Punjab-Haryana High Court
Nhpc Limited And Another vs The National Hydro Electric Power ... on 19 March, 2012
Author: Mahesh Grover
Bench: Mahesh Grover
L.P.A. No. 422 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
L.P.A. No. 422 of 2010
Date of decision: 19.3.2012
NHPC Limited and another ........Appellants
Versus
The National Hydro Electric Power Corporation
Officers Association .......Respondent
CORAM:- HON'BLE MR. JUSTICE RANJAN GOGOI CHIEF JUSTICE
HON'BLE MR. JUSTICE MAHESH GROVER
Present: Mr. R.K.Malik, Sr.Advocate with
Mr.Lokesh Sinhal, Advocate
for the appellants.
Mr.Rajiv Atma Ram, Sr. Advocate with
Mr.Aman Arora, Advocate
for the respondent.
****
RANJAN GOGOI, CJ. : (Oral) This appeal is directed against the judgment and order dated 3.3.2010 passed by a learned Single Judge of this Court in a proceeding registered as CWP No.5634 of 2009. By the aforesaid order the learned Single Judge had allowed the writ petition questioning the change of policy for promotion from grade E-1 to E-5 in the appellant-Corporation sought to be effected by Memo/Notification dated 27.3.2009. The learned Single Judge further directed that a review D.P.C. should consider the issue of L.P.A. No. 422 of 2010 -2- promotion of the individual officers in the light of the policy that existed immediately before the notification dated 27.3.2009. Aggrieved by the aforesaid decision of the learned Single Judge and the consequential direction(s) issued, the Corporation is in appeal before us.
A recital of the core facts which is necessary for the purpose of present adjudication may be made at the outset :-
Promotion from grade E-1 to E-5 in the appellant-Corporation was governed by a promotion policy that came into force with effect from 1.1.1997 (hereinafter referred to as 'the old policy'). Clauses 11.1, 11.2. 11.3, 11.4, 11.5 and 11.6 of the old policy would be relevant. Shortly put the aforesaid clauses of the promotion policy contemplated promotion to the relevant categories of posts (E-1 to E-5) on the criteria of seniority subject to suitability. Selection of eligible candidates was to be made on a scale of 65 marks; 25 marks being allotted for Performance Appraisal Reports (report of each of the previous 5 years required to be considered was to be given preset marks say 5, 4, 3, etc. on the basis of the gradings recorded e.g.outstanding, very good, good etc.). The weightage for seniority was 30 marks and 5 marks were required to be given for each completed year of service. Clause 8 of the policy laid down the minimum qualifying periods of service required for being eligible for consideration for promotion to the next higher grade/post. Clause 11.6 of the policy stipulated that candidates belonging to the general category who secured 36.4 marks and those belonging to SC/ST category who had secured 31.2 marks would qualify for promotion subject to the condition that the general candidates must secure a minimum of 17 marks and in the case of SC/ST candidates 15 marks in the L.P.A. No. 422 of 2010 -3- Performance Appraisal Reports. It may be noted herein that under Clause 10.1 of the policy the Departmental Promotion Committee was also required to award upto a maximum of 10 marks to each eligible candidate by consideration of the conditions stipulated in the various sub-clauses of clause 10 of the policy.
The aforesaid policy was sought to be modified by the notification/memorandum dated 27.3.2009 without, however, causing any alteration in the criteria for promotion which continued to remain seniority subject to suitability. Under the new norms brought into force by the notification in question, the eligible candidates were to be assessed on a scale of 45 marks consisting of three segments i.e. Performance Appraisal Reports (25 marks), seniority (10 marks) and DPC recommendations (10 marks). An eligible candidate was assured of a minimum of 8 out of 10 marks for seniority. Under the new policy a minimum of 28 marks were required to be secured by a candidate under the heads of seniority and Performance Appraisal Reports. In other words, a candidate who is awarded the assured marks for seniority (8 marks) had to score a minimum of 20 marks in the Performance Appraisal Reports segment in order to be eligible for further consideration for promotion. As the total marks that will make a candidate eligible for promotion under the new policy was 36, such a candidate was required to secure atleast 8 out of 10 marks under the heading of DPC evaluation.
