this writ application has been vehemently opposed by Mr. M.B. Parikh, the learned counsel appearing for the respondent No. 5 and Mr. Trivedi, the learned counsel appearing for the respondent No. 4 - Nagarpalika. The learned counsel appearing for the respective respondents submitted that the criteria for promotion on the post in question is not the seniority-cum-merit, but it is the merit-cum-seniority. According to the learned counsel, the rule makes it very clear that the criteria is the merit-cum-seniority. It is submitted that in such circumstances, no case is made out by the petitioner for interference by this Court.
On behalf of the respondent No. 5, an affidavit-in-reply has been filed inter alia stating as under:
"6. I respectfully say and submit that I am having better education, qualification i.e. I am having degree of B.Com., LL.B., and CCC. Above all this education qualification I have served the office of the present res. No. 4 satisfactory and found most obedient and dutiful person.
I respectfully say and submit that the office of the res. No. 4 where I am serving have given additional duties like (I) I was appointed as in-charge coordinator for census for the year 2011, (ii) considering successful work I was given independent work for census on 20/2/2014 (iii) on 1/3/2014 I was given additional duty for new wards of Nagar Palika, Jetpur Navagadh, (iv) on 8/8/2014 I was given additional charge for Public Works Department (v) on 23/12/2014 I was given additional work of supervision for the maintenance work of road, gutter, etc. (vi) on 16/1/2015 I was given additional work for By-Election for the ward No. 1, (vii) considering the successful work in the By-Election, on 29/1/2015 Mamlatdar - Assistant Returning Officer has given additional duty for By-Election, (viii) on 23/2/2015 I was given additional charge for shop Inspector, (ix) on 1/5/2015 I was given additional duty for supervision of the scheme of Mahatma Gandhi Swachhata Mission. All these additional work - duty successful done by me. The copies of the office orders passed by the res. No. 4 are annexed hereto and marked as Annexure-R2 colly to this reply. I respectfully say and submit that according to my information and belief while considering the application for promotion i.e. for the post of Shop Inspector, the authorities have considered all these aspects and found me the most suitable and meritorious persons.
I respectfully say and submit that I have also successfully undergone training program and various government sponsored scheme and for that I have been awarded certificates. I respectfully say and submit that I have also been facilitated by the Chairman - Collector of District Urban Development Agency (DUDA) for the scheme of self employment achieving 101.60% of target. I have also successfully completed income generating program for SELF HELP GROUPS under SJSRY conducted the National Institute for Entrepreneurship and Small Business Development at Noida (UP). The copies of certificates issued by various authorities including Chairman-Collector are annexed hereto and marked as Annexure-R-3 colly to this reply.
I respectfully say and submit that considering all my successful training and achievements, certificates of success and achievements, the respondent authorities have found me the most suitable and meritorious person for the post of Shop Inspector and thus they have appointed me for the same.
I respectfully say and submit that referring to para -1 I am not offering my comments as the same is formal one.
Referring to para 2, 3, 4 and 5 at present I am not offering my comments, I reserve my rights to file further reply.
Referring to para 6, I deny the contentions raised by the petitioner in this paragraph. I respectfully say and submit that on 29/8/2012 considering the resolution No. 107 of the Municipality, the Regional Director, Rajkot has granted permission and thereafter on 15/1/2014 the res. No. 4 has already obtained permission from the Director of Municipality, and thereafter selection committee was selected. Therefore the say of the petitioner in this paragraph is false and made only with a view to mislead this Hon''ble Court.
Referring to para - 6 and 7, I deny the contentions raised in this paragraph by the petitioner. I respectfully say and submit that I was found most suitable and meritorious person than the petitioner and therefore I was appointed as Shop Inspector by the respondent authorities.
Referring to para 8.1, I respectfully say and submit that as per the order dated : 29/2/2016 passed by the Collector, Rajkot a Yadi was sent to the Chief Officer of Jetpur Navagadh Nagar Palika for appointing me as Shop Inspector. As per the same, on 3/3/2016 the Chief Officer, Jetpur Navagadh Nagar Palika has appointed me as Shop Inspector.
