Rajasthan High Court - Jodhpur

Anant Lal Panchal vs State And Ors (2025:Rj-Jd:38343) on 27 August, 2025

Author: Rekha Borana

Bench: Rekha Borana

[2025:RJ-JD:38343]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Writ Petition No. 786/2001

Anant Lal Panchal S/o Shri Kundanlal, by caste Panchal r/o
Tripolia Road, Banswara (Rajasthan).
                                                                      ----Petitioner
                                      Versus
1. The State of Rajasthan through the Collector, Banswara
2. The Collector, Banswara
3. Yaswant Pandiya S/o Shri Udailal Pandiya, U.D.C. in the office
of Collector, Banswara.
                                                                   ----Respondents


For Petitioner(s)           :    Mr. Harshit Goyal and
                                 Mr. Vibhor Sharma for
                                 Mr. Sanjay Mathur
For Respondent(s)           :    Mr. S.R. Paliwal, GC



             HON'BLE MS. JUSTICE REKHA BORANA

Order

27/08/2025

1. The matter has been listed in the category of 'Oldest Cases

for Early Disposal'.

2. None appears for the private respondent despite service.

3. The present writ petition has been filed aggrieved of order

dated 27.01.2001/01.02.2001 (Annex.3) whereby promotion

from the post of Upper Division Clerk (UDC) to Office Assistant

had been granted to three incumbents including respondent No.3

Yaswant Pandiya.

3. The facts are that vide order dated 26.06.1993 (Annex.1), a

promotion list was issued by the respondent Department and as

the petitioner was not promoted vide the said list, he challenged

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the action of the respondent Authorities vide a writ petition being

S.B. Civil Writ Petition No.4237/1993.

4. The case of the petitioner was that despite being senior, he

had not been accorded promotion whereas three persons junior

to him had been promoted vide order dated 26.06.1993. The writ

petition as filed by the petitioner stood allowed vide order dated

13.10.2000 (Annex.2).

5. The Court while allowing the said writ petition observed and

directed as under:

"Thus, in view of the above, the impugned order of promotion datd 26-6-93 (Annx.3) is hereby quashed. It is further clarified that as only five persons had been promoted as Office Assistants and persons whose names appear at Serial No. 1 and 2, namely Chiman Lal and Suresh Chandra Gupta had been senior to the petitioner and Chiman Lal has already retired and Suresh Chandra Gupta will retire on 31-10-2000, there shall be no order adversely affecting them. The promotion of the remaining three persons is hereby quashed. The respondents No.1 and 2 are directed to hold a review D.P.C. to consider the case of the petitioner alongwith those two persons and in case petitioner is found otherwise suitable, he shall be offered promotion from the date of the impugned order dated 26-6-93 with all consequential benefits. There shall be no order as to costs."

6. In compliance of order dated 13.10.2000, the respondent

Department proceeded on to conduct a review DPC but then

again proceeded on to promote the same three persons who were

promoted vide earlier order dated 26.06.1993.

7. It is the said order dated 27.01.2001/01.02.2001 (Annex.3)

which is under challenge in the present petition.

8. Learned counsel for the petitioner submits that despite

there being a specific finding of the Court to the effect that the

promotion is to be made on basis of seniority, the respondent

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Department again proceeded on to accord promotion on basis of

seniority cum merit, which is erroneous.

9. Counsel submits that order dated 13.10.2000 was not put to

challenge either by the private respondent or by the State

Authorities and hence, the same definitely attained a finality. In

such case, the respondent Authorities were under an obligation to

comply with the same and could not have adopted a procedure

different from that as directed vide order dated 13.10.2000.

10. Per contra learned counsel for the respondent State

submits that order dated 13.10.2000 did not direct for grant of

promotion only on basis of seniority. The mere direction was to

conduct a review DPC and to consider the case of the petitioner

along with the other persons. Further, the direction was to the

effect that if the petitioner is found otherwise suitable, he be

afforded promotion w.e.f. 26.06.1993.

11. The respondent Authorities conducted a review DPC and as

was the prescribed criteria i.e. seniority-cum-merit, the

candidature of all the candidates was considered on the pedestal

of the said criteria. The petitioner, although senior, was not found

meritorious in comparison to the other two incumbents and

hence, he was rightly not accorded promotion.

12. Heard the Counsels. Perused the record.

13. In the specific opinion of this Court, the approach as

adopted by the respondent Authorities while passing the order

impugned, is totally and clearly contemptuous. But then, the

Court is dealing with a writ petition and not a contempt petition

and hence, the Court is not required to delve into the said issue

further.

