Madhya Pradesh High Court
Dr. R.S. Mehta vs State Of M.P. And 3 Ors. on 6 February, 2008
Author: R.K. Gupta
Bench: R.K. Gupta
ORDER R.K. Gupta, J.
1. The present petition is filed by the petitioner challenging the order dated 23.9.2000 (Annexure A-10) and order dated 29.5.2000 (Annexure A-12). By these two orders the respondents have promoted the respondents 3 and 4 as Superintending Geologist in the Directorate of Geology and Mining. The petitioner has contended that he is more meritorious than the respondents 3 and 4 and yet the claim of the petitioner has been ignored.
2. The facts leading to the present petition are that the petitioner as well as the respondents 3 and 4 were working as Deputy Director (Tech.), which is the feeder post for getting promotion to the post of Superintending Geologist. It is also not in dispute that the petitioner as well as respondents 3 & 4 were eligible to be considered for their promotion to the post of Superintending Geologist.
3. The matter with regard to promotion on the post of Superintending Geologist is regulated by the rules framed by the State Government known as Madhya Pradesh Geology and Mining Class-I and Class-II Service Recruitment Rules, 1965 (hereinafter referred to as "the Rules"). The Rule 14 of the Rules provides for appointment by promotion and accordingly the promotion is to be regulated by applying the rule of "merit-cum-seniority". This is also not in dispute between the parties.
4. In accordance with the aforesaid Rules, the first DPC met on 21.7.2000 to regulate the promotion on the post of Superintending Geologist and accordingly the order of promotion was passed, which is Annexure A-10 to the petition. By this order the petitioner was not promoted and the respondent No. 4 was promoted to the said post. The minutes of the Departmental Promotion Committee (hereinafter referred to as "the DPC") were made available to this Court and the DPC considered the case of the petitioner as well as respondent No. 4 and other officers. The said committee further considered the confidential reports for the preceding five years i.e. from 1994-95 to 1998-99. According to the chart submitted before this Court, the grading of the confidential reports in respect of the petitioner Dr. R.S. Mehta, respondent No. 4 Shri R.K. Sharma, Shri A.M. Vivarekar (petitioner in W.P. No. 7700/2003), Shri S.K. Trivedi (respondent No. 3 in W.P. No. 7700/2003) and one Shri S.C. Tandan, who was at serial No. 1 are as under:
Year 1994-95 1995-96 1996-97 1997-98 1998-99 Petitioner Ka+ Ka+ Ka+ Ka Ka Respondent No. 4 Ka Ka+ Ka+ Ka+ Ka+ Shri A.M. Vivarekar Ka Kha Kha Ka+ Ka+ Shri S.K. Trivedi Kha Ka+ Kha Kha Kha Shri S.C. Tandan Kha Kha Ka Kha Kha
5. On the basis of the aforesaid, since the respondent No. 4, according to the DPC, was found to be more meritorious as he secured 19 marks, therefore, he was promoted and petitioner was not promoted. In the DPC dated 21.7.2000 the respondent No. 3 was not found fit and was not promoted. The order Annexure A-10 by which the promotions were affected, was challenged by one of the incumbents namely Shri A.M. Vivarekar by filing an original application before the State Administrative Tribunal, which was registered as O.A. No. 2332/2000 (A.M. Vivarekar v. State of M.P. and Ors.). Subsequently, after abolition of the aforesaid Tribunal, the case was transferred to the Indore Bench and it was registered as W.P. No. 7700/2003. The said petition was decided by the Indore Bench of this Court on 14.12.2005. Copy of the said judgment is placed on record by the petitioner along with the application for urgent hearing.
6. As it is evident from the judgment passed by the Indore Bench of this Court, the Indore Bench concluded that the DPC has effected promotion by applying the wrong Rule of 'Seniority cum Merit' and the Rule of 'Merit cum Seniority' has not been applied. The Indore Bench has further recorded a finding in para-5 of its judgment that even though the petitioner in that petition secured 16 marks yet he was not promoted. It was also stated that no specific reasons were assigned by the DPC with regard to non-promotion of Shri A.M. Vivarekar and on that basis the Indore Bench of this Court allowed the said writ petition and further directed the respondents to issue promotion order of the said petitioner from the date when the other respondents were promoted vide order dated 23.9.2000. The Indore Bench of this Court further directed to assign seniority to the said petitioner above the respondents. The judgment passed by the Indore Bench in the case of A.M. Vivarekar (supra) has also attained finality, as it has been upheld by the Apex Court.
7. On the basis of the assessment of the DPC which met on 21.7.2000, this Court has already concluded that the Rule which was applicable for promotion was the 'merit-cum-seniority' has not been applied and the promotions have been effected by applying the rule of 'seniority-cum-merit'. The Indore Bench of this Court in the case of A.M. Vivarekar (supra) has further concluded that the petitioner therein secured 16 marks and yet he was not promoted, therefore, a direction as such was given to promote the petitioner therein.
