D. B. SHAH v. STATE — 1982 DIGILAW 113 (GUJ)

B. K. MEHTA, J. ( 1 ) THE petitioners have moved this Court for appropriate writes orders and directions to quash and set aside the order of their reversion from the posts of Under Secretary to Section Officer. The said order is dated 14/07/1977 Annexure C to the petition. The grievance of the petitioners is that though respondent No. 2 was promoted along with the petitioners in March 977 and was ranked much below the petitioners in the unconditional select list of Section Officers prepared for promotion to the posts of Under Secretary and which select list is based on the respective seniority of the Section Officers he was retained as Under Secretary while the petitioners have been reverted. This action of the Government is in submission of the petitioners discriminatory and therefore violative of Articles 14 and 16 of the Constitution of India. The petitioners have therefore prayed that the impugned order of reversion be quashed and set aside so far as it affects the petitioners and it be declared that the petitioners have continued to hold the posts of Under Secretary all along. ( 2 ) ). After this petition was filed it is an admitted position that the petitioners have been promoted again as Under Secretary sometime in the month of October 1977 ( 3 ) ). The petition is resisted by the State Government broadly on the ground that the petitioners were not entitled to be promoted as a matter of right on the ground of seniority alone and unless they are found to be fit for such promotion they are not entitled to promotion as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules 1967 (hereinafter referred to as the Classification Rules ). The State Government has further stated in the reply affidavit of Shri H. D. Jokhaker Under Secretary to the Government of Gujarat in General Administration Department that a committee called Departmental Promotion Committee was appointed for assessing the merits of the officers concerned and for assessment of the merits the confidential reports of the concerned officers were looked into and a provisional select list of Section Officers fit to be promoted to the posts of Under Secretary was prepared. In the meeting of the Departmental Promotion Committee held on 31/03/1977 the cases of 15 Section Officers were considered and on Comparative assessment of the relevant merits a select list was prepared and the grading in the said list was determinative of the seniority in the cadre of Under Secretary. Accordingly respondent No. 2 was ranked at Sr. No. 3 in the said Select List while the petitioners were ranked at Sr. Nos. 7 8 9 and 10 respectively and therefore while deciding as to who should be retained on the post of Under Secretary as a result of abolition of four other posts and having regard to the seniority of respondent No. 2 according to his gradation in the select list prepared by the Departmental Promotion Committee as aforesaid the petitioners were reverted. ( 4 ) ). At the time of hearing of this petition it was pointed out on behalf of the petitioners by Mr. Shukla learned Advocate appearing for them that the action of the State Government in drawing the select list as if the promotion from the post of Section Officer to Under Secretary was governed by the criterion of merit cum seniority is entirely misconceived inasmuch as the Government notification issued by the General Administration Department dated 16/09/1965 read with Rule 11 of the Classification Rules enjoins that promotion from the post of Section Officer to Under Secretary would be governed by the principle of seniority cum fitness. It was in light of this prescribed principle that an unconditional select list based on the seniority of the respective Section Officers was prepared by the Government Circular issued in General Administration Department dated 16/07/1970 and it is on the basis of this unconditional select list that the petitioners and respondent No. 2 were promoted in March 1977 In the said unconditional select list respondent No. 2 figures at Sr. No. 107 while the petitioners figure at Sr. Nos. No. 107 while the petitioners figure at Sr. Nos. 100 102 103 and 1c4 respectively and therefore the petitioners were senior to respondent No. 2 and they could not have been reverted as was sought to be done by the State Government by the impugned order of reversion It was however conceded by the learned Advocate for the petitioners that the present petition survives only for purpose of the question of seniority of the petitioners in the cadre of Under Secretary and then in the cadre of Deputy Secretary to which the petitioners have been promoted by now. ( 5 ) ). I am of the opinion that there is great force in what the learned Advocate for the petitioners has contended. The relevant Government notification of 16/09/1965 is issued in exercise of the powers conferred under Article 309 of the Constitution prescribed Recruitment Rules for the posts of Deputy Secretary and Under Secretary to the Government. The provision contained in para B of the said notification provides for recruitment to the posts of Under Secretary. It reads as under:"8. Under Secretary to Government: Except when it is filled by the appointment of a member of an All India Service appointment to the post of Under Secretary to Government shall be made by promotion of a Superintendent belonging to the subordinate Secretariat Service. PROVIDED that in the Public Works Department posts requiring technical knowledge may be filled in by temporary transfer of a member of Gujarat Service of Engineers Class-I. PROVIDED further that in the Legal Department posts requiring legal knowledge may be filled in by temporary transfer of a member of the State Judicial Service in Prior consultation with the Public Service Commission. PROVIDED further that the Government may appoint a Deputy Collector as Under Secretary to Government for a specific purpose and term in prior consultation with the Public Service Commission. " ( 6 ) ). It should be noted at this stage that by para A of the said notification provision is made for recruitment to the post of Deputy Secretary. The appointment to the post of Deputy Secretary to the Government is to be made by promotion of an Under Secretary to the Government strictly on consideration of efficiency and proved merit. It should be noted at this stage that by para A of the said notification provision is made for recruitment to the post of Deputy Secretary. The appointment to the post of Deputy Secretary to the Government is to be made by promotion of an Under Secretary to the Government strictly on consideration of efficiency and proved merit. Now there is no such condition to be found in para 6 where the provision is made for recruitment