Ramdhani Shukla vs South Eastern Coalfields ...
2021 Latest Caselaw 1549 Chatt

                                                  1

                                                                                                AFR

                  HIGH COURT OF CHHATTISGARH, BILASPUR

                             Writ Petition (S) No.4316 of 2010

        Ramdhani Shukla, S/o Late B.D. Shukla, Aged about 48 years, Jr.
        Console Operator, T & S Grade 'B', G.M. Office, Chirmiri Area of
        South Eastern Coalfields Limited, District Koriya (C.G.)
                                                                 ---- Petitioner

                                                  Versus

    1. South Eastern Coalfields Limited, through Chairman-cum-Managing
       Director, South Eastern Coalfields Limited, Seepat Road, Bilaspur
       (C.G.)

    2. Director (Personnel), South Eastern Coalfields Limited, Seepat Road,
       Bilaspur (C.G.)

    3. Chief General Manager, South Eastern Coalfields Limited, Chirmiri
       Area, District Koriya (C.G.)

    4. Sunil Kumar Singh, Programmer Assistant / Console Operator T&S
       Grade-A, GM Office, SECL, Gevra Area, Korba, District Korba (C.G.)

    5. Subhijit Goswami, Programmer Assistant / Console Operator T&S
       Grade-A, GM Office, SECL, Gevra Area, Korba, District Korba (C.G.)

    6. Remant Kumar Gavel, Programmer Assistant / Console Operator T&S
       Grade-A, GM Office, SECL Gevra Area, Korba, District Korba (C.G.)
                                                          ---- Respondents

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For Petitioner: Mr. Chandresh Shrivastava, Advocate. For Respondents No.1 to 3 / SECL: -

Mr. Sudhir Kumar Bajpai, Advocate.

For Respondents No.4 to 6: -

Mr. Rajkamal Singh, Advocate.

------------------------------------------------------------------------------------------------------

Hon'ble Shri Justice Sanjay K. Agrawal

Order On Board

04/08/2021

1. Proceedings of this matter have been taken-up through video

conferencing.

2. The petitioner in this writ petition seeks appropriate writ / direction

commanding / directing the official respondents to consider the case

of the petitioner for the promotional post of Console Operator T&S

Grade-A with effect from 4-9-2008 i.e. the date on which respondents

No.4 to 6 (juniors) were promoted on the post of Console Operator

T&S Grade-A and also seeks all consequential benefits like seniority,

pay, etc., on the said post with effect from 4-9-2008.

3. The petitioner has filed this writ petition stating inter alia that he was

initially selected in South Eastern Coalfields Limited (SECL) on the

post of General Mazdoor Category-I on 26-11-1986 and later-on, he

was promoted on the post of Junior Data Entry Operator T&S Grade-E

and lastly, he was promoted as Junior Console Operator T&S Grade-B

on 30-8-2002 in accordance with the Cadre Scheme. It is the further

case of the petitioner that in the year 2008, vacancies arose for the

post of Programmer Assistant / Console Operator T&S Grade-A and

as per the Cadre Scheme, the petitioner and respondents No.4 to 6

were eligible and their cases have been considered as per the Cadre

Scheme vide Annexure P-5, page 23 of the writ petition, in the

meeting of Departmental Promotion Committee (DPC) convened on

21-7-2008 on the criteria applicable i.e. merit-cum-seniority and the

said Committee adopted methodology, which provides that 60 marks

were kept for merit and 40 marks for seniority and 70 marks were

fixed as cutoff marks for eligibility in promotion. It is also the case of

the petitioner that he secured 96 marks, whereas the private

respondents i.e. respondents No.4 to 6 have secured 90 marks each,

but the DPC recommended the names of 7 candidates including

respondents No.4 to 6 for promotion on the basis of seniority

excluding the petitioner and thereby adopted the criteria of seniority-

cum-merit saying go-by to the applicable criteria of merit-cum-

seniority, therefore, the petitioner is deprived of the promotional post

on 4-9-2008, though he was later-on promoted on 25-1-2011, but he is

entitled to be considered and promoted on the post of Console

Operator T&S Grade-A with effect from 4-9-2008 as his juniors -

respondents No.4 to 6 were promoted on the said date and is also

entitled for the promotional benefits.