Having noticed the norms applicable under the old and new promotion policies, the only question that has to be answered by us is whether the new norms under the promotion policy are in departure to the L.P.A. No. 422 of 2010 -4- criteria of seniority subject to suitability or whether the same conforms to the said principle.
The answer to the above question, in our considered view, does not pose a very serious problem. Different criterion of promotion are spelt out by the service Rules or in terms of a promotion policy that an employer may have. In between the two extremes of promotion by seniority alone or pure merit there are several other criterion which effectively blends or fuses the two principles of seniority and merit e.g. seniority-cum-merit; seniority-cum-fitness; seniority subject to suitability or merit-cum-seniority and so on and so forth. Depending on the criteria to be applied, the extent to which seniority or merit will have a role to play will have to be determined. The criteria applicable in the present case is seniority subject to suitability. Suitability has to be judged by application of some amount of merit which has to be fused effectively with the seniority of an eligible candidate. The said criteria, in our considered view, is primarily a criteria of seniority where merit has a role to play though not the predominant role as in the case of the criteria of merit-cum-seniority where merit plays a predominant role and seniority takes a back seat.
Under the old policy a maximum of 30 marks had been allotted for seniority and an eligible candidate was assured of a minimum of 20 marks out of the 30. The qualifying marks that would make a candidate eligible for promotion is 36.4 marks. In other words, on the merit or suitability part he had to secure 17 marks which is stipulated in Clause 11.6 of the old policy. Primacy, therefore, was on seniority and consideration of merit was restricted to the minimum. Under the new policy out of the total L.P.A. No. 422 of 2010 -5- of 45 marks on which a candidate is to be judged or assessed, only 10 marks are earmarked for seniority out of which a candidate is assured of 8 marks. The remaining 35 marks are allotted to what is essentially a determination of merit on the basis of the Performance Appraisal Reports and evaluation by the DPC. A candidate who secures the minimum assured marks (8) for seniority had to get a minimum of 20 marks on the Performance Appraisal Reports segment of the process to qualify for the next segment. Thereafter, he has to secure 8 marks more from the DPC evaluation segment in order to secure the minimum of 36 marks that is spelt out to be the minimum necessary for a candidate to qualify for promotion. Award of 10 marks (assured 8 marks) for seniority and 35 marks to areas where merit and ability has a predominant role to play (PAR and DPC evaluation) cannot be in conformity with the criteria of seniority subject to suitability. Seniority having been assigned a minimum of 10 marks had taken a back seat and it is the merit component which has surfaced to the forefront by award of 25+10=35 marks and by the stipulation which made it necessary for a candidate to secure a minimum of 20 marks under the Performance Appraisal Reports segment and 8 marks under the DPC evaluation segment. The new policy, according to us, therefore, is not in conformity with the prescribed criteria of seniority subject to suitability and the promotions made on that basis cannot be sustained. This is precisely what the learned Single Judge has concluded. Accordingly it was directed that the promotions be redone by a review committee by applying the promotion policy as it stood immediately prior to the notification dated 27.3.2009. Such a direction was inevitable in view of the conclusions reached. L.P.A. No. 422 of 2010 -6-
For the reasons that we have indicated, we do not find any infirmity in the conclusion recorded by the learned Single Judge or the consequential direction issued. We therefore affirm the order dated 3.3.2010 passed in CWP No.5634 of 2009 and dismiss this appeal. However, in the facts and circumstances of the case we make no order as to costs.
(RANJAN GOGOI)
CHIEF JUSTICE
March 19, 2012 (MAHESH GROVER)
dss JUDGE
NOTE: Whether to be referred to the Reporter or not? _____