Research › Search › Judgment

Kerala High Court · body

2004 DIGILAW 298 (KER)

Rosamma Mathew v. State of Kerala

2004-06-30

G.SIVARAJAN

body2004
Judgment :- Both the petitioners, at the time of filing this writ petition were working as Senior Supervisors in the 5th respondent society. It is the case of the petitioners that they were entitled to get promotion to the said post based on their seniority in the post of Senior Supervisor as per the rules of the 5th respondent. The petitioner's grievance is that their juniors (respondents 6 to 12) were promoted to the post of AMPOs ignoring the superior claims of the petitioners based on seniority. Proceedings dated 30.12.1994 (Ext. P8) is the promotion order issued by the 5th respondent by which respondent No.6 and respondents 10 to 12 were promoted as AMPOs. Similarly, by another order dated 6.7.1992 (Ext.R5 (a)) respondents 7 to 9 were also promoted as AMPOs earlier. The petitioners have filed this writ petition seeking for a writ of mandamus directing respondents 2, 3 and 4 to direct the 5th respondent to rescind the promotion granted to respondents 6 and 10 to 12 and direct respondents 2, 3 and 4 to instruct the 5th respondent to make promotion by framing rules for the feeder category and in accordance with the well accepted norms. There is also a prayer for a declaration that petitioners have got preferential right and claim for promotion before giving promotion to their juniors. 2. A counter affidavit is filed on behalf of the 5th respondent. Along with the said counter affidavit copy of the promotion policy of the employees under standing orders (Ext.R5 (b)), copy of the promotion order dated 6.7.1992 (Ext.R5 (a)), copy of the written objection dated 24.4.1995 (Ext.R5 (c) filed by the 5th respondent and a copy of the order dated 7.10.1995 (Ext.R5 (d) were also produced. The stand of the 5th respondent in the counter affidavit is that respondents 7 to 9 were promoted as AMPOs vide order dated 6.7.1992 as per the promotion policy applicable to the workers of the 5th respondent. It is also stated that the promotion to the post of AMPOs are being made by selection on the basis of ability and experience and that the minimum requirement is 3 years as senior supervisor (P&I). It is also stated that respondents 6 and 10 to 12 were promoted as AMPOs as per order dated 30.12.1994 and that the petitioners were found not suitable for promotion by the departmental promotion committee. It is also stated that respondents 6 and 10 to 12 were promoted as AMPOs as per order dated 30.12.1994 and that the petitioners were found not suitable for promotion by the departmental promotion committee. It is also stated that as per clause 5.8 of the promotion policy read along with Ext. R5 (b) seniority alone is not the criteria for promotion. However, it is admitted in the said counter affidavit that the 1st petitioner is senior to respondents 6 to 12 and the 2nd petitioner is senior to respondents 11 and 12 but it is stated that seniority has got no relevance at all. It is also stated that the petitioners filed petitions Ext.P9 and P9 (a) before the 3rd respondent but the said respondent directed the 4th respondent to decide the issue, that the 6th respondent filed an objection and that after hearing all concerned the 4th respondent passed an order dated 7.10.1995 (Ext. R5 (d) rejecting the claims of the petitioners. 3. I have heard Sri. T.V. Ajayakumar, learned counsel for the petitioners, learned Government Pleader appearing for respondents 1 to 4, Sri. K. Anand, learned standing counsel appearing for the 5th respondent and Sri. M.V.S. Namboodiri, learned counsel for respondents 7 to 9 and the learned counsel for respondents 11 and 12. The counsel for the petitioners submits that as per the promotion policy of the 5th respondent as evidenced by Ext. R5 (b) promotion to higher posts under the 5th respondent are based on seniority-cum-merit. The counsel submits that the expression "seniority-cum-merit" has been considered by the Supreme Court in (1998) 6 SCC 720 in (2000) 6 SCC 698 and in 2002 (3) KLT SN 58 at Page 42. The counsel based on the aforesaid decisions submits that there is no question of comparative assessment of the merits of the senior supervisors for the purpose of giving promotion to the post of AMPOs. The counsel submits that in the instant case neither the 5th respondent nor the departmental promotion committee has considered the fitness of the persons for holding the higher posts and that they have solely decided the issue based on comparative assessment of the merits of the incumbents. The counsel submits that in the instant case neither the 5th respondent nor the departmental promotion committee has considered the fitness of the persons for holding the higher posts and that they have solely decided the issue based on comparative assessment of the merits of the incumbents. The counsel submits that the 1st petitioner is entitled to get promotion to the post of AMPO with effect from 6.7.1992 and the 2nd petitioner is entitled to get promotion with effect from 30.12.1994 the respective dated on which their juniors were promoted to the higher posts. 