Bombay High Court
Gautam Adhikary vs Oil And Natural Gas Commission ... on 22 September, 2017
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.543 OF 2008
WITH
WRIT PETITION NO.2490 OF 2009
WITH
WRIT PETITION NO.1359 OF 2010
WITH
WRIT PETITION NO.1360 OF 2010
Dwarika Prasad,
of Mumbai, Indian habitant,
Residing at Flat No.P-2-11,
Challenger Tower, No.2,
Thakur Village, Kandivali (East),
Mumbai-400101. ...(Petitioner in WP/543/2008)
Anil Kumar,
Aged about 59 years,
of Mumbai, Indian habitant,
Residing at C-5/32, Santhal,
ONGC Colony,
Bandra Reclamation Bandra (West),
Mumbai-400050. ...(Petitioner in WP/2490/2009)
Gautam Adhikary
of Mumbai, Indian habitant,
Residing at A-102, ISM House,
Thakur Village, Kandivali (East),
Mumbai-400101. ...(Petitioner in WP/1359/2010)
Ramsewak Sonwanshi
of Mumbai, Indian habitant,
Residing at Flat No.1604,
Wing A, Samarpan,
(Near Magathane Telephone Exchange),
Western Express Highway,
::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 02:24:54 :::
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Borivali (East),
Mumbai-400066. ...(Petitioner in WP/1360/2010)
..PETITIONERS
-Versus-
1 Oil & Natural Gas Corporation Limited,
6, Jeevan Bharati Tower-II,
124, Indira Chowk,
New Delhi-110001.
2 The Chairman & Managing Director,
Oil & Natural Gas Corporation Limited,
6, Jeevan Bharati Tower-II,
124, Indira Chowk,
New Delhi-110001.
3 Director (Human Resources),
Oil & Natural Gas Corporation Limited,
6, Jeevan Bharati Tower-II,
124, Indira Chowk,
New Delhi-110001.
4 Group General Manager (HR & ER),
Head of Regional Office,
Oil & Natural Gas Corporation Limited,
4-NSE Building, Bandra Kurla Complex,
Bandra (East), Mumbai-400051.
..RESPONDENTS
............
Mr. H.D. Buch along with Mr. S.K. More, learned Advocates for the
Petitioners.
Mr. S.U. Kamdar, Senior Advocate along with Mr. S.P. Bharti, Mr. Yashesh
Kamdar and Mr. Dilip Kumar Mishra, Advocates for the Respondents.
............
CORAM : S.C. DHARMADHIKARI &
B.P. COLABAWALLA, JJ.
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th
Reserved on : 17 March, 2017
nd
Pronounced on : 22 September, 2017
JUDGMENT : (Per S.C. Dharmadhikari, J.):
1 These Writ Petitions involve a common question of fact and
law. They were heard together and are disposed of by this common
judgment.
2 Since arguments were extensively canvassed in Writ Petition
No.543/2008, we take the facts from the paper book of this petition.
3 The Petitioner is a citizen of India. He belongs to Scheduled
Caste ("Jatav" community of the State of Uttar Pradesh). The first
Respondent before us is the Oil and Natural Gas Corporation Limited and
Respondent Nos.2, 3 and 4 are it's senior officials such as the Chairman &
Managing Director, the Director (Human Resources) and the Group
General Manager (HR & ER). The Petitioner was an employee of the first
Respondent and at the relevant time, was working as Deputy General
Manager (Reservoir) at E-6 level.
4 The Petitioner seeks to challenge his repeated supercession in
the matter of promotion from the post of the Deputy General Manager (E-
6 level) to the post of General Manager (E-7 level). The Petitioner invites
our attention to the Modified Recruitment and Promotion Regulations,
1980 (for short "the Regulations") and the criteria for promotion laid
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down therein.
5 It is stated that the petitioner joined the first respondent on
01.02.1978 in the post of Assistant Executive Engineer (Reservoir) at
level E-1. The petitioner has since maintained a spotlessly clean service
record and as a result thereof, he has been promoted from time to time to
the higher posts. In the past the petitioner was always promoted when
eligible and when promotion was due. The petitioner has rendered
meritorious service for almost 30 years and has never received a single
memo. The petitioner has received Awards and letters of appreciation
from his superiors from time to time. The performance appraisal of the
petitioner is free of any adverse remarks.
6 It is then stated by the Petitioner that he was last promoted
to the post of Deputy General Manager (Reservoir) being Level E-6 on
01.01.1998. According to Regulation 23 of the said Regulations, he
became eligible for promotion to the post of General Manager (Level E-7)
upon completion of three years experience in the post of the Deputy
General Manager (Level E-6) which is the feeder post for promotion to
the post of General Manager (Level E-7).
7 According to the Petitioner, the promotions to the E-7 level
posts which were supposed to have been granted on 01.01.2001 were
ordered as late as in April 2003. Thereafter, the respondents started
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considering promotions for two calendar years at a time instead of one
calendar year as required. Thus, promotions which were due on 1.1.2002
and 1.1.2003 were declared as late as in April 2004 and similarly,
promotions which were due on 1.1.2004 and 1.1.2005 were declared as
late as in May 2005. It is averred by the petitioner that in contravention
of directives issued by the Government of India all the aforesaid
promotions were issued with retrospective effect. The said Government
directive has been incorporated in the said Regulations.
8 It is stated that the petitioner who was to be promoted w.e.f.
01.01.2001 and who was within the zone of consideration in all aforesaid
years, was continuously superceded. The employees junior to the
petitioner and far outside the zone of consideration, were preferred and
promoted to the E-7 level in contravention of the said Regulations and the
Government instructions. Moreover, no reasons whatsoever were given
as required by the said Regulations to the petitioner explaining why the
petitioner was being repeatedly ignored for promotion to the post of E-7
level. The petitioner made a detailed representation dated 16 th March,
2005 to the 2nd Respondent and pointed out provisions of the said
Regulations and the various Government instructions which ought to have
been followed. According to the Petitioner, he requested the respondents
to reconsider his case so that he may get his due promotion to the post of
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General Manager w.e.f. 01.01.2001. By their reply dated 12 th December
2005, the respondents falsely stated that the petitioner could not establish
his relative merit and hence was not recommended. Copies of the said
representations are annexed at Exhibits A and B to the petition memo.
9 It is then stated by the petitioner that in continuance of the
illegal practice of granting promotions in the aforesaid manner, the
respondents on or about 01.06.2007 issued an order once again
purportedly granting retrospective promotions from E-6 level to E-7 level.
According to the said Order, 113 executives were purportedly granted
promotions w.e.f. 1.1.2006 and 69 executives were purportedly granted
promotions w.e.f. 1.1.2007. The said promotions were granted on the
basis of the recommendations of the Departmental Promotions Committee
(DPC) meetings held on May 2007.
10 It is stated in the petition that as per said Regulation 7 (2)
and (8), the promotions are vacancy based. Accordingly, the respondents
were required to determine the number of vacancies before conducting
DPC proceedings. The petitioner says that once again the petitioner,
though eligible and within the zone of consideration, was not promoted
while officers far junior to the petitioner and clearly outside the zone of
consideration, were granted promotion.
11 The Petitioner then stated that in the seniority list prepared
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for E-6 level officers, the petitioner is positioned at Serial Number 50 in
the order of seniority for promotions made from 1.1.2006/1.1.2007.
Having regard to the current prevalent formula of ascertaining the normal
size of the zone of consideration, which is one and a half times the
number of vacancies plus three, the petitioner was clearly falling within
the zone of consideration. The petitioner says that a closer examination
of the said purported promotion order not only reveals that numerous
officers far below the petitioner in the seniority have been promoted, but
also reveals that about 28 officers far beyond the zone of consideration,
ranking at serial numbers as far as 287, 297, 298, 301, 308, 309, 311,
312, 314, 315, 316, 320, 321, 322, 324, 326, 327, 328, 329, 331, 333,
334, 342, 345, 348, 352, 354 etc. in the seniority list have been promoted
while the petitioner has been ignored without assigning any reason.
12 The petitioner further stated that the aforesaid formula
applies for ascertaining the normal size of the zone of consideration out
of the eligible candidates from the seniority list. According to the
Petitioner, he clearly falls within the zone of consideration.
13 The petitioner has reproduced Regulation 7 (11)(iii)(b) of
the said Regulations reading as under :
"7(11)(iii)(b) : Merit Promotion by Selection-Corporate
Promotions (E-5 level and above) :
1. The promotions at corporate level (E-5) level and
above) are based on Merit and qualification scheme.
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2. The marks are awarded for qualification, experience
(PAR)s and performance in the interview.
3. The qualifying marks are 60 % in interview as well as
over all for General candidates and 40 % for SC/ST/
candidates".
14 The petitioner has then stated that in respect of the
promotions to E-7 level up to 12.1.2000 and 1.1.2001 the selection
criteria followed by the Departmental Promotion Committee (for short
"the DPC") was in accordance with the provisions of the said Regulations.
Thus, the criteria for selection was based on the following ingredients of
merit :
I. Qualification,
II. Experience
III. Performance Appraisal Report (PAR for short) and
IV. Performance in the interview.
According to the Petitioner, the weight-age given to each of
the aforesaid ingredients was as follows :
Qualification - 15 marks
Q1-15
Q2-10
Q3-07
Experience - 15 marks
(3 years-9 marks
4 years-11 marks
5 years-13 marks
6 years and above-15 marks)
PAR (Average of preceding 3 years) : 50 marks.
A+ - 50
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A - 40
B - 30
C - 20
D - 10
Interview: 20 marks.
Total : 100 Marks.
15 According to the Petitioner, the Performance Appraisal was
done in two parts viz. under the heads "Performance Appraisal" and
"Potential Appraisal" as per the format prescribed. "Potential Appraisal"
consisted of 10 attributes/traits. The Petitioner has annexed a specimen
copy of the Performance Appraisal form at Exhibit C to the petition.
16 It appears, according to the Petitioner, that in the 237 th
Executive Committee meeting held on 27.01.2003 at Dehradun, certain
new criteria was purportedly approved and the Executive Committee
decided in the DPC meeting dated 25.02.2003 that the said purported
new selection criteria would be followed for promotions from 2002
onwards and that the criteria mentioned in paragraph 14 of the petition
memo would be applicable to promotions for 2000 and 2001. The
Petitioner has annexed the copy of the Minutes of the proceedings of the
DPC for promotion to the post of General Manager (E-7 level) w.e.f.
01.01.2000/01.01.2001, at Exhibit D to the petition.
17 It is further stated that in the meeting of the DPC for
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promotions to the E-7 level w.e.f. 01.01.2002/01.01.2003, the DPC
followed the following selection criteria :
i. Qualification
ii. Performance Appraisal Report and
iii. Potential Assessment.
Thus, according to the petitioner, two vital components of
merit viz. "Experience" and "Interview" were done away with and
"Potential Assessment" (PA for short) was added as a new criterion. The
weight-age given to each of the aforesaid ingredients was as follows :
Qualification 05 marks
Q1-05
Q2-02
Q3-Nil
PAR 15 marks
A+ - 05
A - 03
B - 01
C - Nil
D - Nil
Potential Assessment (PA) : 20 marks (These marks shall be
given by DPC as per the ten attributes (AA-2, AV-1, BA-0)
Total : 40 marks
Minimum Eligibility Criteria (70 % of Q+PAR)+60% of PA)
To qualify both separately.
The Petitioner has annexed the copy of the minutes of the
proceedings of the DPC for promotion to the post of General Manager (E-
7 level) w.e.f. 01.01.2002/01.01.2003 at Exhibit E to the petition.
18 It is then stated by the petitioner that the aforesaid criteria
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was applied and followed by the respondents in contravention and
violation of the said Regulation 7(11)(iii)(b) as reproduced above. The
same was done without amending the said Regulations and hence without
following the proper procedure. The new purported criteria followed by
the DPC was made by the Executive Committee without approval of the
ONGC Board. The said Regulations, which have a statutory force and
effect, were illegally and arbitrarily by-passed on the basis of an executive
fiat of the Executive Committee. The Executive Committee was not
vested with the necessary power, authority or jurisdiction to alter the
criteria to be followed and has done so in gross violation of the statutory
Regulations. Moreover, the purported criteria followed from 2002
onward was never circulated in the ONGC. According to the petitioner,
not even executive instructions were issued to remove the two vital
components of merit promotion viz. experience and performance in
interview. As a matter of fact, no amendment was made by the
respondents to the statutory Regulations to incorporate the purportedly
newly designed criteria.
19 The Petitioner, therefore, challenges the new criteria. He
would submit that apart from being arbitrary and illegal, it has resulted in
the selection which is not rational or objective. Ten attributes laid down
for Potential Assessment (PA) are the same as the attributes relevant
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under the head "Potential Appraisal" under the format prescribed for
Performance Appraisal Report (PAR). The marks allotted by the
Departmental Promotion Committee under the potential assessment are
shown as 20 which is contrary even to the purported decision taken in the
237th executive meeting held on 27.01.2003 at Dehradun. However, the
minutes of this meeting indicate that the marks allotted for the above are
10. It is in these circumstances that the Petitioner alleges that the entire
decision making process smacks of malafides and fraud. The decision of
the Executive Committee has been manipulated by the Departmental
Promotion Committee (DPC) as regards the potential assessment (PA).