Referring to grounds 9(a), I deny the contentions raised in this paragraph. I respectfully say and submit that there is no violation of principles of natural justice as well as Article 14 and 16 of the Constitution of India.
Referring to grounds 9(b), I deny the contentions raised in this ground. I respectfully say and submit that considering my higher education qualification and additional duties which I have discharged honestly and successfully, and I have been awarded and facilitated by the higher authorities namely, Chairman, Collector of DUDA. I have also discharged my duties very efficiently and for that I was certified by the higher authorities. Considering all these aspects, the res. Authorities have found me most suitable and meritorious person than the petitioner and therefore my case for promotion for the post of Shop Inspector was considered. As per my information and belief, the above mentioned additional duties successfully discharged by me found outstanding person by the authority and therefore, I was appointed for the post of Shop Inspector by the res. Authorities. Looking to the memo of the petition, along with all the annexure, petitioner has never stated that he had worked/discharged the duty and/or successfully undergone training program and/or achieved meritorious goal as possessed and achieved by me. Thus, the grievance is ventilated by the petitioner that he was denied the promotion for the post of Shop Inspector is clear and self-explanatory. It seems that the petitioner was found most unfit person compare to me and therefore the promotion was denied.
Referring to ground 9(c) I deny the contentions raised by the petitioner in this ground. I respectfully say and submit that no favourism has been made by the res. Authorities. On the contrary as per my information and belief the petitioner was found unfit person and therefore he was not considered for promotion.
Referring to ground 9(d), I respectfully say and submit that the res. Authorities have selected me for the post of Shop Inspector considering my meritorious - efficient career and found me most eligible for the same.
Referring to ground 9(e), I deny the contention raised in this ground. I respectfully say and submit that with a view to mislead this Hon''ble Court the petitioner has made a false statement on oath. I respectfully say and submit that petitioner has stated that Shri Kamleshbhai Jayantilal Pandya happens to be the real brother who is elected member of res. Nagar Palika and therefore promotion is given to me is false and fabricated statement made by the petitioner. If that is so then I would have been appointed much prior then the present order.
Referring to ground 9(f), I respectfully say and submit that the petitioner has made false statement with a view to mislead the Hon''ble Court. As per my information and belief, on 18/2/104 the Chairman of Selection Committee has passed the resolution being No. 07 and they have selected me for the post of Shop Inspector. The say of the petitioner that the President of Nagar Palika namely Shardaben Barot is facing no confidence motion and Kamleshbhai Jayantilal Pandya elected member of Municipal Councilor have supported the President and therefore petitioner was denied promotion is absolutely false and fabricated statement made by the petitioner on oath. I respectfully say and submit that on 26/8/2015 Shardaben Barot has resumed as President of the Nagar Palika. And thereafter she is facing No Confidence Motion that is still pending and not decided by the Party President of the district. I respectfully say and submit that resolution No. 07 was already passed by the selection committee way back on 18/12/2014 and selected me - found me most suitable and meritorious - efficient person for the post of Shop Inspector. Under the circumstances, the say of the petitioner that only because my brother is elected councilor of Nagar Palika and has supported present President Shardaben Barot in Motion of No Confidence is nothing but a misleading statement with a view to mislead the Hon''ble Court. I respectfully say and submit that the say of the petitioner that the promotion given to me for the post of Shop Inspector is contrary to law is absolutely false statement and I deny the same."
