Allahabad High Court
Tej Bahadur Mani Tripathi And Others vs State Of U.P. And Others on 27 July, 2010
Author: A.P. Sahi
Bench: A.P. Sahi
1
Reserved
Civil Misc. Writ Petition No. 53240 of 2007
Tej Bahadur Mani Tripathi & others Vs. State of U.P. & others
Connected with
Civil Misc. Writ Petition No. 6361 of 2008
Brajesh Mani Tripathi & others Vs. State of U.P. & others
And
Civil Misc. Writ Petition No. 7042 of 2008
Suresh Chandra Jaiswal & another Vs. State of U.P. & others
Connected with
Civil Misc. Writ Petition No. 23891 of 2008
Abdul Mubarak & others Vs. State of U.P. & others
and
Civil Misc. Writ Petition No. 56143 of 2007
Mishri Lal Vs. State of U.P. & others
********
Hon'ble A.P. Sahi, J.
These five writ petitions raise common questions of law founded on almost similar set of facts in relation to promotion on the post of Assistant Registrar Kanungo/Registrar Kanungo from the post of Lekhpal under the provisions of the U.P. Subordinate Revenue Clerk (Registrar Kanungos and Assistant Registrar Kanungos) Service Rules, 1958 as amended vide notification dated 17.12.1962.
The essence of challenge and the prime issue arising out of such a challenge is the determination of the criteria to be adopted for the purpose of promotion as defined in Rule 8 of the aforesaid rules. The battle lines are drawn between those who claim the predominance of Seniority on one side and merit on the other.
The eligibility for being placed in the nomination list for consideration of promotion is prescribed in Rule 7, and for Lekhpals, the rule provides that the post of Assistant Registrar Kanungo shall be filled up by promotion from amongst such candidates who have put in a minimum of six years of service as Lekhpal. Thus the post is a promotional post, not a selection post.
Rule 8 provides that the promotion shall be proceeded with on the basis of seniority subject to the rejection of unfit. The Rule further indicates that the selection committee shall proceed to keep in mind the past services of the candidate, integrity, character and intelligence and competence. The last mentioned criteria also indicates that preference will be given on the basis of educational qualifications and to those whose service records are very good.
The selections in dispute relate to three districts of Kushinagar, Deoria and Basti. The facts are being narrated in relation to the districtwise dispute as raised in these petitions.
2Kushinagar:
Writ Petition No. 53240 of 2007 has been filed by three lekhpals of district Kushinagar alleging that the contesting respondents therein, namely respondents 4 to 10, were junior to the petitioners and the appointing Authority namely the District Magistrate conducted the selection proceedings contrary to the 1958 Rules as amended in 1962, thereby superseding the petitioners and giving a complete go-bye to the rule of seniority for promoting the said respondents. It is further alleged that the criteria adopted was contrary to the rules and there was no occasion for any comparative assessment of merit and then placing junior candidates higher in merit for granting promotion.
The order of the District Magistrate dated 28th September, 2007 whereby promotion had been granted to the contesting respondents was challenged on which notices were issued on 30.10.2007. The said petition also brings on record the fact that the Board of Revenue had entertained a complaint in this regard and had issued a direction on 4.10.2007 that the criteria adopted for promotion was erroneous, as such the selections already held should be annulled and that the committee should reassess the candidates through a fresh proceeding.
A candidate should be rejected only if he is found to be unfit for which the selection committee should records its reasons separately. It was also indicated in the said letter that in spite of a previous direction issued by the Board on 8th March, 2007 the selections have been carried out without following the correct procedure. The Board further indicated in its letter that the post of Assistant Registrar Kanungo and the Registrar Kanungo have been merged in 1995 and therefore the amendments as brought about on 17.12.1962 should be followed. It was further indicated therein that in the event the promotions have been proposed contrary to the said directions then the same should be cancelled and a fresh process should be convened. The aforesaid letter of the Board of Revenue was addressed to the District Magistrate of three districts of Deoria, Basti and Unnao. It appears that the said directives were also brought to the notice of the District Magistrate Kushinagar as well, as would be evident from the facts narrated hereinafter.
During the pendency of the said writ petition, it appears the matter was again taken up by the District Magistrate noticing the said direction of the Board of Revenue and the screening committee headed by the District Magistrate again made a fresh recommendation on 8th October, 2007. This recommendation was made in favour of the contesting respondents in Writ Petition No. 53240 of 2007. A perusal of the recommendations would indicate that it was a virtual reassertion of the earlier proposals without any change and without any reasons recorded for rejecting those who were stated to have been found unfit. When this was brought to the notice of the Commissioner, Gorakhpur Division, Gorakhpur who is the supervising authority of all the districts falling within his Division, an order was passed on 24th January, 2008 whereby the Commissioner cancelled the selections in the district of Kushinagar as well as in the district of Deoria on similar grounds. The respondents in Writ Petition No. 53240 of 2007 then filed Writ Petition 3 No. 6361 of 2008 questioning the said order dated 24th January, 2008 on the ground that the Commissioner of the Division had no jurisdiction to cancel the selections and that the selections have been held by adopting the criteria as provided in Rule 8 without any deviation and hence the exercise of the cancellation of the promotion of the said candidates deserve to be set aside.