The formula for Minimum Eligibility Criteria is defective and absurd in
the sense that even the basic educational or professional qualification of
an incumbent has been devalued and only 70% thereof has to be
considered. The Performance Appraisal Report (PAR) and Potential
Assessment (PA) are to be considered separately, though they are two
descriptions of the same attributes and that has resulted in doubly
considering the same set of attributes of an individual under separate
heads. No material was available before the Departmental Promotion
Committee to assess the potential assessment of the candidates. On this
basis, the allegation of favoritism is levelled by the Petitioner.
20 Thereafter, the Petitioner refers to the mandatory policy
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instructions of the Government of India contained in the office
memorandum dated 15.05.1989 which inter-alia laid down that while
modifying the Recruitment Rules, it should be ensured that interest of
SC/ ST candidates is not adversely affected. As compared with the
regulation mentioned in paragraph 13 of the writ petition, namely,
Regulation 7(11)(iii)(b), the relaxation of 40% marks for SC/ST
candidates with regard to performance in interview, was done away with
when designing the new selection criteria. In the new criteria, no
relaxation has been made for SC/ST candidates by the Respondents.
Hence, the Government of India instructions are disobeyed.
21 Then, the Petitioner refers to the criteria followed by the
Departmental Promotion Committee for promotions to E-7 level w.e.f.
01.01.2004/ 01.01.2005. The Petitioner stated that for the years 2006
and 2007, the purported criteria remained the same as was applied for
the years 2002-2003 and 2004-2005, but the ratings of the Performance
Appraisal Report (PAR) were revised. After setting out this revision in
paragraph 21 of the petition, it is alleged that the criteria followed for the
years 2006 and 2007 was also not in accordance with the said
Regulations. The Petitioner has once again been deprived of promotion in
an arbitrary and illegal manner.
22 The Petitioner also faults the constitution of the
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Departmental Promotion Committee for the year 2006-2007. He
complains that this constitution was not in accordance with the provisions
of Regulation 7(1) of the said Regulations, so also, with the office order
dated 30.08.1989 inasmuch as no member of the SC/ST community was
nominated as a part of the Departmental Promotion Committee (DPC).
The constitution of the Departmental Promotion Committee for the year
2006-2007 was also contrary to the provisions of Rule 4 of the ONGC
Limited Service Rules, 1995 r/w paragraph 20 of the Presidential
Directives dated 25.04.1991 issued by the Government of India which are
quoted in paragraph 24 of the petition. Essentially, therefore, the
Petitioner is pointing out the defects in the constitution of the
Departmental Promotion Committee and further non adherence to the
criteria for promotion to the post of General Manager (E-7 Level) by the
Departmental Promotion Committee.
23 The Petitioner, after pointing out the Regulations in further
paragraphs in great details, alleges that his continued supercession is
contrary to even the directions issued by the Government of India. In
particular, the Petitioner highlights the alleged injustice to the employees
of the SC/ST category. The Petitioner also alleges that there is violation of
the instructions issued by the Department of Personnel and Training,
Government of India, set out in the Office Memorandum dated
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06.01.2006. The promotions have been effected retrospectively from
01.01.2006 and 01.01.2007.
24 The Petitioner made two representations, details of which are
set out in paragraph 32 and copies of these are at annexures I and J.
25 It is a common ground that this petition was placed before
this Court and an order came to be passed on 10.04.2008. Thereafter,
leave was sought to amend the petition and it was amended. The
Petitioner then states that he was invited for a meeting and by
Respondent No.4. The Petitioner was informed at the meeting, which he
attended along with other representatives for promotions to E-7 Level,
that it has almost been finalized by the Executive Committee and that the
Director (HR)/ Respondent No.3 has desired that Respondent No.4
should obtain from the Petitioner an undertaking to withdraw the petition
and tender an apology. The Petitioner expressed his inability to give an
unconditional undertaking. Finally, Respondent No.4 agreed to accept the
undertaking from the Petitioner to the effect that if the Management of
Respondent No.1 favourably considers the case of the Petitioner's
promotion to the post of General Manager (E-7 Level), he would
withdraw the petition. After referring to the presence of other persons at
this meeting, the Petitioner states that he handed over the letter. Then,
that letter/ undertaking was forwarded to Respondent No.3. This
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conditional undertaking was not acceptable and the Petitioner kept on
receiving phone calls to alter this undertaking. It is in these circumstances
that he would allege further and in the amended petition that because of
his refusal to give an unconditional undertaking, he was denied the
promotion.
26 It is in these circumstances that the Petitioner would allege
that the Respondents have treated him unfairly, unreasonably and
malafides are apparent as they desire that the Petitioner should give an
unconditional undertaking to withdraw the petition in lieu of his
promotion. For this reason, he would submit that the decision taken in
the Departmental Promotion Committee meeting held for promotion to
the post of E-7 Level w.e.f. 01.01.2008 be declared as null and void.
27 Then, in the grounds of the Writ Petition the Petitioner
elaborates his challenge. It is not necessary to refer to these grounds in
great details for the simple reason that the Petitioner has, during the
course of arguments, invited our attention to the same.
28 In the light of the above pleadings, the Petitioner prays for
issuance of appropriate writ, order or direction to declare as null and void
the decisions of the Executive Committee (237th meeting) held on
27.01.2003 at Dehradun and the decisions/ recommendations of the
Departmental Promotion Committee held for promotions to the post of
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General Manager (E-7 level) for the years specifically set out in prayer
clause A(ii) of the petition. A writ of mandamus is then sought directing
the Respondents to promote the Petitioner to the post of General Manager
(E-7 Level) w.e.f. 01.01.2002 on par with the others and grant
consequential benefits.
29 An affidavit in reply has been filed after the Writ Petition was
served on the other side by the Manager of Respondent No.1. He has
stated that the employees of Respondent No.1/ Corporation are divided
into two cadres, namely, "executive" and "non executive" categories. The
executive category (Class-I) starts from E-1 level and the employees are
promoted to higher executive cadres i.e. E-5 and above levels on the basis
of the criteria fixed by Respondent No.1/ Corporation, which is contained
in the Modified Recruitment and Promotion Regulations, 1980 and the
instructions/ decisions taken by Respondent No.1 from time to time in it's
Executive Committee meetings with the approval of the ONGC Board.
30 It is further stated that the said Regulations contemplate
filling of positions by promotion (Regulation 7) and lay down the criteria
for promotions to various levels of executive cadre. Regulation 11
contemplates Merit Promotion by Selection for E-3 and E-4 level officers
and also for Corporate Promotions i.e. E-5 level and above.
31 It is further stated that the petitioner joined the 1st
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Respondent Corporation in 1978 on the post of Assistant Executive
Engineer (Reservoir) at E-1 level. The petitioner has been promoted from
time to time and the petitioner was last promoted to the post of Deputy
General Manager (Reservoir) being at E-6 level on 01.01.1998.
32 It is then stated that the promotion policy of the 1 st
respondent was codified vide said Regulations in 1980 in the context of
long stagnation extending 7/9 years of executives specially at Junior and
Middle Management levels. In the process, eligibility of promotion was
accorded overriding priority as compared to available positions.
However, the 1st respondent Corporation amended the policy from time to
time to bring in improvements in the policy and to eliminate
dissatisfaction amongst the executive cadre.
33 It is further stated that the petitioner was considered by the
1st respondent Corporation for his promotion to the post of General
Manager (level E-7), but since the petitioner could not establish his
relative merit, the Departmental Promotion Committee did not
recommend his name for promotion. According to the Respondents, the
1st respondent Corporation by letter dated 12.12.2005 communicated the
said fact to the petitioner. As the petitioner was not found fit in
comparison to other officers who were eligible for the promotion, he was
not promoted.
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34 With reference to paragraph 8 of the Writ Petition, the
Respondents have stated that it is correct that the petitioner was within
the zone of consideration, but it is totally incorrect that the petitioner was
superseded as promotions to corporate level i.e. E-5 to E-8 are only on
merit and not on seniority cum merit. All those who are found "Fit" as
per the benchmark set by the DPC, have been promoted on their relative
merit. Thus, according to the Respondents, there is no supercession in
respect to any of the executives as their inter-se seniority is always
maintained in the promoted post. It is, therefore, stated that none of the
officers was promoted to E-7 level in contravention of any regulation
and/or instructions.
35 It is then stated in the affidavit in reply that though the
officers who completed three years at the feeder post are entitled for
being put in zone of consideration, but that is not the sole criteria for
promotions. Any officer working at E-6 level for three years has to be
found fit for E-7 level on relative merit by DPC consisting of all Functional
Directors of the Company i.e. Director from the concerned discipline and
all other Functional Directors.
36 With reference to paragraph 18 of the petition, it is denied by
the Respondents that the modified new criteria is arbitrary or illegal or
faulty or defective, lacking rationale or objectivity. It is totally incorrect,
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according to the Respondents, that the attributes mentioned in the
potential assessment are repetitive of the attributes of PAR. It is stated
that PARs are filled up by the immediate controlling officers and on
promotions, the Executives are assessed by the DPC members, who are
Functional Directors of the respondent Corporation to judge the
capabilities of the Executives to take up the higher responsibilities in the
senior position, depending on the organization requirement at the time of
promotion.
37 It is then clarified by the Respondents that as per the
Government of India OM No. 1/9/69-Estt (SCT) dated 26.03.1970 as
amended by OM No. 36028/21/2003-Estt (Res) dated 29.01.2004 read
with OM NO. 36012/6/85-Estt (SCT) dated 1.11.1990, there is no
reservation for SC/ST for promotion by selection within Group "A" posts
which carry an ultimate salary of Rs. 18,300/- or more. However, it is
stated that while recommending the name of Executives for E-7 level
promotion, the DPC always took care to ensure that no SC/ST candidates,
who are otherwise found 'Fit', are not left out by DPC. It is then stated
that the reliance on office Memorandum i.e. OM No. AB/14017/22/89-
Estt (RR) dated 15.05.1989 by the petitioner is totally incorrect and
misplaced as the same nowhere contemplates modification of the
recruitment rules. It is further stated that the DPC constituted by the
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respondent Corporation while recommending the name of Executives for
E-7 level promotion, always took care to ensure the proper application of
Government instructions/policy in regard to schedule caste/schedule tribe
candidates.
38 With reference to paragraph 23 of the petition, it is denied by
the Respondents that the constitution of DPC for the year 2006-2007 was
contrary to any provisions or any presidential directives as alleged. It is
stated that DPCs for all years were constituted as per relevant Regulation
r/w Office Order dated 30th August 1989. It is stated that the promotion
to E-6 and E-7 level is promotion for senior level position, affecting the
functioning of the respondent Corporation.
39 While replying to paragraph 25 of the petition, it is stated
that the contention of the petitioner is totally misconceived and the same
is denied. It is stated that the list of candidates selected was posted on
the Respondent's internal website. It is further stated that the DPC
followed the procedure for determining the merits as per criteria
approved by the Board of the Respondents. The Respondent Corporation
always made best efforts to ensure that PARs of all the executives are
placed before the DPC, but if for any reason, in regard to any PAR of an
executive not completed at the time of DPC meeting, in such case, PAR
marks are arrived at by taking average of last available PARs in order to
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avoid any delay in the matter.
40 With regard to the contentions raised in paragraph 32 of the
petition, it is stated that what is stated therein is totally baseless and
incorrect, therefore, denied. It is stated that there has been no
supercession at all. The DPC graded all those executives fit and who met
the prescribed benchmark, were put in the select list in the order of their
inter-se seniority in the feeder grade. It is, therefore, stated that the
petitioner, after failing to obtain any interim relief in the matter,
sometime in the 1st week of May 2008, approached the respondent
Corporation through All India SC and ST Officers Association and
expressed desire to settle the dispute amicably by considering his case
sympathetically. As per HR practice of the respondent Corporation of
counseling, it was suggested to the petitioner not to litigate. During
meeting with the 4th respondent, the Petitioner himself showed
willingness to withdraw the case. It is specifically stated that none of the
officers of the respondent Corporation have ever communicated to the
petitioner to furnish an undertaking to withdraw the present petition or
tender an apology as alleged or otherwise. The petitioner himself in his
interest agreed to proceed in the manner as stated above to facilitate
favorable consideration of his case on merits. It is, therefore, denied that
the petitioner has been persuaded or pressurized for withdrawing the
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petition and tendering any apology by officer of the respondent
Corporation.
41 Thereafter, in the further paragraphs of this affidavit,
Respondent No.1 asserts the contentions as aforesaid and denies whatever
is contrary or inconsistent therein.
42 Thus, the stand and which is reiterated throughout is that all
promotions from E-6 to E-7 level have been done in accordance with the
existing Regulations/ Instructions.
43 The petition was amended and to the amended petition as
well, an affidavit in reply has been filed and it is specifically denied that
the Management exerted any pressure on the Petitioner to withdraw the
petition.