On behalf of the respondent No. 4 - Nagarpalika also, an affidavit-in-reply has been filed inter alia stating as under:
"6. With reference to the averments made in para 6 of the petition is concerned it is humbly submitted that it is correct that 5 persons applied for promotion and petitioner is senior to respondent No. 5 but it is humbly submitted that municipality has its own rules of promotion and as per rule (12)(1). A person would not automatically become entitled for promotion merely because he is senior along with seniority merits are also to be seen. Therefore say of the petitioner that since he is senior he is entitled for promotion is not correct. Said rules is as under:
(12)...................: (1)...................."*
"11. With reference to the averments made in ground (c) of the petition is concerned it is denied that with a view to favour respondent No. 5 I have suggested his name. It is submitted that before filling the post of Shop Inspector permission of Director of Municipality was obtained. Thereafter a selection committee was constituted by the municipality True copy of the constitution of selection committee is produced here and marked at Annexure R-4. Thereafter application were invited. After receiving applications committee took into consideration educational qualifications, other qualifications, extra qualifications, merits, confidential reports and after considering all this aspect selection committee submitted name of respondent No. 5 for the post of Shop Inspector. Thereafter District Collector passed the order of promotion. Therefore District Collector passed the order of promotion. Therefore, there is whole procedure for promotion which was carried out and thereafter respondent No. 5 was appointed. True copy of resolution passed selection committee is produced here and marked at Annexure-R-5.
With reference to the averments made in ground (d) of the petition is concerned it is denied that decision of municipality selection of respondent No. 5 is arbitrary and malafide.
With reference to the averments made in ground (e) that since brother of respondent No. 5 is municipal councilor mala fide practice is adopted by the municipality. It is submitted that respondent no 5 is selected on his own merits and not just because his brother is municipal councilor.
With reference to the averments made in ground (f) is concerned these averments are not true because the process for promotion was started much earlier and on 18/2/14 selection committee selected the name of respondent No. 5. Thereafter current President Shardaben Barot resumed chair thereafter and subsequently she is facing no confidence motion. Therefore say of the petitioner that since brother of respondent no 5 assured to support President Shardaben Barot in a no confidence motion moved against respondent No. 5 is given promotion has no force.
It is further submitted that municipality has its own rules of promotion and all the procedure is followed in present case True copy of the rules of promotion is produced here and marked at Annexure R-6.
With reference to the averments made in para 10 of the petition is concerned as stated earlier respondent No. 5 is already promoted and he has taken the charge also."
Having heard the learned counsel appearing for the parties and having considering the materials on record, the only question that falls for my consideration is whether the criteria for promotion on the post of ''Shop Inspector'' is seniority-cum-merit, merit-cum-seniority, seniority-cum-fitness or merit-cum-suitability.
Before adverting to the rival submissions canvassed on either sides, I must look into the rules framed by the Nagarpalika for the purpose of promotion.
Rule 12 of the Jetpur Navagadh Nagarpalika Employees Recruitment, Promotion and Service Rules, 2007 reads, according to the free English translation, as under:
"(1) No employee of the Nagarpalika shall be entitled to claim promotion only on the basis of his seniority. For the purpose of promotion, over and above the seniority of any employee, his merit and suitability will have to be judged and promotion shall not be given except on merit and suitability.
(2) If any post is to be filled up by promotion, then prior sanction of the Director of the Municipalities will have to be obtained and only thereafter the promotion committee will consider the educational qualifications of the employee including other merits and confidential records. If the committee finds an employee fit for the purpose of promotion, then such employee shall be recommended.
(3) If the Chief Officer of the Nagarpalika is of the view that a particular employee is not fit for the purpose of promotion and is not possessing the requisite merit or suitability, then in such circumstances, the committee constituted for the purpose of considering promotion will have no role to play or rather will not consider the case for promotion."
Let me no look into the position of law on the subject.
For the purpose of promotion, well recognised criterias are seniority, seniority-cum-merit, seniority-cum-suitability, seniority-cum-fitness, merit-cum-seniority or merit. Wherever, a post is treated as selection post the criteria for promotion is merit alone. For making appointment on the basis of merit best amongst the eligible candidates is to be chosen unless the rules or administrative instructions lay down any other guideline for determination of merit. When promotion is based on pure seniority, other factors cannot be looked into by the selecting authority. However, problems usually arise in applying criteria of seniority cum-merit, merit-cum- seniority, seniority-cum-fitness or seniority-cum- suitability. Criteria of seniority-cum-merit, seniority- cum-suitability or seniority-cum-fitness have become subject matter of interpretation and discussion in number of cases decided by the Courts.
