Bombay High Court
Shweta Shivaji Takalgavankar vs The State Of Mahrashtra And Others on 24 October, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:26469-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11374 OF 2019
Smt. Shweta w/o Shivaji Takalgavankar,
Age: 57 years, Occu. Service (as Superintendent,
Family Court, Aurangabad),
R/o: Row House No. D-23, Disha Nabhangan,
N-2, Cidco, Sant Tukoba Nagar,
Mukundwadi, Aurangabad. ..Petitioner
Versus
1. The State of Maharashtra
Through the Principal Secretary,
Law & Judiciary Department,
Mantralaya, Mumbai - 32.
2. The Registrar General,
High Court of Judicature at Bombay,
Fort, Mumbai.
3. The Registrar [Administration],
High Court of Judicature at Bombay,
Bench at Aurangabad, Aurangabad.
4. The Principal Judge,
Family Court, Adalat Road,
Aurangabad.
5. Smt. Asha w/o Bhaskarrao Bagul,
Registrar, Family Court,
Adalat Road, Aurangabad. ..Respondents
...
Mr. A. S. Deshmukh, Advocate for the Petitioner.
Mrs. P. R. Bharaswadkar, AGP for Respondent No.1.
Mr. C. K. Shinde, Advocate for Respondent Nos.2 to 4.
Mr. A. P. Ghule Patil, Advocate for Respondent No.5.
...
CORAM : SMT. VIBHA KANKANWADI AND
S. G. CHAPALGAONKAR, JJ.
Reserved on : 15th OCTOBER, 2024.
Pronounced On : 24th OCTOBER, 2024.
JUDGMENT (Per S. G. Chapalgaonkar, J):
-
1. Rule. Rule made returnable forthwith. With the consent of
parties, matter is taken up for final hearing at the stage of
admission.
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2. The petitioner has approached this Court under Article 226
of the Constitution of India impugning promotion order dated
26.07.2019 issued by the Judge, Family Court, Aurangabad
thereby promoting respondent no.5 on the post of Registrar, Family
Court, Aurangabad and seeks issuance of Writ of Mandamus
directing to promote petitioner as Registrar of Family Court at
Aurangabad and further grant of consequential service benefits to
the petitioner to which she would become entitle in view of her
promotion on the post of Registrar of Family Court at Aurangabad
w.e.f. 26.07.2019.
3. The petitioner contends that on 30.09.1985 she entered into
service on the post of Junior Clerk on the establishment of District
Court, Aurangabad. On 10.02.1993, she was absorbed on
establishment of Family Court, Aurangabad. On 12.07.2017 she
earned promotion on the post of Superintendent with retrospective
effected from 17.01.2017. The respondent no.5 was promoted on
the post of Superintendent on 07.09.2018. As such, she is junior to
the petitioner in the cadre of Superintendent.
4. On 05.07.2019, the meeting of the Advisory Committee was
held for recommending suitable candidate for promotion on the
post of Registrar of Family Court at Aurangabad. The petitioner,
respondent no.5 and Smt. S. R. Dani were in the zone of
consideration. The Advisory Committee concluded that petitioner,
respondent no.5 and Smt. S. R. Dani are eligible for
recommendation in chronological order of "most eligible candidate",
ignoring the seniority of the petitioner and mandate of Rule 3(a) of
the Registrar of the Family Courts (Recruitment) Rules, 1995 (for
short 'Rules of 1995'). Consequently, name of respondent no.5 is
considered for promotion in supersession of petitioner's claim.
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5. The contentions in Writ Petition have been refuted by
affidavit-in-reply filed on behalf of respondent nos.2 to 4, thereby
justifying promotion of respondent no.5 on the post of Registrar,
particularly giving reference to service record, efficiency and merit
of the candidate inter se. Admittedly, relaxation in eligibility
criteria of three year service in feeder cadre was granted by High
Court vide letter dated 26.06.2019 to all the three candidates
including petitioner and respondent no.5. It is contended that
seniority is not sole criteria. The suitability of the candidate has to
be assessed as per fitness i.e. overall performance and the sincerity
in discharge of the duties on the basis of the service record. The
reference is made to paragraph 580 of the Civil Manual that
provides for consideration of service record, confidential reports,
leave and punctuality record, special reports and the abilities of the
employees within the consideration zone. The Advisory Board has
considered aforesaid factors and recommended name of respondent
no.5 for promotion to the post of Registrar. It is also brought on
record that petitioner as well as respondent no.5 stood retired
voluntarily during pendency of this petition. As such, petition
become infructuous.