44 There is an affidavit in rejoinder dated 17.07.2008 filed by
the Petitioner and apart from reiterating the allegations and averments in
the Writ Petition, he would submit that Respondent No.1 and the
Association of Scientific and Technical Officers (for short "the ASTO") had
entered into a Memorandum of Undertaking (MoU) dated 04.08.2004.
Relying upon clause 3.8 of the MoU, it is stated that it was agreed that
there will be no change in the promotion policy or criteria to be followed
for promotion to E-5 or above level posts. It is once again denied that the
changes in the promotion criteria in the 237th and 257th meetings of the
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Executive Committee had been approved by the Board of Directors. It is
reiterated that the promotion policy now applicable contravenes the
Regulations. It is stated that there is no organization in existence by name
"All India SC and ST Officers Association" as alleged by the Respondents
and he has, therefore, reiterated that Respondent No.1 tried to persuade
him to withdraw the petition and then only he would be promoted.
45 There is a further affidavit filed by the Petitioner dated
13.10.2011 in which the Petitioner states that while conducting and
granting promotions, the Respondents have relied upon the minutes of
the ONGC Board meeting held on 07.02.2004 under the agenda Item
No.121.09 claiming that the promotion criteria evolved in the above
referred Executive Committee meetings held on 27.01.2003 and
26.01.2004 was approved by the Board. However, the Petitioner
reiterates that a perusal of the minutes of the 237th Executive Committee
meeting held in January, 2003 and the Departmental Promotion
Committee proceedings for deciding promotions to E-7 level posts w.e.f.
01.01.2002 and onwards, would clearly show that this criteria was never
implemented. The minutes of meeting of the above Executive Committee,
namely, 237th and 257th, were circulated much after the Board meeting
held on 07.02.2004. That is how the Petitioner relies upon the
information obtained by one Mr.Y.Chaturvedi by his RTI application
*25* wp543o08groupDBmainseat.doc
dated 03.07.2010.
46 Further, the Petitioner tries to falsify Respondent No.1's
contention about the ratification obtained from the Board. The Petitioner
submits that the Board approved the selection criteria not for the posts (E-
5, E-6 and E-7 levels), but Group General Manager and Executive
Director, namely, E-8 and E-9 levels. This is how the Petitioner meets the
stand of Respondent No.1. He then relies upon the agenda items and RTI
information. He also raises the issue of Respondent No.1's conduct before
the Honourable Supreme Court of India.
47 It is common ground that this Writ Petition was earlier
dismissed, but later on, by the order of the Honourable Supreme Court, it
came to be restored to this Court's file. The Petitioner, thus, in several
paragraphs of this affidavit relies upon the information obtained under
the Right to Information Act, 2005. Then, he refers to the master chart for
promotions to the post of General Manager and submits that there is an
arbitrary and illegal adjustment of marks in the garb of Potential
Assessment (PA).
48 The Petitioner refers to each of the master charts of
promotions, namely, w.e.f. 01.01.2002, 01.01.2003 and reiterates that
while considering the same candidates by the same Departmental
Promotion Committee on the same date and at the same time for
*26* wp543o08groupDBmainseat.doc
01.01.2006 and 01.01.2007, the Departmental Promotion Committee has
evaluated PA and has given two separate and different assessments of PA
under the head "DPC Marks" in case of several candidates. Once again the
Petitioner has raised the issue of absence of one SC/ ST member at the
Departmental Promotion Committee.
49 This detailed further affidavit required a response from
Respondent No.1 and through their Manager (HR), they filed another
affidavit dated 18.01.2012. The Respondents raised the issue of delay and
laches and acquiescence to submit that the petition deserves to be
dismissed with heavy costs. It is submitted that it is alleged by the
Petitioner that he was due for promotion since 01.01.2002, but he was
denied the same. He was superceded allegedly at that time, but such
occasions have been questioned belatedly in 2008, namely, after the
period of four years. The Petitioner has sought to challenge new
promotion policy implemented by Respondent No.1 for corporate level
promotions w.e.f. 01.01.2002. It is urged that under the same policy, the
Petitioner was promoted to E-7 level in 2009. During 2002 to 2008,
approximately 5400 officers from E-5 and above levels have been
promoted. They have been promoted under the new promotion policy for
corporate level promotions based on modified criteria and thereafter, till
the date of filing of this affidavit, 3400 officers approximately in E-5 level
*27* wp543o08groupDBmainseat.doc
and above have been promoted. It is, therefore, clear that the Petitioner
was aware of this policy, he was considered for promotion under this
policy, but having not obtained it till 2008, now out of frustration, the
Petitioner and others have challenged this new promotion policy.
50 Then, it is asserted that hardly four officers have challenged
the Modified Promotion Policy for corporate level promotions
implemented by Respondent No.1 since 01.01.2002. It is stated that
about 8800 officers in corporate level are promoted since 01.01.2002.
Hence, the new policy is widely accepted.
51 In paragraph 5 of this affidavit, Respondent No.1 says as to
how there is change in the legal entity, namely, earlier it was ONGC
Commission, but after the repeal of the earlier enactment, namely, ONGC
(Transfer of Undertaking and Repeal) Act, 1993 (Act No.65 of 1993),
Respondent No.1 became a public limited company. It is now under the
corporate structure and managed as a company registered under the
Indian Companies Act, 1956.
52 Respondent No.1 in paragraphs 7 and 8 of this affidavit has
traced the history of the guidelines and regulations inter-alia in the
matter of corporate level promotions and transfers. After referring to the
initial Regulation, namely, the ONGC Recruitment and Promotion
Regulations, 1980, it is urged that after repeal of the earlier enactment,
*28* wp543o08groupDBmainseat.doc
Respondent No.1 framed the ONGC Service Rules, 1995 (for short "the
Service Rules"). The relevant portion with regard to the recruitment and
promotional avenues appearing in paragraph 8, firstly states that the
recruitment to the posts under the Company shall be subject to the
Recruitment and Promotion Rules of the Company. Then, Rule 20 of the
Service Rules is referred classifying the promotions into two categories,
namely, selection and non selection posts. This relevant portion reads as
under:-
"The selection post were defined as posts -- promotion
to which shall be made by selection based on merit
with due regard to seniority. It was further provided
in the said Rules that promotion shall be made in
accordance with the relevant provision of the ONGC
Recruitment and Promotion Rules i.e. the Recruitment
and Promotion Regulation, 1980 as modified from
time to time."
53 Respondent No.1 then refers to the Board meeting held on
06.02.1997 at which there was discussion on the point of modification to
the Regulations of 1980, the mode of promotion for E-5 and above levels
and it was decided to modify the Regulations and now the Modified
Recruitment and Promotion Regulations, 1980 (for short "MRPR") are in
force. The said Regulations retain some of the earlier provisions and
particularly the merit based promotion for E-5 and above levels and those
who are fulfilling minimum three years experience are eligible to be
*29* wp543o08groupDBmainseat.doc
considered. That is how subsequent promotions have been granted and
every endeavour has been made to adhere to the MRPR and relevant
rules. It is stated that there has never been any charge of illegality or
irregularity, much less, arbitrariness when a larger number of officers
were granted promotions under the same set of Regulations and Rules.
54 After referring to the organizational restructuring, the
affidavit refers to the deliberations with the Association of Scientific and
Technical Officers (ASTO) of Respondent No.1 which is a representative
body of all officers of Respondent No.1. The deliberations were also on
the point of promotions and other related service issues. As far as the
Corporate Rejuvenation Campaign (CRC) is concerned, while
implementing the same in the matter of corporate level promotions, the
Board in it's 92nd meeting held on 30.05.2002 discussed, deliberated and
approved the criteria for filling up the posts of Executive Directors (E-9
level) as recommended/ decided in the 16th Human Resources
Management Committee meeting held on 16.05.2002. That criteria was
approved by the Board in this meeting of 30.05.2002. The approved
criteria is set out at page 237 of the paper book in paragraph 14 of this
affidavit.
55 It is in these circumstances that the process of deliberations
continued with the ASTO and there were MoUs entered and executed
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particularly the MoU dated 30.09.2002. Pursuant thereto, it was decided
that corporate level promotions w.e.f. 01.01.2000/ 01.01.2001 would be
as per the old criteria and w.e.f. 01.01.2002, the modified criteria
contemplated by the Management would apply.
56 In paragraph 16 of this affidavit, there is a reference to the
237th meeting of the Executive Committee held on 23.01.2003. It
discussed the issue of modifying the criteria for other corporate level
promotions, namely, E-5, E-6 and E-7 w.e.f. 01.01.2002. In that meeting,
it was decided that the promotions w.e.f. 01.01.2000, 01.01.2001 and
01.01.2002 shall be on the basis of the criteria adopted therein. Setting
out this criteria in great details including changes brought about, in
paragraph 17 it is stated that after the modified criteria applied to the
promotions of Executive Directors, the issue was further discussed in the
257th meeting of the Executive Committee. It is in these circumstances,
the minutes of the Executive Committee meetings have been extensively
referred and copies thereof are annexed. Then, there is reference to the
92nd Board meeting, 237th and 257th Executive Committee meetings. All
the decisions taken in these meetings were placed in the Board meeting
held on 07.02.2004. Thus, there is transparency and Respondent No.1
modified the criteria in regard to the corporate level promotions
dispensing with the two previous parameters, namely, interview and
*31* wp543o08groupDBmainseat.doc
experience and introduced Potential Assessment (PA) as one of the
criteria in addition to qualification and Performance Appraisal Report
(PAR) for all corporate level promotions. In the chart at page 241,
paragraph 19 of the affidavit, earlier criteria, deliberated, further
deliberated and approved criteria are extensively set out.
57 In paragraph 20, it is pointed out as to how the Petitioner
was considered for E-7 level promotion in 2001. That was on the basis of
the earlier criteria. However, he was not selected. Then, he was
considered for promotion for E-7 level in 2002/ 2003 by the
Departmental Promotion Committee on the basis of the modified criteria,
but he could not be promoted as he did not meet minimum eligibility
criteria. It is stated that this modified criteria was applied to consider the
Petitioner for promotion in the years 2004, 2005, 2006 and 2007. In such
consideration, no personal interviews were held. The Petitioner was not
promoted only because he could not meet the minimum eligibility criteria
in both parameters, namely, qualification, PAR and PA. In 2008, he could
not secure cut off marks decided by the Departmental Promotion
Committee and therefore, he was not promoted. In 2009, he was
considered by the Departmental Promotion Committee and has been
promoted under the modified criteria which he has accepted. Hence, the
Petitioner having participated in the process throughout and not
*32* wp543o08groupDBmainseat.doc
questioning the criteria for all these years, he is now estopped from
challenging the same. It is stated that the Petitioner was very much aware
about the modified promotion policy/ criteria as he knows the details of
promotions including the names of officers who gained the promotions.
He was very much aware about changes in the promotion policy and that
he had been considered by the Departmental Promotion Committee since
2002 without interview. It is in these circumstances that all the
allegations made by the Petitioner are denied including those in the
further affidavit and the stand in the earlier affidavit of Respondent No.1
has been reiterated.
58 It is not necessary for us now to refer to each of the subsequent
paragraphs of this affidavit. It is stated in paragraph 22(c) that the extract
of the Board meeting held on 07.02.2004 (decisions taken therein), the
office orders have all been provided to those who have asked for the
same, by the Recruitment and Promotion Section, of Respondent No.1.
Thus, there was no secrecy. In the subsequent sub-paragraphs, details of
promotions gained by the officers are pointed out. It is specifically stated
as to how the promoted officers included those from the SC/ ST
categories and who were found suitable by establishing their relative
merits. In every promotion from 2002-2003 onwards, SC/ST officers have
been promoted after due consideration from E-6 to E-7 level. Substantial
*33* wp543o08groupDBmainseat.doc
number of SC/ ST officers have gained promotions and for that matter, in
2005, 48 SC officers and 16 ST officers were considered, out of which,
two were selected from SC category and one from ST category. Every year
this went on and in the year 2006, 37 SC officers were considered, out of
which, 22 were selected. In the year 2008, 33 SC officers were considered
for promotion from E-6 to E-7 level and 15 SC officers were selected. Out
of 14 ST officers who were considered for promotion, 09 were selected. It
is in these circumstances, the allegations about discrimination against the
SC/ ST candidates have been met and they are denied.
59 At page 279 of the paper book, we have the extract of the
minutes of the 34th ONGC Board meeting held on 06.02.1997 at New
Delhi and clauses 34.13 and 34.14 contain the proposals for modifications
in the existing recruitment and promotion regulations for Executive and
Non Executive posts.
60 It is on the above material that we have considered the rival
contentions.
61 Mr. Buch, learned Advocate appearing for the Petitioner,
would submit that the Petitioner was working as the Deputy General
Manager (Reservoir). This is E-6 level post in Respondent No.1
Corporation. The Petitioner is complaining about supercession from E-6 to
E-7 level. Meaning thereby, those juniors and appointed after the
*34* wp543o08groupDBmainseat.doc
Petitioner, were selected for promotion and the Petitioner was
overlooked. The Petitioner was completely unaware of the new policy and
in that regard, Mr. Buch would rely upon Regulation-23 of the said
Regulations which prescribes the criteria for promotions. That is not
followed in the case of the Petitioner's supercession. A new criteria was
applied.