Deoria:
The cancellation was ordered by the Commissioner, Gorakhpur Division in respect of the two districts Deoria and Kushinagar. The facts relating to district Deoria are that a similar exercise of promotion was held on 16th July, 2007 and orders were issued on 21st July, 2007 granting promotion to some Lekhpals. These selections were challenged in two writ petitions being Writ Petition No. 45912 of 2007 and 45911 of 2007 by Ram Basant Sharma and Ram Samujh respectively. The said writ petitions are still stated to be pending. The District Magistrate who entertained a representation reaffirmed the selections proceedings under an order dated 15.9.2007 which was also put to challenge therein. As noticed above when the matter was brought to the notice of the Board of Revenue, the Board issued instructions on 4th October, 2007. The matter was reported and ultimately vide order dated 24th January, 2008 the Commissioner of the Gorakhpur Division passed the same order as in the case of District Kushinagar. The promoted candidates filed Writ Petition No. 7042 of 2008 and this Court stayed the order of the Commissioner dated 24.1.2008 on 5.2.2008 in relation to the district of Kushinagar and on 6.2.2008 in relation to the district of Deoria. The ground of challenge in the said writ petition are the same as in the case of District Kushinagar in Writ Petition No. 6361 of 2008. Another set of Lekhpals of district Deoria preferred writ petition No. 23891 of 2008 on the same set of facts and grounds which is also connected with the aforesaid writ petition.
Basti:
The third set of petitioners relate to the district of Basti. They are promoted candidates whose promotion has been cancelled under the letter of the Board of Revenue dated 4.10.2007 and their selections were held on 13.9.2007. The District Magistrate had stayed their promotion and cancelled it on 29th October, 2007. In view of the letter of the Board aforesaid a consequential order was issued by the Additional District Magistrate who was the Chairman of the selections committee on 5.11.2007. These orders have been challenged in Writ Petition No. 56143 of 2007 and this Court passed an interim order staying the operation of the orders on 15.11.2007. The challenge to the action of the district Magistrate is also founded on the same issues of law and on similar set of facts namely that the selections have been held in accordance with Rule 8.
There is another fact which deserves mention. Against the interim orders granted by this Court in relation to district Deoria, Special Appeals were filed and the interim order passed by the learned Single Judge was set aside. Against the orders of the Division Bench in Special 4 Appeal the petitioners in the said writ petition approached the Apex Court. The Apex Court dismissed the Special Leave Petition with the observation that the matter may be disposed of at the earliest by the learned Single Judge. This is how the matter is listed before this Court and the hearing has proceeded in terms of the directions of the Apex Court. The affidavits between the contesting parties and the State have been exchanged and the matter is being disposed of finally with the consent of the learned counsels appearing for the parties.
Sri Shashi Nandan learned Senior Counsel assisted by Sri Ashutosh Gupta and Sri R.K. Ojha have appeared for the petitioners, namely the candidates whose promotions have been cancelled in Writ Petition Nos. 6361 of 2008, 7042 of 2008, 23891 of 2008 and 56143 of 2007. Sri H.R. Mishra learned Senior Counsel assisted by Sri Ramesh Rai has appeared for the superseded Lekhpals who are the petitioners in Writ Petition No. 53240 of 2007 and the respondents in all the other writ petitions. Learned Standing Counsel has been heard on behalf of the State.