Learned D. White has in his work ''Introduction to the Study of Public Administration'' stated:
"The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole organisation. The main interest to be served is the public interest, not the personal interest of members of the official group concerned. The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original requirement..... Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism of the suspicion thereof, and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the determining factor, at any level, it is a dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade; the very opposite may be true."
If the criteria for promotion is seniority alone then the person who has served longest in a particular lower cadre or service, is entitled to be promoted. But when the criteria of seniority is applied in its absolute sense then merit factor is altogether ignored and total obliteration of merit results in heavy burden on public and a great strain on the efficiency of public service. The problem, therefore, is to ensure a reasonable prospectus of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able man. Therefore, the question is as to how the balance is to be struck between seniority and merit in a proper promotion policy.
While recognising the need for minimal opportunities of promotion, their Lordships of the Supreme Court in Raghunath Prasad Singh v. Secretary (Home) Police Department, , 1988 Supp1 SCC 519 observed :
"Reasonable promotional opportunity should be available in every wing of public service. That generates efficiency in service factors the appropriate attitude to create for achieving excellence in service. In the absence of promotional prospectus, the service is bound to degenerate and stagnation kills desire to serve properly."
Again in Council of Scientific Research v. K.G.S. Bhatt, , 1989 AIR(SC) 1972, their Lordships observed:
"It is often said and indeed, adroitly, an organisation public or private does not ''hire a hand'' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See : Principles of Management of Elipo Edwin B. Fourth Edn. P. 246). Every management must provide realistic opportunities for promising employees to move upward. The Organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors." (See : Personnel Management by Dr. Udai Pareek P. 277). There cannot be any modern management much less any career planning, man-power development, management development etc. which is not related to a system of promotions. (See : Management of Personnel in Indian Enterprises by Prof. N.N. Chatterjee Chap. 12, P. 128)."
In the light of these observations made by the Supreme Court the criteria of seniority-cum-merit or seniority- cum-fitness or seniority-cum-suitability deserves to be examined.
In N. Srinath, M.A. Somashekar, Assistant Director Industries v. The State of Mysore and others, 1972 SLR 449, Criteria of seniority-cum-merit was explained by a Division Bench of Mysore High Court in the following words :
"Whether the promotion be on seniority-cum-merit basis or by selection, it is impossible to promote a junior without considering the case of a senior. In case of the first type of promotions, it is obvious that a senior must be considered first and that when he is found unfit, the case of the next junior may be considered. In the second category of promotions the promoting authority must consider a sufficient number of persons in the lower cadre of a number which, a relation to promotional vacancies to be filled, is reasonably sufficient, at the top of the lower cadre for consideration. They should take the number from persons at the top, because both according to well known notions of merit in Government service and according to the express provisions of Rule 4 of the Mysore Civil Services (General Recruitment) Rules, seniority is an element in the assessment of merit and even in cases where promotion is by selection, due regard must be had for seniority also."
In Shadi Lai v. The Deputy Commissioner, Gurgaon and ors, 1974 1 SLR 217, a learned Single Judge of Punjab High Court observed that where selection is to be made on the basis of seniority-cum-merit if the senior eligible person has merit for promotion, he shall be selected irrespective of better merit of his juniors.
In Hari Datt Kainthla, Chief Judicial Magistrate and another v. The State of Himachal Pradesh and others, 1974 1 SLR 208, a full Bench of Himachal Pradesh High Court explained the criteria of seniority-cum-fitness and merit-cum-seniority by observing that:
"A milder form of the principle of seniority should determine the order in which an order of a particular grade should be considered promotion, but those considered unfit may be passed over and officers below them may be considered. This means the seniority-cum-fitness principle, and what it implies is that the senior person unless unfit should get the promotion. The principle has not been found satisfactory because it implies essentially that seniority should be given preponderating weight. The principle of seniority-cum-fitness has been generally applied at the lower levels of service where the duties are of a routine nature. It has also been applied in promotions from a junior scale post to a senior scale post within the same service. But when the question arises of appointment to a higher service consisting of posts carrying superior responsibility the emphasis shifts from seniority-cum-fitness to merit cum-seniority. The principle of merit determines that the most meritorious or best qualified person is selected for promotion."
