Full Judgment Text
: 1 :
2005:BHC-OS:2435-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3463 OF 1991
Mukund Shrivastava ....Petitioner
V/s.
The Chief Executive Officer
Maharashtra Housing & Area
Development Authority, Bombay & Ors. ....Respondents
Mr.J.P. Cama i/b Mr.K.P. Anilkumar for the
Petitioner.
Ms.Geeta Shastri, A.G.P. for the Respondents.
CORAM : A.P. SHAH AND
S.J. VAZIFDAR, JJ .
DATED : 25TH FEBRUARY, 2005.
:
ORAL JUDGMENT (PER S.J. VAZIFDAR, J.)
1. The Petitioner seeks a writ of Mandamus to
set-aside the promotion of Respondent Nos.4 to 12 from
the post of Junior Engineer to the post of Deputy
Engineer in supersession to the Petitioner, to direct
Respondent Nos.1 to 3 to promote the Petitioner to the
rank and post of the Deputy Engineer on and from July,
1991 and to restrain Respondent Nos.1 to 3 from
promoting the Petitioner’s juniors to the said post of
Deputy Engineer.
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2. Respondent No.1 is the Maharashtra Housing and
Area Development Authority, Bombay. Respondent Nos.2
and 3 are the Chief Officer and Deputy Engineer of
Respondent No.1 respectively.
3. The Petitioner, a graduate Engineer, joined
the services of Respondent No.1 on 6th April, 1981 as
a Junior Engineer on probation of one year. He was
posted to the office of the Executive Engineer,
redesignated as an Assistant Engineer with effect from
6th April, 1981 by an order dated 18th February, 1987
and placed under the appropriate revised pay scale.
According to the Petitioner though he was
re-designated as an Assistant Engineer, he was
addressed by the Respondent as, Junior Engineer. The
Petitioner was thereafter transferred and posted to
the office of the Executive Engineer of the third
Respondent.
4. The Petitioner’s case is that though he
worked honestly and diligently, he was not made
permanent and that he was harassed by the officers of
Respondent No.1 who continuously issued various memos
finding fault with his work. The Petitioner states
that a series of memos containing allegations and
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threats of disciplinary action were issued to him.
For the purpose of this Petitioner, it is not
necessary to consider these allegations. The refusal
to promote the Petitioner is supported on the basis of
certain circulars which we shall shortly refer to.
5. On 11th October, 1989, Respondent No.1
prepared a promotion/seniority list of the Junior
Engineers for the purpose of promotion to the post of
Deputy Engineer. Fifteen candidates were selected for
promotion. The Petitioner’s claim for promotion was
however disregarded. Though he was admittedly senior
and allegedly held a higher qualification i.e. a
degree in Civil Engineering as opposed to a diploma,
the Petitioner was superseded by his juniors. The
Petitioner made representation against the same.
6. Thereafter on 3rd July, 1990, the Respondents
published a seniority list of graduates who are
diploma holders and holders of certificate of
completion of the course in Architecture. The
Petitioner was shown at serial No.2 therein. The
aforesaid order was circulated amongst the various
authorities. The Petitioner has alleged that despite
the same, on 9th July, 1991, a promotion order is
issued by the first Respondent by which twenty
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employees were promoted to the post of Deputy
Engineer. The Petitioner however was not promoted to
the said post. Respondent Nos. 4 to 12 are also
graduate Engineers. All of them are junior to the
Petitioner. The seniority list published on 3rd July,
1990 was on the basis of the date of joining and
qualifications of the employees.
7. The Petitioner filed the above Petition on
22nd November, 1991 alleging that the Respondents had
decided once again to promote the employees whose
names were shown in the seniority list dated 3rd July,
1990 and that his name was once again not considered
for promotion.
8. The Petitioner’s case is that he is senior to
Respondent Nos.4 to 12 and that the promotion to the
said post of Deputy Engineer was to be purely on the
basis of seniority-cum-merit and that therefore in the
absence of any adverse remarks against him, he was
entitled to be promoted before all those who were
junior to him.
9. The Petitioner’s claim for consideration for
promotion is not sustainable. It is based on an
incorrect presumption that the post is purely on
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seniority-cum-merit in the sense that once it is
determined that the Petitioner is senior to his
colleagues, he is bound to be promoted irrespective of
all other facts and circumstances of the case so long
as there was nothing adverse against him.