6. Mr. Deshmukh, learned Advocate appearing for the
petitioner submits that although petitioner and respondent no.5
retired from the service, the prayer clause (C) in petition for grant
of deemed date of promotion and consequential benefits to the
petitioner would survive in case impugned order is quashed and set
aside holding entitlement of the petitioner. He would urge that
Registrar of the Family Courts (Recruitment) Rules, 1995 framed
under Article 309 of the Constitution of India regulates
recruitment to the post of Registrar ""Group B" in the Family
Courts within State of Maharashtra. The Rule 3 of the Rules of
1995 deals with appointment to the post of Registrar in the Family
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Court. Sub-clause (a) of Rule 3 of the Rules of 1995 prescribes for
promotion of the suitable person on the basis of "seniority subject
to fitness" from amongst the persons holding the posts of Deputy
Registrars and Superintendents on the establishment of the
Family Courts. Mr. Deshmukh would submit that the language of
Sub-clause (a) of Rule 3 would depict that seniority is dominant
consideration for promotion. However, respondent no.5 has been
appointed in supersession of the petitioner on erroneous
interpretation of Rules. In support of his contentions, he relies
upon observations of the Supreme Court of India in case of
Haryana State Warehousing Corporation Vs. Jagat Ram
and Another1.
7. Per contra, Mr. Shinde, learned Advocate appearing for
respondent nos.2 to 4 relying upon the contents of the affidavit-in-
reply submits that service record of the petitioner was not
comparable with respondent no.5. The general assessment in her
confidential report for last five years shows that she was mostly
rated "Average" and for the year 2015-2016 she was rated "Below
Average". On the other hand, respondent no.5 was rated "Good" or
"Very Good". Further leave record of the petitioner was also not
satisfactory. Mr. Shinde would place his reliance on the judgments
of the Division Bench of this Court in cases of Prakash
Jagannath Mane Vs. Honble Registrar General High Court
of Judicature at Bombay Appellate Side 2 and Shrirang
Atmaram Nikam Vs. District and Sessions Judge, Thane
and Ors.3.
8. Admittedly, recruitment/appointment on the post of
Registrar of Family Court is governed by Rules of 1995 framed in
exercise of powers conferred by Proviso to Article 309 of the
1 2011 (3) SCC 422.
2 2013 (3) All.M.R. 366.
3 2005 (3) ALL MR 573.
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Constitution of India by the Governor of Maharashtra with
consultation of the High Court of Judicature at Bombay. The Rule
3(a) of the Rules of 1995 would be relevant for deciding controversy
involved in the present matter.
9. Rule 3(a) of the Rules of 1995 reads thus:
"3. Appointment to the post of Registrar in the Family
Court shall be made by the committee either;
a) by promotion of a suitable person on the basis of
seniority subject to fitness from amongst the persons
holding the posts of Deputy Registrar and
Superintendent on the establishment of the Family
courts, having not less the three years regular service in
their respective cadres."
10. Careful reading of the Rule depict that promotion on the post
of Registrar shall be on the basis of "seniority" subject to "fitness".
The minutes of meeting of the Advisory Committee dated
05.07.2019 depicts that petitioner, respondent no.5 and Smt. S. R.
Dani were employees under zone of consideration for promotion. All
the three candidates were given relaxation as regards to the
qualifying criteria of three years service in the feeder cadre in
pursuance of the communication dated 26.06.2019 issued by
Registrar (Inspection-I), High Court, (Appellate Side), Bombay. The
communication further prescribes that names of all three
employees found eligible, suitable and fulfill the required
qualification as per the Family Court (Recruitment) Rules, 1995 be
intimated to office of Registrar.
11. The minutes of meeting further depicts that on the basis of
service record of the candidates, the Committee has recommended
names of the three candidates in chronological order starting from
"most eligible candidate". The name of respondent no.5 stands at
serial no.1, whereas name of the petitioner stands at serial no.3.