8. The following criteria was fixed by the DPC which met on 21.7.2000:
(a) The integrity of the employee would be unblemished,
(b) There should not be any CR entry for the last five years as "Gha"
(c) usually the last five years of CRs entries would be generally good and last 2 years entries must be good.
9. The DPC assigned marks to the employees on the basis of grading of CRs which are as under:
A plus : 4 Ka : 3 Kha : 2 Ga : 1
10. I have already referred to hereinabove that the petitioner secured total 18 marks, which are more marks than 16 which Shri A.M. Vivarekar secured, who was petitioner in W.P. No. 7700/2003 (supra) before the Indore Bench of this Court and he was directed to be promoted.
11. Learned Counsel for the petitioner submitted that once the Indore Bench has already given a direction to give promotion to Shri A.M. Vivarekar, who secured 16 marks in the same DPC wherein the petitioner herein secured 18 marks, which is also not disputed by the respondents, therefore, the present petitioner is also entitled to be given the benefit of promotion by applying the ratio of the judgment passed by the Indore Bench of this Court in the case of A.M. Vivarekar (supra).
12. The submissions as put forth by the parties are considered. It is true that the Indore Bench while deciding the case of A.M. Vivarekar (supra) has already recorded a finding that he was allotted total 16 marks by the DPC which met on 21.7.2000 and in the same DPC the present petitioner has been given total 18 marks, which are on higher side than Shri A.M. Vivarekar. The respondents should have taken into account that when a candidate namely Shri A.M. Vivarekar, who had secured 16 marks, has been promoted then the petitioner who secured more marks than him should also have been promoted. The petitioner has been promoted by an order dated 8.2.2007 on the said post and in the case of the petitioner the judgment passed by the Indore Bench in the case of A.M. Vivarekar (supra) has not been made applicable. Thus, according to me, the present petitioner is also entitled to be given the benefit of his promotion on the post of Superintending Geologist, as the petitioner was wrongly deprived of his promotion. Accordingly, I direct the respondents to release the promotion to the petitioner from 23.9.2000 along with all monetary benefits. The State Government is further directed to determine the inter se seniority of the petitioner and also the persons those who were promoted vide order dated 23.9.2000 on the post of Superintending Geologist in accordance with the rules applicable for determination of seniority in accordance with law. The respondents have acted unfairly with the petitioner by not giving him promotion and only giving promotion to the person who secured less marks.
13. Though it was not necessary for me to decide the present case with reference to the second grievance of the petitioner with regard to the DPC dated 13.5.2002 wherein the respondent No. 3 was promoted to the post of Superintending Geologist. In the said DPC the petitioner and the respondent No. 3 both were considered. The confidential reports for the year 1996-97 to 2000-01 were considered. The minutes of the DPC have also been made available to this Court and according to the same a comparative assessment of their confidential reports is given as under:
Year 1996-97 1997-98 1998-99 1999-00 2000-01 Marks obtained in DPC Petitioner Ka+ Ka Ka Ka+ Ka+ 18 Respondent No. 3 Ka Kha Kha Kha Ka+ 13
14. The criteria for promotion was the same i.e. "merit-cumseniority" and not the "seniority-cum-merit". On the basis of the aforesaid chart, the DPC has allotted 18 marks to the petitioner and 13 marks were allotted to the respondent No. 3 in the DPC dated 13.5.2002. But, the petitioner still in this DPC dated 13.5.2002 was not given promotion and the promotion was given to the respondent No. 3 even though the respondent No. 3 was less meritorious than the petitioner and also secured less marks than the petitioner.
15. Learned Counsel appearing for the respondent No. 1-State submitted that at the time when the DPC met on 13.5.2002, the same criteria was adopted by the DPC which was applicable in the DPC held on 21.7.2000 except for that the overall generally 'good' assessment in preceding five ACRs as replaced by 'very good' and in addition to that the guidelines, which were issued by the General Administration Department on 10.9.2001 vide order Annexure A-6, were also made applicable. By issuing these guidelines, the State Government has clarified that while granting promotion from a particular block the seniority in the feeder cadre shall be taken into consideration and promotion order from the select list shall be issued on the basis of seniority in the feeder cadre. The circular also prescribes the classification of the officers to be promoted on the basis of grading (i) Excellent, (ii) Very Good, (iii) Good, (iv) Average and (v) Unfit. It is further mentioned that for promotion from class I to class I post benchmark of at least very good grading should be considered. A copy of the said circular dated 10.9.2001 has also been filed on record by the respondent-State as Annexure R-I to their return, which is also filed by petitioner as Annexure A-6. The circular as such is also reproduced hereunder:
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16. It is pertinent to note here that the circular dated 10.9.2001 (Annexure A-6/Anneuxre R-I) is the circular which has been issued to supplement the Rules which are known as M.P. Civil Services (Reservation in Promotion and Limits on the Extent of Zone of Consideration) Rules, 1997. The Preamble of the said Rules reads as under:
In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Madhya Pradesh hereby makes the following rules relating to reservation in favour of Scheduled Castes and Scheduled Tribes and to restrict the zone of consideration for promotion to the persons appointed to Public Services and posts in connection with the affairs of the State....