10. Ms.Shastri, the learned A.G.P. appearing for
Respondent Nos.1 to 3 invited our attention to the
guidelines dated 16th May, 1988 issued by Respondent
No.1 for promotion from Class-III to Class-II. The
relevant part thereof reads as under :-
PROMOTION FROM CLASS III TO CLASS-II PROMOTION FROM CLASS III TO CLASS-II PROMOTION FROM CLASS III TO CLASS-II
1. Promotion from Senior Assistant
Cadre to Superintendent/Assistant
Estate Manager :- Out of last five
confidential reports not a single
shall be of "C" level. If there be
B (-) for more than one there must
be B (+) and remaining three reports
shall be of B or upper level.
Promotion in the cadre of Estate
Manager :- Out of last five
confidential reports not a single
should be C or B (+) level. If
there be a B (-) one must be B (+)
and remaining four shall be of B or
above level."
11. Admittedly the Petitioner did not fulfil the
eligibility criteria specified in the said circular.
It is true that in the affidavit in reply filed by
Respondent No.1, it is contended that the Petitioner
was not considered fit for promotion by the Selection
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Committee due to his unsatisfactory confidential
reports as well. We ignore this aspect for the
purpose of this order. The fact however remains that
the Petitioner’s case did not meet the minimum
qualifications prescribed by the aforesaid circular
dated 16th May, 1988.
12. In a further affidavit filed by Respondent
No.1, it is stated that the circular dated 16th May,
1988 in fact adopts the Government Resolution issued
on 7th July, 1977. This was because Respondent No.1
was set up on 5th December, 1989.
13. It appears that in 1989, Respondent No.1 had
also decided to give marks to the grading given in the
confidential report while giving promotion. This was
done to avoid various discrepancies emanating due to
acceptance of different criteria by different
Committees to decide the eligibility for promotion.
In the circumstances, a circular dated 20th November,
1989 was issued. The circular was based on another
Government Resolution of the General Administrative
Department dated 9th September, 1988. The promotions
given in 1991 were based on the said circular dated
20th November, 1989. The relevant part of the said
circular dated 20th November, 1989 reads as under :-
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"CIRCULAR :
. While giving promotions to
officers / employees in the
Authority’s offices, in various
cadres, confidential reports of the
officers / employees completing the
requisite period necessary for
promotion for the period preceding
five years along with the C.R. for
the relevant period are being placed
before the Selection Committee for
examination. On scrutiny of
confidential reports, gradations of
the C.R.s are determined as per the
Govt. Resolution, General
Administration Dept. No. ESB / CPR
/ 1085 / 868 / Thirteen / dated
9/09/1988, Government has decided
the gradations of confidential
reports as under :
1. (Outstanding : (A+) )
2. (Very Good : (A) )
3. (Positively Good: (B+) )
4. (Good : (B) )
5. (Average : (B-) )
6. (Below Average : (C) )
2. After deciding gradations of
confidential reports, as per the
above Govt. Resolution, the
decisions with regard to promotions
of officers / employees in Technical
/ Non-technical cadres of the
Authority were being taken by
different selection committees
appointed for granting promotions.
In order to avoiding discrepancies
emanated due to accepting different
criteria by different committees in
the matter of deciding eligibility
for promotions, criteria were fixed
for various cadres of promotions by
the orders and circulars under
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reference.
3. The selection Committee,
appointed for giving promotions to
Officers in Technical Cadres of the
Authority, while considering the
confidential reports, placed before
it, for promotion in its meeting
held on 20/04/1989, considered
first,the criteria fixed earlier and
recommended that hereafter the
criteria fixed by the Authority
earlier for various cadres being
very stringent should be relaxed and
the procedure of awarding marks,
based on gradation of confidential
reports should be adopted.
According to that recommendation,
following amended criteria are being
decided for giving promotions to
employees and officers in different
cadres. Hence forward while giving
promotions to officers/employees
in various categories, the following
amended criteria based on 25 marks,
should be the basis for taking
decision relating to eligibility for
promotions, or otherwise.
The amended Mark-based criteria
proposed for promotion
(A+, A, B+, B, B-, C )
( )
(5 4 3 2 1 0 )
(2) Promotion from Class III to
Class II :
1) Promotion from the cadre of 1) Promotion from the cadre of 1) Promotion from the cadre of
Senior Asstt. to the cadre Senior Asstt. to the cadre Senior Asstt. to the cadre of
Superintendent/Asstt.Estate Manager.