4. Respondents No.1 to 3 / SECL have filed return principally stating that

since the petitioner has been promoted on the post of Console

Operator T&S Grade-A with effect from 25-1-2011, therefore, the writ

petition has become infructuous. It has also been stated that though

according to the seniority in the cadre of Junior Console Operator T&S

Grade-B, the names of respondents No.4 to 6 were at serial Nos.10,

15 & 21 in the seniority list, they were kept above the petitioner who

was at serial No.25. As such, non-promotion of the petitioner with

effect from 4-9-2008 is in accordance with law and the petition

deserves to be dismissed.

5. The private respondents No.4 to 6 have also filed return in line with

the return filed by the SECL/respondents No.1 to 3.

6. Mr. Chandresh Shrivastava, learned counsel appearing for the

petitioner, would submit that admittedly and undisputedly, the criteria

for promotion on the promotional post of Console Operator T&S

Grade-A was merit-cum-seniority and in the bench mark fixed, the

petitioner secured 96 marks, but respondents No.4 to 6 have secured

less marks than the petitioner, even then applying the criteria of

seniority-cum-merit, they have been promoted excluding the petitioner

which is per se contrary to the well settled principle in this behalf laid

down by the Supreme Court in the matter of B.V. Sivaiah and others v.

K. Addanki Babu and others1 followed subsequently by their Lordships

of the Supreme Court in the matter of Rajendra Kumar Srivastava and

1 (1998) 6 SCC 720

others v. Samyut Kshetriya Gramin Bank and others 2 and therefore

appropriate writ be issued directing that the petitioner is entitled to be

promoted as Console Operator T&S Grade-A with effect from 4-9-

2008 and also entitled for all consequential service benefits.

7. Mr. Sudhir Kumar Bajpai, learned counsel appearing for the SECL /

respondents No.1 to 3, would submit that the petition has become

infructuous as the petitioner has already been granted promotion with

effect from 25-1-2011 on the post of Console Operator T&S Grade-A.

Even otherwise, though the petitioner has secured 96 marks, but since

the private respondents No.4 to 6 were seniors to the petitioner in

seniority list on the post of Console Operator T&S Grade-B, therefore,

they were kept above the petitioner and the petitioner was granted

promotion subsequently with effect from 25-1-2011, as such, the writ

petition has no merit.

8. Mr. Rajkamal Singh, learned counsel appearing for respondents No.4

to 6, would adopt the submissions of Mr. Bajpai, learned counsel for

the SECL/respondents No.1 to 3, and would submit that respondents

No.4 to 6 were rightly promoted on the post of Console Operator T&S

Grade-A.

9. I have heard learned counsel for the parties and considered their rival

submissions made herein-above and also went through the record

with utmost circumspection.

10. Cases of the petitioner, respondents No.4 to 6 and other persons were

considered for promotion on the post of Console Operator T&S

Grade-A on 28-8-2008 in the meeting of the DPC. According to the

Cadre Scheme which is applicable for promotion on the said post i.e.

Cadre Scheme for Electronic Data Processing Personnel (Cadre

2 (2010) 1 SCC 335

Scheme No.X) notified on 22-7-1985, promotion for the posts up to

Grade-B shall be on the basis of seniority-cum-merit and from Grade-

B to Grade-A shall be on the basis of merit-cum-seniority. Accordingly,

the DPC proceeded to consider the cases of eligible candidates

including the petitioner, private respondents and other persons and

fixed 70 marks out of 100 as minimum qualifying marks and the

person getting 70+ will be entitled for consideration on the promotional

post of Console Operator T&S Grade-A. In respect of Annual

Confidential Report (ACR), 20 marks for Outstanding, 18 marks for

Very Good and 16 marks for Good were determined. Accordingly, the

DPC considered the cases of seven candidates and DPC statement

was drawn by the DPC which is available at page 12 of the writ

petition in which though the petitioner's name was at serial No.8, but

he has secured 96 marks, however, Sunil Kumar Singh, Subhijit

Goswami and Remant Kumar Gavel - respondents No.4, 5 and 6

herein, respectively, secured 90 marks each out of 100 and they have

been promoted. The submission of learned counsel for the SECL is

that since they stood as seniors in the seniority list in the cadre of

Junior Console Operator T&S Grade-B, therefore, they have been

promoted leaving / excluding the petitioner from the promotional post

of Console Operator T&S Grade-A, though the criteria is merit-cum-

seniority.