The matter came to be examined by the Supreme Court in Stare of Kerala v, N.M. Thomas, , 1976 1 SLR 805. The Supreme Court was considering the provisions contained in Kerala State Subordinate Service Rules, 1958 which contained criteria of seniority-cum-merit. Ray, C.J. who spoke for the majority observed :
"The principle of equality is applicable to implementation at all stages and in all respects, namely, initial recruitment, promotion, retirement, payment of pension and gratuity. With regard to promotion the normal principals are either merit-cum-seniority or seniority-cum-merit. Seniority-cum-merit means that giving minimum necessary merit requisite for efficiency of administration, the senior though less meritorious shall be priority. This will not violate Articles 14, 16(1) and 16(2)."
In Ram Kumar Singh v. State of Rajasthan, S.C. Agrawal J. (as he then was), considered the criteria of seniority-cum-merit and after making reference to various judgments observed :
"In my opinion, a promotion on the basis of merit and suitability stands on a different footing from promotion on the basis of seniority-cum-merit. As pointed out by Ray C.J. in State of Kerala and others v. N.M. Thomas and others, , 1976 AIR(SC) 490, "seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though less meritorious, shall have priority."
In other words, for the purpose of making a promotion on the basis of seniority cum-merit what has to be seen is whether the person who ranks senior possesses the minimum necessary merit requisite for efficiency of administration, and there is no question of assessing the comparative merits between two persons. The considerations which weigh for making promotions on the basis of seniority-cum-merit, what has to be seen is whether the person who ranks senior possesses the minimum necessary merit requisite for efficiency of administration, and there is no question of assessing the comparative merits between two persons. The considerations which weigh for making promotions on the basis of seniority-cum-merit, are thus not the same. Insofar as promotion on the basis of seniority-cum-merit is concerned, it is more akin to allowing a person to cross the efficiency bar or confirming a person holding a post on an officiating basis, because unless a person possesses the merit requisite for efficiency of administration he cannot be permitted to cross the efficiency bar and he can also not be confirmed on the post held by him on officiating basis. This would mean that person who possesses the requisite merit and efficiency for crossing the efficiency bar or for the purpose of confirmation, should also be treated to have the minimum necessary merit requisite for efficiency of administration for promotion to the higher post on the basis of seniority-cum-merit. In my view, therefore, the decisions of the Full Benches of Orissa High Court in Venkatarao''s case (supra) and Ram (Sic. Ramesh) Prasad''s case (supra) as well as the decision of the Punjab & Haryana High Court in Ram Singh Kalson v. State of Haryana (supra) and that of the Bombay High Court in Govind Sadasiv v. State of Maharashtra (supra), which have been given with reference to promotions on the basis of merit- cum-suitability cannot be applied to a case of promotion on the basis of seniority,-cum-merit and the principles laid down by the Supreme Court in State of Punjab v. Dev/an Chunnilal (supra) would govern such a case." (underlining is ours)."
In the case of Union of India v. Lt. General Rajendra Singh Kadyan [, 2000(6) SCC 698], a three Judge Bench of the Supreme explained the position as under:
"11....Selection for promotion is based on different criteria depending upon the nature of the post and requirements of the service. Such criteria fall into three categories, namely,
Seniority cum fitness,
Seniority cum merit,
Merit cum suitability with due regard to seniority.
Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "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-fitness and seniority-cum-merit. Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion to All India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them."
In Bhagwan Das Tiwari v. Dewas Shajapur Kshetriya Gramin Bank and others [2006 (6) SCC 574], the Supreme Court in para 11, 12, 13, 14, 15, 16, 17, 18 and 19 observed as under:
"11. 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. In the context of Rule 5 (2) of the Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations, 1955 which prescribed that "selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority" Mathew, J. in Union of India v. Mohan Lal Capoor and Ors., , 1973 (2) SCC 836, has said:--
"For inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale".