62 Referring to the pages 279 to 281, 285, 289 and 292 of the
paper book, Mr. Buch would submit that every modification/ change in
the Recruitment and Promotion Rules will require specific approval of
the ONGC Board. Mr. Buch would submit that Respondent No.1 is
deliberately creating confusion by referring to the criteria/ modified
criteria. It is a common ground, according to Mr. Buch, that once there
are Rules in place and specifically providing for promotion criteria, then,
they alone would govern the exercise of promotion. They cannot be
displaced or brushed aside by some other criteria allegedly adopted. In
any event, the modified criteria was never approved nor brought for
approval of the Board.
63 Mr. Buch would submit that Respondent No.1 would rely
upon the resolutions of the Board meeting held on 07.02.2004. However,
their contentions are belied if one refers to page 317 of the paper book.
That is a copy of the confidential communication dated 24.03.2004
*35* wp543o08groupDBmainseat.doc
addressed to all members of the Board enclosing therewith the minutes of
the 121st meeting of the Board held on 07.02.2004 at New Delhi. Page
325 of the paper book is nothing but a part and parcel of the said minutes
at item No.121.09. The heading of this item is "Corporate Promotions-
Selection of Group General Manager/ Executive Directors". There is a
detailed reference to the promotion policy, but it is evident that there is
no approval to the changes in the criteria/ policy of promotion from E-6
to E-7 level. Alternatively and without prejudice, Mr. Buch would submit
that there is no specific approval to the changes or modifications in the
promotion policy for the posts at this level. The Board resolutions only
speak of E-8 and E-9 level posts. Mr. Buch would submit that his
arguments would find support from the copy of the agenda of the Board
meeting particularly at page 157 of the paper book.
64 The Petitioner, according Mr. Buch, is unaware of any 257th
meeting of the Board or any decision taken therein. It is submitted by Mr.
Buch that at page 122 of the petition, what is specifically annexed is a
copy of the minutes of the 257th Executive Committee meeting held on
26.01.2004 at Dehradun. From page 122 of the paper book, it is evident
that these minutes were circulated on 21.02.2004. In such circumstances,
the decisions of the executive meeting or recommendations with regard to
the policy of promotion or changes therein, could never have been
*36* wp543o08groupDBmainseat.doc
approved by the Board as the Board meeting was convened and held on
07.02.2004. By referring to page 249 of the paper book, Mr. Buch would
submit that there is no presumption that the Board members were aware
of the Executive Committee decisions. They could never have been aware
of the same in advance. Even if some members of the Board and
Executive Committee are common, one can never in law infer a deemed
knowledge of the Board meeting and particularly about such important
policy decision.
65 Alternatively and without prejudice, Mr. Buch submits that
even if the Board resolution is valid and the Executive Committee
decisions have been approved and can be termed as legal, still there is no
notification or amendment to the MRPR. Mr. Buch would refer to the
pages 242, 243 and 257 of the paper book, which are paragraphs of the
affidavit in sur-rejoinder and particularly paragraph 21 thereof, to submit
that the documents annexed thereto and particularly the extract of the
minutes of the Board meeting would reveal that the goalposts keep on
changing.
66 Mr. Buch relies upon pages 15, 80, 81 and 87 of the paper
book, to urge that nothing that is stated by the Petitioner is a figment of
his imagination, but borne out and supported by the record. There is no
consistency in the policy of promotion and particularly the executive level
*37* wp543o08groupDBmainseat.doc
posts. The result is that there is a complete arbitrariness, favoritism,
nepotism and lack of transparency. Mr. Buch would, therefore, submit
that the Petitioner's allegations stand proved by the marks allotted while
considering the candidates for promotion. They keep on changing as per
the whims and fancies of the Departmental Promotion Committee. These
changes have been made so as to enable the Departmental Promotion
Committee to shift or change it's policies.
67 Mr. Buch then refers to page 233 of the paper book which is
nothing, but paragraph 8 of the affidavit in sur-rejoinder of Respondent
No.1, to submit that the actions impugned are arbitrary and unreasonable
and there are no guidelines prescribed. In such serious matter of
promotions from E-6 to E-7 level (top level executive posts), the
Departmental Promotion Committee has been given total freedom and
latitude. There are no guidelines which would guide and advise the
Departmental Promotion Committee in this matter. It is the subjective
satisfaction of the Departmental Promotion Committee which has resulted
in lack of objectivity in the assessment. The assessment has not been
impartial.
68 Mr. Buch then invited our attention to the position of the
Petitioner insofar as the PAR is concerned. In that regard, relying upon
page 224 of the paper book, which is a table showing factual details of
*38* wp543o08groupDBmainseat.doc
incomplete PARs considered by the Departmental Promotion Committee
for promotion from 01.01.2002 to 01.01.2008, Mr. Buch would submit
that the representation of the Petitioner, copy of which is at page 46 of
the paper book, has not been considered at all. All the above issues have
been highlighted by the Petitioner in that representation including the
complaint about his illegal supercession. Even the benchmark or criteria
has been referred and it is submitted that in the promotion order dated
04.03.2005, the candidates at Sr.Nos.23 to 26 are junior to the Petitioner.
The Petitioner at that time, had put in more than 27 years of service. That
is how the subsequent act seeking to promote the Petitioner, cannot
redress his grievances or the complaints set out in the representation and
this petition. Mr. Buch would submit that they have been highlighted
throughout and how they have been not redressed is apparent from a
cryptic and virtually unreasoned reply, copy of which is at page 53 of the
paper book. Referring to paragraphs 5 and 6 of the reply to the
Petitioner's representation made prior to this petition, Mr. Buch would
submit that the criteria is deliberately kept vague. There is no
consideration of relative merit by applying a well defined and settled
criteria. At every stage, some new benchmarks are set. Eventually, in
matters of public employment, an employer like Respondent No.1 cannot
violate the mandate of Articles 14 and 16 of the Constitution of India. Mr.
*39* wp543o08groupDBmainseat.doc
Buch would submit that the said mandate is totally flouted.
69 On the point of delay and laches, Mr. Buch would submit that
this is a technical defence raised and that has no merit. There are reasons
set out for the delay on page 36 paragraph 39 of the writ petition. They
are sufficient and reasonable for overlooking and condoning the delay, if
any. Alternatively and without prejudice, it is submitted by Mr. Buch that
immediately after receiving the DPC proceedings under the RTI Act under
covering letter dated 11.09.2007 (Exhibit K, page 104), the
representation dated 15.10.2007 (Exhibit J, page 98) was submitted
wherein, the issues of new criteria being in violation and contravention of
the MRPR and being without approval of the ONGC Board were brought
to the notice of the Respondents. That representation was never replied
to. Mr. Buch further submitted that the Writ Petition was filed on the
basis of promotion criteria contained in 237th Executive Committee
meeting minutes dated 04.02.2003 by alleging that the DPCs from
01.01.2002 to 01.01.2007 had not followed the criteria. The marks for PA
were 10 as per the above 237th EC minutes, but the DPCs had taken the
marks as 20 and that too without amending the existing Regulation 7(11)
(iii)(b) of MRPR. It was also urged that the two vital parameters, namely,
"Experience" and "Interview" were eliminated. The 20% relaxation in
qualifying marks for SC/ST candidates in interview was also taken away
*40* wp543o08groupDBmainseat.doc
in violation of the Government Office Memorandum dated 15.05.1989. In
addition, other grounds, namely, DPC constitution, zone of consideration
and prior approval of the ONGC Board were also included in the Writ
Petition.
70 Mr. Buch further submitted that the controversial new
criteria only came to the knowledge for the first time of the Petitioner
when the Respondents filed the reply dated 02.07.2008 and enclosed as
Exhibit B the copy of the 257th Executive Committee minutes circulated
under the confidential covering letter dated 21.02.2004. Mr. Buch would
submit that the Respondents did not raise any objection of delay and
laches in their two affidavits in reply dated 02.07.2008 and during the
oral arguments at the time of admission. Since the Writ Petition has been
admitted by this Court, it shows that this Court has admitted the Writ
Petition for consideration on merit and the argument of alleged delay
cannot be raised by the Respondents at this belated stage and delay, if
any, must be considered as condoned.
71 Mr. Buch would then submit that in compliance with
Regulation 7(4)(c) of the said Regulations, the procedure for merit
promotion is required to be decided two months in advance before the
date of selection, but it has not been done. Similarly, in terms of
Regulation 7(9), the candidates are required to be informed of their non-
*41* wp543o08groupDBmainseat.doc
selection and under which parameter of the promotion criteria, the
candidates failed to score the required marks so that the candidates may
overcome the deficiency on next occasion. But, nothing has been
communicated to the Petitioner for his non-selection.
72 Mr. Buch then submitted that on page 257 paragraph (c), the
Respondents have admitted that no office order was issued by them. It
has been further averred that on demand, the modified criteria was
provided to the employees. The claim of the Respondents is incorrect
since while replying to the Petitioner's representation dated 16.03.2005,
the impugned criteria was never disclosed by the Respondents. Thus, the
new criteria was never disclosed by the Respondents till they replied to
the present Writ Petition. All the DPC proceedings w.e.f. 01.01.2000/
01.01.2001 have been made available in September, 2007 under the RTI
Act.
73 Mr. Buch would submit that the new promotion policy is
being followed even now, hence, it is a continuing wrong and results in
perpetual arbitrariness on a large scale. The Writ Petition is not only
confined to challenge to the new criteria, but other violations of the
procedure have also been challenged in the Writ Petition. Even the new
criteria has not been followed correctly by the DPC. As such, the
minimum qualifying marks prescribed have been changed on each
*42* wp543o08groupDBmainseat.doc
occasion in between the proceedings illegally. Thus, there is no delay in
filing this petition and if any, the same has been adequately explained.
74 On the point of estoppel, Mr. Buch would submit that it is
explained in the Written Submissions as to how that principle has no
application. Firstly, there is no question of waiver or estoppel when it
comes to the Constitution and fundamental rights guaranteed by Articles
14 and 16(1) of the Constitution of India. Relying upon paragraphs 36 to
47 of the Written Submissions, Mr. Buch would submit that this principle
has no application even on merits as throughout the Petitioner has
complained that he was due for promotion, but deliberately overlooked.
75 Then, Mr. Buch sought to meet another objection raised by
Respondent No.1 of non impleadment of promoted candidates. Mr. Buch
would submit that it is not necessary that the Petitioner impleads all of
them for the simple reason that the present petition concerns E-7 level
promotions w.e.f. 01.01.2002 to 01.01.2008 involving 386 candidates
only. The subsequent promotions for E-7 posts w.e.f. 01.01.2009 have
been made by Respondent No.1 at their risk and responsibility since this
Court had clearly ordered that the subsequent promotions would be
subject to the final outcome of the Petitioner. Hence, it is not necessary to
join 5400 candidates as that is irrelevant and in any event, exaggerated
claim.
*43* wp543o08groupDBmainseat.doc
76 Finally, on this point Mr. Buch would submit that when
violation of the constitutional mandate as enshrined in the above Articles
is highlighted, then, it is not permissible to raise a technical objection nor
is there necessity to implead all the affected candidates. All individuals,
who have been promoted, ought to have been made aware by Respondent
No.1 about the pendency of this petition and their promotions are subject
to the final result of this petition. Nobody has moved for his impleadment.
77 As far as the merits and particularly, constitution of the
Departmental Promotion Committee is concerned, Mr. Buch invited our
attention to paragraphs 75 to 81 of the Written Submissions and would
submit that all his contentions have been summarized therein. Mr. Buch
essentially concentrated on the plea of no approval from the Board of
Directors and in that regard, relied upon paragraphs 13 to 23 of the
Written Submissions which are additional submissions. They are in
addition to those noted above by us.
78 With regard to the discrimination and arbitrariness, Mr. Buch
in addition to his oral submissions, highlighted paragraphs 54 to 69 of the
Written Submissions and for absence of criteria, he invited our attention
to paragraphs 70 to 74 of his Written Submissions.
79 Mr. Buch would then submit that it is erroneous to contend
that the Petitioner was never superceded. From what is set out by him in
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the petition and in his further affidavits, the Petitioner has been
superceded and though belonging to SC category, his interests have been
not protected by the organization. On this point, Mr. Buch highlights
paragraphs 82 to 86 of the Written Submissions.
80 To support all the above contentions, Mr. Buch relies on the
extract from the commentary of Late H.M.Seervai on the Constitution,
Volume-I, Third Edition. He would submit that the way the marks are
allotted, reflects clear arbitrariness and discrimination. That violates the
mandate of Article 16(1) of the Constitution of India.
81 In addition, Mr. Buch relies on the following judgments :-
(i) Govind Prasad vs. R.G.Prasad and others, 1994 (I) LLJ 943.
(ii) P. Sadagopan and others vs. FCI and another, AIR 1997 SC
2700.
