Bombay High Court
Dr.Siddharth Jivan Kamble vs The New India Assurance Co.Ltd. ... on 16 December, 2014
Bench: A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Writ Petition No.1629/1998
Dr. S. J. Kamble,
aged 57 years, Employees Mills Colony,
Behind Medical College, Nagpur-27. .....PETITIONER
...V E R S U S...
1. The New India Assurance Co. Ltd.
through its Chairman-cum-Managing
Director and Member, DPC, Fort,
Mumbai - 23.
2. Chairman, General Insurance Corporation
Of India, Churchgate, Mumbai-01.
3. Union of India, through Secretary,
Ministry of Finance, (Insurance Division),
Lok Nayak Bhawan, Khan Market,
IIIrd floor, New Delhi-110 003.
4. Chief Liaison Officer, The new India
Assurance Co. Ltd. 87, M.G. Road,
Mumbai.
5. Chief Liaison officer, General Insurance
Corporation of India, Churchgate, Mumbai.
6. Arunachalam Subramanian
(Deleted)
7. Krishna B. Vyasa,
8. Pani Gopal Chandra,
9. Patil Gurunathreddy Kamareddy
10.Kumar Krishnan
11.Jain Ravinder Kumar
12.Nagesh Shivram Krishnan
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13.Barot Rajesh Vinubhai
14.Krishna Kunisseri Venkateswar
15.Bharadwaj Jeyaraman Ravi
16.Dahiya Jagbir Singh
17.Vasudeva Amrit Prakash
Respondent no. 7 to 17 through
Chairman-cum-Managing Director,
The New India Assurance Co. Ltd.
87- M. G. Road, Fort, Mumbai-23. ...RESPONDENTS
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Ms K. K. Pathak, Advocate for petitioner.
Mr. M. M. Sudame, Advocate for respondent nos. 1, 2, 4 and 5.
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CORAM:- A. B. CHAUDHARI & P. R. BORA, JJ.
Date of Reserving the Judgment : 21.11.2014
Date of Pronouncing the Judgment: 16.12.2014
J U D G M E N T (Per : A. B. Chaudhari, J.)
1. By the present petition, the petitioner Dr. Kamble, has
prayed for promotion to the post of Assistant Manager with
deemed date and consequent benefits thereupon, inter alia, to
direct respondent no.1 to maintain Scheduled Caste/Scheduled
Tribe roster in the matter of promotion.
2. In support of the petition, Ms Pathak, learned counsel
for the petitioner, submitted that the petitioner belongs to
Scheduled Caste and there is no system with respondent no.1-
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Insurance Company for maintaining roster for SC & ST candidates
and, therefore, there should be direction from this Court to do so
particularly firstly because respondent no.1 is a Government
Company. She then submitted that the petitioner is qualified
having masters degree in Veterinary Science and Business
Administration, so also in law. He was appointed as Assistant
Administrative Officer, Veterinary in the year 1985 and, thereafter,
was promoted in 1989 to the post of Administrative Officer
(Veterinary). The petitioner is admittedly the senior most when
the occasion came to consider the case for promotion for the post
of Assistant Manager. The petitioner was placed at serial number
281 in the seniority list issued in February-1995 in the list of
Administrative Officers, while the employees who have superseded
him are far away in the seniority list and to be precise, the last
candidate, who was promoted was having seniority of 444 that too
belonging to open category. Thus, 19 officers superseded the
petitioner in the matter of promotion to the post of Assistant
Manager. Ms Pathak, learned counsel for the petitioner, further
submitted that apart from the fact that the petitioner was the
senior most, respondent no.1, being Government Company, was
obliged to give weightage to him being the member of Scheduled
Caste. The petitioner was unjustifiably denied the promotion and
19 officers were permitted to supersede him out of victimisation.
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The officers who have superseded him are joined as respondents
to the petition. Learned counsel for the petitioner then submitted
that the promotion to the post of Assistant Manager, as per their
policy and the rules is by Seniority-cum-Merit and by virtue of
seniority itself, the petitioner was liable to be promoted. She
further submitted that there is no adverse report about the career
of the petitioner and there was no reason to supersede him. In the
alternative, counsel for the petitioner argued that looking to the
need of criteria about promotion, the petitioner, being the senior
most, was entitled to be promoted first rather than other officers,
who superseded him at the relevant time. She then argued that
the petitioner has been unjustifiably denied promotion and since
he was retired from service, the petitioner must get justice by
grant of consequential benefits.
3. Per contra, Mr. Sudame, learned counsel for
respondent no.1-Insurance Company, vehemently opposed the
writ petition and argued that the petitioner is completely wrong in
saying that the post of Assistant Manager was by way of seniority-
cum-merit. According to him, the promotion to the said post is not
on the basis of seniority alone. On the contrary, pointing to the
relevant rules, Mr. Sudame argued that it provides for grant of
promotion not only on the basis of seniority but also on merit, job
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knowledge, past performance, suitability and growth potential.
