Bombay High Court
Shri Ishwar V. Parab & Another vs The State Of Goa Through Chief Secretary ... on 30 September, 1998
Equivalent citations: 1999(2)BOMCR581
Author: J.A. Patil
Bench: R.K. Batta, J.A. Patil
ORDER J.A. Patil, J.
1. Both the petitioners are working as Lower Division Clerks (LDC) in the office of the Inspector General of Police, State of Goa (respondent No. 2). The petitioner No. 1 is holding the said post since 30-12-87 and in the seniority list he was placed at Sr. No. 16. The petitioner No. 2 is holding the said post since 1-7-86 and in the seniority list she was placed at Sr. No. 15. As per the Recruitment Rules, the next promotional post for LDC is Upper Division Clerk (UDC) and the same is required to be filled up by promotion on selection basis. The Office Memorandum dated 26-9-90 prescribes the procedure to be followed by the Departmental Promotion Committee (DPC) for effecting promotion for selection post. Paragraph 6.3.1 of the said Memorandum provides as follows:
"The list of candidates considered by the DPC and the overall grading assigned to each candidate, would form the basis for preparation of the panel for promotion by the DPC. The following principles should be observed in the preparation of the PANEL:
"(i) Having regards to the levels of the posts to which promotions are to be made, the nature and importance of duties attached to the posts a benchmark grade would be determined for each category of posts for which promotions are to be made by selections method. For all Group C Group B and Group A posts upto (and excluding) the level of Rs. 3700-5000 excepting promotions for induction to Group A posts or services from lower groups, the benchmark would be 'Good'. All officers whose overall grading is equal to or better than the benchmark should be included in the panel for promotion to the extent of the number of vacancies. They will be arranged in the order of their inter se seniority in the lower category without reference to the overall grading obtained by each of them provided that each one of them has an overall grading equal to or better than the benchmark of 'Good'.
Wherever promotions are made for induction to Group A posts or services from lower groups, the bench marks would continue to be 'Good'. However, officer graded as 'Outstanding' would rank en bloc senior to those who are graded as 'Very Good' and officers graded as Very good would rank en bloc senior to those who are graded as 'Good' and placed in the select panel accordingly upto the number of vacancies, officers with same grading maintaining their inter se seniority in the feeder post.
(ii) In respect of all post which are in the level of Rs. 3700-5000 and above, the benchmark grade should be 'Very Good'. However, officers who are graded as "Outstanding' would rank en bloc senior to those who are graded as 'Very Good' and placed in the select panel accordingly upto the number of vacancies, officers with same grading maintaining their inter se seniority in the feeder post.
(iii) Appointment form the panel shall be made in the order of names appearing in the panel for promotions,
(iv) Where sufficient number of officers with the required benchmark grade are not available within the zone of consideration officers with the required benchmark will be placed on the panel and for the unfilled vacancies, the appointing authority should hold a fresh DPC by considering the required number officers beyond the original zone of consideration."
2. On 22-9-95, the Government of Goa, (respondent No. 1) granted sanction for creation of 14 posts of UDC in the pay scale of Rs. 1200-2040. Consequently, respondent No. 2 by his Order dated 24-10-85 made certain promotions to the post of UDC. Although there were 14 posts, only 11 persons in the seniority list came to be promoted and the remaining three posts were kept vacant. According to the petitioners, this was an arbitrary and unjustifiable act on the part of the respondent No. 1 and 2 and there was absolutely no justification for delay in filling up the remaining three, posts. According to the petitioners as per paragraph 6.1.1 of the Office Memorandum dated 26-9-90 they clearly fell within the zone of consideration for being promoted to the post of UDC. The said paragraph inter alia requires that when the number of vacancies is four or more then the number of candidates to be considered for the promotion is three times of the number of vacancies. In paragraph 10 of the petition, the petitioners have expressed their apprehension that they were not so considered although they fell within the zone of consideration. Hence according to them there is infringement of Article 16 of the Constitution of India.
3. The petitioners have further averred that on 14-12-95 the respondent No. 2 issued an Office Memorandum where by paragraph 6.3.1 in the earlier Office Memorandum dated 14-12-95 provides as under:
"The list of candidates considered by the DPC and the overall grading assigned to each candidate, would form the basis for preparation of the panel for promotion by the DPC. The following principles should be observed on the preparation of the panel:
(i) For all Group C, Group B and Group A posts upto (and exclusing) the level of Rs. 3700-5000, the benchmark would be 'Good'.
All officers whose overall grading is equal to or better than the benchmark should be included in the panel for promotion to the extent of the number of vacancies. However, officers graded as "Outstanding' would rank en bloc senior to those who are graded as 'Very Good' would rank en bloc senior to those who are graded as 'Good' maintaining their inter se seniority in the feeder grade."
