Ram Karan vs State Of U.P. & Others
2018 Latest Caselaw 4486 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Case :- WRIT - A No. - 71682 of 2011
 
Petitioner :- Ram Karan
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Yogesh Agarwal
 
Counsel for Respondent :- C.S.C.,Manish Goyal,Vinay Kumar Khare,Y. Khare,Yashwant Varma
 

 
Hon'ble Suneet Kumar,J.

Heard Sri Yogesh Agarwal, assisted by Sri Sanjay Singh, learned counsels for the petitioner, Sri Manish Goyal, Additional Advocate General appearing for the first, second and third respondents and Sri Vinay Kumar Khare, learned counsel appearing for fourth respondent and perused the record.

The instant Writ Petition is directed against the order dated 21 October 2011 passed by District Judge, Mahoba, thereby, promoting the junior to the petitioner on the post of Sadar Munsrim. Further, a direction has been sought to promote the petitioner to the post of Sadar Munsrim in the judgeship of Mahoba.

The facts giving rise to the petition, in brief, is that the post of Sadar Munsrim fell vacant on 21 October 2011. The name of the petitioner along with other candidates, including the fourth respondent was considered for promotion. The rules governing promotion is provided under the Subordinate Civil Courts Ministerial Establishment Rules, 19471. Rule 20, in particular, Sub-Rule (3) is relevant in the facts of the instant case. The rule, inter alia, provides for the criteria of promotion to the post of Sadar Munsrim and specifically lays down that promotion is to be made according to merit subject to seniority. Rule 20 is extracted:-

20. Promotion :- (1) The posts in a judgeship reserved for clerks in that judgeship and promotion to higher posts shall be made from amongst them. If, however, no suitable clerk is available in the judgeship for promotion to a particulars post, promotion as a special case may be made from another judgeship with the sanction of the High Court or the Chief Court, as the case may be.

(2) .............................................

(3) Posts other than those mentioned in clause (2) above, for persons in the pre-1931 scale on post 1931 scale respectively shall be treated as selection posts, promotion to which shall be based on merit with the due regard to seniority.

Note:- In passing over a person for inefficiency as well as promotion for a selection post, due weight shall be given to his previous record of service and outstanding merit as compared with his seniors.

(4) ..............

(5) ..............

(6) ..............

(7) ..............

The third respondent upon scrutiny and comparison of the respective service record of the petitioner and fourth respondent was of the opinion that fourth respondent is outstanding and eligible, consequently, the fourth respondent was recommended for promotion superseding the petitioner.

Learned counsel for the petitioner submits that the post of Sadar Munsrim is a selection post and the criteria for promotion as contemplated in Sub-Rule 3 of Rule 20 is based on merit with due regard to seniority. The note appended to Sub-Rule 3 clarifies that in passing over a person for promotion in the selection post, due weight is required to be given to the previous service record and the person must be of outstanding merit compared with his seniors. In other words a senior can be superseded only in case the junior is of outstanding merit and not otherwise.

In the back drop of the rule, it is urged that petitioner being senior most and having no adverse entry in his service record, was wrongly superseded; third respondent failed to compare the character-rolls of the petitioner and that of the fourth respondent. There is nothing adverse nor any disciplinary proceeding is pending against the petitioner.

In rebuttal, learned counsel appearing for the first to third respondents submits that the criteria for promotion to the post of Sadar Munsrim is merit subject to seniority; petitioner and the fourth respondent were considered and upon assessment of their respective merit, based on their service record, the fourth respondent was found to be outstanding as compared to the petitioner. The impugned order is as per the rule and calls for no interference.