Similarly, Beg, J. (as the learned Chief Justice then was) has said (SCC p. 851, Para 22) :
"22. Thus, we think that the correct view, in conformity with the plain meaning of words used in the relevant rules, is that the entrance" or "inclusion" test, for a place on the select list, is competitive and comparative applied to all eligible candidates and not minimal like pass marks at an examination. The Selection Committee has an unrestricted choice of the best available talent, from amongst eligible candidates, determined by reference a reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not here seniority is the governing factor."
On the other hand, as between the principles of seniority and merit, the criterion of ''seniority-cum-merit'' lays greater emphasis on seniority. In State of Mysore and Anr. v. Syed Mahmood and Ors., , 1968 (3) SCR 363, 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 candidate to discharge the duties of post from among persons eligible for promotion". It was pointed out that where 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.
In State of Kerala and Anr. v. N.M. Thomas and Ors., , 1976 (2) SCC 310, 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."
The above position was highlighted in Sivaiah case (supra). At Para 18 of the said judgment it was noted as follows:--
"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."
The impugned judgment of the learned Single Judge and Division Bench of the High Court missed one basic factor. The circular nowhere refers to the minimum marks being relatable to criteria A and C and nowhere there is a stipulation of obtaining minimum 35 marks as a compulsory measure. If really the intention was to apply the said minimum marks to said criteria it would have been specifically provided that way. It is noted by the High Court that in the circular or in the 115th or 117th report of the respondent No. 1-Bank there was no mention about this aspect. The doctrine of reading down the provisions has really no application to the facts of the case. If the stand of respondents is accepted, it would mean addition of a condition which is not specifically provided for. That is impermissible.
In all services, whether public or private there is invariably a hierarchy of posts comprising of higher posts and lower posts. Promotion, as understood under the service law jurisprudence, is advancement in rank, grade or both and no employee has right to be promoted, but has a right to be considered for promotion. The following observations in Sant Ram Sharma v. State of Rajasthan and Ors., , AIR 1967 SC 1910 are significant :
"The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones; an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem, therefore, is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able man? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policy."
The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid in seniority, though it is not the determinative factor, while in the latter merit is the determinative factor. In The State of Mysore and Anr. v. Syed Mahamood and Ors., , AIR 1968 SC 1113, it was observed that in the background of 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, that the rule required promotion to be made by selection on the basis of "seniority subject to 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. But these are not the only modes for deciding whether promotion is to be granted or not.
These aspects were highlighted in K. Samantaray v. National Insurance Co. Ltd., , AIR 2003 SC 4422, and in State of U.P. v. Jalal Uddin and others, , (2005) 1 SCC 169."
In the case of President, Industrial Court, Gujarat v. Rasikbhai Parshotamdas Patel and another [, 2004 (3) GLH 136], a learned Single Judge while considering the Rule 11 of the Gujarat Civil Services (Classification and Recruitment) General Rules, 1967 held as under:
"5. It would be necessary to consider the Rule itself providing for promotion and its scope and ambit. Rule 11, which is relevant for the purpose of the subject matter of the petition, reads as under:
"11. Appointment by promotion:-- (i) Where an appointment to any post is to be made by promotion, no servant shall be entitled to such promotion on the ground of seniority. No such appointment shall be made unless in addition to seniority, the servant to be appointed is found to be fit for such promotion. (2) In making an appointment to any post by promotion, the appointing authority may supersede a servant who is apparently not fit to discharge the duties and responsibilities of the post and whose appointment is likely to affect adversely the efficiency or work assigned to that post."