According to the petitioners the said Office Memorandum cannot have any restrospective effect. It is stated that the directions contained in the Office Memorandum being administrative instructions existing on the date when the vacancies arose which are required to be followed for filling up the vacancies. The petitioners have averred that in the present case all 14 vacancies arose in September 1995 and out of them 11 vacancies were filled up on the ' basis of Office Memorandum dated 26-9-1990. The remaining 3 vacancies were filled on 27-3-1996 and respondent Nos. 3 to 5 who were junior to the petitioners came to be promoted to the post of U.D.C. The filling up of the 3 vacancies by promoting respondent Nos. 3 to 5 was made on the basis of the Office Memorandum dated 14-12-1995. According to the petitioners, the respondent Nos. 1 and 2 acted in an arbitrary and illegal manner in doing so and they ought to have filled up those vacancies on the basis of the earlier Office Memorandum dated 26-9-1990. It is the grievance of the petitioners that they have been illegally superseded in the matter of promotion to the post of U.D.C. It appears that the petitioners made several representations to respondent No. 2 against the alleged injustice caused to them but without any favourable responses. Hence they filed the present petition under Articles 226 and 227 of the Constitution of India for issue of writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or directions quashing the order dated 27-3-1996 promoting the respondents No. 3 to 5. The petitioners have further prayed for a writ of mandamus directing the respondent No. 2 to consider the cases of the petitioners for promotion to the post of U.D.C.
4. No return or any affidavit by way of reply was filed on behalf of any of the respondents.
5. We have heard Shri M.S. Sonak the learned Advocate for the petitioners and Shri H.R. Bharne, the learned Government Advocate for the respondent Nos. 1 and 2.
6. It is necessary to point out that although no affidavit was filed on behalf of the respondent Nos. 1 and 2, the original minutes of the meetings of the D.P.C. held on 6-10-1995 and 21-3-1996 were made available to us, for our perusal.
7. It is not in dispute that as per the Recruitment Rules, the post of U.D.C. is a selection post to be filed 100% by promotion of L.D.C. having three years service in the grade. It is well settled policy of service jurisprudence that promotion to the higher post can be either by the process of selection by 'merit-cum-Seniority' or 'Seniority-cum-merit'. When the promotional post is a selection post, then normally the criterion is 'merit-cum-Seniority'. The eligible candidates who fall under the zone of consideration for promotion are subjected to a comparative assessment through their annual confidential reports and if necessary by their oral or written tests. They are then arranged on the basis of their merit grades and a merit list is prepared. When the assessment is made by giving marks then the candidates obtaining higher marks are obviously placed higher to those getting less marks. But when assessment is made by giving remarks such as 'outstanding', 'Very Good', 'good', 'average' or 'unfit' then the grading is made on the basis of the said remarks. The candidates getting 'outstanding' remarks will be placed higher than those getting 'Very Good' remarks and those getting 'Very Good' remarks will be placed above the candidates getting 'Good' remarks. But when two or more candidates get the same remark then their gradation within each category of 'outstanding', 'Very Good', 'Good', etc. is determined by their inter se seniority. It will thus be seen that when promotion to a higher post is on the basis of merit-cum-seniority, the merit plays predominant role but it is not an exclusive role.
8. In the instant case the post of UDC is a selection post and admittedly the criterion to the said post is merit-cum-seniority. Both the petitioners having put in more than three years service in the grade of LDC and being possessed with the requisite qualifications were eligible for being considered for promotion to the post of UDC when 14 posts of UDC were created in the year 1995. The petitioner's apprehension that they were not considered for promotion when the first 11 posts were filled up is however not true and correct having regard to the minutes of the DPC dated 6-10-95. The assessment statement attached with the minutes shows that in the seniority list petitioners No. 1 and 2 were at Sr. Nos. 15 and 14 respectively. It is further seen that in all 32 LDCs who fell within the zone of consideration were assessed for the purpose of promotion. All of them except the candidates at Sr. Nos. 11, 13, 20, 22 and 30 were graded as 'Good'. Although there were 14 posts, recommendation of only 11 candidates at Sr. Nos. 1 to 10 and 12 was made. The filling up of the remaining three vacancies was recommended to be deferred on the ground that the annual confidential reports in respect of the candidate at Sr. No. 13 for the year 1994-95 was not finalised.