In this case in the Departmental Promotion Committee dated 13.5.2002 no candidate belonging to the reserved community was promoted and there was only one post.
17. On the basis of the same, the aforesaid Rules have been made applicable for the purposes of extending the zone of consideration and limit of extent of zone of consideration for promotion to the reserve category belonging to Scheduled Caste and Scheduled Tribes. Since the circular Annexure A-6/Annexure R-I has been issued to supplement the aforesaid Rules, therefore, it is difficult to conceive that the said circular would apply in the present case. It is nobody's case that either the petitioner or the respondent No. 3 are belonging to reserve category so that the circular issued by the State Government (Annexure A-6) to supplement the aforesaid Rules of 1997 would have any application. The respondents under the garb of the said circular have wrongfully deprived the petitioner from his lawful promotion to which he was entitled to. Thus, the circular Annexure A-6 would have no application in the present case so that the principles of 'enblock' as enumerated in Annexure A-6 could have been applied in this case.
18. The criteria in the present case is "merit-cum-seniority", therefore, when the merits are equal then only the question of seniority is to be determined. While determining the merit, even though the petitioner is belonging to the 'excellent' category and secured 18 marks and the respondent No. 3 secured only 13 marks then it is difficult to conceive as to how under these circumstances, the promotion of respondent No. 3 was made, who was found to be less meritorious than the petitioner. There is no dispute between the parties that the petitioner received 18 marks on the basis of his confidential reports for the years 1996-97 to 2000-01 and so far as the respondent No. 3 is concerned, he secured 13 marks. In the present case, if the rule of "merit-cum-seniority" is applied then according to the criteria the merit has to be given preference over the seniority but in the present case it is apparent that the rule of 'merit-cum-seniority' has been given a go bye and sacrificed and rule of 'seniority-cum-merit' has been applied. The justification which the State has given to place the persons is based upon the circular dated 10.9.2001 (Annexure P-6/Annexure R-I), which has no application in the present case for the reasons stated in the earlier paragraph.
19. The Apex Court in B.V. Sivaiah and Ors. v. K. Addanki Babu and Ors. has considered as to how the rule of 'seniority-cum-merit' and "merit-cum-seniority" are to be made applicable. In the facts of the case, the Apex Court was dealing with the promotion policy in the Regional Rural Banks and while considering the earlier judgments passed by the Apex Court explained the manner for the application of criteria of "senioritycum-merit" and "merit-cum-seniority" in the matter of promotions. Both these criteria cannot be equated. The comparative assessment of merit is required to be made while applying the criteria of "meritcum-seniority" and in "seniority-cum-merit" no such comparative assessment is required. The Apex Court in paras-9 and 10 of its judgment has observed that when the rule prescribes the principle/criteria to regulate promotion 'merit-cum-seniority' then greater emphasis on merit and ability has to be laid and seniority plays a less significant role. The paras 9 and 10 from the said judgment are reproduced as under:
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 (SCC p. 856, para 37) [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, para 22)
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.
10. 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) of 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 promotion". It was pointed out that where the promotion is based on 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.
20. The same analogy subsequently has also been explained and relied upon by the Apex Court in Harigovind Yadav v. Rewa Sidhi Gramin Bank and Ors. wherein the Apex Court has considered the difference between the criteria for promotion between "merit-cum-seniority" and "seniority-cum merit". The Apex Court relied upon the judgment passed in B.V. Sivaiah (supra), and thereafter decided that where the procedure adopted does not provide minimum standard for promotion and only minimum standard for interview, thus, the selection with reference to comparative merit would be contrary to the rule of "seniority-cum-merit". In this reference, paras 16 and 17 from the judgment passed in the case of Harigovind Yadav (supra) are profitably reproduced as under:
16. This Court noted that in the matter of formulation of a policy for promotion to a higher post, the two competing principles which may be taken into account are inter se seniority and comparative merit of employees who are eligible for promotion.this Court observed: (Sivaiah case, SCC p. 726, para 8):
In Sant Ram Sharma v. State of Rajasthan, this Court has pointed out that the principle of seniority ensures absolute objectivity by requiring all promotions to be made entirely on grounds of seniority and that if a post falls vacant, it is filled by the person who had served longest in the post immediately below. But the seniority system is so objective that it fails to take any account of personal merit. It is fair to every official except the best ones. An official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. The criterion of merit, on the other hand, lays stress on meritorious performance irrespective of seniority and even a person, though junior but much more meritorious than his seniors, is selected for promotion. The Court has expressed the view that there should be a correct balance between seniority and merit in a proper promotion policy. The criteria of "seniority-cum-merit" and "merit-cum-seniority" which take into account seniority as well as merit seek to achieve such a balance.