4. The counsel for the 5th respondent on the other hand submitted that the departmental promotion committee had assessed the merits of all the officers who have completed 3 years of service in the post of senior supervisors including the petitioners and it was found in the selection made in 1992 that the 1st petitioner was not fit to be promoted as AMPO. He further submitted that in the 1994 selection also the petitioners were not found fit for promotion to the post of AMPOs. The counsel submits that the selection was made strictly in accordance with the promotion policy (Ext. R5 (b)) and that the petitioners did not raise any objection to the procedure followed by the 5th respondent either at the time of personal interview or at any later point of time. The counsel further submits that the promotion of respondents 6 to 12 in the selection made in 1992 and in 1994 was perfectly in order. The counsel also placed before me the relevant files. The counsel for respondents 7 to 9 has also was submissions on the lines argued by the counsel for the 5th respondent. The counsel for respondents 11 and 12 submits that though the counsel had sent letters by registered post to the said respondents there is no instruction from respondents 11 and 12 and therefore the counsel is not in a position to submit anything more than what the counsel for the 5th respondent had submitted. The Government Pleader sought to support the order passed by the 5th respondent. 5. The guidelines for promotion to the post of AMPOs are contained in the proceedings (Ext. R5 (b) issued by the 5th respondent. There is no dispute that promotion to higher posts such as AMPOs are based on seniority-cum-merit. The Government Pleader sought to support the order passed by the 5th respondent. 5. The guidelines for promotion to the post of AMPOs are contained in the proceedings (Ext. R5 (b) issued by the 5th respondent. There is no dispute that promotion to higher posts such as AMPOs are based on seniority-cum-merit. It is seen from the files produced by the 5th respondent that the departmental promotion committee constituted for the purpose of selection of employees for promotion to the post of AMPOs as per the guidelines had assessed the merits of all the senior supervisors who were having the requisite service and experience including the petitioners by giving marks for knowledge of work, attitude to work, decision making ability, initiative, ability to inspire and motivate, communication skills, team work, relations with public, supervisory ability and ability to execute orders. I find that it is based on the marks obtained for the aforesaid 10 components that the merit/fitness was decided. It is seen that the departmental promotion committee of the 5th respondent had decided the merit with reference to the percentage of marks secured. This would show that what is done by the 5th respondent is only an evaluation of the comparative merits of the officers in the zone of consideration. 6. The promotion policy of the 5th respondent company is contained in its order No. PER:LBR:129/84 dated 7-2-1991. Clause 3 dealing with promotion policy. Sub clause (1) thereof shows "suitability of the employee" is a factor. Clause 5.8 says seniority-cum-merit will be the basis for promotion. The Supreme Court in B.V. Sivaiah v. Addanki Babu (1998) 6 SCC 720 (three Judges Bench decision) a group of promoted officers contended before the Supreme Court that for the purpose of promotion on the basis of seniority-cum-merit, seniority means the length of service and that among the officers who were appointed on the same date and have the same length of service seniority can have no bearing and promotion has to be made on a comparative assessment of merit of such officers. Repelling the said contention the Supreme Court observed thus: "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. Repelling the said contention the Supreme Court observed thus: "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 the select list for appointment. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion on the basis of seniority-cum-merit, seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service." Thereafter it was held as follows: "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." Again another three Judges Bench decision in Union of India v. L.T. General Rajendra Singh Kadyan (2000) 6 SCC 698 considered the position. In the said decision the Supreme Court considered the test to determine the nature of a selection post, criterion for selection and merit-cum-suitability with due regard to seniority. It was held that when fitness is stipulated on the basis of selection it is regarded as a selection post to be filled up on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. It was further held that "seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. Fitness means fitness in all respects. It was further held that "seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. Comparative merit of all eligible candidates and selecting the best out of them is considered only in the case of "merit-cum-suitability with due regard to seniority." 