A) If none of the confidential
reports, out of the C.Rs. of the
proceeding five years is of ‘C’
grade then 9 (nine) marks to become
eligible for promotion will be
essential, otherwise 11 (eleven)
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marks will be essential.
NOTE :
1) The above criteria are
proposed for promotion in clerical
cadres. The very same criteria are
proposed for promotion in other
cadres viz. Accounts, Legal &
Technical cadres, but while applying
the above criteria the criteria of
the post in the similar pay scale be
applied."
14. The Petitioner falls in the technical cadre.
There is no dispute about the fact that as per the
aforesaid circular the Petitioner was not eligible for
promotion as he did not meet the requirements
specified therein.
15. Mr.Cama however contended that the post was
purely on the basis of seniority-cum-merit. He
invited our attention to various judgments in respect
of the proposition that in non-selection posts/posts
to be filled in purely on the basis of
seniority-cum-merit, the senior most employee is bound
to be promoted unless he has been declared unfit for
holding the post in question.
16. These judgments do not assist Mr.Cama. In
none of the cases was there any question of a minimum
eligibility criteria being specified by the employer.
In The State of Mysore v. M.H. Bellary AIR 1965
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Supreme Court 868 , the Supreme Court construed Rule
50(b) and held that the service of an officer on
deputation in another department is treated by the
rule as equivalent to service in the parent department
and that it is this equation between the services in
the two departments that forms the basis of the said
rule. In this context the Supreme Court held that so
long therefore as the service of the employee in the
new department is satisfactory and he was obtaining
the increments and promotions in that department, it
stands to reason that that satisfactory service, and
the manner of its discharge in the post he actually
fills, should be deemed to be rendered in the parent
department also so as to entitle him to promotions
which are based on seniority-cum-merit basis. The
rules in that case did not provide any other criteria
on the basis whereof it was held that the Petitioner
was not eligible to be considered for promotion as in
the case before us.
17. In Hari Singh Verma v. Union of India & Ors.
High Court, L.L.J. Bombay 1987 , S.P. Bharucha, J.
(as His Lordship then was) was concerned with Rule
212, in Chapter II of the Indian Railway Establishment
Manual dealing with promotions in non-selection posts.
The Rule provides that non-selection posts could be
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filled in by promotion of the senior most suitable
railway servant, suitability being determined by the
authority competent to fill the post on the basis of
the record of service and/or departmental tests if
necessary. It was held that a senior employee may be
passed over only if he has been declared unfit for
holding the post in question. A declaration of
unfitness should, ordinarily, have been made some time
previous to the time the promotion of the railway
servant was being considered. It was held on facts
that there were no adverse remarks in respect of
certain confidential reports and that adverse remarks,
if any, in respect of other confidential reports were
not communicated to the employee. It is in these
circumstances that the employers failure to consider
the employee for promotion was set aside. Here again
there was no other eligibility criteria stipulated for
an employee to be considered for promotion.
18. In Gajanan Jairamsa Andhare v. The
Commissioner General, Home Guards & Ors. CLR H.C.
625 , a Division Bench of this Court held that it is
well settled that when the criteria is of
seniority-cum-merit unless it is found that the
Petitioner was unfit, he could not have been
superseded in promotion. The question that arose
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before us did not arise in this case either.
19. In Union of India v. Virpal Singh Chauhan
etc. 1995 II CLR 1109, the Supreme Court held in
paragraph 19 as under :-
"19. Pausing here for a moment,
we must explain what does panel mean
and signify in the case of
promotions. Though we enquired
repeatedly, this aspect could not be
clarified by the learned Additional
Solicitor General. In particular,
we wanted to know whether a panel is
prepared only in the case of
selection posts or is it also
prepared in the case of
non-selection posts. The several
instructions in Indian Railway
Establishment Manual are also not
helpful on this aspect. We are,
therefore, left to interpret the
expression ourselves. Having regard
to the fact that in all the above
circulars/letters, the expression
"panel" has been used to denote a
merit list or select list, as it may
be called, we think it reasonable to
understand as a panel which is
prepared in the case of selection
posts only. In the case of
non-selection posts, there is no
question of such a panel. In their
case,the senior is promoted
automatically unless he is found to
be unsuitable to hold the promotion
post. No panel, i.e. merit list or
select list is called for in the
case of non-selection posts. May
be, ultimately, a list of persons to
be promoted is prepared but that is
neither a merit list, nor a select
list."