There is no dispute that amongst three candidates before the
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Committee, the petitioner was senior most. However, while
recommending names, the chronology was fixed on the basis of
eligibility, particularly in reference to the past performance in
service. It is not the case that the petitioner was ineligible or unfit
for promotion. If language of Rule 3(a) of the Rules of 1995 is
considered predominantly, seniority is the Rule, however, same is
subject to fitness. It is not discernible from the minutes of the
meeting of Advisory Committee that petitioner was found unfit for
promotion. The Committee appears to have embark upon
comparative assessment of service record of all three candidates,
who were in the zone of consideration and fixed chronology of
recommendation starting from most eligible candidate.
Apparently, the criteria adopted by the Committee was
inconsistent with the Rules of 1995. When the petitioner was
senior most amongst three candidates, unless she is held to be
unfit, she could not have been superseded on the basis of eligibility
criteria adopted by Advisory Committee. It is possible to contend
that respondent no.5 had overall better performance amongst three
candidates, albeit, criteria for promotion under Rules of 1995
mandates consideration of seniority subject to fitness. The minutes
of meeting of Advisory Committee nowhere suggests that petitioner
was unfit for promotion.
12. Reliance of Mr. Deshmukh on observations of Supreme Court
of India in case of Haryana State Warehousing Corporation
Vs. Jagat Ram and Another (supra) appears to be most
appropriate. In that case, while interpreting language of
Regulation 8 of the Haryana Warehousing Corporation (Officers &
Staff) Regulations, 1994, the Supreme Court observed in paragraph
no.22 as under:
"22. Thus it is the settled position that the criterion of
seniority-cum-merit is different from the criterion of merit and
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also the criterion of merit-cum-seniority. Where the promotion
is based on seniority-cum-merit, the officer cannot claim
promotion as a matter of right by virtue of his seniority alone.
If he is found unfit to discharge the duties of the higher post,
he may be passed over and an officer junior to him may be
promoted. Seniority-cum-merit means that, given the
minimum necessary merit required for efficiency of
administration, the senior, though less meritorious, shall have
priority in the matter of promotion and there is no question of
a further comparative assessment of the merit of those who
were found to have the minimum necessary merit required for
efficiency of administration. For assessing the minimum
necessary merit, the competent authority can lay down the
minimum standard that is required and also prescribe the
mode of assessment of merit of the employees. Such
assessment can be made by assigning marks on the basis of
appraisal of performance on the basis of service record and
interview and prescribing the minimum marks which would
entitle a person to be considered for promotion on the basis of
seniority-cum-merit. The concept of "seniority-cum-merit"
postulates the requirement of certain minimum merit or
satisfying a benchmark previously fixed and, subject to
fulfilling the said requirement, promotion is based on
seniority. There is no further assessment of the comparative
merits of those who fulfil such requirement of minimum merit
or satisfy the benchmark previously fixed. On the other hand,
the principle of "merit-cum-seniority" puts greater emphasis
on merit and ability and seniority plays a less significant role.
Seniority is given weightage only when merit and ability are
more or less equal among the candidates considered for
promotion."
13. Similarly, in paragraph no.23, last placitum states thus:
"Therefore, it is clear that even according to the Corporation,
both Jagat Ram and Ram Kumar fulfilled the requirement of
minimum merit and were suitable for promotion but Ram
Kumar, though junior, was preferred as he was found to be
more meritorious. This was obviously in violation of the
principle of seniority-cum-merit. Since both Jagat Ram and
Ram Kumar fulfilled the requirement of minimum merit and
were found suitable for promotion and since Jagat Ram was
senior to Ram Kumar, Jagat Ram was entitled to be promoted
on the basis of seniority-cum-merit. Consequently, the
promotion of Ram Kumar was liable to be set aside as was
rightly done by the Division Bench of the High Court."
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14. The aforesaid observation of the Supreme Court would
clearly depict that when promotion is based on seniority-cum-
merit, the minimum necessary merit is required and seniority
would be given priority and there is no question of further
comparative assessment of those who have minimum necessary
merit. If we apply aforesaid principles of law in the present case,
in light of language of Rule 3(a) of Rules of 1995, it is discernible
that promotion is on the basis of seniority subject to fitness.
Therefore, once candidate is found to be fit, seniority would be Rule
for promotion. It is discernible from the Rule that assessment of
comparative merit of the candidates need not be gone into while
granting promotion on the post of Registrar.