As noted above the genesis of the dispute lies in the procedure adopted by the Selection Committees in all the three districts of Kushinagar, Deoria and Basti while proceeding to consider the promotion from the post of Lekhpal to Assistant Registrar Kanungo/Registrar Kanungo. It may be noted that the cadre of Registrar Kanungo and Assistant Registrar Kanungo has been merged into one with effect from 22.2.1995. The Rules as noted above and applicable to the controversy are Rule 7 and Rule 8 of the 1958 Rules which are quoted below:
7- HkrhZ ds lzksr %& jftLVz~kj dkuwuxks dh dksfV esa HkrhZ LFkk;h lgk;d jftLVz~kj dkuwuxks dh] ftudh de ls de rhu o"k dh lsok gks xbZ gks] inksUufr }kjk dh tk;sxh vkSj lgk;d jftLV~zkj dkuwuxks dh dksfV esa HkrhZ de ls de 6 o"kksZ dh lsok okys ys[kikyksa dh inksUufr }kjk dh tk;sxhA [foKfIr la0 4928@1&[k 1099&[k&54] fnuakd fnlEcj 17] 1962 }kjk c<k;k x;k] ] fVIi.kh %& ,slk Hkwy[s k fujh{kd Hkh tks viuh nh?kZ vk;q vFkok fucZyrk ds dkj.k Hkwy[s k fujh{kd ds {ks= ds dk;Z djus ds fy;s vuqi;qDr gks] jftLV~zkj dkuwuxks ds in ij fu;qfDr ds fy;s ik= le>k tk;sxkA 8- HkrhZ djus dh iz.kkyh%& 1- fu;e 7 ds v/khu fd;s x;s jftLVz~kj dkuwuxks dh HkrhZ ds izk;kstuksa ds fy, p;u ,sls LFkk;h lgk;d jftLV~zkj dkuwuxks vkSj ys[kikyksa essa ls HkrhZ fd;s x;s Hkwy[k fyfid ess ls T;s"Brk ds vk/kkj ij fd;k tk;xk] ftudh ml o"kZ dh igyh tuojh dks ftlesa p;u fd;k tk;] rhu o"kksZ dh lsok iwjh gks x;h gks] fdUrq vuqi;qDr O;fDr;ksa dks ugha fy;k tk;xkA [foKfIrla0 4928@1&[k 1099&[k&54] fnuakd fnlEcj 17] 1962 ls dks"Bd ds chp ds 'kCn c<k;k x;k] 1- v- LFkk;h lgk;d jftLV~zkj dkuwuxksvksa vkSj ys[kikyksa esa ls HkrhZ fd;s x;s Hkwy[s k fyfidksa dh ,d la;qDr lwph vius ewy inksa ij LFkk;hdj.k ds fnukad ds vqulkj jftLV~zkj dkuwuxksa ds in ij muds p;u fd;s tkus ds mn~ns'; ls la'kksf/kr dh tk;sxh] ijUrq ;fn] nks ekeyksa esa LFkk;hdj.k dk fnukad ,d gh gks rks T;s"Brk mudh ys[kiky 5 in ij ekSfyd fu;qfDr ds fnukad ds vuqlkj fu/kkZfjr dh tkosxh] vkSj ;fn mudh ekSfyd fu;qfDr dk fnukad Hkh ,d gh gks rks mudh T;s"Brk mudh vk;q ds vuqlkj vo/kkfjr dh tk;sxhA
(ii)(v) lgk;d jftLV~zkj dkuwuxksvksa dh HkrhZ ds iz;kstuksa ds fy, mu ys[kikyksa esa ls tks bl mi&fu;e ds [k.M [k ds v/khu ukekafdr fd;s x;s gksa] T;s"Brk ds vk/kkj ij p;u fd;k tk;xk] fdUrq vuqi;qDr O;fDr;ksa dks ugha fy;k tk;xkA fVIi.kh %& ,slk vH;FkhZ tks vuqi;qDr gksus ds dkj.k u fy;k tk;] dsoy mlh volj ds fy, vuqi;qDr le>k tk;xk vkSj ckj dks fd;s tkus okys izR;sd p;u esa mlds izlx a esa lE;d :i ls fopkj fd;k tk;sxkA
(c) dysDVj izR;sd o"kZ flrEcj esa] lgk;d jftLVz~kj dkuwuxks dh ftys dh dksfV esa gksus okyh fjfDr;ksa dh yxHkx la[;k ekywe djsxk vkSj vius ftys ds izR;sd ijxuk vf/kdkjh ls] 'khrdkyhu nkSjs ds i'pkr ,sls dqN ys[kikyksa dks] ftudh la[;k og fuf'pr djsxk] ukekafdr djus ds fy, dgsxk] ftUgksuas ys[kiky ds :i esa ml o"kZ dh] ftlesa ukekadu fd;k tk;] igyh tuojh dks de ls de 6 o"kksZa dh lsok iwjh dj yh gS] jkT; dh twfu;j ;k gkbZ Ldwy ijh{kk @vaxszth ds lkFk ;k mlds led{k ;k mlls mWaph ijh{kk mRrh.kZ dh gks] ftudh vk;q ml o"kZ dh] ftlesa ukekadu fd;k tk;] igyh tuojh dks 35 o"kZ ls vf/kd u gks] vkSj tks lgk;d jftLV~zkj dkuwuxks ds in ij mUufr ikus ds fy, mi;qDr le>s tk;sa] fdUrq izfrcU/k ;g gS fd mu O;fDr;ksa dks izkFkfedrk nh tk;xh] ftudh f'k{kk lEcU/kh ;ksX;rk,a vkSj lsok ys[kk vf/kd vPNk gksxkA [foKfIr la0 4928@1&[k 1099&[k&54] fnuakd fnlEcj 17] 1962 }kjk la'kksf/kr]
(l) dysDVj [k.M ([k) ds v/khu ukekafdr lHkh vH;fFkZ;ksa ds izlax ij fopkj djsxk vkSj vius foosd ls muesa ls mrus O;fDr;ksa ls] ftUgsa og vko';d le>s ftys ds eq[;kokl ij lk{kkRdkj djsxkA