20. It is true that the expression
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seniority-cum-merit has been used in the present case.
Mere nomenclature however, is not conclusive of the
issue as to whether the promotion is based solely on
seniority-cum-merit or whether there are other aspects
to be taken into consideration while considering
whether an employee is eligible for promotion. In the
present case the circular specifically required an
employee to fulfil certain minimum criteria before
being considered for promotion.
21. Mr.Cama did not invite our attention to any
authority in support of his submission that a minimum
eligibility criteria cannot be stipulated where
promotions are on seniority-cum-merit basis. In our
view, it is always open even in respect of promotions
on seniority-cum-merit basis to specify a minimum
eligibility criteria for employees being considered
for promotions.
22. It is also pertinent to note that the
Petitioner has not challenged the validity of the
aforesaid circulars. In the circumstances, we are not
inclined to accept the challenge to the promotion of
the said Respondents.
23. Mr.Cama then invited our attention to the
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judgment of the Supreme Court in Col.A.S. Sangwan v.
Union of India & Ors. 1981 LAB.I.C. 831 , where it
was held that whatever policy is made subsequently
should be done fairly and made known to those
concerned. Mr.Cama submitted that the policy
contained in the aforesaid circulars were not made
known to the Petitioner. We are unable to accept this
contention. The affidavit in reply filed on behalf
of Respondent No.1 expressly stated that the said
circulars were widely circulated by the regional
department of Respondent No.1. There is nothing to
suggest that what is stated by Respondent No.1 is not
correct. It is not possible to accept the
Petitioner’s contention.
24. In these circumstances, the Petition is
dismissed. There shall be no order as to costs.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3463 OF 1991
DATE OF DECISION : 25TH FEBRUARY, 2005
For Approval and Signature :
HON’BLE MR.JUSTICE A.P. SHAH
HON’BLE MR.JUSTICE S.J. VAZIFDAR
1. Whether Reporters of Local Papers )
may be allowed to see the judgement ? )
2. To be referred to be Reporter or )
not ? )
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2005:BHC-OS:2435-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3463 OF 1991
Mukund Shrivastava ....Petitioner
V/s.
The Chief Executive Officer
Maharashtra Housing & Area
Development Authority, Bombay & Ors. ....Respondents
Mr.J.P. Cama i/b Mr.K.P. Anilkumar for the
Petitioner.
Ms.Geeta Shastri, A.G.P. for the Respondents.
CORAM : A.P. SHAH AND
S.J. VAZIFDAR, JJ .
DATED : 25TH FEBRUARY, 2005.
:
ORAL JUDGMENT (PER S.J. VAZIFDAR, J.)
1. The Petitioner seeks a writ of Mandamus to
set-aside the promotion of Respondent Nos.4 to 12 from
the post of Junior Engineer to the post of Deputy
Engineer in supersession to the Petitioner, to direct
Respondent Nos.1 to 3 to promote the Petitioner to the
rank and post of the Deputy Engineer on and from July,
1991 and to restrain Respondent Nos.1 to 3 from
promoting the Petitioner’s juniors to the said post of
Deputy Engineer.
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2. Respondent No.1 is the Maharashtra Housing and
Area Development Authority, Bombay. Respondent Nos.2
and 3 are the Chief Officer and Deputy Engineer of
Respondent No.1 respectively.
3. The Petitioner, a graduate Engineer, joined
the services of Respondent No.1 on 6th April, 1981 as
a Junior Engineer on probation of one year. He was
posted to the office of the Executive Engineer,
redesignated as an Assistant Engineer with effect from
6th April, 1981 by an order dated 18th February, 1987
and placed under the appropriate revised pay scale.
According to the Petitioner though he was
re-designated as an Assistant Engineer, he was
addressed by the Respondent as, Junior Engineer. The
Petitioner was thereafter transferred and posted to
the office of the Executive Engineer of the third
Respondent.
4. The Petitioner’s case is that though he
worked honestly and diligently, he was not made
permanent and that he was harassed by the officers of
Respondent No.1 who continuously issued various memos
finding fault with his work. The Petitioner states
that a series of memos containing allegations and
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threats of disciplinary action were issued to him.