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14. Coming on to the merit, the Court, while allowing the earlier

writ petition filed by the petitioner, specifically framed the

issue- In a case where promotion is to be made on basis of

seniority-cum-merit, whether promotion can be made only on

merit ignoring seniority?

15. The Court dealt with the said issue in detail and held as

under:

"There is no dispute that the Rules, 1957 provide for promotion only on the basis of "seniority cum merit"

and in absence of any material to show that petitioner was not suitable for promotion, the averment and contention raised by the petitioner to this effect are taken to be true. Thus, the only controversy remains is that there in a case promotion is to be made on the basis of seniority cum merit, whether promotion can be made on merit ignoring seniority.

A Seven Judges Bench of the Hon'ble Supreme Court, in State of Kerala & Anr. Vs. N.M. Thomas & ors., AIR 1976 SC 490, observed as under:-

" 'Seniority cum merit' means that given the minimum necessary merit requisite for efficiency of administration, the senior, though the less meritorious, shall have right. This will not violation Articles 14, 16 (1) and 16 (2) Constitution of India."

In Sadi Lal Vs. Deputy Commnissioner, Gurgaon & Ors.; 1974 (1) SLR 217, it has been the held that if the promotion is to be made on the basis of 'seniority cum merit', the seniority is the relevant factor to be considered and a senior person is to be selected irrespective of better merit of his juniors.

However, in Sr. Jagathigowda C.N.& ors.. Vs. Chairman, Kaweri Gramin Bank & ors.;AIR 1996 SC 2733, the Apex Court has observed as under:-

" It is settled proposition of law even while making promotion on the basis of seniority cum merit, the totality of the service record of the

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officer concerned has to be taken into consideration. The Performance Appraisal Forms are maintained primarily for the purpose that the same are taken into consideration when the person concerned is considered for promotion to the higher rank."

In view of the aforesaid judgment of the Hon'ble Supreme Court, even if the promotion is to be made on the basis of 'seniority cum merit', the junior person having a better merit can be promoted ignoring the claim of the senior person. However, this proposition of law has been declared as settled proposition of law by the Hon'ble Apex Court in the aforesaid judgment. No reference has been made of the earlier Seven Judges Bench in this case and in view of the judgment of Seven Judges Bench, it cannot be the settled proposition of law. Similar view been reiterated in Bal Kishan Vs. State of Rajasthan, 1998 (2) WLC 756; and Govind Ram purohit & Anr. Vs. Jagjiwan Chandra & ors., 1999 SCC (L&S) 788.

There can be no quarrel to the settled legal proposition of law that in a case of conflict of two judgments, the judgment of Larger Bench would prevail. (Vide State of U.P. Vs. Ram Chandra Trivedi, AIR 1976 SC 2847; COIR Board Ernakulam, Kerala State & Anr. Vs. Indira Devai P.S. & ors.. (2000) 1 SCC 224; Subinspector Roop Lal & Anr. Vs. Lt. Governor through Chief Secretary, Delhi & Ors., (2000) 1 SCC 644; and Lily Thomas & ors. Vs. Union of India & ors., (2000) 6 SCC 224).

Thus, in view of the above, the impugned order of promotion datd 26-6-93 (Annx.3) is hereby quashed. It is further clarified that as only five persons had been promoted as Office Assistants and persons whose names appear at Serial No. 1 and 2, namely Chiman Lal and Suresh Chandra Gupta had been senior to the petitioner and Chiman Lal has already retired and Suresh Chandra Gupta will retire on 31-10-2000, there shall be no order adversely affecting them. The promotion of the remaining three persons is hereby quashed. The respondents No.1 and 2 are directed to hold a review D.P.C. to consider the case of the petitioner alongwith those two persons and in case petitioner is found otherwise suitable, he shall be offered promotion from the date of the impugned order dated 26-6-93 with all

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consequential benefits. There shall be no order as to costs."

16. A bare perusal of the above findings as recorded by the

Court reflects that the Court had specifically observed that

interpretation to the effect that a junior person having a better

merit can be promoted, ignoring the claim of the senior person,

cannot be said to be a settled proposition of law in view of the

seven judges Bench judgment of the Hon'ble Apex Court in the

case of State of Kerala & Anr. Vs. N.M. Thomas & Ors.; AIR

1976 SC 490.

17. In view of the above specific finding recorded by the Court

and in view of the directions issued in the earlier writ petition,