(iii) Dr.Rajinder Singh vs. State of Punjab and others, JT 2001 (4)
SC 538.
(iv) UOI Through Government of Pondicherry and another vs.
V.Ramakrishnan and others, JT 2005 (9) SC 422.
(v) P.Mohannan Pillai vs. State of Kerala and others, AIR 2007 SC
2840.
(vi) Union of India and others vs. Sangram Keshari Nayak, JT 2007
(6) SC 272.
(vii) K.A. Nagamani vs. Indian Airlines and others, JT 2009 (4) SC
(viii) Jagdish Prasad vs. State of Rajasthan and others, JT 2011 (7)
SC 384.
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(ix) Hardev Singh vs. UOI and another, (2011) 10 SCC 121.
(x) K.Shekar vs. Indiramma and others, AIR 2002 SC 1230.
(xi) Union of India and others vs. N.R.Banerjee and others, (1997)
9 SCC 287.
(xii) Anami Narayan Roy vs. Suprakash Chakravarthy and others,
2009 (3) Bom.C.R. 221.
(xiii) Union of India vs. B.S.Darjee and another, JT 2011 (12) SC
(xiv) UPSC vs. L.P.Tiwari and others, JT 2006 (10) SC 624.
(xv) Dev Dutt vs. Union of India and others, (2008) 8 SCC 725.
(xvi) Superintending Engineer, Public Health, UT Chandigarh and
others vs. Kuldeep Singh and others, (1997) 9 SCC 199.
82 Mr. Kamdar, learned Senior Counsel appearing for the
Respondents/ ONGC, on the other hand, submits that this Writ Petition
has no merit and must be dismissed. Mr. Kamdar would submit that the
Respondents have pointed out in their affidavits in reply and sur-rejoinder
as to how the Petitioner has conducted himself in this litigation. He has
taken chances and by means of this petition, sought to pressurize the
Respondents in meeting his unreasonable and unfair demands.
83 Mr. Kamdar submits that Mr. Buch can never dispute the
proposition that Article 16(1) of the Constitution of India does not
guarantee promotion. There is no right to promotion, but the right is
restricted to being considered for promotion. That right to be considered
*46* wp543o08groupDBmainseat.doc
is assured to all, non Scheduled Caste and non Scheduled Tribe, and
Scheduled Castes and Scheduled Tribe candidates. In this case, the
Petitioner admits that there is no reservation in promotion. Assuming it
has been provided, though not admitting it, the field and competition is
restricted to reserved category candidates, still, they have to compete
inter-se. It is only when they are found eligible and fulfill the required
criteria that they can be promoted. None can, therefore, raise a dispute
when he or she has expressly being considered for promotion, but not
found fit.
84 Mr. Kamdar then submits that the Writ Petition is barred by
delay and laches and deserves to be dismissed also because necessary
parties have not been impleaded and joined as party respondents. He
would also submit that the Petitioner is estopped from challenging the
selection/ promotion process once he has participated in the same.
85 On merits, Mr. Kamdar would submit that the petition is
misconceived and lacks substance. The Petitioner overlooks the fact that
he was duly considered and when he was found suitable and met the
required criteria and benchmark, he was duly promoted. It is pertinent to
note that the Petitioner was repeatedly considered for promotion to E-7
level w.e.f. 2001, first under the earlier criteria and subsequently under
the modified criteria. Inviting our attention to Annexure-D to the paper
*47* wp543o08groupDBmainseat.doc
book (pages 59 to 67), Mr. Kamdar submits that the Petitioner's
performance was evaluated on the basis of the earlier criteria for
promotion and he was not selected by the Departmental Promotion
Committee. That DPC shortlisted certain candidates as suitable for
promotion after considering details of the service records, PARs and
performance in interview. There were approximately 355 candidates.
Thereafter, for promotion w.e.f. 01.01.2002 to 01.01.2009, the Petitioner
was evaluated on the basis of the modified criteria. There are several
documents on record evidencing the same. For promotion w.e.f.
01.1.2002 and 01.1.2003, The Departmental Promotion Committee
assessed approximately 424 candidates. After considering details of their
service record, PARs and attributes, the DPC shortlisted the Executives
suitable for promotion. Once again the Petitioner was not selected.
Similarly, the Petitioner was part of a pool of 480 candidates considered
and assessed by the DPC for promotion to E-7 level w.e.f. 01.01.2004 and
01.01.2005 (Annexure-G to the petition, pages 79 to 84). A pool of 509
candidates was considered and assessed by the DPC for promotion to E-7
level w.e.f. 01.01.2006 and 01.01.2007 (Exhibit H, pages 85 to 89).
Although the Petitioner submitted the letter dated 06.05.2008 to
Respondent No.1 to withdraw his petition if his promotion was
considered favourably by the Management, the DPC did not find him fit
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for promotion to E-7 Level. The Petitioner was not part of the list of
Executives promoted to E-7 level w.e.f. 01.01.2008 which list was
uploaded on the website of Respondent No.1 on 28.05.2008 (Annexure-
M). Thereafter, the Petitioner was promoted to E-7 level w.e.f.
01.01.2009 and he accepted this promotion.
86 The events set out above, according to Mr.Kamdar, not only
establish that the Petitioner was duly considered for promotion, but also
the fact that he participated in the promotion process. In 2009, he
accepted the benefit of promotion under the modified criteria. The
Petitioner was aware that he had been considered for promotion, but had
not been promoted. He was also aware that no interview had been
conducted at the time of assessing the candidates for promotion w.e.f.
01.01.2001 onwards and he had not been called for any such interview. It
is in these circumstances that Mr.Kamdar would submit that none of the
arguments of Mr.Buch can be accepted.
87 Mr.Kamdar then urged that prior to modification of criteria
for promotion to E-7 Level, Respondent No.1 has entered into the
Memorandum of Understanding (MoU) with the Association of Scientific
and Technical Officers (ASTO) of Respondent No.1. Mr.Kamdar submits
that this MoU contains specific recitals about new Recruitment and
Promotion Policy. It was agreed that this will be finalized by 15.11.2002
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and will be applied and implemented prospectively. While reviewing the
Recruitment and Promotion Policy, organizational requirements, merit
and aspirations of employees will be borne in mind. It was agreed that
promotion upto 2002 will not be linked with the review of Recruitment
and Promotion Policy (R&P Policy). Therefore, introduction of the
modified criteria for promotion w.e.f. 01.01.2002 was done with the
approval of the Association.
88 It is then contended by Mr.Kamdar and without prejudice to
the above, that there is no infirmity in the manner in which the DPC has
assessed the candidates for promotion. The Oil and Natural Gas
Corporation Limited Service Rules, 1995 (for short "the ONGC Service
Rules") prescribe that the promotion to selection posts shall be made by
selection based on merit with due regard to seniority, in accordance with
the relevant provisions of the MRPR, 1980. Regulation 7 of the MRPR,
1980, which provides for filling up of vacancies by promotion, has been
duly amended in the manner more particularly set out, according to
Mr.Kamdar, in the relevant documents as also in the written submissions.
Mr.Kamdar would submit that eventually all these are policy matters.
There is no restriction on the power to amend the Recruitment and
Promotion Regulations, except to the limited extent that modifications/
changes would have to be carried out with the approval of the Board.
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Mr.Kamdar submits that from the Executive Committee Charter, it is
evident that the Executive Committee is, inter-alia, responsible for
deciding the policy and setting the guidelines for Corporate Level
promotion and transfer.
89 Mr.Kamdar submits that unnecessary and uncalled for
confusion is created by the Petitioner with regard to the minutes of the
237th meeting of the Executive Committee held on 27.01.2003 and 257th
Executive Committee meeting held on 26.01.2004. The modifications to
the criteria in the MRPR, 1980 were duly discussed in this meeting, but
the criteria laid down in 237th meeting was not followed by the DPC for
2000-2001. It was decided that new criteria approved in the 237th
meeting would be applied for promotion from 2002 onwards. Therefore,
there was no change in the criteria in between the promotion process as
alleged. The criteria laid down in 237th meeting was subsequently
modified in the 257th meeting and it was the criteria as laid down in the
257th meeting that was finally adopted by way of amendment to
Regulation 7 of the MRPR, 1980. Mr.Kamdar relied upon Item
Nos.257.01.03 and 257.01.04 of the minutes of the 257th Executive
Committee meeting. Thus, the criteria prescribed by the Executive
Committee in 257th meeting was modification of the criteria prescribed
under Regulation 7 of the MRPR, 1980.
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90 Then, Mr.Kamdar submits that equally baseless is the
argument of Mr.Buch that the modifications to the MRPR, 1980 made by
the Executive Committee for promotion to E-7 level w.e.f. 01.01.2002,
have not received any approval from the Board of the ONGC. Mr.Kamdar
submits that the criteria has been duly approved by the Board and that is
clear from the minutes of the 121st Board meeting of the ONGC held on
07.02.2004. Mr.Kamdar invites our attention to the specific approval by
the Board in the words i.e. "The Board approved the changes in policy for
all corporate level promotion vis-a-vis practices under MRPR, 1980". Thus,
the amendment to Regulation 7 of the MRPR, 1980 carried out by the
Executive Committee was approved by the Board. The Regulation,
therefore, stands duly amended. Mr.Kamdar submits that the modified
promotion criteria was duly approved by the Board and that is referred in
the agenda note prepared for the 183rd Board meeting of Respondent
No.1. In that regard, our attention is invited to Exhibit-X to the rejoinder
(pages 330 to 334 of the paper book). The MoU dated 04.08.2004 with
the ASTO relied upon by the Petitioner, was executed after the 257th
Executive Committee meeting at which Regulation 7 was amended and
the 121st Board meeting approving this amendment. Further, at the time
of this MoU, the promotions to the post of General Manager (E-7 level)
w.e.f. 01.01.2002 - 01.01.2003 had already been announced by the DPC
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in April, 2004. This was on the basis of the new criteria which did not
involve an interview. Our attention is invited to Exhibit E to the petition,
at page 69 in this behalf.
91 Mr.Kamdar submits that everything was within the
knowledge of the ASTO and it's members, who were promoted under this
policy. However, there is confusion created by the Petitioner by arguing
that the modified promotion criteria was approved at the ONGC Board
121st meeting on 07.02.2004. Mr.Buch had argued that the minutes of
the 237th Executive Committee meeting were not before the Board as
they were circulated only on 21.02.2004. Mr.Buch had argued that this is
after the date of the Board meeting. However, the date of circulation of
the minutes of the 257th Executive Committee meeting is irrelevant. It is
the date of the meeting which is crucial and relevant. Admittedly, 257th
Executive Committee meeting was held on 26.01.2004 which is before the
121st Board meeting. In any event, Mr.Kamdar submits that the
Respondents have clarified in paragraph 7 of the sur-rejoinder that the
members of the Executive Committee were also the members of the
Board. Therefore, they were well aware of the modifications in the
selection criteria prescribed by the Executive Committee in it's 237th and
257th meetings. In any event, for the benefit of the Directors, changes in
the promotion process were recapped by the Chairman and Managing
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Director of the ONGC.
92 It is in these circumstances that Mr.Kamdar would submit
that the agenda item or it's wording will not restrict the powers of the
Board. The Board can pass a resolution in respect of the items not on the
agenda. No member of the Board had objected to passing of a resolution
in respect of the item by taking it up for discussion. Hence, any technical
objection raised by the Petitioner is irrelevant.
93 Mr.Kamdar submits that there is no arbitrariness or illegality as
alleged by the Petitioner. The DPC has not changed, much less arbitrarily,
the minimum qualifying marks. The minimum qualifying marks as
prescribed by the Executive Committee and approved by the Board, have
not been modified by the DPC. Mr.Kamdar submits that the posts are
limited and there are large number of eligible candidates. The DPC is
required to identify suitable and meritorious candidates keeping in view
the provisions of the Service Rules and MRPR, 1980. Therefore, overall
score or cut off mark is a relevant factor taken into consideration by the
DPC to ensure that most eligible and suitable candidates are selected
based on number of vacant posts, with due regard to the seniority.
Suitable candidates are to be judged by the DPC and all Executives and
those who meet the prescribed benchmark, are to be in the select-list in
the order of their inter-se seniority in the feeder cadre. However, where a
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candidate does not achieve minimum qualifying marks in Q+PAR plus PA
as prescribed under the modified promotion criteria, the candidate is not
promoted, irrespective of his overall score. Mr.Kamdar has clarified that
several Government Office Memorandums and policies would not apply,
nor would bind the ONGC. It is an autonomous body.
94 Mr.Kamdar has then clarified that the Government Office
Memorandum dated 15.05.1989 pertains to framing/ modification of the
Service Rules. In the instant case, the Service Rules have not been
modified. The Office Memorandum contains some suggestions and it is
not binding or mandatory. Mr.Kamdar submits that throughout the
promotion is merit based and if the MRPR, 1980 is the guiding and
applicable Regulation, then, other modes prescribed for selection
particularly in the Central Government Office Memorandum dated
08.02.2002 are inapplicable. That cannot override or supercede the
MRPR, 1980.
