Allahabad High Court
Bhagwati Prasad vs State Of U.P. And Another on 3 September, 2014
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 34
Case :- WRIT - A No. - 5592 of 2011
Petitioner :- Bhagwati Prasad
Respondent :- State Of U.P. And Another
Counsel for Petitioner :- V.C. Srivastava
Counsel for Respondent :- C. S. C.,Sandeep Kr. Srivastava
Hon'ble Sudhir Agarwal,J.
1. The petitioner is seeking writ of mandamus commanding respondents to promote him on the post of Senior General Clerk from the date on which it due with all emoluments.
2. The grievance of the petitioner is that according to the seniority list dated 6.1.2007, the petitioner was at serial no. 6 and one Gambhir Singh Chauhan was at serial no. 8, but Gambhir Singh Chauhan, junior to the petitioner, has been promoted ignoring the petitioner.
3. Heard learned counsel for the petitioner and learned standing counsel for the respondents.
4. Learned counsel for the petitioner has nowhere stated in the writ petition, what was the criteria for promotion. It has also not been stated anywhere that while considering others for promotion the petitioner has not been considered alongwith other eligible and suitable candidates.
5. It is not disputed that under the Rules, criteria for promotion is seniority-cum-suitability-cum-merit. When criteria for promotion is seniority-cum-suitability-cum merit, mere seniority itself has no role to play and it is only when the merits and suitability are equal, a senior will prevail over the junior one.
6. A Division Bench of this Court (in which I was also a Member) in Special Appeal No. 175 of 1994 (Mohd. Kalim Vs. Commissioner Varanasi Division, Varanasi and others) decided on 23.2.2006 has clearly held that when criteria for promotion is seniority-cum-merit, seniority itself has no role to play. The Division Bench in Mohd. Kalim (supra) while dealing with the above issue, referring to earlier authorities on subject, observed as under:
"A Division Bench of this Court in the case of Vinod Kumar Verma Vs. Union of India 2004 (1) Education Service Cases 19 while considering similar issue, held in para 14, 15 and 16 as under:
"14. Under the rules, the promotions were to be made on the basis of seniority-cum-merit. This, no doubt means Seniority subject to the rejection of unfit. In our opinion, however, to determine a person fit or unfit, it is open to the authorities to setup a minimum necessary merit requisite for the post. The competent authority can therefore, lay down the minimum standard that will be required of a candidate and only those who reach this minimum standard will then be promoted on the basis of seniority.
15. In our opinion it is always open to the authorities to fix a minimum requirement, which a candidate must have before he can be considered for promotion on the basis of seniority-cum-merit. Hence it is not correct to say that only those who have some adverse entries or other adverse material in their service record can be eliminated while considering promotions on the basis of seniority-cum-merit.
Earlier the Apex Court also in the case of Union of India Vs. Rajendra Singh Kadyan A.I.R. 2000 Supreme Court 2513 while considering the similar criteria promotion observed as under:
"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 for satisfying a benchmark previously fixed. Subject to fulfilling this requirement 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-merit. ....
Therefore, it is a settled position of law that the minimum proficiency is always required even where the promotion is to be made on non-selection basis i.e. seniority subject to rejection of unit or seniority-cum-fitness or seniority-cum-merit."
7. In view of above and also for the reason that no illegality could be pointed out in the promotions of Gambhir Singh Chauhan except that the petitioner is senior to him which cannot be sole basis to claim promotion, I do not find it a fit case warranting interference.
8. Dismissed.
Order Date :- 3.9.2014
SKS