Sri Vinay Khare, learned counsel appearing for the fourth respondent submits that the petitioner was awarded censure entry on 20 May 2011 for non-compliance of the High Court order; petitioner was found careless and negligent in discharging his duties; enquiries were initiated against him by the District Judge. There are two enquiries against the petitioner (i) preliminary enquiry no. 4/11 and (ii) final enquiry no. 8/11. Petitioner has not been exonerated in the enquiries. The impugned order takes into consideration the entire material and entries made in the service record before recommending the name of the fourth respondent to the selection post. Promotion to the post has been made strictly in accordance to Rule 20 of the Rules, 1947. Fourth respondent was found suitable and outstanding as compared to the petitioner. The petition is devoid of merit.

Rival submissions fall for consideration.

I have perused the impugned order carefully with the assistance of the learned counsel for the parties. The third respondent has noted in the impugned order the entries awarded to the petitioner and the fourth respondent. The respective entries is as follows:-

Session

PETITIONER

FOURTH RESPONDENT

2005-2006

Very good

Outstanding

2006-2007

No record

Satisfactory/Outstanding, and special entry awarded by Administrative Judge

2007-2008

Good

Outstanding (Utkrist)

2008-2009

Very good

Very good (Ati Uttam)

2009-2010

2010-2011

Very Good

Good

Good (Uttam)

Outstanding

2011-2012

--

Outstanding

Thereafter, the third respondent upon having considered the overall record and the other factors including efficiency and performance was of the opinion that the fourth respondent was suitable for promotion in comparison to the petitioner. Learned counsel for the petitioner has not disputed the entries recorded in the impugned order but submits that there is no adverse-entry against the petitioner and the petitioner was exonerated in the fact-finding enquiry, therefore, the seniority of the petitioner could not have been ignored in the backdrop of the entries made in service record.

In order to appreciate the rival submissions the scope and ambit of the rule pertaining to promotion is to be examined.

Sub Rule 3 of Rule 20 came to be interpreted by the Division Bench in Hari Mohan Lal v. Satya Deo Singh and Others2. Paragraphs 4 and 5 is extracted:-

"4. Thus the criterion for promotion to a selection post is merit with due regard to seniority. The quantum of due regard to seniority has been explained in the Note. Seniority can be disregarded only if it is found that a junior is of outstanding merit, as compared to his senior and for this purpose the previous record of the service has not only to be considered but due weight should be given to it.

5. Properly construed the criterion is that seniority is to prevail if the junior is not of outstanding merit as compared to the senior. The note provides this special meaning to the term "merit" used in Rule 20(3). The term "merit" has to be understood in this special sense as outstanding merit comparatively. Of course, while judging the merit of the two, the factors like character, integrity, devotion to duty, knowledge of rules and regulations, dealing etc. are all relevant. The note aforesaid emphasizes that due weight shall be given to the previous record of service. These various attributes of an employee have to be gathered from the previous record of service, and it is primarily from that record that it has to be seen whether the junior is of an outstanding merit compared to his senior."

The principle laid down in Hari Mohal Lal (supra) was approved by the subsequent Division Bench in Iqbal Bahadur Srivastava v. District Judge, Sultanpur and another3, wherein, it was held that seniority can be disregarded only if the next person in the seniority is of outstanding merit, meaning thereby, that judging a person of higher merit than his senior will not entitle him for promotion on the promotional post, the candidature of a senior person could be rejected only if he is found unsuitable and the person junior to him is found to be of outstanding merit. The term 'merit' has to be understood as outstanding merit comparatively.

Single Judge in Syyed Muttaqui Raza vs. District Judge, Banda and Others4 noticing the earlier decisions explained the expressions "merit-cum seniority"; "seniority-cum merit" and "seniority subject to rejection of unfit". The Court relying upon several decisions of the Supreme Court opined that the principle of 'merit-cum seniority' lays down greater emphasis on eligibility and seniority plays a less significant roll. According to the principle seniority is to be given weight only when merit and eligibility are approximately equal. Whereas, the criterion "seniority-cum merit" lays greater emphasis on seniority. Where 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 higher post, he may be passed over and an officer junior to him may be promoted.