For the purpose of this Petitioner, it is not
necessary to consider these allegations. The refusal
to promote the Petitioner is supported on the basis of
certain circulars which we shall shortly refer to.
5. On 11th October, 1989, Respondent No.1
prepared a promotion/seniority list of the Junior
Engineers for the purpose of promotion to the post of
Deputy Engineer. Fifteen candidates were selected for
promotion. The Petitioner’s claim for promotion was
however disregarded. Though he was admittedly senior
and allegedly held a higher qualification i.e. a
degree in Civil Engineering as opposed to a diploma,
the Petitioner was superseded by his juniors. The
Petitioner made representation against the same.
6. Thereafter on 3rd July, 1990, the Respondents
published a seniority list of graduates who are
diploma holders and holders of certificate of
completion of the course in Architecture. The
Petitioner was shown at serial No.2 therein. The
aforesaid order was circulated amongst the various
authorities. The Petitioner has alleged that despite
the same, on 9th July, 1991, a promotion order is
issued by the first Respondent by which twenty
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employees were promoted to the post of Deputy
Engineer. The Petitioner however was not promoted to
the said post. Respondent Nos. 4 to 12 are also
graduate Engineers. All of them are junior to the
Petitioner. The seniority list published on 3rd July,
1990 was on the basis of the date of joining and
qualifications of the employees.
7. The Petitioner filed the above Petition on
22nd November, 1991 alleging that the Respondents had
decided once again to promote the employees whose
names were shown in the seniority list dated 3rd July,
1990 and that his name was once again not considered
for promotion.
8. The Petitioner’s case is that he is senior to
Respondent Nos.4 to 12 and that the promotion to the
said post of Deputy Engineer was to be purely on the
basis of seniority-cum-merit and that therefore in the
absence of any adverse remarks against him, he was
entitled to be promoted before all those who were
junior to him.
9. The Petitioner’s claim for consideration for
promotion is not sustainable. It is based on an
incorrect presumption that the post is purely on
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seniority-cum-merit in the sense that once it is
determined that the Petitioner is senior to his
colleagues, he is bound to be promoted irrespective of
all other facts and circumstances of the case so long
as there was nothing adverse against him.
10. Ms.Shastri, the learned A.G.P. appearing for
Respondent Nos.1 to 3 invited our attention to the
guidelines dated 16th May, 1988 issued by Respondent
No.1 for promotion from Class-III to Class-II. The
relevant part thereof reads as under :-
PROMOTION FROM CLASS III TO CLASS-II PROMOTION FROM CLASS III TO CLASS-II PROMOTION FROM CLASS III TO CLASS-II
1. Promotion from Senior Assistant
Cadre to Superintendent/Assistant
Estate Manager :- Out of last five
confidential reports not a single
shall be of "C" level. If there be
B (-) for more than one there must
be B (+) and remaining three reports
shall be of B or upper level.
Promotion in the cadre of Estate
Manager :- Out of last five
confidential reports not a single
should be C or B (+) level. If
there be a B (-) one must be B (+)
and remaining four shall be of B or
above level."
11. Admittedly the Petitioner did not fulfil the
eligibility criteria specified in the said circular.
It is true that in the affidavit in reply filed by
Respondent No.1, it is contended that the Petitioner
was not considered fit for promotion by the Selection
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Committee due to his unsatisfactory confidential
reports as well. We ignore this aspect for the
purpose of this order. The fact however remains that
the Petitioner’s case did not meet the minimum
qualifications prescribed by the aforesaid circular
dated 16th May, 1988.
12. In a further affidavit filed by Respondent
No.1, it is stated that the circular dated 16th May,
1988 in fact adopts the Government Resolution issued
on 7th July, 1977. This was because Respondent No.1
was set up on 5th December, 1989.
13. It appears that in 1989, Respondent No.1 had
also decided to give marks to the grading given in the
confidential report while giving promotion. This was
done to avoid various discrepancies emanating due to
acceptance of different criteria by different
Committees to decide the eligibility for promotion.
