Shri Rajinder Kumar vs Union Of India And Others
2001 Latest Caselaw 414 Del

ORDER

Khan, (J)

1. Petitioner was first appointed Peon on 28.12.1979. He was thereafter promoted Junior Computer Operator on adhoc basis on 24.10.1980 and was later regularised on the post on 28.8.1986. The post of Junior Computer Operator was subsequently redesignated as Data Entry Operator Grade 'A' in the revised pay scale of Rs.1150-1500 and he came to hold it and was shown seniormost in the seniority list, dated 1.5.1996.

2. It all started when petitioner's juniors were promoted to the post of DEO-Grade B by order dated 15.1.1997. He felt aggrieved and made series of representations which were rejected by respondents. He thereafter filed OA No.2488/97 before CAT claiming promotion to Grade-B post on the plea that under Recruitment and Promotion Rules this post was to be filled up 100% by promotion on seniority-cum-merit basis and he being seniormost was to be promoted to it as a matter of course. He also complained that his representations were mechanically rejected. He accordingly prayed for quashment of orders rejecting his representation and his promotion from 15.1.1997 when his juniors were promoted.

3. Respondents opposed this, amongst others, on the ground that petitioner was considered for promotion by the DPC in accordance with the relevant instructions/guidelines issued by Department of Personnel and Training but was found unfit for promotion as he had earned only one 'Very Good' ACR for one year (1991-92) and the 'Average' entry for remaining four years. It was also contended by them that 'Average' entry was not an adverse entry and was not required to be communicated to him. The Tribunal relying upon its Full Bench Judgment in Shri V. Pallarm Raju Vs. Union, ruled that 'Average' entry being not an adverse entry was not required to be communicated to him but was liable to be considered for promotion and that DPC had validly found him unfit for promotion.

4. Petitioner challenges this in the present writ petition and reasserts that he was to be necessarily promoted to DEO (Gr.B) on the basis of seniority-cum-merit principle. He also contends that once his ACR entry was downgraded from 'Very Good' to 'Average' from, 1992 onwards for four years, it had assumed an adverse element and was required to be communicated to him. He places reliance on two Supreme Court Judgments in B.V.Sivaiah and others Vs. K.Addanki Babu and others and U.P.Jal Nigam and others Vs. Prabhat Chandra Jain and others in this regard.

5. Petition is resisted by respondents on the ground that he was considered by DPC in 1996, but was not found fit because of his 'Average' ACRS from 1992 to 1996 which were not to be communicated to him though these had to be taken in regard for promotion as per guidelines issued by Department of Personnel and Training on DPC procedure. It is also pointed out that he was later cleared by DPC on 15.7.1998 and promoted to DEO (Gr.B) in the higher scale of Rs.4500-700 from 24.7.1998. The Judgments relied upon by petitioner are distinguished on the ground that petitioner was found unfit for promotion and was not denied promotion on the basis of comparative merit. It is also explained that there was no drastic variation in his ACRs amounting to any adverse element in these to require communication.

6. We have examined the Tribunal order and we find that it had gone by its Full Bench Judgment which was binding on it. The impugned order, therefore, cannot be faulted to that extent. All that now remained to be seen was whether petitioner was entitled to any automatic promotion on the basis of "Seniority-cum-Merit" principle/rule and whether 'Average' entry for four years earned by him could be treated a drastic variation requiring communication to him.

7. It is settled by now that "seniority-cum-merit" in the matter of promotion postulates that a senior was to be given priority though less meritorious and that a comparative assessment of merit between the contenders was not required to be made." This principle is reiterated by the Supreme Court in (B.V. Sivaiah and others Vs. K. Addanki Baby and others) thus:-

"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.

While applying the principle of seniority-cum-merit for the purpose of promotion, what is required to be considered is the inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in select list for appointment."

8. Similarly in State of Mysore and another Vs. Syed Mahmood and others, Apex Court observed as under:-

"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 person 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.

9. It thus becomes clear that an employee cannot claim automatic promotion by involving "seniority-cum-merit" Rule. Such a rule only requires priority to be given to him subject to his fitness for the post. Where he is found unfit by the duly constituted DPC under the Rules, the matter ends leading to promotion of his junior. In the present case petitioner seems to be suffering from a misconception that being senior, he was to be promoted as a matter of right. That, we are afraid, is not the position and "seniority-cum-merit" Rule cannot be overstretched to mean a mechanical and automatic promotion of the senior.

10. Coming to the other issue whether "Average" entry earned by petitioner for four years after the "Very Good" entry for one year could be treated drastic variation to assume adverse character, we feel that the ratio of Supreme Court judgment in Jal Nigam's case (supra) was being read out of context. The Apex Court in that case had found a drastic variation from "Excellent" entry for one year to "Poor" next year and had held that competent. Authority ought to have recorded reasons for such a steep downgrading and communicated it to enable the employee to improve his performance. But all this was not attracted in the present case because petitioner was graded "Average" which was not an adverse entry under the relevant guidelines not only for one year but for four years non-stop. This, therefore, was not a case of any drastic variation from top to bottom for one year. Moreover, "Average" entry did not require any communication as it was not considered an adverse entry under the guidelines. Reliance on the Supreme Court Judgment appears misplaced on the face of it.

11. We accordingly hold that "Seniority-cum-Merit" principle/Rule does not postulate automatic and mechanical promotion to an employee. It only requires preference to be given to his seniority. His fitness and suitability is still to be evaluated without making a assessment on comparative basis. It is further held that an "Average" entry in ACR of an employee need not necessarily partake the adverse element and character requiring communication to him which would depend on the facts and circumstances of each case.

12. This petition accordingly fails and is dismissed though on a different reasoning.