Narinder Kumar vs Union of India (UOI) and Others

J.N. Sarma, J.—This Writ Application has been filed by an employee of the Union of India (Border Roads) praying that the date of promotion may be antidated and he should be given all the promotional benefits and seniority from that date to the post of Charge Machanic and his promotion should be given effect from the date the Respondent No. 6 got promotion to the said post.

The brief facts are as follows:-The admitted position is that Respondent No. 6 is junior to the Petitioner. There was a Trade Test held on 2.5.92 and in the Trade Test the Petitioner was not promoted, but Respondent No. 6 was promoted. In the Trade Test it was found that the Petitioner was average and the Respondent No. 6 had a better grading. An affidavit-in-opposition has been filed, wherein in paragraph-3 it has been stated that:

(3) That at the outset, before offering the para wise replies to the Writ Petition the deponent begs to state that the Petitioner GS-156653 H Mechanist Narinder Kumar was appointed in GREF on 04 September ''80 as Mechanist on the basis of having passed academic/technical qualification Matric and III in Mechanist as per R&P Rules, 1982. As per Rule 10% of total vacancies of Charge Mechanic are filled through Turner/Mechanist who have gained 3 years regular service subject to passing trade test on the principles of seniority-cum-fitness.

As per seniority, the name of the Petitioner was placed before DPC for promotion to Charge Mechanic held on 02 May ''92 but could not be considered for promotion for want of vacancies. The name of the Petitioner was again placed before DPC held on 30 September ''93 alongwith the name of GS-157000 Mechanist Ranjith Kumar V (Respondent No. 6), but the former was lacking the required ACR grading and as such he was not recommended for promotion to Ch/Mech by the DPC.

The name of the Petitioner was again placed before DPC held on 27th April ''94 alongwith the name of GS-159681 Mechanist Surya Narayan Mehto (Respondent No. 7) and GS-159863 Mechanist Des Raj (Respondent No. 8) but he was lacking the required ACR gradings and as such he was not recommended for promotion to Ch/Mech by the DPC.

The name of the Petitioner was again placed before the DPC held on 18 July ''94 and he was recommended for promotion by the DPC and approved by the competent authority, accordingly his promotion-cum-posting order was issued vide GREF Records posting order No. 657/GP-I/DPC/Ch/Mech/POS dated 12 November ''94. During the DPC held on 30 September ''93 and 27 April ''94 as stated the Petitioner was not found upto the required standard of merit, qualified and eligible persons junior to him were considered for higher promotion based on their merit-cum-fitness. Ante-date seniority w.e.f. 29 December ''93 as asked for by the Petitioner could not be given/granted to him as he was lacking ACR grading at the time of DPC held on 30 September ''93 and he was not recommended for promotion by the DPC.

From the above it can be seen that no injustice has been done to me Petitioner and his claim for promotion to Ch/Mech with retrospective effect with all other service benefits cannot be accepted as per rules on the subject.

A bare perusal of the Annexure and other materials on records it was found that the Petitioner was graded as average and as such he was not granted the promotion. The admitted position in this case as will be seen from the affidavit-in-opposition is that the promotion was by way of seniority-cum-merit as admitted in Paragraph-3 quoted above. In paragraph-5 of the affidavit-in-opposition it has been stated that an individual is considered for higher promotion based on seniority-cum-merit subject to availability of the post. If a person is deemed to be average whether he is entitled to get the promotion or not? This aspect of the matter came up for consideration in State of Kerala and Another Vs. N.M. Thomas and Others, wherein in paragraph-3 8, the Supreme Court pointed out,

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 less meritorious shall have priority.

In Sher Singh and Others Vs. Surinder Kumar and Others, It is a case where promotion was given on merit-cum-seniority instead of seniority-cum-merit and the entire promotion was quashed by the Apex Court holding that a wrong principle has been adopted. The Supreme Court also pointed out that the person promoted on the basis of adoption of wrong principle shall not be entitled to claim promotion to which he has been promoted.

The next case is B.V. Sivaiah and Others etc. Vs. K. Addankl Babu and Others etc., wherein in paragraph-17 the Supreme Court has pointed out as follows:

While applying the principle of seniority-cum-merit for the purpose of promotion what is required to be considered is inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service; but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of the placement in the select list for appointment. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to such rights flowing from seniority, it can not, therefore, be said that in the matter of promotion on the basis of seniority-cum-merit, seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service and promotion has to be made on a comparative assessment of merit of such officers.

The next case is R.B. Desai and Another Vs. S.K. Khanolker and Others, wherein in paragraph-9 the Supreme Court has pointed out as follows:

It is an accepted principle in service jurisprudence that once persons from different sources enter a common cadre, their seniority has to be counted from the date of their continuous officiation in the cadre to which they are appointed. If at the time of consideration for promotion, the candidates concerned have acquired eligibility, then unless a rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority should prevail over the date of eligibility. The rule under consideration does not give any such priority to the candidates acquiring earlier eligibility and rightly so. In service law, seniority has its own weightage and unless and until the rules specifically exclude this weightage of seniority, it is not open to the authorities to ignore the same.

That being position, this writ application is allowed and the Petitioner having been found to be average on merit, he is entitled to get promotion. Accordingly the Petitioner shall be given promotion from the date on which his junior Respondent No. 6 has been promoted.

I have heard Shri T.C. Khetri, learned advocate for the Petitioner and Shri Das, C.G.S.C. for the Respondents.