In the circumstances, a circular dated 20th November,
1989 was issued. The circular was based on another
Government Resolution of the General Administrative
Department dated 9th September, 1988. The promotions
given in 1991 were based on the said circular dated
20th November, 1989. The relevant part of the said
circular dated 20th November, 1989 reads as under :-
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"CIRCULAR :
. While giving promotions to
officers / employees in the
Authority’s offices, in various
cadres, confidential reports of the
officers / employees completing the
requisite period necessary for
promotion for the period preceding
five years along with the C.R. for
the relevant period are being placed
before the Selection Committee for
examination. On scrutiny of
confidential reports, gradations of
the C.R.s are determined as per the
Govt. Resolution, General
Administration Dept. No. ESB / CPR
/ 1085 / 868 / Thirteen / dated
9/09/1988, Government has decided
the gradations of confidential
reports as under :
1. (Outstanding : (A+) )
2. (Very Good : (A) )
3. (Positively Good: (B+) )
4. (Good : (B) )
5. (Average : (B-) )
6. (Below Average : (C) )
2. After deciding gradations of
confidential reports, as per the
above Govt. Resolution, the
decisions with regard to promotions
of officers / employees in Technical
/ Non-technical cadres of the
Authority were being taken by
different selection committees
appointed for granting promotions.
In order to avoiding discrepancies
emanated due to accepting different
criteria by different committees in
the matter of deciding eligibility
for promotions, criteria were fixed
for various cadres of promotions by
the orders and circulars under
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reference.
3. The selection Committee,
appointed for giving promotions to
Officers in Technical Cadres of the
Authority, while considering the
confidential reports, placed before
it, for promotion in its meeting
held on 20/04/1989, considered
first,the criteria fixed earlier and
recommended that hereafter the
criteria fixed by the Authority
earlier for various cadres being
very stringent should be relaxed and
the procedure of awarding marks,
based on gradation of confidential
reports should be adopted.
According to that recommendation,
following amended criteria are being
decided for giving promotions to
employees and officers in different
cadres. Hence forward while giving
promotions to officers/employees
in various categories, the following
amended criteria based on 25 marks,
should be the basis for taking
decision relating to eligibility for
promotions, or otherwise.
The amended Mark-based criteria
proposed for promotion
(A+, A, B+, B, B-, C )
( )
(5 4 3 2 1 0 )
(2) Promotion from Class III to
Class II :
1) Promotion from the cadre of 1) Promotion from the cadre of 1) Promotion from the cadre of
Senior Asstt. to the cadre Senior Asstt. to the cadre Senior Asstt. to the cadre of
Superintendent/Asstt.Estate Manager.
A) If none of the confidential
reports, out of the C.Rs. of the
proceeding five years is of ‘C’
grade then 9 (nine) marks to become
eligible for promotion will be
essential, otherwise 11 (eleven)
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marks will be essential.
NOTE :
1) The above criteria are
proposed for promotion in clerical
cadres. The very same criteria are
proposed for promotion in other
cadres viz. Accounts, Legal &
Technical cadres, but while applying
the above criteria the criteria of
the post in the similar pay scale be
applied."
14. The Petitioner falls in the technical cadre.
There is no dispute about the fact that as per the
aforesaid circular the Petitioner was not eligible for
promotion as he did not meet the requirements
specified therein.
15. Mr.Cama however contended that the post was
purely on the basis of seniority-cum-merit. He
invited our attention to various judgments in respect
of the proposition that in non-selection posts/posts
to be filled in purely on the basis of
seniority-cum-merit, the senior most employee is bound
to be promoted unless he has been declared unfit for
holding the post in question.
16. These judgments do not assist Mr.Cama. In
none of the cases was there any question of a minimum
eligibility criteria being specified by the employer.
In The State of Mysore v. M.H. Bellary AIR 1965
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Supreme Court 868 , the Supreme Court construed Rule
50(b) and held that the service of an officer on
deputation in another department is treated by the
rule as equivalent to service in the parent department
and that it is this equation between the services in
the two departments that forms the basis of the said
rule. In this context the Supreme Court held that so
long therefore as the service of the employee in the
new department is satisfactory and he was obtaining
the increments and promotions in that department, it
stands to reason that that satisfactory service, and
the manner of its discharge in the post he actually
fills, should be deemed to be rendered in the parent
department also so as to entitle him to promotions
which are based on seniority-cum-merit basis. The
rules in that case did not provide any other criteria
on the basis whereof it was held that the Petitioner
was not eligible to be considered for promotion as in
the case before us.
17. In Hari Singh Verma v. Union of India & Ors.
High Court, L.L.J. Bombay 1987 , S.P. Bharucha, J.