17. this Court also noted that while the principle 'seniority-cum-merit' lays greater emphasis on seniority, 'merit-cum-seniority' laid greater emphasis on merit and ability and seniority plays a less significant role, becoming relevant only when merit is approximately equal. After referring to several decisions bearing on the issue, this Court enunciated the following general principle in regard to promotions by seniority-cum-merit (at SCC P. 730 para 18) which is relied on by the appellant:
18. We thus arrive at the conclusion that the criterion of "seniority-cum-merit" in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of 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.
21. On the basis of the law explained by the Apex Court in the aforesaid two judgments, it is clear that where the rule of 'seniority cum-merit' is to be applied then minimum marks have to be prescribed and if a candidate secures the minimum merit marks then on the basis of seniority he has to be placed in the select list but when the Rule prescribes 'merit-cum-seniority' then merit and ability has to be given greater emphasis and seniority plays a less significant role. It appears that while applying the criteria of 'merit cum-seniority' in the present case, in fact, the rule of 'seniority cum-merit' has been applied and there had been no application of a rule of 'merit-cum-seniority' because the persons securing more marks are ignored and the persons with lesser marks on the basis of their seniority have been preferred.
22. The respondent No. 1 State in para-7 of its return has stated that while granting promotion from a particular block the seniority in the feeder cadre is taken into account for promotion for finding the person fit. The consideration of particular block where both the persons who secured more marks than the person who secured less marks are put in one block together and then on the basis of that block the rule of seniority is to be applied, then a person who is more meritorious shall be deprived of his promotion and the person who is less meritorious, on the basis of seniority in the block is given clearance by the DPC for his promotion. The method adopted by the respondents cannot be said to be a method which will be applicable in cases where promotion is to be effected by applying the criteria for 'merit-cum-seniority'. It may be a good method to apply the criteria for promotion where the criteria is 'seniority-cummerit'.
23. Thus, by putting the persons the persons who received higher merit in a block along with the persons those who secured less marks unduly resulted into anomalous situation to go by rule of 'merit-cum-seniority' and in fact the rule of 'seniority-cum-merit' alone is applied and not the rule of 'merit-cum-seniority'. When the Apex Court has laid down the ratio that if the criteria for promotion is 'merit-cum-seniority' then greater emphasis has to be attached to the merit of an incumbent and the merit has to be tested on the basis of total marks allotted by the DPC. There is no dispute in the present case that the petitioner has secured more marks than the respondent No. 3 but still both were put in a common block and thereafter a rule of seniority is applied. Then it is not a case where any importance has been attached to merit but the importance has been attached to the seniority, that too by applying the guidelines Annexure A-6/Annexure R-1 which have no application in the present case.
24. On the basis of my discussion as such, I am of the opinion that when the DPC met to consider the case of the petitioner on 13.5.2002, though the respondent No. 3 was senior to the petitioner but he was found to be less meritorious as he was only allotted 13 marks but the petitioner even though was junior, was found to be more meritorious as DPC admittedly awarded him 18 marks. It is difficult to digest as to how more meritorious person such as the petitioner who is junior to respondent No. 3, could have been ignored and preference was given by applying the rule of seniority- cum-merit to respondent No. 3, who was senior. It is also not a case of the respondents that the merit of the petitioner as well as respondent No. 3 were equal so that the respondent No. 3 being senior to the petitioner may get his promotion on that basis. But, I find that it is a case where the petitioner even though being junior but was more meritorious and while applying the criteria of 'meritcum-seniority' the petitioner ought to have been promoted and not the respondent No. 3.
25. On the basis of the reasoning which I have given hereinabove, it is not a case where the petitioner has been fairly treated by the respondents-State but the petitioner has been arbitrarily deprived of his promotion also in the DPC dated 13.5.2002 and accordingly I hold that the petitioner shall also be entitled to his promotion on the post of Superintending Geologist from the date the respondent No. 3 was given along with seniority and other benefits. Since I have already held earlier that the petitioner is entitled to his promotion, therefore, the respondents are directed to treat the petitioner as Superintending Geologist along with all monetary benefits with a further direction to determine the inter se seniority of the petitioner and also the persons those who were promoted vide order dated 23.9.2000 on the post of Superintending Geologist in accordance with the rules applicable for determination of seniority in accordance with law. Accordingly, the present petition stands allowed.