The suitability and growth potential can be assessed from the
recommendations and remarks of the officers in the appraisals and
interviews. Mr. Sudame, further submitted that the petitioner was
not approved by the Promotion Committee and all the other
respondents, who have superseded him, were found to be more
suitable and competent considering the recommendations and
remarks of the Officers in appraisals and interviews. He, therefore,
submitted that though the petitioner was the senior most, that by
itself was not enough for promoting him and that is why
promotion of the respondents, rather than the petitioner, is fully
justified. He relied on decision in K. Samantaray ..vs.. National
Insurance Co. Ltd.; 2004 (9) SCC 286.
4. At the time of hearing of the writ petition, in response
to the query made by this Court, Mr. Sudame, learned counsel for
respondent no.1 has produced an envelope showing the marks
obtained by the respondents, who were promoted in place of the
petitioner and that of the petitioner and submitted that the
petitioner must have received less marks than them in the
interview and i.e. why the petitioner was not promoted. He,
therefore, prayed for dismissal of the writ petition.
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CONSIDERATION:
5. We have heard learned counsel for the rival partes at
length. We have perused the entire record so also promotion
policy and the relevant rules of promotion. We have perused the
seniority list and, in fact, it is an admitted position that the
petitioner was the senior most person in his cadre compared to the
19 officers who superseded him. Therefore, it can safely be said
that the petitioner was the senior most person in his cadre. We
would not like to enter into the controversy raised by learned
counsel for the respondents that the promotion was not by
seniority alone but also on merits. In the instant case, we find that
the petitioner was entitled for promotion to the post even on
merits and, therefore, on both counts of merit and seniority, the
petitioner satisfied the requirement. We are, therefore, need not
decide whether the seniority alone was the criterion for promotion
and would proceed to examine the case as per the defence of
respondent no.1-Company that it is by seniority-cum-merit and
suitability.
6. Looked from the above angle, we find that there is
nothing on record brought by respondent no.1 to show that the
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petitioner was not suitable or that he did not have job knowledge
or past performance or growth potential or the suitability. We also
find that respondent no.1 has not placed anything on record to
show that remarks of the officers in the appraisals in the interview
were against the petitioner or that the petitioner was found unfit
for the promotional post. Not a single remark of the superior or
adverse report/remark has been placed before this Court to show
that as compared to the others, who superseded him, he was not
fit to be promoted. Respondent no.1 has, thus, cleverly
suppressed from the Court the entire information, if it were to
project its defence about non suitability of the petitioner.
7. Learned counsel for respondent no.1 then relied on
item 7 of Promotion and Transfer For Policy For Officers and
contended that there are 100 marks allotted for considering the
promotion to the post of assistant Manager. For Seniority 42
marks are allotted and since admittedly the petitioner is senior
most, he was entitled to 42 marks. Next item is insurance
qualification which has 8 marks. Thus, there is no dispute that
this petitioner would get 50 marks on the said aspect namely; (a)
Seniority and (b) Insurance Qualification. The next columns are
(c) C. R. Form and (d) Interview. Insofar as (c) is concerned, we
have not been shown as to how the petitioner was anyway lower
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in getting the marks compared to the other officers who
superseded him. Thus, the total number of marks for (c) (i) (ii) &
(iii) are 50 marks. We have opened the envelope submitted to us
by counsel for the respondent no.1 and we find from the said
envelope that the petitioner was given 37.71 marks out of 50 and
respondent no.6-Arunachalam Subramanian was given 49.59
marks on 7.1 (c) (i) to (iii). Thus, we find that the petitioner was
entitled to full 50 marks on account of (a) Seniority and (b)
Insurance Qualification, in addition to 37.61 marks. But
respondent no. 1 is not ready to show us the marks obtained by
respondent no.6 on account of (a) & (b). The reason appears to
be that the petitioner is shown at Serial No. 105 while respondent
no.6 at Serial No. 422 in the seniority list as on 01.01.1998. We
thus find that respondent no.1 was not at all justified in denying
the promotion to the petitioner and unnecessarily putting him to
harassment.
8. It is the fact that the petitioner has rightly claimed that
respondent no.1 did not implement the policy of reservation in the
matter of promotion for the employees belonging to the Scheduled
Castes and Scheduled Tribes. The tale telling facts narrated above
show that merely because the petitioner was a member of
Scheduled Caste, he was deliberately denied the promotion,
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though he was the senior most and had absolutely no adverse
record against him on any count and had more marks than that of
respondent no.6-Arunachalam Subramanian and other 19 officers,
who superseded him. This is a case of clear cut injustice.
Therefore, we think that some amount of cost should be paid to
the petitioner apart from the grant of relief.
9. In the result, we pass the following order.
ig ORDER
(i) Writ Petition No. 1629/1998 is
allowed.
(ii) It is declared that the petitioner
was entitled to promotion to the post of
Assistant Manager and shall be granted
deemed date in the matter of promotion
with continuity of service and all monetary
benefits including difference of arrears of
salary and terminal benefits from the date
when his first junior superseded him in the
matter of promotion to the post of
Assistant Manager. The implementation of
the above shall be made within a period of
four months from today. After four
months, the respondent no.-1 will be liable
to pay interest at the rate of 9% p.a. on
these monetary benefits till the actual
payment.
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(ii) Respondent no.1 shall pay costs
of this petition, in the sum of Rs. 10,000/-,
to the petitioner within a period of four
months from today.
Rule made absolute in the
above terms. No order as to costs.
JUDGE JUDGE
kahale
