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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1273 OF 2004
Balbir Singh Bedi …Appellant
Versus
State of Punjab & Ors. …Respondents
J U D G M E N T
Dr. B. S. CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment
and order dated 9.10.2003 passed by the High Court of Punjab and
Haryana at Chandigarh in Civil Writ Petition No. 15672 of 2003 by
way of which the claim of the appellant for promotion has been
rejected.
2. The facts and circumstances giving rise to this case are that:Page 2
A. The appellant was appointed as Civil Defence Instructor in the
year 1964, and was promoted as Company Commander in October
1968. He was later promoted to the post of District Commander in
July 1989. He, then claimed to have become eligible for substantive
promotion to the post of Battalion Commander as per the rules
applicable.
B. The case of the appellant was considered alongwith other
eligible candidates, and vide order dated 30.1.2001, a person junior to
him (Respondent No. 5), was promoted to the said post after
considering his past five years’ Annual Confidential Reports
(hereinafter referred to as `ACR’) and other records.
C. The appellant made repeated representations in this regard, but
the same were not considered. Employees of the other department
governed by the same rules, filed Civil Writ Petition Nos. 4491 and
11011 of 2001 in the Punjab and Haryana High Court contending that
their cases for promotion were not to be considered in the light of
executive instructions dated 29.12.2000, as the vacancies on
promotional posts had occurred much before the issuance of said
executive instructions. The said writ petitions were disposed of by the
High Court vide judgment and order dated 14.1.2003, by which the
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High Court directed the authorities to consider the promotion of the
parties therein, ignoring the instructions dated 29.12.2000.
D. The appellant retired on 31.12.2001 and filed Civil Writ
Petition No. 15672 of 2003, seeking promotion and quashing of
executive instructions issued on 29.12.2000 as well as on 6.9.2001.
However, the High Court dismissed the said Civil Writ Petition vide
impugned judgment and order dated 9.10.2003.
Hence, this appeal.
3. Shri P.S. Patwalia, learned senior counsel appearing on behalf
of the appellant, has submitted that if the criteria for promotion is
“seniority-cum-merit”, the question of ignoring the seniority does not
arise. Additionally, recruitment to the post of Battalion Commander
is governed by Rule 8 of the Punjab Home Guard, Class-I Rules, 1988
(hereinafter referred to as the `1988 Rules’), which provides that 75
per cent posts of this cadre would be filled up by promotion from the
Battalion 2
nd
-in-Command consisting of District Commanders, the
Chief Instructor, and Junior Officers at the State Headquarters,
working under the control of the Commandant General, Punjab, all
having a minimum work experience of 8 years. However, it
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prescribes that selection to the post must be made on the principle of
“seniority-cum-merit”. The High Court committed an error by not
giving weightage to seniority. Furthermore, as the executive
instructions followed therein were issued subsequent to the date on
which the vacancy occurred, the said instructions must not be applied
to the present case. Appellant was given officiating charge of the post,
and he performed the duties and functions on the said post, he could
not be found unfit for any reason whatsoever, at a later stage.
Therefore, the judgment and order impugned is liable to be set aside.
4. On the other hand, Shri Jagjit Singh Chhabra, learned counsel
appearing on behalf of Respondent Nos. 1 to 4, has submitted that the
aforementioned rule provides for promotion only on the basis of
“seniority-cum-merit”. Therefore, the State, even in the absence of
any executive instructions, could fix the required benchmark. The
same, however, must be fixed prior to considering a case for
promotion, as once the process of promotion begins, it would not be
fair to change the rules of the game. The fixing of such a benchmark
is completely unrelated to the date on which the vacancy occurred.
Appellant, vide order dated 13.5.1997, was authorised only to sign
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bills and vouchers relating to the office, which could not confer any
right to the appellant. Moreover, at the relevant point of time,
appellant was facing criminal prosecution under the provisions of the
Prevention of Corruption Act, 1988 (hereinafter referred to as `the PC
Act’) as well as for the offences under the Indian Penal Code, 1860
(hereinafter referred to as `IPC’). In view thereof, no fault can be
found with respect to the judgment of the High Court. The appeal
lacks merit and is liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the record.
6. A Seven Judge Bench of this Court in State of Kerala & Anr. v.
N.M. Thomas & Ors., AIR 1976 SC 490, held:
“Seniority cum merit’ means that given the
minimum necessary merit requisite for
efficiency of administration, the senior, though
less meritorious, shall have priority. This will
not violate Articles 14, 16 (1) and 16 (2) of the
Constitution of India.”
Thus, it is apparent that this Court has provided for giving
weightage to seniority, without any compromise being made with
respect to merit, as the candidate must possess minimum requisite
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merit. Efficiency of administration is of paramount importance, and
therefore, whilst adequate weightage is given to seniority, merit must
also be duly considered.
7. In Sr. Jagathigowda C.N. & Ors. v. Chairman, Cauvery
Gramin Bank & Ors., AIR 1996 SC 2733, this Court has observed
as under:–
“It is settled proposition of law even while
making promotion on the basis of seniority cum
merit, the totality of the service record of the
officer concerned has to be taken into
consideration. The Performance Appraisal
Forms are maintained primarily for the
purpose that the same are taken into
consideration when the person concerned is
considered for promotion to the higher rank.”