In State Bank of India vs. Kashinath Kher5, the court observed that the committee considering the promotion without any cross verification from the character-rolls or the records and the independent assessment of merit and eligibility would render the recommendation bad. The committee has to independently assess the merit of each candidate from the report and the records with the weights prescribed in the Rules and then determine the relevant merit. (Refer: Vijay Kumar, I.A. v. State Maharashtra and others6; Smt. Kamla Gaind v. State of Punjab and others7; M/s, Frick India Ltd. and another v. State of Haryana and others8; State of Maharashtra v. Manubhai Pragaji Vashi and Others9; Sushil Chandra Srivastava v. State of U.P. and others10.)

In Sant Ram Sharma v. State of Rajasthan11 Supreme Court held that promotion to 'selection grade posts' is not automatic and the promotion primarily is based on merit and not on seniority alone. The ranking in the gradation list does not confer any right on the person to be promoted to the selection post and it is well established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. Seniority is to be given weight only when merit and ability are approximately equal. (Refer: B.V. Sivaiah v. K. Addanki Babu12)

This Court in Sri Krishna Kumar Gupta vs. The Registrar General High Court, Allahabad and Others on examining the scope of sub Rule 3 of Rule 20 observed as follows:-

"This fact is undisputed that post in question is selection post and promotion has to be based on the principle of merit with due regard to the seniority i.e. on the principle of merit-cum-seniority where merit has to be given precedence. As per note appended due weight has to be given to previous record of service and seniority has to be disregarded only when junior persons compared with his senior is of outstanding merit. 'Merit-cum seniority' lays greater emphasis on merit and ability, and it is only when merit and suitability are roughly equal then seniority will be determining factor."

The Court further observed:-

"Under the rules, no criteria judging the merit has been provided for. In the absence of there being any provision in the rules, the Selection Committee was fully competent to assess the facts revealed by service records of all eligible candidates, so that merit and not seniority is, governing factor. Merit is sum total of various qualities, and same reflects attributes of an employee, in different spheres of life. Same may involve character integrity and devotion to duty of the employee to-wards his employer, and manner in which he/she discharges duty is also relevant factor. It is prerogative of the Selection Committee to consider the matter of selection."

Syyed Muttaqui Raza (supra) has been heavily relied upon by the learned counsel for the petitioner to contend that petitioner being senior and having no adverse entry cannot be ignored for promotion. The court allowed the writ petition as the District Judge did not came to the conclusion that the promotee (junior) was a person of outstanding merit and the petitioner, therein, was not found to be unfit. The Court held that in the absence of a finding that petitioner being unfit, he being the senior most employee, his claim could not be ignored. The facts of the case in hand is distinguishable. The third respondent after comparing the service records of the petitioner and the fourth respondent categorically recorded that the petitioner was unsuitable compared to the fourth respondent. The respective entries have been noted in the impugned order. The fourth respondent is outstanding compared to the petitioner.

Having due regard to the scope and ambit of Sub Rule 3 of Rule 20 and the statement of law, it is not in dispute that there is no adverse entry in the service record of the petitioner, but that is not sufficient to earn him promotion, if the comparable merit of a junior is outstanding. Merit is sum total of various qualities and may involve character, integrity and devotion to duty of the employee and the manner in which the employee discharges duty is also relevant factor. The third respondent has noted in the impugned order that all these attributes are lacking in the petitioner and in comparison the fourth respondent has been found suitable and petitioner unsuitable, weight was given to their respective previous record of service and fourth respondent was found outstanding in comparison while holding the petitioner unsuitable. It is the prerogative of the selection committee to consider the selection. Once objective consideration of the records has been made and there is no element of malafides against the third respondent, then in that event this Court in judicial review would not sit in appeal on the merit of the impugned order.

The learned counsel for the petitioner failed to show from the impugned order any illegality, infirmity or perversity.

The petition being devoid of merit is accordingly dismissed.

No cost.

Order Date :- 20.12.2018

Saurabh/K.K. Maurya