11. The Constitution Bench of the Supreme Court in the matter of Janki

Prasad Parimoo and others v. State of Jammu & Kashmir and others 3,

has clearly held that selection means that the man selected for

promotion must be of merit. Where promotion is by seniority, merit

takes the second place but when it is a selection, merit takes the first

3 AIR 1973 SC 930

place and it is implicit in such selection that the man must not be just

average.

12. Thereafter, again, the Supreme Court in the matter of Ajit Singh and

others (II) v. State of Punjab and others4 (Constitution Bench), pointed

out distinction in operation of norms of seniority on the one hand and

any rule requiring consideration of merit on the other hand and

observed as under: -

"23. ... if the promotion is by rule of "seniority-cum- suitability", the eligible seniors at the basic level as per seniority fixed at that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, the next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion. (There are minor modifications in various services in the matter of counting of seniority of such promotees but in all cases the seniormost person at the basic level is to be considered first and then the others in the line of seniority.) That is how right to be considered for promotion and the "seniority" attached to such promotion become important facets of the fundamental right guaranteed in Article 16(1)."

13. In B.V. Sivaiah (supra) distinction between seniority-cum-merit and

merit-cum-seniority has been defined. It has been held by their

Lordships of the Supreme Court that the principle of merit-cum-

seniority lays greater emphasis on merit and ability while seniority

4 (1999) 7 SCC 209

plays a less significant role. It has been observed in paragraphs 9, 10

and 18 of the report as under: -

"9. The principle of "merit-cum-seniority" lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal. In the context of Rule 5(2) of the Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations, 1955 which prescribed that "selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority" Mathew, J. in Union of India v. Mohan Lal Capoor5 has said: (SCC p. 856, para 37)

"[F]or inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play only a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale."

Similarly, Beg, J. (as the learned Chief Justice then was) has said: (SCC p. 851, para 22)

"22. Thus, we think that the correct view, in conformity with the plain meaning of words used in the relevant Rules, is that the 'entrance' or 'inclusion' test for a place on the select list, is competitive and comparative applied to all eligible candidates and not minimal like pass marks at an examination. The Selection Committee has an unrestricted choice of the best available talent, from amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor."

10. On the other hand, as between the two principles of seniority and merit, the criterion of "seniority-cum-merit" lays greater emphasis on seniority. In State of Mysore v.

Syed Mahmood6 while considering Rule 4(3)(b) of the Mysore State Civil Services General Recruitment Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, this Court has observed 5 (1973) 2 SCC 836 6 AIR 1968 SC 1113

that the rule required promotion to be made by selection on the basis of "seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion". It was pointed out that 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 and 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.

18. We thus arrive at the conclusion that the criterion of "seniority-cum-merit" in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. 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 employee who is eligible for consideration for promotion. 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 promoted on the basis of seniority-cum-merit."

14. The principle of law laid down in B.V. Sivaiah (supra) has been

followed with approval by the Supreme Court in Rajendra Kumar

Srivastava (supra) and it has been held in paragraphs 11 and 13 as

under: -

"11. It is also well settled that the principle of seniority- cum-merit, for promotion, is different from the principle of "seniority" and the principle of "merit-cum-seniority". Where promotion is on the basis of seniority alone, merit will not play any part at all. But where promotion is on the principle of seniority-cum-merit, promotion is not automatic with reference to seniority alone. Merit will also play a significant role. The standard method of seniority-cum- merit is to subject all the eligible candidates in the feeder grade (possessing the prescribed educational qualification and period of service) to a process of assessment of a specified minimum necessary merit and then promote the candidates who are found to possess the minimum necessary merit strictly in the order of seniority. The minimum merit necessary for the post may be assessed either by subjecting the candidates to a written examination

or an interview or by assessment of their work performance during the previous years, or by a combination of either two or all the three of the aforesaid methods. There is no hard- and-fast rule as to how the minimum merit is to be ascertained. So long as the ultimate promotions are based on seniority, any process for ascertaining the minimum necessary merit, as a basic requirement, will not militate against the principle of seniority-cum- merit.