(n) inksUufr ds fy, vH;fFkZ;ksa dk p;u djusa esa fuEufyf[kr ckrksa dks /;ku esa j[kk tk;xk %& 1- iwoZ lsok dk fooj.k] 2- lR;fu"Bk] 3- pfj=] vkSj 4- cqf) oSHko (intelligence) vkSj ;ksX;rk] fdUrq izkFkfedrk mu O;fDr;ksa dks nh tk;xh] ftudh f'k{kk lEcU/kh ;ksX;rk;sa vkSj lsok ys[kk vf/kd vPNk gksA (;) dysDVj mu ys[kikyksa ds ukeksa dh lwph rS;kj djsxk ftudks mlus inksUufr ds fy, pqu fy;k gksA mDr lwph esa vH;fFkZ;ksa dh la[;k fuEufyf[kr [k.M p esa crk;s gq, :i esa j[kkh tk;xh%& (Q) mi;qZDr [k.M (;) ds v/kkhu pqus gq, ys[kikyksa ds uke ml lwph esa p<~k;s tk;saxs tks dysDVj vius ftys ds fy, j[krk gSA lwphxr vH;fFkZ;ksa ds uke muds p;u ds fnukad ds vuqlkj j[ks tk;saxs] fdUrq izfrcU/k ;g gS fd ,d gh fnukad ij pqus ys[kikyksa ds ikjLifjd uke p;u ds iwoZ muds ewy osru ds vuqlkj j[ks tk;sax]s vkSj ;fn muds osru cjkcj gksa rks mudh lsok dh nh?kZdkyhurk ds vuqlkj j[ks tk;saxsA mDr lwph esa ys[kikyksa dh la[;k mu fjfDr;ksa dh la[;k dh yxHkx nks frgkbZ gksxh ftudh ftys ds lgk;d jftLV~zZkj dkuwuxksvksa dh dksfV (cadre) esa rhu o"kZ dh vof/k esa gksus 6 dh lEHkkouk gS] fdUrq ftys ds fy, Lohd`r lgk;d jftLVz~kj dkuwuxksvksa dh la[;k dh nks frgkbZ ls de ugha gksxhA The said rules therefore provide a criteria of seniority subject to the elimination of unfit. The assessment for promotion or rejection has to be made keeping in mind the indicators as noticed in rules and marked in bold. An interview is also contemplated to be conducted by the appointing authority.
The submission of Sri Shashi Nandan learned Senior Counsel and Sri R.K. Ojha rests on the provisions of Rule 8 in relation to the criteria referred to therein for assessing the unfitness of the candidate. The learned counsels contend that the indicators given therein to be kept in mind at the time of the consideration of the fitness or otherwise of the candidates, leave no room for doubt that an assessment has to be made which would ultimately result in a comparative assessment of all the nominated candidates for consideration. They submit that the said criteria of assessment of fitness has to be navigated in a manner which may appear to be a reasonable assessment or else the said indicators would become redundant and the process of Interview would become a mere formality and to put it more appropriately would be an empty formality. Learned counsel contend that the said criteria which has been indicated in the shape of past service record, integrity, character, intelligence and preference to educational qualifications and performance are all indicators of merit and therefore, the Rule of Seniority subject to rejection of unfit is clearly tailored in a manner that the selection committee has to assess the comparative merit of the candidates. They submit that even though the substantive rule, if read in isolation, would indicate consideration of unfitness only, yet on a combined reading of the substantive rule and the criteria indicated therein obliges the selection committee to cumulatively assess the candidature of the Lekhpals on a comparative merit basis. The argument therefore is that even though the rule is couched in a way that on first impression it only recites seniority subject to rejection of unfit, yet a conjoint reading of the entire procedure indicates an assessment on the basis of a comparative performance appraisal of all the candidates through an Interview which inheres in itself the consideration of merit.
Learned counsel relying on the decision in the case of Sr. Jagathigowda. C.N. and others Vs. Chairman Cauvery Gramina Bank and others, reported in AIR 1996 Supreme Court 2733 contend that the rules have to be interpreted so as to take into consideration the entire performance appraisal to find out the most suitable candidate for promotion, and which in their submission, is a cumulative assessment of the comparative performance of the candidates for which the selection committees in all the cases had adopted a rational criteria of awarding marks on separate heads. They submit that the test to determine the criteria is to conjointly read the entire rule which would reflect that primacy has to be given to a better candidate as against those who are less meritorious on a comparative assessment.
