Sanjeeva Kumar vs State of Uttarakhand and Others

Manoj K. Tiwari, J.

Petitioner is serving as Fire Station Officer. He has challenged the promotion given to respondent nos. 4 & 5 to the post of Chief Fire Officer on the

ground that they are junior.

The reliefs sought in the writ petition are as follows:

“(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11.06.2013 issued by respondent no.1 annexed as

annexure no.8 to the writ petition.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to consider and grant promotion to the petitioner on the

post of Chief Fire Officer.

(v) Issue a writ, order or direction, in the nature of mandamus commanding the respondent authorities to grant national promotion to the petitioner

w.e.f. the date when his juniors were promoted on the post of CFO and consequentially notion fixation of his salary.

(vi) Issue a writ, order or direction in the nature of mandamus commanding the respondent authorities to convene review DPC in light of the fact that

previous DPC in the year 2013 was held on the basis of incomplete ACR entry because of which petitioner was denied promotion, for no fault of

his.â€​

Recruitment to the promotional post of Chief Fire Officer is governed by statutory rules known as U.P.Fire Service (Gazetted Officers) Service

Rules, 1984. According to these Rules, 50% of the posts are required to be filled by promotion through Public Service Commission and the remaining

by direct recruitment. Rule 16 of the said Rules provides that criteria of promotion shall be ‘merit’.

Minutes of the meeting of the selection committee are on record as annexure-CA3 to the counter affidavit filed by respondent no.3. Perusal of the

same indicates that selection for promotion was held for two unreserved vacancies of selection year 2012-13. As many as 7 Fire Station Officers

were considered, amongst whompetitioner was the senior most. However, he was not recommended for promotion as he was placed in the category

of ‘Good’ based on his ACR for the past 10 years while other candidates were placed in the category of ‘Very Good’. Respondent nos.

4 & 5 were selected and recommended for promotion as their score of marks was 8.20 and 9.00, respectively, while that of petitioner was 7.90.

Public Service Commission has framed regulations, which were notified on 10.02.2011, whereby procedure has been laid down for making selection

for promotion on the criteria of ‘merit’ as well as ‘seniority subject to rejection of unfit’. Regulation 4 deals with selection on the criteria

of merit. Regulation 4 (3) provides that ACRs for 10 ten years immediately preceding the year of selection, shall be considered. Regulation 4(4)

further provides that different ACR ratings shall be weighed on a 10 point scale as follows:

(i) Outstanding 10 marks

(ii) Very Good 08 marks

(iii) Good 05 marks

(iv) Satisfactory 0 marks

(v) Adverse -05 marks

Regulation 4(7) provides that Officers with 8 or more average marks for ACRs shall fall in the category of ‘very good’ while those with

score of less than 8 marks, but more than 6 will fall in the category of ‘good’. Regulation 4(8) further provides that first of all Officers falling in

the category of ‘very good’ shall be recommended for promotion strictly in order of their seniority and if any vacancy remains, after

recommending all officers categorized as ‘very good’, then the senior most officer in the category of ‘good’ shall be recommended for

promotion.

From the aforesaid regulations notified on 10.02.2011, it is apparent that seniority has to be compared amongst Officers falling in the same

category. Respondent nos. 4 & 5 although are junior to the petitioner however due to higher score of marks for ACR, they were included in the

highest category of ‘very good’ while petitioner was included in the second category of ‘good’. Therefore, their inter-se seniority became

irrelevant in view of Regulation 4(8) of the said Regulations.

Hon’ble Supreme Court in the case of B. V. Sivaiah & others vs. K. Addanki Babu & others reported in (1998) 6 SCC 720 has explained the

principle of merit-cum-seniority. Paragraph nos. 9 & 10 of the said judgment are extracted below:

“9. 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, has said :

[F]or 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, para22) ""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 to reasonable criteria applied in assessing the facts

revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor.

On the other hand, as between the two principles of seniority and merit, the criterion of “seniority-cum-merit†lays greater emphasis on

seniority. In state of Mysore v. Syed Mahmood while considering Rule 4(3)(b) f 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 the candidate to discharge the duties of the post from among persons eligible

for promotionâ€. It was pointed out that where the promotion is based of “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.â€​

Since petitioner’s average marks of ACRs for past 10 years were less than 8, while respondent nos. 4 & 5 had scored more than 8 marks,

therefore selection and 5 promotion of respondent nos. 4 & 5 cannot be faulted with.

It is further contended on behalf of the petitioner that he was assessed as ‘very good’ in the ACR entry for the year-2006, for which he

ought to have been given 6 marks, but he was given only 5 marks for the said entry. Public Service Commission in paragraph no.14 of its counter

affidavit has stated that petitioner was given 8 marks for the ACR entry of 2006 as he was rated as ‘very good’ for the period 28.08.2006 to

31.12.2006, although no ACR entry was given to him for the period 01.01.2006 to 27.08.2006. This contention of the petitioner is therefore without any

substance as even after adding 8 marks for ACR entry of 2006, petitioner’s score comes to 7.90, which is less than 8. 12. In such view of the

matter, we do not find any infirmity in selection and promotion of respondent nos. 4 & 5 to the post of Chief Fire Officer. There is no force in the writ

petition, accordingly, the writ petition fails and is hereby dismissed.

No order as to cost.