95 Mr.Kamdar submits that in the merit based promotion, the
best candidate has to be promoted and therefore, the Government Office
Memorandums dated 14.06.1978 and 28.01.1982 cannot be applied to
the Corporate Level promotions. The level of employees to which the
Office Memorandum dated 28.01.1982 applies is different. The corporate
level promotions such as E-6 to E-7 level concern high ranking and
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increased salary class of employees.
96 Mr.Kamdar submits that there is not a single instance pointed
out by the Petitioner by which this Court can conclude that the SC/ST
candidates are deliberately overlooked. In fact, figures would point out
the position to the contrary. Many of them have gained promotions by the
very process, which the Petitioner has now questioned and challenged.
Mr.Kamdar, therefore, relied upon the data in this behalf to urge that the
ONGC has not acted arbitrarily or illegally. The contention that the new
criteria has been applied in breach of Regulation-7(4)(c), is misconceived
and incorrect and in any event, is an admission by the Petitioner that the
criteria for E-7 promotion is merit based. Thus, there is difference
between the procedure for determining the merit and criteria to be
applied by the DPC. Mr.Kamdar once again submits that there is a bald
allegation without any specific illustration or example.
97 Mr.Kamdar then submits that this Court cannot sit in
judgment or in appeal over the assessment of the candidates including the
Petitioner by the DPC. In the absence of any illegality or arbitrariness or
perversity, this Court should not interfere with the promotions in writ
jurisdiction as if it is a court of appeal. The minutes of the DPC meetings
would demonstrate that it has duly considered the service record, PARs,
ten prescribed attributes of each of the Executives eligible for promotion,
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before finalizing the promotions.
98 Mr.Kamdar then reiterates the plea that the constitution of
the DPC is valid. There is no breach inasmuch as non inclusion of a SC/ST
person in the DPC is not deliberate. There was no Director in the ONGC
from this category from 2006 onwards and hence, they could not find any
place on the Committee. Mr.Kamdar submits that it is not enough to
allege that there is non inclusion or exclusion of the SC/ST member from
the DPC. The Petitioner will have to establish that such exclusion or non
inclusion resulted in discrimination or arbitrariness and that eligible
SC/ST candidates were denied promotions. There are no malafides
alleged as well.
99 It is in these circumstances, Mr.Kamdar would submit that
there is no merit in the petition. The Petition be dismissed and Rule be
discharged.
100 In support of his contentions, Mr.Kamdar has relied upon the
following judgments :-
(1) K.A.Nagamani vs. Indian Airlines and others, (2009)
5 SCC 515.
(2) All India State Bank Officers' Federation and others
vs. Union of India and others, (1997) 9 SCC 151.
(3) Anil Katiyar (Mrs) vs. Union of India and others,
(1997) 1 SCC 280.
(4) Union Public Service Commission vs. Arun Kumar
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Sharma and others, (2015) 12 SCC 600.
(5) R.Veerabhadram vs. Govt. of A.P., (1999) 9 SCC 43.
101 For properly appreciating the above contentions, we must
notice some basic facts.
102 The petition was filed after the Petitioner made the
representation. That representation was forwarded through the proper
channels. A copy of that representation is at page 46 of the paper book
(Exhibit-A). If it is carefully perused, the same is addressed as an appeal
for reviewing the DPC proceedings for the post of General Manager (E-7
Level).
103 Thus, the Petitioner is aware that there was DPC and which
was set up for considering the eligible candidates for promotion to the
post of General Manager (E-7). The Petitioner is aware of the hierarchy,
in the sense how he came up to E-6 level. The Petitioner himself states in
this representation that he was considered for promotion to the post of
General Manager (Reservoir) for the year 2001 onwards, but complains
that he was superceded by juniors five times. Juniors were in his own
discipline as well as others. A careful perusal of this representation/
appeal would reveal as to how the Petitioner is aware of every minute
detail. In paragraph 4 of this representation, he states that the merit
promotions are required to be made by applying zone of consideration.
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He then refers to the Office Memorandum dated 24.12.1980 and
paragraph 3 thereof. He submits that the same contains a safeguard
against excessive supercession due to large field of choice. The Petitioner
is aware that this Office Memorandum restricts the field of choice upto
three times the number of vacancies. Then, he complains that if adequate
number of SC/ST candidates are not available within the normal field of
choice, then, that field can be extended to five times of vacancies and
SC/ST candidates (not others) coming within the extended field of choice
be considered. Then, he refers to the subsequent Office Memorandums
and paragraph 2 of the Office Memorandum dated 22.04.1992 and states
that the zone of consideration has since been modified by reducing the
normal field of choice to twice the number of vacancies plus four by
retaining the provision of extension of field of choice upto five times for
SC/ST candidates only. Then, in paragraph 5, he sets out as to how from
the seniority list of E-6 level for filling up 33 vacancies, the field of choice
is required to be restricted to maximum 70 candidates for General
category and 165 for SC/ST candidates.
104 In this entire representation, we have not noticed a word
about any changes, but the Petitioner complains that in the present case,
there is contravention of the Regulations by grant of retrospective
promotions. In prior paragraphs, he complains about inclusion of certain
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candidates in the zone of consideration against the stipulation in the
Office Memorandums. In paragraph 7, he points out the contravention of
the Office Memorandums and reiterates that he has been overlooked for
promotion. He has been superceded erroneously. There is no complaint of
any malafide or deliberate action.
105 We have already reproduced in the foregoing paragraphs the
reply to this representation and which clearly indicates that the eligibility
criteria for corporate level promotion is merit-based. Though there is no
reservation applicable, concessions are granted to the SC/ST Executives,
who are in the zone of consideration for promotion so as to be within the
number of vacancies for which the select-list has to be drawn up. They
would be included in the list provided that they are not considered unfit
for promotion.
106 The Petitioner then puts in issue the basis of promotion and
alleges that the promotions were given by the DPC on seniority-cum-merit
basis and not relative/ comparative merit. He then complains that the
promotions due on 01.01.2006 and 01.01.2007 were made
retrospectively. Once again he alleges that the Petitioner was not
promoted and persons junior to him were promoted. He alleges that those
out of the zone of consideration were promoted. The Petitioner was
supplied all the information in answer to his application made under the
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Right to Information Act, 2005. The Petitioner then perused these
materials including the minutes of the meetings of the Executive
Committee and complained that there was decision taken to follow the
new promotion criteria w.e.f. 2002. He alleges that originally, the
promotions were governed by the ONGC (Recruitment and Promotion)
Regulations, 1980. He himself says that in 1997 with the approval of the
competent authority, the Recruitment and Promotion Regulations, 1980
were modified and they came to be known as the Modified Recruitment
and Promotion Regulations (for short "MRPR"). The Petitioner then puts
in issue that the modification to the MRPR, 1980 was granted on the
condition that it would require specific approval of the Board. He refers to
the office order dated 14.03.1997.
107 The Petitioner then says that the promotions were governed
and regulated under Regulation 7 of the MRPR, 1980. Promotions to the
post of level-5 and above were governed by Regulation 7(11)(iii)(b) and
the DPC has to be conducted accordingly. The criteria was qualification,
experience, Performance Appraisal Reports (PAR) and performance in
interview. 20% relaxation in qualifying marks was provided for SC/ST
candidates.
108 All this would indicate that neither the promotion is a matter
of right, nor is the right to be considered for promotion, denied arbitrarily
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and capriciously. There were definite guidelines and criteria to guide the
Authorities in the matters of awarding and granting promotions. There
was never a pick and choose policy and neither that is the allegation.
However, the projection by the Petitioner is that even in the merit based
promotion, being a SC candidate, he should have been given more
weightage and preference. However, if the criteria itself is qualification,
experience and performance, then, it is open to the Authorities and
particularly the DPC to evaluate and assess the relative merit of the
candidates. If the assessment is totally arbitrary, unfair, unreasonable and
results in denial of a right to equality enshrined in Articles 14 and 16(1)
of the Constitution of India, then, depending upon other things, a writ
court may interfere, else, in such matters this Court cannot substitute it's
opinion and view with that of the Authorities. They are the best judges as
far as the relative merit is concerned. If they have certain guidelines and
prescribed Regulations even in matters of Performance Appraisal, then,
their judgment has to be respected unless it is vitiated in law or in the
manner set out herein above. We cannot, in the matter of promotions,
interfere merely because in the opinion of the Petitioner, he was unfairly
treated and being an employee belonging to the Backward Class, his
performance was not judged fairly. At the same time, the Petitioner does
not dispute that there are candidates of SC/ST categories who have been
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promoted. Thus, even SC/ST candidates were considered for promotion
and being a SC/ST candidate does not place their constitutional right any
higher than General Category candidates. They also have no vested right
in the matter of merit based promotion, but their right is equally
restricted to being considered for promotion. It is their merit either inter-
se if there is reservation in promotion, but if there is no reservation, then,
they have to compete with General Category candidates and their
performance would be appraised and assessed with others as well. Once
the criteria is merit based promotion, then, no complaint of supercession
can be made and given the nature of the limited right vesting in the
public sector employee. Hence, we do not think that we can interfere on
some general or sweeping or vague allegations of injustice in the matter
of promotion.
109 It is alleged that instead of prescribed criteria, new
promotion criteria was introduced and adopted by the DPC through the
back door method without amending the above referred Regulations and
two very vital parameters (experience and interview) were eliminated
and an arbitrary tool of PA with 50% weightage in total marks (with rider
of 60% qualifying marks) was introduced.
110 The Petitioner contended that in terms of the PA, the DPC
was given arbitrary and unguided power to award marks resulting in
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granting or depriving the promotions to the candidates irrespective of
merit. The entire selection, thus, is dependent upon these arbitrary marks
given by the DPC under the PA column irrespective of performance/
assessment of candidates in Q plus PAR.
111 In that regard, it is explained by the Respondents in the
affidavits placed on record that the MRPR, 1980 is effective from
01.01.1997. The term "Appointing Authority" is defined in Regulation
2(a) of the MRPR, 1980 to mean, in relation to any post the ONGC and
includes any person to whom the power to make appointment or
promotion to that post has been delegated by the Board. The term "Board"
means the Board of Directors of the ONGC. The term "Competent
Authority" means the ONGC and includes the Chairman and Managing
Director, Directors or any other person to whom the power in this behalf
has been delegated by the Board. Then, the method of filling up the posts
is set out in Regulation 3 and as far as the posts in the ONGC are
concerned, they have to be filled in by a direct recruitment, promotion of
employees already in the service of the ONGC, or borrowing the services
of persons from the Central Government or State Governments or Public
Sector Undertakings or Local or other Authorities, or any other method as
may be decided by the ONGC. The category of posts, scales of pay,
qualifications and other matters concerned therewith are set out in
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Regulation 4 and sub-regulation (3) thereof gives the Board the power to
change or modify any term or condition in the Regulations.
112 The age limit for direct recruitment and other matters to be
followed while making the recruitment/ promotion is set out in
Regulation 5. Regulation 6 deals with filling up of vacancies by direct
recruitment and then comes Regulation 7 and that is exclusively dealing
with the vacancies to be filled in by promotion. Sub-regulation (1) of
Regulation 7 says that all promotions to the posts shall be considered by
the Promotion Committee duly constituted by the Appointing Authority in
accordance with the orders issued by the Corporation from time to time
and it shall consist of not less than three members. The employees of the
Corporation fulfilling the criteria for promotion to the posts in Schedule-I
appended to the Regulations, shall be eligible for consideration for
promotion. Then, there are two provisos to sub-regulation (2) of
Regulation 7, which enable the DPC to decide the number of employees
to be considered for vacancies when they are limited and the number of
employees fulfilling criteria is more. However, there is further proviso
which limits the number of employees to be considered for vacancies.
Such vacancies meaning limited promotional vacancies, to be not less
than twice the number of vacancies sought to be filled in. Sub-regulation
(3) says where an employee of the Corporation, who fulfills criteria, is not
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considered by the DPC, it shall record in writing the reasons for not
considering such employee. Sub-regulation (4) deals with cases where the
criteria for promotion is merit and in such cases, the Promotion
Committee before selecting employees, must consider the service records
and annual confidential reports. There is a discretion in the Promotion
Committee and it may hold written examination or practical test or
interview or any combination of these. However, it shall follow the
procedure for determining the merit as laid down by the Corporation at
least two months in advance of the date of such selection.
113 It is, therefore, apparent that there is no mandate to conduct
an interview. Holding of interviews is discretionary and the Promotion
Committee may either hold interview, written test or practical test. There
is no merit in the argument of Mr.Buch that oral interviews were held,
but later on dispensed with. Once there is an option or discretion as
above, then, we do not see how the candidates like the Petitioner can
complain about non-holding of interviews. Secondly, it is not open to him
to complain when despite no interviews being held, he participated in the
process. He participated in the process also when the interviews were
held. We must, therefore, guard ourselves for all such complaints as are
made by the employee like the Petitioner who took his chances and every
time offered himself or his candidature for promotion.
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114 The criteria for merit based promotion is set out in
Regulation 7(4), whereas, the criteria for promotion of "seniority-cum-
fitness" is set out in Regulation 7(5).