7. In view of these authoritative pronouncements of the Supreme Court if the promotion policy of the 5th respondent company is considered having regard to the expression 'seniority-cum-merit' occurring in clause 5 (8) therein there is no question of comparative merit of the eligible person being considered to select the best out of them. In the instant case the procedure adopted by the D.P.C. of the 5th respondent is not in accordance with law as understood by the Supreme Court in the above mentioned case. The DPC was expected to ascertain only as to whether the eligible person satisfies certain minimum merit or satisfying a benchmark previously fixed. There is no requirement of assessment of comparative merit. As already noticed, in the 1994 selection both the petitioners had secured more than the minimum required. 8. Further, clause 7.5 of Ext. R5 (b) also provides that those persons who were not found fit the said fact must be recorded with reasons thereof and the same has to be submitted before the Managing Director. No records were produced by the counsel for the 5th respondent in that regard. 9. In this context it must be noted that the 1st petitioner has already retired from service on 31.3.2003 and the 2nd petitioner is still in service. It is also relevant to note here that the 1st petitioner is canvassing the selection made in 1992 also. Though the promotion order was passed in 1992 in respect of respondents 7 to 9 the 1st petitioner did not choose to file any objection till 1995. In fact from the proceedings of the 5th respondent it is seen that the 1st petitioner did not have any specific case against any specific resolution of the 5th respondent. Further excepting the petitioners nobody else has challenged the said promotion orders. In these circumstances, I do not think it proper to interfere with the promotion order (Ext. In fact from the proceedings of the 5th respondent it is seen that the 1st petitioner did not have any specific case against any specific resolution of the 5th respondent. Further excepting the petitioners nobody else has challenged the said promotion orders. In these circumstances, I do not think it proper to interfere with the promotion order (Ext. R5 (a) made in 1992. However, I feel that the petitioner's claim for promotion to the post of AMPOs in the year 1994 must be considered in the backdrop of what has already been stated. Admittedly the 1st petitioner is senior to respondents 6 to 12 and the 2nd petitioner is senior to respondents 11 and 12. However, since respondents 7 to 9 were promoted as AMPOs in the year 1992 and since I have already taken the view that the said promotion cannot be interfered with at this point of time what remains to be considered is only with regard to the legality of the promotion of respondents 6, 11 and 12 in preference to the petitioners in the 1994 selection. 10. Having regard to the fact that there is no proper consideration of the claims of the petitioners and respondents 6, 11 and 12 in the manner provided in Ext. R5 (b) and as understood by the Supreme Court in the above mentioned cases certainly the 5th respondent is bound to consider the petitioner's claim for promotion in preference to respondents 6, 11 and 12. This is for the reason that the promotion committee found that petitioners also secured good marks. The only thing is that respondents 6, 11 and 12 secured more marks than the petitioners. Admittedly respondents 6, 11 and 12 are holding the post of AMPOs since 1994 pursuant to Ext.P8 order and they have also received salary based on such promotion. In the circumstances, the only course that could be adopted in this case is to direct the 5th respondent to promote the petitioners to the post of AMPOs from the date of promotion given to respondents 6, 11 and 12, i.e. from 30.12.1994. Since respondents 6, 11 and 12 have already received salary based on their promotion from 30.12.1994 the promotion of the petitioners from that date will only be notional. The 5th respondent will place the petitioners above respondents 6, 11 and 12 for the purpose of seniority and further promotion. Since respondents 6, 11 and 12 have already received salary based on their promotion from 30.12.1994 the promotion of the petitioners from that date will only be notional. The 5th respondent will place the petitioners above respondents 6, 11 and 12 for the purpose of seniority and further promotion. I make it clear that the petitioners will not be entitled to any monetary benefit for the period from 30.12.1994 till date other than pay fixation and promotion. Since the 1st petitioner had already retired from the service of the 5th respondent her retrial benefits will be fixed with reference to the above. Writ petition is disposed of as above.