Pradeep Kumar Soni vs State of M.P. and others

Shantanu Kemkar, J.

The petitioner, an Assistant Draftsman has challenged his non-promotion from the post of Assistant Draftsman to the post of Draftsman by filing Original Application No. 3808/1990 before the State Administrative Tribunal. On abolition of the Tribunal, the matter has reached this Court for adjudication.

The petitioner claims that he was appointed on 19-10-1983 as Asstt. Draftsman and posted at Bargi Left Bank Canal Division No. 3, Jabalpur. He alleges that though he was entitled for grant or promotion to the post of Draftsman, he has been illegally denied the promotion and the employees junior to him have been promoted by order dated 15-11-1990. He, has therefore, claimed the following relief:

Respondents may be directed to convene a review DPC for consideration of the applicant for promotion to the post of Draftsman w.e.f. 15-11-1990 along with all consequential benefits and if found fit promotion may be given along with backwages and seniority may be fixed accordingly.

The respondents stated in the return that for selection for promotion the criteria of merit-cum-seniority was adopted. The D.P.C. fixed marks to the various grades of ACR-s. As per the criteria fixed by the DPC for getting the promotion the person should get minimum 10 marks on the basis of his last 5 years ACR''s. Accordingly the petitioners ACR''s were also considered. He secured only 7.66 marks which were below the minimum marks fixed for promotion. In support, the respondents filed copy of the minutes of the meeting of DPC (Annexure R-1) and the marks secured by the petitioner (Annexure R-2).

It is not in dispute that for the impugned promotion, Irrigation Department (Non-Gazetted) Service Recruitment Rules, 1969 (for short the ''Rules'') would be applicable. Rules 14 and 15 of the Rules which deal with conditions of eligibility for promotion and preparation of list of suitable persons are extracted below :-

Conditions of eligibility for promotion - (i) Subject to the provision of sub-rule (ii), the Committee shall consider the cases of all persons who on the first day of January of that year had completed such number of years of service (whether officiating or substantive) in the posts from which promotion is to be made or any other post or posts declared equivalent thereto by the Government) as specified in column 3 of Schedule IV and are within zone of consideration, in accordance with the provisions of sub-rule (ii) :

Provided that any junior person shall not be considered for selection grade/promotion in preference to the person senior to him only on the basis of his completing the prescribed years of service.

(ii) The field of selection shall ordinarily be limited to seven times the number of persons to be included in the select list in respect of posts filled on the basis of merit-cum-seniority and five times the number of persons to be included in the select list in respect of posts filled on the basis of seniority-cum-merit:

Provided that if the required number of suitable persons are not available in the field, so determined, the field may be enlarged to the extent considered necessary, by the committee by mentioning the reasons therefore in writing.

Preparation of list of suitable persons -

(i) The Committee shall prepare a list of such persons as satisfy the condition prescribed in rule 14 above and as are held by the Committee to be suitable for promotion to the service. This list shall be sufficient to cover probable vacancies for two years.

(ii) The selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority.

(iii) The names of the persons included in the list shall be arranged in order of seniority in the M.P. Irrigation Department (Non-Gazetted) Service.

Provided that any junior-person who, in the opinion of the Committee is of exceptional merit and suitability, may be assigned in the list a higher place than that of persons senior to him.

(iv) The list so prepared shall be reviewed and revised every year.

(v) If in the process of selection, review or revision it is proposed to supersede any person of the service, the Committee shall record its reasons for the proposed supersession.

A perusal of the aforesaid Rules makes it clear that the field of selection shall ordinarily be limited to seven times the number of persons to be included in the select list in respect of posts filled on the basis of merit-cum-seniority. It is clear that while preparation of the list of suitable persons for promotion the selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority. From the perusal of the extracts of the meeting of DPC it is clear that the condition of eligibility for promotion has been duly complied with and the petitioner was included in the select list for consideration. The criteria for promotion being merit and suitability in all respect with due regard to seniority, the Departmental Promotion Committee had taken into consideration last 5 years ACRs of the eligible candidates. As per the criteria fixed by the D.P.C. the person should acquire minimum 10 marks on the basis of marks fixed by the DPC of his last 5 years ACRs. The petitioner could not secure the minimum 10 marks, therefore, he was not promoted. The petitioner has not challenged the aforesaid criteria adopted by the DPC for promotion.

The contention of the petitioner that in spite of he being senior the respondents have illegally promoted his juniors without considering his seniority. It is now well settled that in case of merit-cum-suitability, seniority has no role to play when the candidates were found to be meritorious and suitable for higher posts. Even a junior most man may steal a march over his seniors and jump the queue for accelerated promotion. This principle inculcates dedicated service, and accelerates ability and encourages merit to improve excellence. Seniority would have its due place only where the merit and ability are approximately equal or where it is not possible to assess inter se merit and suitability of two equally eligible competing candidates who come very close in the order of merit and ability. See Sarat Kumar Dash and Others Vs. Biswajit Patnaik and Others, . It is not the case of the petitioner that any junior person who had been promoted secured less marks than him in the meeting of DPC. When the criteria for the promotion was merit and suitability in all respects with due regard to seniority, the petitioner cannot claim promotion merely on the basis of his seniority. His name was taken into consideration and having regard to the marks received by him on the basis of his preceding five years'' gradings, he has been denied the promotion.

In the case of K. Samantrai v. National Insurance Company Ltd., 2004 SCC (L&S) 864 relied upon by the petitioner the promotion policy of the Company was seniority-cum-merit giving weightage to merit also, depending upon class, category and nature of posts in the hierarchy of administration and requirements of efficiency for such posts. The Supreme Court observed that the principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the latter, merit is the determinative factor. The other case on which reliance has been placed by the petitioner is case of Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association (Regd.) and Others v. Union of India and Others, 1991 SCC (L&S) 440, has no relevance to the facts of the present case.

It is not a case where on the basis of adverse entry in the ACR the petitioner has been denied the promotion. In fact the petitioner''s case was considered but the petitioner could not secure the minimum marks on the basis of his last 5 years ACR''s as a result he was not found fit for promotion. In Union of India and Others Vs. Lt. Gen. Rajendra Singh Kadyan and Another, the Supreme Court has held that merit and suitability in all respects with due regard to seniority necessarily involves assessment of comparative merit of all eligible candidates and selecting the best out of them.

In view of the aforesaid, I find no ground to interfere in the matter. Accordingly, the writ petition is dismissed. No orders as to cost.