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2000 DIGILAW 464 (KER)

Narayanan v. F A C T

2000-08-29

C.S.RAJAN

body2000
JUDGMENT C.S. Rajan, J. 1. In both these original petitions, challenge is against the appointment of the 4th respondent as Junior Personnel Secretary in the service of FACT, Udyogamandal. Petitioners are senior personnel assistants. The method of promotion to the post of Junior Personnel Secretary is by assessment of merit, by conducting an interview and on the basis of the performance appraisal of the officers concerned. For the above purpose, the Departmental Promotion Committee conducted an interview to fill up the two posts of Junior Personnel Secretaries. The petitioners, 4th respondent and others were interviewed by the Departmental Promotion Committee. Though the petitioners were seniors to the 4th respondent, the 4th respondent was given higher rank in the select list prepared for the purpose of promotion. Though the petitioners were also included in the list, they were ranked below the 4th respondent. There were only two posts of Junior Personnel Secretaries. 4th respondent and another person who is senior to the petitioners were appointed. In Ext. P1 seniority list of senior personnel assistants in the Udyogamandal Division of FACT, the petitioner in O.P.No. 13727 of 1992 is ranked as No. 10 and the petitioner in O.P.No. 5550 of 1993 is ranked as No. 13, the 4th respondent as No. 15. 2. Ext. P4 (in O.P.No. 5550/1993) is the extract of the promotion policy. According to Ext. P4 merit of the individual officer will form the basis of the determining his "promotability". Subject to this, seniority will be given the due weightage in the case of two or more individuals with equal merit being found suitable for the higher post. Therefore, it was argued that once the petitioners and the 4th respondent were found eligible to be included in the select list, then their interse seniority in the feeder category cannot be given a go by. 3. On the other hand, it was argued on behalf of respondents 1 to 4 that merit and seniority were assessed on the basis of the interview and the personal performance. The ranking even in the select list was based on merit. Thus, the seniority becomes irrelevant when the Departmental Promotion Committee found that the 4th respondent is more meritorious than the petitioners. 4. In this respect, the learned standing counsel for the Company brought to my notice the promotion policy of the Company known as 'Green Book'. The ranking even in the select list was based on merit. Thus, the seniority becomes irrelevant when the Departmental Promotion Committee found that the 4th respondent is more meritorious than the petitioners. 4. In this respect, the learned standing counsel for the Company brought to my notice the promotion policy of the Company known as 'Green Book'. The learned counsel relied on the following clause in the above policy which is as follows: "Merit of the individual officer will form the basis of determining his promotability. Subject to this, seniority will be given the due weightage in the case of two or more individuals with equal merit being found suitable for the higher post." 5. From the above clause, the learned counsel infers that even seniority has no role to play unless two persons are found to be equally meritorious. In this connection, the learned counsel also relies on a decision of the Supreme Court reported in B. V. Sivaiah and others v. K. Addanki Babu and others ( AIR 1998 SC 2565 ). In the above ruling, the principle of merit cum seniority and seniority cum merit are being discussed at length. The learned counsel particularly laid emphasis on Para.9, 10 and 18. 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 R.5(2) of the Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations, 1955 which prescribed the "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 Capoor, ( 1974 (1) SCR 797 : AIR 1974 SC 87 ) has said " ........ for inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play 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." (p. 801 of SCR) : (at p. 99, para 37 of AIR). Similarly, Beg. Similarly, Beg. J. (as the learned Chief Justice then was) has said:- " Thus, we think that the correct view in conformity with the plain meanings 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" (p.817 of SCR): (at p. 96 of AIR). 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 Mahmood, ( 1968 (3) SCR 363 : AIR 1968 SC 1113 ), while considering R.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 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. 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." 6. The above paragraphs refer to various earlier rulings of the Supreme Court on this aspect. 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. On the other hand, in the seniority cum merit, seniority has been given greater importance. In the seniority cum merit cases, the candidates are to satisfy only minimum necessary merit and the senior though less meritorious shall have priority. In short, there is no comparative assessment of the various candidates in seniority cum merit cases. For assessing the minimum necessary merit, the authorities can lay down the minimum standard and also prescribe the mode of assessment of merit. Such a mode of assessment can be by assigning marks on the basis of appraisal of performance and interview. 7. In this case, the mode of assessment of merit is as follows: "The committee shall carefully scrutinise the confidential reports and other documents relating to the service and performance of the employees. The committee may also interview any candidate (s) if felt necessary." Thereafter, it was mentioned that "the committee shall rank the employees considered suitable by it in the order of merit". 8. In the counter affidavit filed by respondents 1 to 3 (in O.P.No. 5550 of 1993), it has been stated as follows. The Junior Personal Secretaries post is a managerial post and the policy governing the recruitment and promotion therein is covered under the Recruitment and Promotion Policy and Procedure for post in managerial cadre (Green Book). Merit of the officers is the deciding factor and seniority has relevance only when two or more people have been ranked equal in merit. Therefore in cases like this, selection based on interview, a junior may get higher rank than the senior. 9. Merit of the officers is the deciding factor and seniority has relevance only when two or more people have been ranked equal in merit. Therefore in cases like this, selection based on interview, a junior may get higher rank than the senior. 9. Thus, it can be seen that here is a case where merit cum seniority principle has been made applicable. That is evident from the fact that the ranking after the interview must be in the order of merit. Therefore, the seniority plays only a subsidiary role. Only in a case where seniority cum fitness is applicable, the seniority will have the major role to play, wherein there is no comparative assessment of the candidates. Thus, in this case the assessment of merit on the basis of interview and personal appraisal is for the purpose of both finding out the merit as well as the ranking in the select list on merit. Thus, the seniority of the petitioners and the respondent No. 4 becomes irrelevant. That is why, the 4th respondent though junior to the petitioners was ranked above the petitioners. Viewing this in the above angle, it cannot be said that preparation of the select list and the promotion of the 4th respondent are either illegal or arbitrary. Therefore, original petitions are dismissed