8. In Union of India & Ors. v. Lt. Gen Rajendra Singh Kadyan
& Anr., AIR 2000 SC 2513, it was observed as under:–
“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-merit.”
The said principle has also been approved, reiterated and
followed by this Court in Syndicate Bank Scheduled Castes and
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Scheduled Tribes Employees Association (Regd.) & Ors. v. Union
of India & Ors., 1990 Supp. SCC 350; Govind Ram Purohit &
Anr. v. Jagjiwan Chandra & Ors., 1999 SCC (L&S) 788; The
Central Council for Research in Ayurveda & Siddha & Anr. v.
Dr. K. Santhakumari, (2001) 5 SCC 60; and Bibhudatta Mohanty
v. Union of India & Ors., (2002) 4 SCC 16.
In view of the aforesaid judgments of this Court, it is evident
that even if a promotion is to be made on the basis of “seniority-cummerit”, a person who is lower in the seniority list, can in fact be
promoted, ignoring the claim of the senior person, who failed to
achieve the benchmark i.e. minimum requisite merit.
9. In K. Samantaray v. National Insurance Co Ltd., AIR 2003
SC 4422, this Court explained the difference between the principles of
“merit-cum-seniority”, and “seniority-cum-merit”, while placing
reliance upon its earlier judgments, and held that for the purpose of
promotion, even on a “seniority-cum-merit” basis, weightage in terms
of numerical marks for various categories is given, and the authority is
permitted to work out the marks for individual as occurring under
each head, otherwise the word ‘merit’ would loose its sanctity. (See
also: State of U.P. v. Jalal Uddin & Ors., (2005) 1 SCC 169; and
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Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya Gramin
Bank & Ors., AIR 2007 SC 994).
10. This Court in Harigovind Yadav v. Rewa Sidhi Gramin
Bank & Ors., AIR 2006 SC 3596, held that promotion, if to be made
on the criterion of “seniority-cum-merit”, must not be made
exclusively on the basis of merit. The Court negatived the idea of
selecting the more meritorious where Rules provided for the criterion
of “seniority-cum-merit”, but did not rule out the laying down of
criteria for fixing a minimum benchmark. In paragraph 17 of the said
judgment, the Court has observed as under:–
“Interviews can be held and assessment of
performance can be made by the Bank in
connection with promotions. But that can be
only to assess the minimum necessary merit.”
11. The principle of “seniority-cum-merit” and “merit-cumseniority” are conceptually different, as in the case of the former,
there is greater emphasis upon seniority even though the same is not
the deciding factor, while the case of the latter, merit is the deciding
factor.
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12. In Rajendra Kumar Srivastava & Ors. v. Samyut Kshetriya
Gramin Bank & Ors., AIR 2010 SC 699, while considering the
aforementioned issue, this Court held that when a promotion is to be
made on the principle of “seniority-cum-merit”, then the said
promotion must be made only after assessing the minimum necessary
merit for such promotion. This must be done on the basis of seniority
among the candidates possessing such minimum necessary merit,
additionally, it must be ensured that the benchmark fixed is bonafide
and reasonable. Fixing the benchmark cannot be challenged as being
opposed to the principle of “seniority-cum-merit” and further, cannot
be held to be violative of the concept of promotion by “seniority-cummerit” considering the nature of duties and functions to be performed
on the promotional post. The criteria for selection is not subject to
challenge generally as it falls within the area of policy making.
Therefore, the criteria for adjudging claims on the basis of the
principle of “seniority-cum-merit”, depends upon various factors
which the employer may determine depending upon the class,
category and nature of posts in the hierarchy of administration, and
the requirements of efficiency for the posts.
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13. In Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bank
& Ors., AIR 2010 SC 787, this Court while considering the earlier
judgments of this Court, held that where promotion is made on the
principle of “seniority-cum-merit”, such promotion cannot be made
on the basis of seniority alone. Merit also plays some role. The
standard method adopted by the principle of “seniority-cum-merit”, is
to subject all eligible candidates in the feeder cadre to a process of
assessment of a specified level of minimum necessary merit, and then
to promote candidates, who are found to possess the minimum
necessary merit, strictly in order of seniority. The minimum merit
necessary for promotion to the said post may be assessed either by
subjecting candidates to a written examination, or an interview, or by
assessment of their work performance during the previous years, or by
a combination of either of the above, or of all the aforesaid methods.
There cannot be any hard and fast rule with respect to how minimum
merit should be ascertained. For the purpose of assessing the merit of
employees, the employer may proceed with reference to four criteria
(Period of service, educational qualifications, performance during last
three years and interview) allocating separate maximum marks as
regards each of the aforesaid counts.