13. Thus it is clear that a process whereby eligible candidates possessing the minimum necessary merit in the feeder posts is first ascertained and thereafter, promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary merit is recognised and accepted as complying with the principle of "seniority-cum-merit". What would offend the rule of seniority-cum-merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority- cum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the functions of the higher post, is not violative of the concept of promotion by seniority-cum- merit."

15. In the matter of Haryana State Electronics Development Corporation

Limited and others v. Seema Sharma and others7, their Lordships of

the Supreme Court pointed out the distinction between the principles

of "merit-cum-seniority" and that of "seniority-cum-merit". It was held

as under: -

"7. The Court is of the opinion that the principle of merit- cum-seniority and that of seniority-cum-merit are two totally different principles.

8. The principle of merit-cum-seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted.

7 (2009) 7 SCC 311

9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority and promotion to a senior person cannot be denied unless the person concerned is found totally unfit on merit to discharge the duties of the higher post. The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum- merit (see Jagathigowda, C.N. v. Cauvery Gramina Bank8)."

16. Similar proposition has been laid down by the Supreme Court in the

matter of U.V. Mahadkar v. Subhash Anand Chavan and others9 and

also in the matter of Palure Bhaskar Rao and others v. P.

Ramaseshaiah and others10.

17. The distinction pointed out in respect of the principles of seniority-

cum-merit and merit-cum-seniority in B.V. Sivaiah (supra) and

Haryana State Electronics Development Corporation Limited (supra)

was followed with approval by the Supreme Court in the matter of

Sujata Kohli v. Registrar General, High Court of Delhi and others11.

18. Reverting to the facts of the case in the light of the principle of law laid

down by their Lordships of the Supreme Court in the aforesaid

judgments (supra), it is quite vivid that in the instant case, admittedly

and undisputedly, the criteria for promotion on the post of Console

Operator T&S Grade-A was merit-cum-seniority and accordingly, the

DPC also proceeded to evaluate the comparative merit of seven

candidates including the petitioner & respondents No.4 to 6 and in that

process, the DPC fixed 70 marks as minimum qualifying marks for

consideration on the said promotional post (Console Operator T&S

Grade-A) and upon comparative assessment, it is also not in dispute

that the petitioner secured 96 marks i.e. more than respondents No.4

8 (1996) 9 SCC 677 9 (2016) 1 SCC 536 10 (2017) 5 SCC 783 11 (2020) 14 SCC 58

to 6 which each of them got 90 marks, but respondents No.1 to 3 /

SECL promoted respondents No.4 to 6 on the promotional post of

Console Operator T&S Grade-A, though they secured less marks than

the petitioner and did not promote the petitioner holding that

respondents No.4 to 6 were seniors to the petitioner on the post of

Junior Console Operator T&S Grade-B, and thereby applied the

principle of seniority-cum-merit, whereas the principle applicable was

merit-cum-seniority. Once comparative merit has been assessed and

the petitioner has secured more marks than respondents No.4 to 6,

the petitioner would be entitled to be considered and promoted on the

said promotional post, as he has secured more marks than

respondents No.4 to 6 and after his promotion, if post is still vacant

then respondents No.4 to 6 could have been considered and

promoted. As such, the SECL / respondents No.1 to 3 fell into legal

error in the last stage of DPC proceeding by holding that the petitioner

is not entitled to be promoted though he has obtained 96 marks and

respondents No.4 to 6 have obtained 90 marks each.

19. Therefore, the petitioner would be entitled for consideration and

promotion on the post of Console Operator T&S Grade-A with effect

from 4-9-2008, the date on which respondents No.4 to 6 were

promoted. Since the petitioner has now been promoted with effect

from 25-1-2011, it is directed that consequential order of consideration

and promotion of the petitioner on the post of Console Operator T&S

Grade-A will be issued by the SECL / respondents No.1 to 3 holding

that the petitioner is entitled for promotion on the said promotional

post with effect from 4-9-2008 and he will be placed above

respondents No.4 to 6. The petitioner would also be entitled for all

consequential benefits including seniority on the post of Console

Operator T&S Grade-A from 4-9-2008 to 25-1-2011, as on that date he

had already been promoted to the said post of Console Operator T&S

Grade-A.

20. The writ petition is allowed to the extent indicated herein-above

leaving the parties to bear their own cost(s).

Sd/-

(Sanjay K. Agrawal) Judge Soma