While advancing submissions learned counsel have also brought to the notice of the Court the decisions in relation to the interpretation of 7 the rules relating to seniority-cum-merit and merit-cum-seniority or seniority-cum-suitability as rendered by the Apex Court. Reference be had to the decisions in the case of B.V. Sivaiah Vs. K. Addanki Babu reported in (1998) Vol.6 SCC Pg. 720, Bhagwandas Tiwari Vs. Dewas Shajapur Kshetriya Gramin Bank reported in (2006) Vol.12 SCC 574, K. Samantaray Vs. National Insurance Co. Ltd. Reported in (2004) Vol. 9 SCC Pg. 286, Rajendra Kumar Srivastava and others Vs. Samyut Kshetriya Gramin Bank and others reported in (2010) Vol. 1 SCC Pg. 335, Ruparani Rakshit and others Vs. Jharkhand Gramin Bank and others reported in 2010 Vol. (1) ESC Pg.104 (SC).
Another decision which has been brought to the notice of the Court in relation to a pronouncement on the rule of seniority subject to rejection of unfit is the case of Union of India V. Lt. General Rajednra Singh Kadyan and another, reported in (2000) Vol. 6 Supreme Court Cases Pg. 698.
Sri H.R. Mishra learned Senior Counsel opposes the aforesaid submissions and relying on the very same judgments as noted herein above contends that the rule cannot be interpreted in a way so as to make merit a predominant factor and reduce the criteria of seniority to a nullity. He submits that in the event the interpretation as suggested by the learned counsels aforesaid is accepted then the rule of seniority subject to rejection of unfit would be converted into a rule of merit- cum-seniority. He contends that this would be rewriting the rule by adopting a converse method of interpretation which is not the intention of the rule making authority. He submits that it is for this reason that the Board of Revenue in its direction dated 4th October, 2007 clarified the issue and called upon the District Magistrates of all the three districts to review the promotions which have been made, and to carry out the selections afresh in the light of the 1958 Rules as amended in 1962. He further submits that by adopting the criteria of awarding marks and then calculating the merit, is introducing a new method to upturn the intention of the rule of seniority which is predominantly reflected in the rule itself. He submits that the District Magistrates of all the three districts and the selection committees have violated the aforesaid rule and therefore, the Board of Revenue rightly assessing the said violation issued necessary directions for selections only in accordance with seniority subject to rejection of unfitness with a rider that the screening committee shall indicate reasons for unfitness of each individual candidate.
The learned Standing Counsel has adopted the later stand taken by the Board of Revenue in the order dated 4.10.2007 even though a contrary stand had been taken in the counter affidavits filed in relation to the district of Basti in Writ Petition No. 45911 of 2007 and 45912 of 2007. He submits that the error of procedure has been rectified and accordingly the promotions have to be made in terms of the directives issued by the Board of Revenue.
The thrust of the submissions of Sri Shashi Nandan and Sri Ojha to the effect, that there has to be necessarily an assessment on a comparative basis to adjudge fitness, needs to be examined first. Their 8 contention is that the rule if read in a wholesome manner would leave no room for doubt that it requires an assessment on merits. This would require a structural analysis of the rule which according to them is peculiar in nature so as to place efficiency and merit in prominence as against pure seniority itself.
The rule in its raw form provides that promotion has to be made from amongst the feeder cadre of lekhpals. Thus, the appointment to the post of Assistant Registrar Kanungo/Registrar Kanungo has to be made by promotion alone. The source of land records clerk was also included for the purpose of promotion and a joint list was to be prepared as contained in Rule 8 from which the Collector of the District in every September would notify the possible nature of vacancies for promotion, and then during the inspection tour of every winters, a list would be prepared for promotion from amongst those candidates who may be found suitable for being nominated. In the list to be prepared by the Collector preference was to be given to the candidates in accordance with their educational qualifications and good service records.
The second part of the rule is that the promotion shall be made from amongst such nominated candidates on the basis of seniority but the unfit would stand rejected. The power is therefore to reject an unfit candidate meaning thereby the said rule substantively means "Seniority Subject to Rejection of Unfit". The Collector applying the said rule would exercise his discretion and call for interview the candidates out of the said nominated pool of lekhpals. However while proceeding to select a candidate for being promoted, there is a list of criteria indicated which has to be kept into mind while processing a candidature. The said criterion includes four elements namely (i) past service record (ii) integrity (iii) character and (iv) intelligence and capability, but preference would be given to those who have very good educational qualifications and service record. This rule with the aforesaid ingredients engrained in the rules would therefore demonstrate that seniority will be the dominant factor subject to the assessment of fitness of a candidate to be assessed in the manner indicated herein above.
The question is therefore do these rules provide for the assessment in a way so as to select the most meritorious from amongst those who are found to be fit?
In the case of District Kushinagar the criteria adopted has been indicated in Annexure-5 to the supplementary affidavit by awarding marks in accordance with character roll entries of previous five years and the adverse entries awarded in the past ten years. The formula provided is that for extraordinary services four marks would be awarded each year, similarly for excellent, very good and good entries three marks would be awarded and for satisfactory and average performance two marks would be awarded. With regard to adverse entries four marks would be deducted for each adverse entry, and for five or more than five adverse entries, twenty marks would be deducted.