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14. In Haryana State Warehousing Corporation & Ors. v. Jagat
Ram & Anr., (2011) 3 SCC 422, this Court considered a similar issue
and reiterated a similar view. The Court also observed that, for the
purpose of according promotion on the principle of “seniority-cummerit”, a comparative assessment of all eligible candidates is not
permissible. Once a person has secured minimum marks with respect
to merit, his seniority would play a significant role. Thus, in the event
that an employee is found to possess minimum requisite merit, he is
entitled to be considered for promotion on the basis of his seniority.
15. In view of the above, the law as regards this point can be
summarised to the effect that, where a promotion is to be given on the
principle of “seniority-cum-merit”, such promotion will not
automatically be granted on the basis of seniority alone. Efficiency of
administration cannot be compromised with at any cost. Thus, in order
to meet said requirements, all eligible candidates in the feeder cadre
must be subject to a process of assessment to determine whether or
not an individual in fact possesses the specified minimum necessary
merit, and in the event that he does possess the same, his case must be
considered giving due weightage to his seniority. Furthermore, the
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statutory authority must adopt a bonafide and reasonable method to
determine the minimum necessary merit, as is required to be
possessed by the eligible candidate. It must also take into account his
period of service, educational qualifications, his performance during
his past service for a particular period, his written test, interview, etc.
The authority must further be competent to allocate separate
maximum marks on each of the aforesaid counts. Fixing such criteria,
or providing for minimum necessary merit, falls within the exclusive
domain of policy making. Thus, it cannot be interfered with by courts
in the exercise of their judicial powers, unless the same is found to be
off the mark, unreasonable, or malafide.
16. The relevant portions of the executive instructions dated
29.12.2000 read as under:
“(iii) In the case of promotion to posts with pay scales
less than Rs.12000-16350, the benchmark will be
‘Good’. This benchmark will determine the fitness of the
officer and person graded ‘Very Good’ or ‘Outstanding’
will not supersede persons graded ‘Good’.
(iv) Henceforth each Annual Confidential Report will
be evaluated as under:-
Outstanding : +A ……………..4 Marks
Very Good : A ………………3 Marks
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Good : +B ……………….2 Marks
Average : B ……………….1 Mark
ACRs for 5 years are taken into consideration for
promotion. Out of a total of 20 marks, officers earning 0
to 14 marks will be graded overall ‘Good’ and those
earning 15 to 17 marks will be graded overall ‘Very
Good’. Those earning 18 to 20 marks will be graded as
‘Outstanding’. Departmental which are ‘Outstanding’
must have been out of the ordinary and reasons for giving
grading must be cogent and well spelt out, to be accepted
and outstanding. If the ACR does not fulfill the above
criteria, the entry of the ‘Outstanding’ should be read as
‘Very Good’ only. An officer will not be fit for
promotion if he is rated ‘below average’ in any of the 5
years.”
17. Similarly, the executive instructions dated 6.9.2001 so far as
applicable in the instant case, read as under:
“3. In the case of promotion to posts falling in Group ‘B’
the minimum benchmark will be ‘Good’ and there would
be no supercession i.e. promotions would be made
strictly on seniority-cum-merit.
4. For making promotion in all the categories there
should not be any adverse remarks in the ACRs under
consideration.”
18. If, the instant case is examined in light of the aforesaid settled
legal propositions, it becomes evident that even in the absence of the
executive instructions, the State/employer has the right to adopt any
reasonable and bonafide criteria to assess the merit, for the purpose of
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promotion on the principle of “seniority-cum-merit”. The aforesaid
executive instructions are nothing but codification of directions issued
by this Court in the cases referred to hereinabove. Therefore, a
challenge made to the executive instructions on the ground that they
were issued at a date subsequent to the date on which the vacancy
arose, is meaningless. The present case is not the one where,
Respondent No. 5 was found to be more meritorious, in fact, the same
is admittedly a case, where the appellant was unable to achieve the
benchmark set, as it is evident from the record that his ACRs were
average, and the benchmark fixed by the State was `Good’.
19. It is evident from the material on record i.e. from the counteraffidavit filed by the State that appellant faced criminal prosecution as
FIR No. 25 dated 12.4.1996 had been lodged against him under
Sections 7 & 13(ii) of the PC Act, 1988 and Sections
467/468/471/120-B IPC, at Police Station: Vigilance Bureau, Patiala,
wherein the appellant faced trial though, acquitted as is evident from
the judgment and order dated 2.5.2006 passed in Sessions Case No. 5
of 10.5.2001. His acquittal took place after five years to his
retirement.
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Be that as it may, for the reason best known to the appellant,
this fact was not disclosed by him either before the High Court or
before this Court. It is another matter as what could have been the
effect of pendency of the said criminal case so far as this case is
concerned. Thus, we are of the view that the appellant did not
approach the court with clean hands, clean mind and clean objective.
20. In view of the aforesaid settled legal proposition, in the facts of
this case, we have no hesitation in holding that no fault can be found
with the High Court’s judgment impugned before us. The appeal lacks
merit and is, accordingly, dismissed.
………………………J.
(Dr. B.S. CHAUHAN)
………………………J.
(V. GOPALA GOWDA)
New Delhi,
February 11, 2013
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