15. Mr. Shinde, learned Advocate appearing for respondent nos.2
to 4 places his reliance on the judgment of this Court in case of
Prakash Jagannath Mane (supra). The said case pertains to the
promotion on the post of Registrar of District Court, which is
governed by the provisions contained in paragraph 580 of the Civil
Manual and Government Resolution dated 26.12.1957 as amended
on 22.02.1971. This Court found that paragraph 580 of the Civil
Manual alongwith Rule 3 of Appendix 'A' entitles administration of
District Court to exercise discretion to fix criteria for adjudicating
claim on seniority-cum-merit while giving primacy to merit as well.
Evidently, observations are made in wake of fact that there is no
statutory Rule operating. In present case field is governed by
mandate of Rules framed under Article 309 of the Constitution of
India. Mr. Shinde has further relied upon judgment of this Court
in case of Shrirang Atmaram Nikam (supra), wherein the
petitioner working as Bailiff was seeking time bound promotion on
the basis of scheme under Government Resolution dated
28.07.2001. This Court after taking into account criteria for grant
of promotional pay scale, directed ACP benefit to the petitioner
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observing that only those employees, who are not entitled for
regular promotion on account of not possessing qualification,
experience or having a bad service record namely adverse entries
would not be eligible to get the benefits of the scheme. In the case
of promotion whether by selection or based on seniority-cum-fitness
what is always considered is the number of posts and the zone of
consideration.
16. At this stage, we deem it proper to refer certain observations
of the Supreme Court of India, which deals with selection for
promotion based on different criteria. The Constitutional Bench of
Supreme Court of India in case of Union of India and Others Vs.
Lt. Gen. Rajendra Singh Kadyan and Another 4 explained
criteria for selection for promotion. It is observed that selection for
promotion is based on different criteria depending upon the nature
of the post and requirements of the service. Such criteria fall into
three categories, namely,
1. Seniority cum fitness,
2. Seniority cum merit,
3. Merit cum suitability with due regard to seniority.
Wherever fitness is stipulated as the basis of selection, it is
regarded as a non-selection post to be filled on the basis of seniority
subject to rejection of the unfit. Fitness means fitness in all
respects. "Seniority cum merit" postulates the requirement of
certain minimum merit or satisfying a benchmark previously fixed.
Subject to fulfilling this requirement the promotion is based on
seniority. There is no requirement of assessment of comparative
merit both in the case of seniority cum fitness and seniority cum
merit. Merit cum suitability with due regard to seniority as
prescribed in the case of promotion to All India Services necessarily
4 (2000) 6 Supreme Court Cases 698.
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involves assessment of comparative merit of all eligible candidates,
and selecting the best out of them.
17. While interpreting expression "fit, which has different shades
of meanings, also means "a person to be appointed shall be legally
eligible" and eligible mean "fit to be chosen"". The Division Bench
of this Court in case of Ramsewak Sonwanshi Vs. Oil &
Natural Gas Corporation Limited (Writ Petition
No.1359/2010) dated 22.09.2017 while interpreting provisions of
Rule 7(4) and 7(5) of the Regulations observed in paragraph
nos.114 and 115 as under:
"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."
18. The Full Bench of Kerala High Court in case of Suresh Vs.
Manager, S.N.M. College5 considered similar question framed as
under:
"Does a provision providing for promotion to the post of
Principal of a College "on the basis of seniority-cum-fitness"
permit a comparative assessment?."
This question was framed in the context of the
interpretation of Section 59(3) of the Mahatma Gandhi
University Act, 1985. The following observations are relevant
for the controversy involved in the present matters:
"23. These observations clearly indicate that a senior
person can be denied promotion when he is found to be
unfit Not otherwise. Not on the basis of comparative
assessment.
24. As already observed, it is true that the post of Principal
is of utmost importance in an institution. The appointment
5 2003 SCC OnLine Ker 283.
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of a proper person is imperative. But even in case of
appointment to very senior posts in the country, it is not
unknown that the law permits promotion of the senior-
most In the case of private institutions, the affairs are
managed by persons, who may not be trained in
administration. It is not difficult to imagine that the
Manager of an institution may be illiterate. The members
of the governing body may have their own predilections.