115 The DPC only can recommend to the Appointing Authority
the candidates, who it considers fit in the order of merit when the merit is
the criteria and in the order of seniority when the seniority-cum-fitness is
the criteria. These recommendations are placed before the Appointing
Authority who may or may not accept all or any of the same and may pass
necessary orders and the proviso below sub-regulation (7) of Regulation
7 obliges the Appointing Authority to record the reasons in writing when
it does not accept any recommendation of the Promotion Committee.
When the number of candidates exceed the vacancies, then, the names of
remaining candidates in the order of merit have to be kept in the list for
further use for filling up the vacancies which may arise in future. Thus,
this is a select-list and its life is of six months and which can be extended
to further period of six months for the reasons to be recorded in writing.
Sub-regulation (9) of Regulation 7 says that the employee shall be
informed of his non selection in the case of promotion. All promotions
upto E-7 level in the Corporation shall be effective from 1st January of
every year.
116 Sub-regulation (11) of Regulation 7 reads as under:-
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"7. Filling up of Vacancies by Promotion :
(11) The promotions will be carried out under following three
criteria:-
(i) Seniority-cum-Fitness (Upto E-1 level)
(ii) Quantification Scheme (E-2 to E-4 level)
(iii) Merit Promotion by Selection
(a) At E-3 and E-4 level
(b) Corporation Promotions (E-5 level and above)
(i) Seniority-cum-Fitness :
Under 'Seniority-cum-Fitness' criteria all employees who
fulfil the specified requirement of experience and
qualification as specified in Schedule-I appended to these
Regulations are considered for promotion by duly
constituted Departmental Promotion Committee
according to seniority subject to their fitness based on
performance appraisal reports of relevant period and
trade test and interview, wherever required.
(ii) Quantification Scheme :
(a) Under the quantification scheme, the executives will be
assessed by a selection committee on the basis of
qualification, experience and Performance Appraisal
Reports of the relevant period. Maximum marks
allocated to each of these criteria would be as follows:
marks
marks
Reports (PAR) marks
Total 112 marks
NOTE :
Where one or more PARs have not been written for any
reason during the relevant period, the DPC should
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consider the PARs of the years preceding the period in
question and if in any case even these are not available
the DPC should take the PARs of the lower grade into
account to complete the number of PARs required to be
considered. If this is also not possible, all the available
PARs should be taken into account.
(O.M. No. 23(9)/GOVT.INST/88-89/SCT Dated
23-6-1989
F.22011/5/86-ESTT.D., Government of India
Department of Personnel & Training.
Ministry of Personnel, Public Grievances and Pensions
Dated 10-3-1989.
a) Educational qualification - (Maximum 20 marks)
Q.1 - 20 marks
Q.2 - 15 marks
Q.3 - 11 marks
Q.4 - 07 marks
b) Experience - (Maximum 32 marks)
1) E-1 to E-2 -
4 years - 16 marks
5 years - 20 marks
6 years - 24 marks
7 years - 28 marks
8 years & above - 32 marks
2) E-2 to E-3 -
5 years - 16 marks
6 years - 20 marks
7 years - 24 marks
8 years - 28 marks
9 years & above - 32 marks
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3) E-3 to E-4
4 years - 16 marks
5 years - 20 marks
6 years - 24 marks
7 years - 28 marks
8 years & above - 32 marks
c) PARs (ACRs) - (Maximum 60 marks)
A+ - 60 marks
A - 50 marks
A- - 40 marks
B+ - 35 marks
B - 30 marks
C+ - 25 marks
C - 20 marks
D+ - 15 marks
D - 10 marks
(b) In view of revision of format w.e.f. 1995, PARs in more
than one format would be considered for promotion
effective from 1.1.97 onwards for few years. Therefore,
the following equivalency would be adopted for the
purpose of awarding marks for PARs:
Assessment under the new PAR system Equivalent to earlier
(Effective from 1.1.95) Alpha Grading
Exceptional - 95 to 100 A+
Top performer - 80 to 94 A
Very Good - 65 to 79 A-
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Adequate 60 to 64 B+
55 to 59
51 to 54 C+
Inadequate 40 to 50 C/D+/D
(c) For consideration for promotion within executive levels
(E-2 to E-3 and E-3 to E-4) it is necessary to secure a
minimum of 74 marks out of a total of 112 marks.
(d) The period (months/years) for which an executive is
rated "Below Average" (upto 31.12.94) or "inadequate"
(1.1.95 and after) will be completely taken out for the
purpose of giving weightage of marks for experience for
making assessment of promotion under the
Quantification Scheme.
(e) All PARs of an executive at the existing level would be
considered for assessment for the purpose of promotion
to the next higher grade.
(iii) (a) Merit Promotion by Selection at E-3 and E-4 level :
1. Executives at E-3 and E-4 level securing 86 and above
marks in the first attempt (i.e. first year of
consideration) under Quantification Scheme will be
considered for predating of promotion by one year on
the basis of interviews by the Selection Committee for
merit promotions.
2. The number of merit promotion to be carried out in an
year shall not exceed 10 % of executives who have
secured 74 or more marks in Quantification Scheme,
and have been empanelled discipline wise at each level
(E3 and E4). However, the minimum of posts generated
shall be one in case even a single person has been
promoted.
3. The number of post of merit promotions i.e. 10 % of
executives empanelled shall be rounded up to nearest full
figure (0.5 and more will be counted as one)
4. The number of post thus created shall not be carried
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forward.
5. All the executives securing 86 or more marks in a
particular discipline and level shall be called for
interview.
6. The marking system shall be as under :
Maximum marks under Quantification scheme - 112
Maximum marks for performance in interview - 112
Total maximum marks - 140
7. Qualifying marks for interview shall be 16.8 (60%) for
General/OBC and 11.2 (40%) for SC/ST candidates.
(iii) (b) Merit Promotion by Selection - Corporate
Promotions (E-5 level and above):
1. The promotions at Corporation level (E-5 level and
above) are based on Merit and quantification scheme.
2. The marks are awarded for qualification, experience,
PARs and performance in the interview.
3. The qualifying marks are 60% in interview as well as
over all for General candidates and 40 % for SC/ST
candidates".
117 A perusal of the same would indicate that the Petitioner was
concerned with corporate level promotion (E-5 level and above). That is
merit based promotion by selection. As far as that is concerned, the
criteria or guiding principles are set out in Regulation 7(11)(iii)(b) and
that indicates that the promotions at corporate level are based on merits
and quantification scheme. The marks are awarded for qualification,
experience, PARs and performance in interview. The qualifying marks are
60% in interview as well as overall for General Category candidates and
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40% for SC/ST candidates. It is common ground, therefore, that there is
eligibility criteria for promotion to different levels and set out very clearly
in Regulation 7(23) and the Notes below the same. From all of these, it
would be apparent that this is the merit based promotion and the PAR
criteria is also set out in the same.
118 As far as the Service Rules are concerned, they are compiled
differently and they are titled as "The ONGC Service Rules, 1995" and
brought into effect from 24.04.1995. It is very clearly stipulated in sub-
rules (1) and (2) of Rule 4 that the recruitment to the post under the
Company shall be subject to the Recruitment and Promotion Rules of the
Company. Nothing in these Rules and the ONGC Recruitment and
Promotion Rules shall affect reservation and other concessions required to
be provided for SC/ST and other categories of persons in accordance with
the Presidential Directives and Orders/Instructions issued by the
Government of India from time to time and adopted by the Company.
119 There may be office memorandums, but what is apparent is
that these Office Memorandums of the Ministry of Personnel, Public
Grievances and Pension, Department of Personnel and Training,
Government of India, even in matters of promotions, have to be adopted,
but if there are specific Rules and made for this aspect by the ONGC,
then, even the Petitioner does not say that they should be ignored or
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brushed aside.
120 To our mind, all this guarantees that there is no arbitrariness,
discrimination, favoritism and nepotism in matters of promotion. There is
also transparency which is assured in the process by these stipulations.
When every thing as above is in place, then, merely because a particular
employee amongst thousands of employees complains that he has been
erroneously and illegally superceded, we have to be cautious and careful
and not, with respect, get carried away.
121 In the affidavits in reply, Respondent No.1 has invited the
attention of this Court to the pertinent fact that the petition pertains to
promotion of E-7 level post. As far as that is concerned, the affidavit
invites this Court's attention to the Memorandum of Understanding and
clause 3.8 thereof. It is stated that it is incorrect to allege in the petition
as also in the rejoinder that merely not annexing the documents, namely,
extract of minutes of the Board meeting dated 07.02.2004, does not mean
that such meeting was never held or that modified criteria was not
approved by the Board. It is stated that modified criteria for all Corporate
Level Promotions, namely, dispensing of interview and introduction of
PA, was accepted and approved in the 92nd Board meeting of Respondent
No.1. Thereafter, deliberations of 237th and 257th Executive Committee
meetings followed by acceptance and approval by the Board of
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Respondent No.1 on 07.02.2004 clearly show that introduction of PA and
dispensation of experience and interview, introduction of marking system
and increase in marks in PA from 10 to 20, have got approval of the
Board of Respondent No.1. It is clear that the Executive Committee has
authority to deliberate and make suggestion in regard to transparent
promotions of employees. It's deliberations and discussions are approved
by the Board. The modified promotion policy/ change in criteria is
approved by the Board of Respondent No.1. Relevant extract of the
minutes of the Board meeting dated 07.02.2004 has been reproduced in
the affidavit in reply of Respondent No.1 dated 18.01.2012, which reads
thus:-
"The Agenda papers for the said items were
tabled by Director (HR). Especially for the benefit of
new Navratna Directors, C & MD recapped the
substantive changes introduce with CRC process in
respect of promotions. There is a serious shortage of
competent and qualified officers in the junior grades;
on the other hand, career progression of the large
number of qualified officers in the middle
management is bottlenecked. The problem is
compounded by the process of interview of all eligible
executives for assessment of promotability, in addition
to giving weightages for seniority and performance
appraisal. The very process of interviewing large
number of eligible executives in each grade was taking
several years and therefore, promotions were being
ordered with a backlog of as much as 2 to 3 years....
There have also been wide-spread resentment about
the interview process itself because of the perceived
lack of objectivity ........ further to stop the practice of
unqualified / under qualified employees getting
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promoted to middle/ senior management, specific
weightage for qualification now have been
incorporated in the criteria. These sweeping changes
were formulated and consensus building exercise
carried out specifically with ASTO, representing
officers' community. The Executive Committee has
studied the problems and solutions in detail, and
decided on the revised promotion policy to preempt
and organizational collapse. These decisions conform
to CRC approved by the Board and the Government.
The Board approved the changes in the policy
for all corporate level promotions vis-a-vis policies
under MRPR 80. It was further advised that for
promotion to the grades E-8 (GGM) and E-9 (ED) the
following sequence should be followed:"
122 It is in these circumstances, we are of the opinion that this
Court cannot place a different interpretation far from substituting the
opinion of the Board with any other opinion or conclusion. The minutes
make it clear that it was not only the criteria for Grade E-8 and E-9 which
was discussed, but the Board took cognizance, discussed and approved
the changes in the policy for all Corporate Level promotions. We have
carefully perused both the agenda and the minutes. It is common ground
that items were taken up for discussion and the Board's decision has been
recorded accordingly. If the agenda item was the proposal for
modification in the existing Recruitment and Promotion Regulations,
1980 for Executives and Non Executives, then, merely because the
proceedings did not go grade-wise or that the agenda item or minutes do
not refer to specific grade, does not mean that either there was no agenda
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item or no discussion or deliberation. We do not think that it is possible
for us to indulge in any hairsplitting or guesswork. It is apparent that
modified criteria for all corporate level promotions upto E-7 Level was
duly discussed and deliberated upon by the Executive Committee and its
recommendations and suggestions were approved by the Board. Thus,
prior to the MoU all these decisions were in place.
123 It is then set out in the affidavit in reply and with all
annexures that the Regulations framed are not statutory and the
Executive Committee has full authority to deliberate, discuss and
recommend or suggest modification in the relevant regulations as far as
transfer and promotion. The Regulations infact guide Respondent No.1 in
these matters and Mr.Buch does not dispute that these Regulations can be
modified in the overall interest of the Corporation so also in general
public interest. In that regard, the minutes of the 121st and 183rd
meetings of the Board dated 07.02.2004 and 26.09.2008 are rightly relied
upon. The modified criteria was introduced for better and improved
functioning of Respondent No.1. The Executive Committee itself is a high
power body comprising of the Chairman and Managing Director (CMD)
and functional Directors. They are well versed and experienced persons of
high caliber. We do not think that in the absence of any malafides, their
decisions can be interfered with.
