Prem Lal Tater vs Rajasthan Khadi and Village Industries Board and Another

Mohammad Rafiq, J.—This writ petition has been preferred by petitioner Prem Lal Tater aggrieved by his supersession by respondent No. 2 Om Prakash Mehta, who, according to petitioner, was junior to him and yet was promoted on the post of Assistant Accounts Officer vide order dated 31.03.1998 ignoring the seniority of petitioner.

Petitioner was appointed on the post of Inspector-cum-Auditor with the respondent Rajasthan Khadi and Village Industries Board (for short, ''the Board'') on 30.12.1978. In course of time, he was promoted on the post of Accountant vide order dated 28.01.1988. The respondent Board got issued provisional seniority list of Accountants on 03.05.1997 inviting objections, if any. Therein, name of petitioner was shown at Serial No. 2. The said provisional seniority list was finalized and final seniority list was issued on 12.12.1997 after considering all the objections, wherein name of the petitioner was shown at Serial No. 2 whereas name of respondent No. 3 Om Prakash Mehta was at Serial No. 3.

Contention of learned counsel for petitioner is that criteria of promotion from the post of Accountant to that of Assistant Accounts Officer is only seniority and even as per the respondents it is merit-cum-seniority and, therefore, if the merit of two is equal then petitioner, being senior, ought to have been preferred for promotion to that post.

Learned counsel for petitioner submitted that in reply to the writ petition, the respondents though have stated that respondent No. 2 Shri Om Prakash Mehta was considered more meritorious than petitioner, but they have not disclosed any material whether there was any adverse remarks in the Annual Confidential Reports of the petitioner or whether the grading in ACR of respondent No. 2 was better than the petitioner or whether any penalty was imposed on the petitioner during relevant period for consideration. They cannot be therefore allowed to contend that the respondent No. 2 was more meritorious. Learned counsel for the petitioner contended that the petitioner was never conveyed any adverse remark in his ACRs. Petitioner bears a good and clean service record, therefore, he has stated on oath that there was nothing adverse against the petitioner. Neither any departmental enquiry is pending against him nor he has been subjected to any explanation. No penalty was ever imposed on the petitioner during the relevant period preceding the year of consideration. The entire service record of the petitioner is neat and clean. Such assertions have been made by the petitioner in para 8 of the writ petition, and the same have not been denied by the respondents in reply thereto. The action of the respondents is arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India.

Learned counsel for the petitioner, in support of his argument, has relied on division bench judgment of this court in Rajendra Singh Vs. The State of Rajasthan, , and that of single bench in Rajendra Singh Vs. The State of Rajasthan, .

Learned counsel for the respondents opposed the writ petition and submitted that first promotion in Rajasthan Khadi and Village Industries Board Regular Employees Service Regulations, 1977 is to be made in accordance with the seniority alone, whereas second and subsequent promotion has to be granted on the basis of merit-cum-seniority. Respondent No. 2 Om Prakash Mehta was considered more meritorious than the petitioner on comparative analysis of their service record and, therefore, he was promoted earlier in point of time on the basis of merit-cum-seniority on the post of Assistant Accounts Officer. It is contended that the promotion has been made strictly in conformity with the provisions of the Regulations, 1977. The allegations made by the petitioner are totally baseless.

Perusal of the material on record clearly indicates that the respondents have not been able to show whether there was any adversity against the petitioner in his service record. Neither they have contended that any of his ACR contained in adverse more or lower graded than that of the respondent No. 2 nor they asserts that the petitioner was visited with any penalty during the period of relevant consideration preceding the date of promotion. Specifically to the contrary it is asserted by the petitioner in para 8 has not been denied by the respondents. Surprisingly at one place in para 8 of their reply, they have mentioned that criteria of promotion was merit-cum-seniority and in same para they mentioned that it was seniority-cum-merit. Whatever may be the criteria, if the merit of the two was equal, a seniority has to be preferred and could not be ignored.

The Division Bench of this court in Rajendra Singh, supra, has analyzed the law on the subject on consideration of various criteria of promotion and held that for the purpose of promotion, well recognized criteria are seniority, seniority-cum-merit, seniority-cum-suitability, seniority-cum-fitness, merit-cum-seniority or merit. 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, the criteria of seniority-cum-fitness and seniority-cum-merit has to be so applied that where a senior person possesses that element of merit which make him efficient for discharge of duties, his seniority must over-weigh better merit of a junior person. Element of comparative assessment of merit is absent when 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 promotion, 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.

In B.V. Sivaiah and Others etc. Vs. K. Addankl Babu and Others etc., again same question fell for consideration before the Supreme Court as to what would be the impact of seniority cum merit criteria vis-a-vis merit cum seniority criteria. Their Lordships in paras 17 and 18 of the judgment, held as under:-

On behalf of the promoted officers, it was urged that for the purpose of promotion on the basis of seniority-cum-merit, seniority means the length of service and that among officers who were appointed on the same date and have the same length of service, seniority can have no bearing and promotion has to be made on a comparative assessment of merit of such officers. We are unable to agree. While applying the principle of seniority-cum-merit for the purpose of promotion, what is required to be considered is the 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 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 cannot, 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.

We thus arrive at the conclusion that the criterion of "seniority-cum-merit" in the matter of promotion postulates that even the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment or 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.

Same view was reiterated by the Supreme Court in Harigovind Yadav Vs. Rewa Sidhi Gramin Bank and Others, in which judgment, Supreme reiterated all the previous views.

In view of the foregoing discussion, the respondent No. 1 has not justified as to on what basis the respondent No. 2 was considered more meritorious.

In the result, the writ petition succeeds and is accordingly allowed. The respondent No. 1 is directed to consider the case of the petitioner to grant him promotion on the post of Assistant Accounts Officer with effect from the date the respondent No. 2 Om Prakash Mehta was promoted, with all other consequential benefits.

Compliance of the judgment be made within three months from the date its copy is produced before the respondent No. 1.