Aware of the factual position, the Legislature appears to
have chosen to restrict the management's discretion. It has
placed an embargo on its power. It has consciously
prescribed that the Management shall promote the senior-
most person subject to his being found fit. Otherwise, a
private management may act arbitrarily. Under the garb
of selecting the best or at least a more suitable person, it
may act unfairly. In an educational institution, there is a
need to keep the environment congenial. If the junior
persons are arbitrarily allowed to supersede the seniors,
there can be a lot of avoidable heartburn. It can cause
frustration. It can pollute the environment of the
institution. To check this, the Legislature has given a
limited discretion to the management. It can reject a senior
person only if he is found to be unfit."
The Court further observed in paragraph nos.28 to 31 as
under:
"28. It appears that it is to check such arbitrariness that
the Legislature had deliberately restricted the discretion of
the Management. It had only permitted it to reject a senior
candidate if he was unfit. Not otherwise. In any case, it is
clear that for the purpose of promotion, the senior teacher
cannot be arbitrarily denied appointment by devising such
a method of selection.
29. It is possible to imagine that a candidate may be a
good teacher. However, he may be totally lacking in the
capacity to administer. In such a situation, it should be
permissible and possible for the management to declare a
candidate as unfit. However, there should be a reason for
such a conclusion. It can't be done arbitrarily. It is true
that the post of Principal of a College is pivotal. A bad
teacher may not be able to administer an institution.
However, the management has been given the discretion to
supersede a senior person, if he is found unfit. This
discretion can be exercised by the management on the basis
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of good reasons. Since the Act provides for the remedy of
appeal before an Appellate Tribunal against an order of
supersession, it would be incumbent on the management to
give reasons for the supersession of a senior person. The
reasons cannot be fanciful or imaginary. These must have
a nexus with the fitness of the candidate for the post and
should be founded on tangible material. In the present
case, the selection committee had not rejected the senior
persons on the ground of unfitness. It had in fact made the
selection on a comparative assessment. The action was not
in conformity with the provision contained in S. 59(3) of
the Mahatma Gandhi University Act.
19. The legal position as espoused in aforesaid judgment makes
out abundantly clear that when the basis for promotion is
seniority-cum-fitness, the candidate has to cross over minimum
fitness/eligibility to bring him within the zone of promotion. Once
such hurdle is passed, the seniority would be the ultimate Rule.
Once minimum eligibility requirement or fitness is complied and
employee is taken in the zone of consideration, further comparative
assessment on the basis of his service record would be redundant.
Pertinently, in the present case, field is guarded by Rules of 1995
framed under Article 309 of the Constitution of India. The Rules
nowhere stipulates the comparative assessment of the candidate,
once he is considered fit for promotion based on eligibility criteria.
Therefore, when petitioner was considered for promotion alongwith
other two eligible/fit candidates, no discretion was left with
Authorities to grant promotion to respondent no.5 ignoring
seniority of the petitioner.
20. It is argued on behalf of respondent no.5 that the post of
Registrar in the Family Court is top most in administration of the
Family Court and the person must be fit in all respect, apart from
his seniority, therefore, selection of the suitable and meritorious
candidate after considering seniority and comparative assessment
of the service was proper. We cannot countenance such
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submissions for the reason that when the filed is occupied by
Statutory provisions, the authorities has no discretion to adopt any
method inconsistent with Rules. It is to be noted here that if Rule
making authority found it necessary to confine discretion of the
authority in the matter of grant of promotion, the authority cannot
be permitted to deny promotion by devising different method of
selection. In case candidate was found unfit, it would be
permissible and possible for authority to declare candidate to be
unfit for promotion. However, once he cross over minimum
requirement of fitness/eligibility, the authority has no discretion to
deny him promotion by making comparative assessment amongst
candidates within the zone of consideration. In light of aforesaid
discussion, we find that impugned order granting promotion to
respondent no.5 in supersession of the petitioner's claim based on
seniority, cannot be countenanced.
21. Hence, Writ Petition deserves to be allowed to the extent of
prayer Clause (C), which reads as under:
"C. This Hon'ble Court be pleased to issue a writ of
mandamus or any other writ, direction or order in the of
nature of writ of mandamus directing the Respondents to
extend all consequential service benefits to the petitioner to
which she would become entitled in view of her promotion on
the post of Registrar of Family Court at Aurangabad w.e.f.
26/07/2019."
22. Writ Petition is disposed of.
23. Rule is made absolute in above terms.
(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI)
JUDGE JUDGE
Devendra/October-2024