A similar pattern was adopted while proceeding to hold selections in the District of Deoria which is evident from the supplementary affidavit filed in Writ Petition No. 7042 of 2008.
9In the matter relating to District of Basti marks were awarded on the basis of educational qualification and a writing test to be calculated out of sixty marks and 10 marks were allocated for interview. Thus, the criteria adopted in all the districts was on the basis of marks and merit was prepared accordingly.
The question is as to whether the aforesaid allocation of marks and preparation of merit conforms to the criteria of the rule as indicated herein above. Learned counsel contends that this was a reasonable and appropriate criteria to assess the ingredients aforesaid and once the candidates are within the seniority and zone of consideration to be nominated by the Collector, then they can be eliminated by securing the fittest of the candidates from amongst those who have been assessed. It is in the aforesaid background that the real intention of the rule has to be gathered.
To my mind the aforesaid criteria for allotting marks and preparing a merit list would clearly amount to adopting the procedure of merit as a pre-dominant factor which would be a converse application of the rule. The rule in my opinion allows the authority to promote on the basis of seniority after assessing the fitness of each individual candidate and it does not demand any comparative assessment. The adjective of fitness does not mean the fittest out of the lot. It means the minimum of fitness that is necessary for occupying the post.
Fitness also means free from any ailment, abnormal condition or deficiency. It is distinct from something like very healthy or excellent physique. Similarly a normal working person can also be fit even though he may not be an intellectual of the highest order. It is therefore a normal level of behavioural characteristic which need not be exceptional. Adjustability and compatibility are also traits of fitness. The suitability in a given condition would be the measure of fitness. In the instant case a befitting candidate as against the nature of the post and its responsibilities will have to be assessed accordingly. This would be an individual capability assessment without comparing it with anybody higher or lower in merit. The scrutiny should be like an athelete in good form who need not be compared with a champion. The accomplishments of a fit candidate that reflects a perception of his being suited to occupy the post should be the guage for consideration within the parameters as engrained in the rules. A personality, like that of a good tailored suit, not necessarily of the best dress material or designer tailored, can be termed as a fit personality presentable enough commensurate to the post. A cowl may not make the monk, nor the rags may necessarily depict a beggar. Unfitness lies in the incapability of a person to submit to the occasion and one who is not possessed of the basic talents to hold the post, to be judged of course within the parameters prescribed and not through sheer calculations. Lack or want of fitness would be something like unripe, unhardened or someone unbecoming. Fitness in the context of the present rule would be the minimum required level of fitness about which the appointing authority has not framed any parameters and has drawn the merit on the basis of maximum marks. The authority therefore has put aside seniority showing it the minimum of respect on the altar of maximum merit.
10The intention of the rule can be gathered from the fact that the post is a promotional post and not a selection post. The promotion has to be made after a screening through interview. But reading it cumulatively the rule does not spell out merit to be predominantly the criteria for such screening. It does not say that the best or the most meritorious has to be promoted. The rule clearly says that unfit persons have to be eliminated. Thus, a minimum suitability criteria in view of the ingredients in the rule can be adopted but in the instant case the appointing authority has adopted the criteria of awarding marks and then selecting the most meritorious of the candidates. This in my opinion is not the requirement of the rule for screening out candidates. The interview provided may require a subjective assessment of the personality of a candidate coupled with his performance but the candidate possessing the best appraisal cannot supersede a senior candidate who achieves the minimum level of performance for being promoted. The rule does not say that only those who are the best in performance and efficiency have to be picked and chosen on the strength of their merit alone. Had this been the intention, the rule would have been otherwise. The decision relied upon in the case of Jagathigowda. C.N. Vs. Chairman, Cauvery Gramina Bank (supra) was a matter where the rule was seniority-cum-merit. The word "merit" therefore was interpreted to mean a cumulative assessment of the performance appraisal of the candidate. In the instant case the rule is seniority subject to the elimination of unfit. The rule being different and the words having been used differently the said judgment therefore would not come to the aid of the such of the petitioners who are claiming promotion through an assessment on merits.
A rule which does not include the primacy of merit would not necessarily mean that merit has been given a go-bye. Seniority gets an upper berth with the minimum of merit. The criteria adopted in the present case is to reject seniority at the hands of the best and meritorious. This is not a race where the one to stand first can be the only winner. The promotion is, as if from a lower class to a higher class, where students getting the minimum of pass marks are entitled to a seat in the promoted class. This assessment presupposes that on promotion the candidate will be able to sail through higher responsibilities. Fitness may require the assessment of elementary capabilities to handle the responsibility of the higher post. Unfitness means lacking in quality needed to handle the post.