If the Rule is read as it is, the construction appears to be that the criteria for promotion is on the basis of seniority-cum-fitness for such promotion. In this regard, if sub-rule (2) of Rule 11 is considered, it appears that the power is given to the appointing authority to supersede a servant, who is apparently not fit to discharge the duties and responsibilities of the post, and whose appointment is likely to affect adversely the efficiency or work assigned to that post. Therefore, if the conditions, as provided under sub-rule (2) are satisfied, it would be open for the appointing authority to supersede a Government servant even if otherwise he is senior in comparison to the persons next to him. Therefore, on conjoint reading of sub-rules (1) and (2) of Rule 11, it appears that the intention on the part of the Rule making authority is to give more weightage to the seniority and only in a given case, as provided under sub-rule (2), a candidate can be superseded. As observed earlier, supersessions are in two contingencies: (i) who is apparently not fit to discharge the duties and responsibilities of the post and (ii) whose appointment is likely to affect adversely the efficiency or work assigned to that post. Even for considering both the aspects, at the most, it can be said that the fitness of the candidate can be considered as per sub-rule (1), but, in a matter where a candidate is to be superseded, such person, who is sought to be superseded, must be apparently unfit to discharge duties and responsibilities of the post or whose appointment is likely to affect adversely the efficiency or work assigned to that post. It appears that the Departmental Promotion Committee has not at all undertaken the said exercise for the purpose of superseding respondent No. 1, keeping in view sub-rule (2) of Rule 11 in mind.
Even if the matter is considered on the basis that the Departmental Promotion Committee was required to keep in view the provisions of sub-rule (1) of Rule 11, then, at the most, the criteria, as observed, earlier would be seniority-cum-fitness.
A reference may be made to the decision of the Apex Court in case of Union of India and Ors. v. Lt. General Rajendra Singh Kadyan and Anr., reported in , A.I.R. 2000 S.C. 2513. The Apex Court had an occasion to consider the three criterion in the matter of promotion for hierarchy of Army namely; seniority-cum-fitness; seniority-cum-merit; and, merit-cum-suitability with due regard to seniority. The Apex Court, at paragraph-12, has observed as under:
Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "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-fitness and seniority-cum-merit. Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion to All India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them."
(emphasis supplied)
Therefore, it appears that while considering the basis of criteria as seniority-cum-merit, the exercise, which was required to be undertaken, was to reject the unfit, but, not to assess the comparative merit of candidates inter se. For the purpose of undertaking the exercise for considering a candidate as unfit, it appears that the relevant aspects would be the confidential reports of the candidate concerned for a reasonable period during which the candidate worked in the feeder post."
Thus, the principal which can be deduced on the basis of the judgments referred to above is that the conditions of service of employment should be formulated by the employer so as to maintain the balance between the advancement of career of individual employee and efficiency of public service. This is necessary to avoid frustration amongst the employees which otherwise leads to demoralization of the service and is ultimately counter productive. While at the lower level of the service, the criteria for promotion should be seniority-cum-merit or seniority-cum-fitness or seniority-cum-suitability, and at the higher level, merit and merit alone should be the yardstick. The criteria of seniority-cum-fitness or seniority-cum-merit has to be so applied that where a senior person possesses that element of merit which makes him efficient for the discharge of duties, his seniority must overweigh better merit of a junior person. When element of comparative assessment or merit is absent, then promotion is required to be made on the basis of seniority-cum-merit. At the same time, by adopting the criteria of merit or merit-cum-seniority for higher level, better and best can be chosen to serve the larger public interest. In this manner, even those who are lower in the cadre will then strive for achieving excellence so as to fall within the zone of merit and become eligible for out of turn promotion.
If the rule referred to above is read as it is, the construction appears to be that the criteria for promotion is on the basis of merit-cum-seniority for such promotion. In this regard, if sub-rule (1) and sub-rule (2) of Rule 12 is considered, it appears that no employee can claim to be considered for promotion only on the basis of his seniority. There are two words in sub-rule (1) which are important "merit" and "suitability". Sub-rule (2) also provides that educational qualifications, confidential records and other merit would also have to be considered by the committee for the purpose of promotion. My reading of the rule is that the criteria is merit-cum-seniority. If that be so, then the case of the petitioner that he being the seniormost in the cadre of Clerk should have been considered for promotion on the basis of ''Shop Inspector'' should fail. It appears that the promotion committee found the respondent No. 4 more meritorious although he is junior to the petitioner and recommended his name for promotion which has been approved by the Collector as well as the Director of the Municipality, State of Gujarat.
In such circumstances referred to above, no relief can be granted to the petitioner.
For the foregoing reasons, this petition fails and is hereby rejected.
*As per source available.