(as His Lordship then was) was concerned with Rule
212, in Chapter II of the Indian Railway Establishment
Manual dealing with promotions in non-selection posts.
The Rule provides that non-selection posts could be
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filled in by promotion of the senior most suitable
railway servant, suitability being determined by the
authority competent to fill the post on the basis of
the record of service and/or departmental tests if
necessary. It was held that a senior employee may be
passed over only if he has been declared unfit for
holding the post in question. A declaration of
unfitness should, ordinarily, have been made some time
previous to the time the promotion of the railway
servant was being considered. It was held on facts
that there were no adverse remarks in respect of
certain confidential reports and that adverse remarks,
if any, in respect of other confidential reports were
not communicated to the employee. It is in these
circumstances that the employers failure to consider
the employee for promotion was set aside. Here again
there was no other eligibility criteria stipulated for
an employee to be considered for promotion.
18. In Gajanan Jairamsa Andhare v. The
Commissioner General, Home Guards & Ors. CLR H.C.
625 , a Division Bench of this Court held that it is
well settled that when the criteria is of
seniority-cum-merit unless it is found that the
Petitioner was unfit, he could not have been
superseded in promotion. The question that arose
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before us did not arise in this case either.
19. In Union of India v. Virpal Singh Chauhan
etc. 1995 II CLR 1109, the Supreme Court held in
paragraph 19 as under :-
"19. Pausing here for a moment,
we must explain what does panel mean
and signify in the case of
promotions. Though we enquired
repeatedly, this aspect could not be
clarified by the learned Additional
Solicitor General. In particular,
we wanted to know whether a panel is
prepared only in the case of
selection posts or is it also
prepared in the case of
non-selection posts. The several
instructions in Indian Railway
Establishment Manual are also not
helpful on this aspect. We are,
therefore, left to interpret the
expression ourselves. Having regard
to the fact that in all the above
circulars/letters, the expression
"panel" has been used to denote a
merit list or select list, as it may
be called, we think it reasonable to
understand as a panel which is
prepared in the case of selection
posts only. In the case of
non-selection posts, there is no
question of such a panel. In their
case,the senior is promoted
automatically unless he is found to
be unsuitable to hold the promotion
post. No panel, i.e. merit list or
select list is called for in the
case of non-selection posts. May
be, ultimately, a list of persons to
be promoted is prepared but that is
neither a merit list, nor a select
list."
20. It is true that the expression
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seniority-cum-merit has been used in the present case.
Mere nomenclature however, is not conclusive of the
issue as to whether the promotion is based solely on
seniority-cum-merit or whether there are other aspects
to be taken into consideration while considering
whether an employee is eligible for promotion. In the
present case the circular specifically required an
employee to fulfil certain minimum criteria before
being considered for promotion.
21. Mr.Cama did not invite our attention to any
authority in support of his submission that a minimum
eligibility criteria cannot be stipulated where
promotions are on seniority-cum-merit basis. In our
view, it is always open even in respect of promotions
on seniority-cum-merit basis to specify a minimum
eligibility criteria for employees being considered
for promotions.
22. It is also pertinent to note that the
Petitioner has not challenged the validity of the
aforesaid circulars. In the circumstances, we are not
inclined to accept the challenge to the promotion of
the said Respondents.
23. Mr.Cama then invited our attention to the
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judgment of the Supreme Court in Col.A.S. Sangwan v.
Union of India & Ors. 1981 LAB.I.C. 831 , where it
was held that whatever policy is made subsequently
should be done fairly and made known to those
concerned. Mr.Cama submitted that the policy
contained in the aforesaid circulars were not made
known to the Petitioner. We are unable to accept this
contention. The affidavit in reply filed on behalf
of Respondent No.1 expressly stated that the said
circulars were widely circulated by the regional
department of Respondent No.1. There is nothing to
suggest that what is stated by Respondent No.1 is not
correct. It is not possible to accept the
Petitioner’s contention.
24. In these circumstances, the Petition is
dismissed. There shall be no order as to costs.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3463 OF 1991
DATE OF DECISION : 25TH FEBRUARY, 2005
For Approval and Signature :
HON’BLE MR.JUSTICE A.P. SHAH
HON’BLE MR.JUSTICE S.J. VAZIFDAR
1. Whether Reporters of Local Papers )
may be allowed to see the judgement ? )
2. To be referred to be Reporter or )
not ? )
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