9. The meeting of the DPC for considering the selection for the remaining three vacancies of UDC was thereafter held on 21-3-36. The minutes of the said meeting show that in all 10 candidates including both the petitioners were considered. The performance of both the petitioners was assessed as 'Good'. However, the performance of respondent Nos. 3 to 5 who were below petitioner No. 1 in seniority list was assessed as 'Very Good'. After applying the criterion of merit-cum-seniority, DPC excluded the petitioners and others and selected respondent Nos. 3 to 5.
10. In our opinion, the decision of the DPC to recommend filling of the remaining 3 vacancies to be deferred was not proper and just and in the peculiar circumstances of the case which resulted in causing injustice to the petitioners. If the confidential reports of the candidates, at Sr. No. 13 for a particular year was not finalised then the DPC could have deferred the meeting for a week or two so that in the meantime the said confidential reports could have been finalised. At any rate there was no justification to defer the filling up of three posts on the ground that the confidential reports of the candidate at Sr. No. 13 was not finalised. As pointed out above, there were 14 vacancies, therefore, there was no difficulty in filling up atleast 13 posts instead of 11 only. Filling up of one post only could have been deferred on the above mentioned grounds. If 13 posts had been filled in the first instance then it is obvious that both the petitioners would have found a place in the select list because they also had secured the benchmark 'Good' like the persons senior to them. Here it may be pointed out that the candidates at serial No. 11 was found not fit for promotion and the candidate at Sr. No. 12 was not considered as per confidential report was not finalised. Therefore, the petitioner who were at Sr. Nos. 14 and 15 in the seniority would have straightway walked in and got a place in the select list if 13 posts had been filled. They however missed that opportunity only because the DPC decided to fill up only 11 vacancies, leaving the petitioners to be considered alongwith others separately for the remaining three posts.
11. The minutes of the next meeting of the DPC which was held for consideration of filling up of the remaining three posts show that the two candidates above the petitioners were found not fit for promotion. These two candidates included the candidate at Sr. No. 13 whose confidential reports for the year 1994-95 was later on finalised. As pointed out above, both the petitioners were rated as 'Good' only whereas three persons (respondent Nos. 3 to 5) just below them were rated as 'Very Good'. In this respect we have checked the assessment statement of all the candidates who were considered by the DPC in the meetings held by it. The assessment statement which was placed before the DPC meeting on the earlier occasion shows that the assessment of the respondent Nos. 3 to 5 in their annual confidential reports for the years from 1990-91 to 1994-95 was 'Good'. It is however surprising to find that in the next meeting they were materially changed. For instance the assessment of respondent No. 3 for the years 1991-92 to 1994-95 was shown as 'Very Good' though in the previous statement it was only 'Good'. Similarly the assessment of respondent No. 4 in the said statement was marked as 'Very Good' for the assessment year 1990-91 to 1993-94. As regards respondent No. 3 whose assessment in the earlier statement for all the five years was Good only, Very Good remarks were recorded against his name for the three years and 'outstanding' remarks for two years. It is not known as to how the assessment of a candidate for a particular year or years which is already recorded could be changed at the time of the next meeting. This clearly shows that there was a manipulation in the assessment remarks of respondent Nos. 3 to 5 obviously with a view to give them a better grading than their other competitors. This was with a view to facilitate the selection of respondent Nos. 3 to 5. 'Very Good' grading secured by respondent Nos. 3 to 5 was only on the basis of tampered assessment recorded in the statement which was placed before the DPC at the time of its meeting on 21-3-96. This fact is revealed only because of our examination of the minutes of DPC and the assessment statement considered by it. We thus find that there is absolutely no justification for the DPC to grade respondent Nos. 3 to 5 as 'Very Good'. The said grading as pointed out above, is based on false and incorrect material. At any rate they could not have been given a better grading than 'Good'. It will thus be seen that on the second occasion the petitioners could not have been superseded. As only three posts were to be filled up and as the candidates at Sr. Nos. 1 and 2 were found 'Not yet fit," both the petitioners who were at Sr. No. 3 and 4 and respondent No. 3 who was at Sr. No. 5 could have been selected. There was no scope for selecting respondent Nos. 4 and 5 who were at Sr. Nos. 6 and 7 respectively.
12. We thus find that the petitioners' claim for promotion to the post of U.D.C. was wrongly and illegally denied. Consequently, they are entitled to the relief claimed by them in this petition. We therefore quash and set aside the impugned Order dated 27-3-96. Exh. F in so far as it relates to respondent Nos. 4 and 5. We direct respondent Nos. 1 and 2 to promote both the petitioners as UDCs in place of respondent Nos. 4 and 5 with effect from 24-10-95 and place them above respondent No. 3 as per their inter se seniority. The petitioners shall be given all the consequential benefits arising out of their promotion from 24-10-95, together with costs of this petition.
13. Petition allowed.