It is for this reason that the Board of Revenue in its direction dated 4.10.2007 has also called upon the authority to record reasons for each individual candidate as to why he is unfit in case of rejection. The promotion is to be on the basis of individual assessment through an interview and not by comparative assessment of merits to be mathematically determined. The scrutiny of merit gets rigorous even in rules relating to seniority-cum-merit when it comes to appointment on posts of sensitive and responsible nature. Such is not the indication here and therefore such priority to merit cannot be read into the rules as it would be legislating a new rule altogether. The criteria already fixed takes care of the situation and any addition or alteration can be attempted by the rule making authority only.
11Mr. Shashi Nandan is right when he contends that in order to assess the candidature, the screening body, headed by the appointing authority in the present case, can formulate a method to assess the capacity, capability and suitability of the person or persons seeking promotion. But that would not allow an altogether new potion to be imposed upon so that seniority becomes redundant.
The authorities are not handcuffed in some water-tight compartment but the freedom of choice is subject to seniority. The rule of seniority cannot be shackled in a way to suffocate its applicability as desired under the rule. The play in joints for assessing a sufficiently able person on the basis of his past performance does not mean that even a junior person, whose performance might be excellent, can bypass the seniority rule by converting fitness into a rule of highest merit. The method of awarding marks as noted above is clearly designed to shut out candidates by calculation. The award of 4 marks to every adverse entry brings about a deduction in the nature of negative marking to reduce the marks awarded against good entries which appears to be disproportionate and imbalanced. This is not a method that can be termed to be a method to calculate fitness or minimum merit. The method adopted has clearly outclassed seniors to accommodate juniors on the basis of graded merit. The award of marks has ended up in a miscalculation by adopting a wrong criteria of assessment against the rules.
It is not the case of the parties that the nature of the duties and responsibilities of the promotional post are such that merit alone should be predominantly the method to assess the capability of a candidate. There is no foundation laid in this regard nor any such facts have been pleaded that would raise an issue on this score to be decided.
Coming to the ingredients already provided for in the rule, character, integrity and intelligence to be assessed in an interview are almost subjective in nature even though grades of assessment may include award of marks as well. To assess fitness on the aforesaid basis one can say that integrity has to be of the highest order as it connotes uprightness free from corruption. It is reflected in a man's functioning uniformly in a fair and square manner. Honesty, probity and rectitude should be reflected in the character of a person. A man's reputation is the opinion people have of him; his character is what he really is (Jack Miner). This is a much higher thing to assess than award of marks which denotes quantity and not quality. The intelligence of an individual can be assessed by understanding his critical, creative and contemplative side of mind. If the mind is basically conceptual and analytical a person can be said to be possessed of basic intelligence.
Subjectively, in the words of F. Scott Fitzgerald " The test of a first- rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function". (1896-1940: in Esquire February 1936, 'The Crack-Up') Its basic quality has been expressed succinctly as "Intelligence is quickness to apprehend as distinct from ability, which is capacity 12 to act wisely on the thing apprehended". (Alfred North Whitehead 1861-1947: Dialogues (1954) 15 December 1939) The requirement in the present case is not of extraordinary intellect keeping in view the nature of the post which is the first wrung on the ladder of promotion, from Lekhpal to Assistant Registrar Kanungo/Registrar Kanungo.
In order to further clarify the situation a reference may be made to the other judgments cited at the bar in the case of R.K. Srivastava Vs. S.K. Gramina Bank, reported in 2010 (1) SCC Pg. 335 the consideration was the rule of seniority-cum-merit. Relying on the judgments in the case of B.V. Sivaiah Vs. K. Addanki Babu, reported in 1998 (6) SCC Pg. 720 and other decisions, the Apex Court came to the conclusion that even where the rule is seniority-cum-merit it is the minimum merit necessary for the post that has to be assessed either by subjecting the candidates to a written examination or an interview or by assessment of the other work performance during the previous years or by a combination of either two or of the three methods. It was also indicated that there is no hard and fast rule as to how the minimum merit is to be ascertained but so long as the ultimate promotions are based on seniority, any process for ascertaining the minimum necessary merit as a basic requirement would be in accordance with the principles of seniority-cum-merit.
In the instant case the rule is of seniority subject to rejection of unfit. Even applying the aforesaid principles which was in the case of seniority-cum-merit it is evident that the minimum necessary capacity to occupy the post would be the criteria for assessment as a basic requirement under the said rule. The criteria which has been adopted in all the three districts is just to the converse and therefore, the rule in my opinion, has been violated in the present case.
The other judgments in the case of Ruparani Rakshit and others Vs. Jharkhand Gramin Bank and others, reported in 2010 Vol. (1) ESC Pg. 104 (SC) reiterates the same position and upholds the view taken by a Full Bench judgment of the Patna High Court in the case of Ranchi Kshetriya Bank Vs. D.P. Singh, reported in 2000 (1) PLJR Pg. 251 holding that promotion of persons with reference to merit, that is, promoting those who secured highest marks in the list of eligible candidates was contrary to the principle of seniority-cum-merit. This according to the Apex Court as indicated in the case of R. K. Srivastava (supra) would offend the rule of seniority-cum-merit which requires an assessment only on the basis of minimum necessary merit and not the highest merit.