to the post of Under Secretary. I have therefore to consider as to what is the effect of Rule 11 of the Classification Rules. The said rule provides general condition for appointment by promotion. The material part of Rule 11 reads as under:"11. Appointment by promotion. (1) Where an appointment to any post is to be made by promotion no servant shall be entitled to such promotion on the ground of seniority. No such appointment shall be made unless in addition to seniority the servant to be appointed is found to be fit for such promotion. (2 ). . . " in other words where the appointment to a post is prescribed by mode of promotion only that appointment is to be made subject to the rule of seniority cum fitness. As a matter of fact in the reply affidavit filed on behalf of the State Government it has been conceded as under: "2. At the out set I say that the recruitment rule relied upon by the petitioners at Ex. D merely provides that appointment to the post of Under Secretary to Government shall be made by promotion of a Superintendent belonging to the Subordinate Secretariat Service. I say that Gujarat Civil Services Classification and Recruitment (General) Rules 1967 provide that where an appointment to any post is to be made by promotion no Government servant shall be entitled to such promotion on the ground of seniority alone and that no such appointment shall be made unless in addition to seniority the Government servant to be appointed is found to be fit for such promotion. " It is therefore precisely the cases of the State Government that the Government notification of 16/09/1965 read with Rule 11 of the Classification Rules provides for appointment to the post of Under Secretary by promotion on the basis of the principle of seniority cum fitness. " It is therefore precisely the cases of the State Government that the Government notification of 16/09/1965 read with Rule 11 of the Classification Rules provides for appointment to the post of Under Secretary by promotion on the basis of the principle of seniority cum fitness. If that is the legal position and I do not feel any doubt about it the connotation of the principle of seniority cum fitness is well recognized. It is settled legal position that when appointment to a post or service is by promotion based on the principle of seniority cum fitness there is no question of comparing or assessing the performance of a candidate competing for the post with the other candidates of his cadre. The question is to be examined with respect to each of the candidates concerned by finding out whether he is positively unfit for the promotion and it is passing over in favour of his jonior candidate. The term seniority cum merit has settled connotation and it is that the case of each officer is to be considered and rejected if found unfit. The distinction between criterion for promotion on seniority cum merit basis and the criterion for promotion on merit cum seniority basis is well known. The gist of the test of seniority cum merit is that inspite of seniority of an officer a junior could be promoted if the officer concerned was unfit to held the post of promotion. Where the promotion is based on seniority cum merit a particular officer cannot claim promotion as a matter of right by virtue of seniority alone if he was found unfit to discharge the duties of higher post and in that case he may be superseded and a junior officer can be promoted (vide: STATE OF MYSORE AND ANOTHER V. SYAD MOHMOOD AND ORS. AIR 1968 SC 1113 . The said criterion of seniority cum merit therefore implies the test of unfitness and not one of positive merit. The comparitive merit of the officers considered for promotion may have to be assessed if the length of service of the competing candidates is equal or outstanding junior is available for promotion (vide: STATE OF MYSORE V. C. R. SESHADRI AND ORS. AIR 1974 SC 460 ). The comparitive merit of the officers considered for promotion may have to be assessed if the length of service of the competing candidates is equal or outstanding junior is available for promotion (vide: STATE OF MYSORE V. C. R. SESHADRI AND ORS. AIR 1974 SC 460 ). The question of comperative merit as per settled legal position would arise if the length of service was equal or the outstanding junior was available for promotion. Otherwise seniority is a vital factor which could not be disregarded. It is only unfitness which would enable the authority to disregard seniority otherwise the test of comparative merit may be applied only when the length of service was equal or outstanding junior was available. The assessment of confidential reports is a recognized method for assessing comparative merit or suitability but that comparative merit would have to be assessed between persons whose length of service was equal. (vide: ZARNA F. VAIDYA V. STATE OF GUJARAT SPECIAL CIVIL APPLICATION NO. 1292 OF 1976 decided by J. B. Mehta J. on 15/09/1977 The learned Advocate for the petitioners was therefore right when he urged that the authorities in the State Government have adopted a procedure of comparative assessment by considering the merit and the confidential reports of the competing candidates which is a method to be adopted when the appointment by promotion is governed by the principle of merit cum seniority. The petitioner were as stated above included in the unconditional select list of Section Officers prepared on the basis of their respective seniority and that select list was declared by the State Government by its circular issued in General Administration Department on 16/07/1970 The petitioners are much above respondent No. 2. In that view of the matter therefore the order of reversion could not be sustained; Since the petitioners are already promoted to the posts of Under Secretary and then to the posts of Deputy Secretary no further directions would be necessary to be given except that the State Government should be directed to fix seniority of the petitioners in the cadre of Under Secretary and that of Deputy Secretary in the light of this decision since possibly the question of seniority interse the petitioners and respondent No. 2 may have a bearing in the future when the promotional chances open for the post of Joint Secretary. The learned Advocate for the petitioners fairly did not press for the claim of the salary any allowances for the period of three to four months during which they were under the impugned order of reversion working as Section Officers. No direction on that count is therefore necessary. ( 7 ) ). The result is that this petition is allowed and the impugned order of reversion is declared to be bad in law and void. Rule is made absolute with the directions aforesaid. There would be no order as to costs in this petition. .