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124 In any event, we find that the Petitioner was aware of the
criteria. The modified criteria was given effect to immediately and not
w.e.f. 01.01.2006 or 01.01.2007. The minutes of DPC meetings, Exhibit
XI annexed to the rejoinder, would denote that eligibility criteria for E-7
level is three years experience at E-6 level in any discipline in Respondent
No.1/ ONGC. The officers, who were appointed/ promoted to E-6 level on
or before 01.01.2000, were considered. The eligibility criteria for
selection was prescribed and the marks assigned are for qualification, PAR
and PA. The minimum eligibility criteria was 70% of the Qualification
plus PAR plus 60% of PA and to qualify both separately. The deliberations
of the DPC and the criteria applied would indicate as to how the officers,
who were 41 in number empaneled on 01.01.2003, were recommended
for promotion by applying the modified criteria. It is in these
circumstances that the Board meetings and thereafter, the consensus
building exercise carried out with the ASTO resulting in the MoUs dated
30.09.2002 and 04.08.2004, indicate that Respondent No.1 took care of
the interests and employees and their career prospects. They have been
treated fairly. It is in these circumstances that the Petitioner's contention
that he became aware of the new/ modified criteria only in 2007, is not
supported by the record. There is no denial of the statement made in the
affidavit in sur-rejoinder that the Petitioner himself participated in the
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promotion process on and from 2002 onwards which was without
interview and based on the modified criteria. Even if it is accepted, but
not admitted that the Petitioner was unaware of the modified criteria, he
should have made a grievance promptly after he was denied the
promotion in 2002-2003. The Petitioner was aware that the procedure
adopted was based on the modified criteria and there was no interview.
The Petitioner thus, was not questioning the modified criteria or criteria
as a whole and duly applied.
125 It is in these circumstances that we do not see as to how the
functional test and criteria applied, suffers from arbitrariness or results in
discrimination. It is the Chairman & Managing Director and all
functionaries having vast experience and knowledge, who determine the
potential by a fair process. They assess merits and demerits of individual
employees and are in position to do so because of their vast experience
and knowledge. If they adopt a rational and objective approach and do
not deviate from the essential policy or transparency and fairness, then,
merely because in a given exercise or in a particular DPC decision, some
criteria was applied without deviating from the essential and underlying
policy that cannot be the sole basis for alleging violation of the
constitutional mandate. It has been explained in detail by Respondent
No.1 in their affidavit in sur-rejoinder as to how problem solving, decision
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making, planning and organizing are not forming the part of PAR and the
team building, leadership, professional and managerial competence are
significantly different. These attributes play an important role and the
DPC while assessing suitability of candidates for higher Managerial
position, takes this route. Hence, interview is not the only mode or
method for assessing and judging the merit of the candidates. Once again
it is clear that even the DPC comprises of senior officers, who with their
expertise, experience and wisdom of years, arrive at an informed and
rational decision. The decisions are made in the best interest of the
organization. Therefore, meritorious juniors may find their way and can
be promoted earlier. If the promotion is merit-based, then, that aspect is
very vital and cannot be ignored.
126 Then, in matters of criteria for promotion and its
modifications, it is clear that there are certain guidelines and procedural
provisions. It is not as if a strict adherence to the same is contemplated.
The criteria as discussed, debated and decided upon is to be made known
to those who are eligible for promotion and could be considered for the
same. It is not as if individual communications are contemplated. It is
enough if the criteria to be applied is made known before the DPC meets.
Apart therefrom, the DPC members judge the relevant merit and demerit
of each candidate after perusing their profile carefully. Their performance
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is recorded and such records maintained in ordinary and regular course of
business, are placed before the DPC. The Annual Confidential Reports or
related documents recording the performance, achievement and any
misconduct or any act, which is detrimental to the interest of the
organization, provides a safe guide to the DPC. It is not as if these aspects
are not to be considered, particularly the integrity and character,
performance has to be overlooked, when it comes to a SC/ST candidate.
Like any other candidates, but similarly placed in matters of performance,
character and integrity, a SC/ST candidate is preferred if that sub-serves
larger interest of the organization. In other words, all things being equal,
so as to encourage and give an opportunity to SC/ST candidates, even
they are recommended for promotions by the DPC. The Government of
India policies have been guiding Respondent No.1/ Corporation in such
matters and consistent with the interest of Respondent No.1 they are
adopted and applied as well. However, the Central Government policies
are not necessarily binding. Therefore, not much capital can be made of
the Office Memorandums and encouragement provided thereunder in
matters of promotion to SC/ST candidates. There has been no provision
brought to our notice in the nature of preference, reservation or
relaxation.
127 In these circumstances, it is also incorrect to allege that no
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Director from SC/ ST category was ever taken as a member of the DPC. It
is pointed out that one Mr.Nathulal (Director, T & FS) was one of the
member of the DPC for promotion to E-7 level w.e.f. 01.01.2002 to
01.01.2003 and 01.01.2004 to 01.01.2005. Hence, this contention is
incorrect. Regulation 7(1) of the MRPR has been already referred by us
and it very clearly says that all promotions shall be considered by the DPC
duly constituted by the Appointing Authority in accordance with the
orders issued by the Corporation from time to time and it shall consist of
not less than three members. Thus, there is no mandate that there must
be a SC/ST member in the DPC. Conversely absence of such member does
not necessarily mean that there will be injustice to SC/ST candidates in
matters of promotion. It is in these circumstances that we do not think
that there is any merit in the argument of Mr.Buch on this point.
128 Further, we have ourselves carefully perused the relevant
material and we find that there is no merit in the contention of the
Petitioner on the point of criteria applied for promotions and approvals to
the same by the Board.
129 We do not think that the Petitioner's case rests on the plea of
arbitrariness alone. There is no introduction of PA by the back door. The
argument is that Performance Appraisal and Potential Appraisal as per the
format prescribed under the MRPR, 1980 together constitute appraisal of
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the performance. The argument that Potential Appraisal consists of 10
attributes/ traits, but under the new criteria, PA was introduced also with
10 attributes, is not sound. The Petitioner contradicts himself because he
only urges that out of 10 attributes of PA, 08 were common to the earlier
appraisal attributes/ traits and there was only change in serial number.
He may argue that same attributes are used for future assessment of
candidates in PAR and PA, but we do not think that this is evaluation
twice over. One is Performance Appraisal and another is Potential
Assessment. Potential is judged bearing in mind likely contribution of the
employee in future and in the best interest of the organization. It is not as
if by reference to any attributes and master chart made by the DPC, it can
be decided that no evaluation of individual attributes was done by the
DPC. Merely because in the master chart, marks are given lump-sum
under the heading "DPC Marks", would not mean that the assessment has
not been done on the above lines. It has been clarified by Respondent
No.1 that barring the Petitioner, nobody has any grievance about this
procedure or method adopted. Apart from that, Respondent No.1 has
clarified that in the light of large number of eligible candidates and
limited number of posts available, the DPC is required to identify suitable
and meritorious candidates. Therefore, their overall score or cut off is
relevant factor. The process is that those achieving the prescribed
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benchmark or minimum qualifying marks in Q+PAR rank higher in the
select-list in the order of their seniority in the feeder cadre. We do not
think that by this individual merits or demerits are not considered at all or
weight-age is given to factors which are wholly irrelevant. Thus,
irrelevant and irrational criteria has not been adopted in matters of
promotion. Known tests and parameters have been adopted and applied
with suitable modifications. This is a permissible course.
130 In the above circumstances, we do not think that there is any
merit in the argument of Mr.Buch on the point of arbitrariness, non
application of or lack of defined ad pre-determined criteria and
constitution of DPC. We have already dealt with his argument on the
point of approval of the Board of Directors to the modified criteria. We
have also dealt with his argument on the interpretation and construction
of the Regulations and their status.
131 In the final analysis, we find that Mr.Kamdar is right in
urging that on the explanation that is provided on affidavits supported by
records of the ONGC, this petition must fail.
132 Now, what remains for consideration are the judgments
which have been cited by Mr.Buch.
133 The judgment of the Calcutta High Court in the case of Anil
Kumar Joshi vs. Coal India Limited, Writ Petition No.12002 (W) of 2013
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decided on 26.09.2014, was heavily relied upon by Mr.Buch. In that case,
the Petitioners were Executives employed in the Coal India Limited and
working in the Excavation Discipline in various subsidiaries of the Coal
India Limited. They were working in E-6 Grade. They complained that
they were qualified and eligible to be promoted as Executives from E-6 to
E-7 Grade. The DPC marks were referred to argue that evaluation process
in the new policy has been drastically changed from the existing one so as
to frustrate the promotion of senior employees with greater experience.
This was demonstrated by referring to the existing and new policy. That
gave rise to a specific issue which fell for consideration, namely, whether,
the vacancies of 2010 could be filled up by the policy of 2011 or
whether, the same ought to have been filled up in terms of the policy
prevalent in the same year and whether, the Rules relating to promotion
can be drastically altered midway.
134 Firstly, such situation is not arising from the facts and
circumstances in the case before us. Secondly, there is no occasion,
therefore, to apply the principle that the amended Rules will not govern
an exercise which has already commenced or in relation to the vacancies
occurring prior to the amended Rules being brought into force. Hence, all
judgments including Y.V.Rangaiah and others vs. J.Sreenivasa Rao and
others, (1983) 3 SCC 284, State of Rajasthan vs. R.Dayal, (1997) 10 SCC
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419 and B.L.Gupta vs. M.C.D., (1998) 9 SCC 223, have no application. It is
in these circumstances that further issue or third limb of attack in Anil
Kumar Joshi case (supra) does not arise.
135 That this view of the learned Single Judge of the Calcutta
High Court has been confirmed or approved by the Division Bench, carries
the matter, therefore, no further.
136 Then, Mr.Buch relied upon Bhagwandas Tiwari and others vs.
Dewas Shajapur Kshetriya Gramin Bank, (2006) 12 SCC 574. The
distinction between seniority-cum-merit and merit-cum-seniority in
matters of promotion and the service law principles as a whole, was
considered in this case and it was held that an officer has no right to be
promoted merely on the ground of his seniority if he is not found fit to
discharge duties of the promotional post. Further, on facts the Court
found that if the promotion was by the Rules and the Rules provide for
seniority-cum-merit and the marks were assigned for the same, then, the
policy adopted resulted in shifting the focus from seniority-cum-merit as
prescribed under the Rules to merit-cum-seniority. There was no
stipulation in the circular for obtaining minimum marks for assessing the
merit and that is how whole basis was found to be altered. It is in that
context, the Honourable Supreme Court emphasized the difference
between seniority-cum-merit and merit-cum-seniority. These principles
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are too well settled and they would have to be applied on case to case
basis. We, therefore, do not find that reliance placed on paragraphs 5 and
6 of this judgment is well placed or apposite.
137 Mr.Buch then relied upon the order passed by the
Honourable Supreme Court in the case of Sukhdev Singh vs. Union of
India in Civil Appeal No.5892/2006 decided on 23.04.2013. There also,
the emphasis was that the ACRs have to be faithfully and properly
written. They have to be written within the time prescribed as far as
possible. Further, there is an obligation to communicate adverse remarks.
We do not see any reason to rely on this judgment.
138 Though in the Written Submissions Mr.Buch has relied upon
several judgments, however, he compiled only these 07 to 08 judgments
and orders.
139 Mr.Buch tendered the documents and particularly the chart
enlisting the promotion criteria followed by the DPC. On perusal thereof,
we do not think that the Petitioner's grievance can be carried any further.
There is no alteration or deviation of such magnitude as would enable us
to interfere with the promotional exercise in this case. The qualification,
experience and appraisal of the performance is common to all years post
01.01.2002. Upto 01.01.2001 interview was there, but given up later on.
140 Even the extract from the Constitutional Law of India by
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H.M.Seervai, 3rd Edition, Volume-I, Section-I only reveals that it is a well
settled principle and doctrine. The word "arbitrary" is employed in the
context of discretionary exercise. However, whether, arbitrary or
capricious are the words which can be employed to quash every
promotional exercise, would depend on the facts and circumstances of
each case. There has to be proof of arbitrariness, else such finding cannot
be reached.
141 In the view that we have taken, it is not necessary to refer to
all the judgments cited by Mr.Kamdar, but his reliance upon the
judgments in the case of K.A.Nagamani and All India State Bank Officers
Association Federation (supra) is accurate. These two judgments refer to a
eligibility condition and which condition can be termed as reasonable.
How the eligibility criteria for promotion is capable of being modified and
could in a given case allow certain flexibility, is enumerated in these
judgments. In the facts and circumstances of this case, reliance on these
two judgments is, therefore, correct. Equally, the principles of judicial
review and which have been pressed into service by Mr.Kamdar are
relevant and we have applied these very principles while expressing our
reluctance to interfere in the present promotional exercise.
142 As a result of the above discussion, the Writ Petition fails. It
is dismissed, but without any order as to costs.
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143 Mr.Buch conceded that barring some factual details,
essentially the controversy in this Writ Petition is identical to Writ Petition
Nos. 2490 of 2009, 1359 of 2010 and 1360 of 2010. He conceded that
common judgment can be rendered in this and three other petitions. As
such, Writ Petition Nos.2490/2009, 1359 OF 2010 and 1360/2010 are
also dismissed.
144 Hence, Rule is discharged in all the petitions with no order as
to costs.
(B.P. Colabawalla, J) (S.C. Dharmadhikari, J)
[Kalyan Sangvikar, PA]