The case which is however closest to the present controversy in the matter of assessing the nature of the rule is the decision in the case of Union of India Vs. Lt. General Rajendra Singh Kadyan and another, reported in (2000) Vol. 6 SCC Pg. 698. This was a matter in relation to the post of an Army Commander from the post of the Lt. General. The first enunciation made by the Apex Court in the said case was that the post, even though was to be filled up by way of promotion, was a selection post. The Court therefore went on to indicate that in such 13 matters the rule has to be taken notice of keeping in view the nature of the post and requirements of the service. The rule which was under
consideration therein was "the Officer should be fit in every respect for appointment" . This was qualified by another clause, which is in the shape of indicator, that the post was a selection post. Accordingly, the Apex Court came to the conclusion that the same would mean fitness in all respects. This according to the Apex Court would not merely mean that the candidates should be physically or mentally fit but he should be fit in every other respect. It was held that the post being a selection post the word fitness has to be construed accordingly. The opinion therefore went in favour of the employer namely the Union Government which had chosen to eliminate the respondent therein on the said criteria.
However, while proceeding to assess the criteria which has to be adopted in a given set of rules the Apex Court in Paragraphs 11 and 12 held as follows:
11.The hierarchy in the Army and the method of selection and promotion to various posts starting from the post of Lieutenant and going up to the post of the Chief of the Army Staff will clearly indicate that the posts of Lieutenant, Captain and Major are automatic promotion posts on passing the promotion examination irrespective of inter-se merit, whereas the posts from Major to Lt.
Colonel, Lt. Colonel to Colonel, Colonel to Brigadier, Brigadier to Major General and Major General to Lt. General are all selection posts filled up by promotion on the basis of relative merit assessed by the designated Selection Boards. From Lt. General (Corps Commander) to Army Commander is a non-selection post to which promotion is made subject to fitness. It is a promotion subject to fitness in all respects, although the rank remains the same. From the post of Army Commander to that of the Chief of the Army Staff, it is by promotion for which no specific criteria have been laid down. There have been precedents where the senior most Army Commanders have not been appointed as the Chief of the Army Staff. Selection implies the right of rejection depending upon the criteria prescribed. Selection for promotion is based on different criteria depending upon the nature of the post and requirements of the service. Such criteria fall into three categories, namely,
1. Seniority cum-fitness,
2. seniority-cum-merit,
3. merit-cum-suitability with due regard to seniority.
1. Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "Seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement of the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-
14merit. Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion to All-India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them.
Applying the aforesaid ratio also to the nature of the rule as involved herein it would be difficult to hold that the person having the highest merit upon a calculation on the basis of marks as done in the present case would be a valid criteria. The appointing authorities in all the three districts have adopted the converse method of calculating the merit of the respective candidates and then promoting them in accordance with the highest marks obtained by them. This in my considered opinion is a reverse procedure adopted to upturn the rule of seniority and make a selection on the basis of merit alone. The selections therefore were rightly directed to be cancelled by the Board of Revenue through its order dated 4.10.2007. The Commissioner of the Gorakhpur Division therefore was right in issuing directions for cancelling the selections.
The discussions hereinabove and the conclusions drawn satisfy the tests of the rule of purposive interpretation, the object and purpose of the rule being to select the able and not only the ablest on merit.
The question now that has to be seen is as to what relief has to be granted in view of the conclusions drawn herein above. It is correct that the District Magistrate of all the three districts have proceeded to cancel the selections on the directions of the Board of Revenue and the order of the Commissioner. This has been ultimately done without any notice or opportunity to those candidates who were granted promotion. However, in view of what has been stated above and there being no other disputed question of fact involved it would be futile to remit the matter back to the appointing authority namely the District Magistrate for any decision in this regard. As a matter of fact once it is held that the selections were in violation of the rules then the only option left is to issue a direction to the authorities to proceed to hold a fresh assessment of the eligible candidates for promotion in accordance with the rules and the directives issued by the Board of Revenue on 4.10.2007.
Accordingly, the selections under scrutiny are held to be a nullity and the District Magistrates of Kushinagar, Deoria and Basti are hereby directed to hold a fresh screening in accordance with 1958 Rules and the directions of the Board of Revenue dated 4.10.2007 within a period of three months from the date of production of a certified copy of this order before them.
Consequently Writ Petitions No. 6361 of 2008, 7042 of 2008, 23891 of 2008 and 56143 of 2007 are dismissed. Writ Petition No. 53240 of 2007 is disposed of accordingly.
The interim orders if any stand discharged. No order as to costs.
Dated: 27 July, 2010 Sahu