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2005 DIGILAW 247 (MP)

Narmada Prasad Saxena v. State of M. P.

2005-02-16

DIPAK MISRA, R.V.RAVEENDRAN

body2005
ORDER Misra, J. -- 1. In invocation of jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioners in each case have called in question the legal propriety and defensibility of the order passed by the M.P. Administrative Tribunal, Gwalior (in short 'the Tribunal') in OA No. 655/98. The impugned order being a singular one and the factual matrix being the same, all the writ petitions were heard analogously and are disposed of by this common order. 2. Be it noted at the very beginning that a Division Bench of the Tribunal at Gwalior did not agree with the view taken by the Division Bench of Tribunal at Indore in the cases of Arun Kumar Bhatt v. State of M.P. [1988.MPLSR 535] and Dr. Ashalata Sharma v. State of M.P. [1998 MPLSR 767] and accordingly referred the controversy to a larger Bench. The question that was required to be answered by the Full Bench whether an entry in the annual confidential report is found to be of the category 'c' and that creates an impediment in the way of promotion of the incumbent should be considered as adverse and what would be the impact and import of its non-communication. The Full Bench of the Tribunal in paragraphs 23 to 26 proceeded to express the view as under : "23. There is another aspect of the matter. It can be argued that when the competent authority to convene the meeting of the DPC decides upon calling such meeting then it should review the last 5 years ACRs and see whether in terms of the anticipated criteria which the committee might adopt whether any of the ACRs should be communicated i.e. whether C, B or A report should be communicated and to communicate, the same if in its opinion it is likely to stand in the way of promotion of the officer. This would mean that even ACR entries which are four years old would be required to be communicated and the officer asked to make representation against them and on receipt of representations the comments of the officer who might have given the particular report should be obtained. This is a wholly unacceptable proposition. It is meaningless to communicate a report after four years and to try to seek comments of the officer who might have recorded the report after such long length of time. This is a wholly unacceptable proposition. It is meaningless to communicate a report after four years and to try to seek comments of the officer who might have recorded the report after such long length of time. The report would have obviously become state and officer recording the report would not be in a position to recall all the facts and submit his comments. Such officer might have also retired after recording the report. Further this would also lead to an unnecessary delay in the convening of the meeting of the DPC as sufficient time would be required to be given for making of the representation and, obtaining the comments of the officers thereon. Furthermore this practice would also greatly increase administrative work. Thus, quite clearly this proposition is an unworkable proposition and, therefore, unacceptable proposition. 24. We may also add that in case the position that any report which stands in the way of promotion of an officer should be communicated is accepted it would mean that every C, B or A grade report would have to be communicated. This would lead to a huge increase in the work of administration. Almost every officer to whom the report is communicated would represent contending that he should have been given a higher grade. The representations would have to be sent to the officers recording the reports and the matter considered on receipt of their replies. Thus, the administration would be practically doing no other work but only dealing with representations made against the confidential reports by the officers reported upon. This would made the work of administration highly onerous and its work would come to a grinding halt. The communication of such reports would also lead to hostility, bad feelings and bad blood between the officers reported upon and the officers who have recorded the reports thus affecting morale and discipline in the government hierarchy. We are, therefore, unable to accept this proposition that any C, B or A grade report which stands in the way of promotion of an officer has to be communicated and if not communicated has to be ignored by the DPC. 25. It may be added here that only in extremely limited situations a C or B grade might be considered by the authority competent to communicate the adverse ACRs as adverse. 25. It may be added here that only in extremely limited situations a C or B grade might be considered by the authority competent to communicate the adverse ACRs as adverse. If on review of the ACR, record such authority finds that the work of the officer reported, upon has consistently been of a much higher level, say of the out-standing category and if such officer has received a C grade report or a B grade report then the officer recording the report may be asked by it to communicate the reasons for his assessment. This is because as a general rule the work of an officer cannot all of a sudden deteriorate to such an extent that his assessment should fall by two grades or more. In such a situation we may also add that the accepting authority or the DPC can moderate this ACR entry and may ignore it in case in its opinion such entry which is an odd entry is not commensurate with the rest of the record. While we are on this subject we may also mention that there are cases where an officer has consistently received only either C or B grades and suddenly he secures an outstanding grade, paJ1icularly at a time when the promotion to the next higher level is going to be considered in the near future. Such odd entry placing a government servant in a much higher grade has also to be considered in the backdrop of the general tenor of record of the officer and in suitable cases moderated by DPC. 26. In view of the above discussion we are unable to accept the proposition that all C grade, B grade or A grade reports should be communicated if they stand in the way of promotion and if not communicated should be ignored. The decisions of the Indore Division Bench in the aforementioned two cases of Arun Kumar Bhatt and Dr. Asha Lata Sharma do not lay down the correct position as already mentioned above. The opinion expressed by the Division Bench at Gwalior has to be accepted as the Correct view of the matter and, therefore, we hold accordingly." 3. Ordinarily we would not have reproduced the aforesaid paragraphs but Mr. Asha Lata Sharma do not lay down the correct position as already mentioned above. The opinion expressed by the Division Bench at Gwalior has to be accepted as the Correct view of the matter and, therefore, we hold accordingly." 3. Ordinarily we would not have reproduced the aforesaid paragraphs but Mr. Sharma, learned Government Advocate has impressed upon us that the Tribunal has soundly and appropriately dealt with the matter and there is no scope for any kind of intereference in the absence of any kind of infirmity. 4. At this juncture, Mr. M.P.S. Raghuvanshi, M.M. Qureshi, Mr. D.K. Katare, Mr. A.K. Upadhyay and Mr. Arvind Dudawat, learned counsel appearing on behalf of the petitioners, have submitted that the Tribunal has totally misguided itself by stating that if there a gradation of 'C' though that is adverse, should not be communicated to the petitioner and can be dealt with by the DPC. In natural course of things the aforesaid facet should have been entered into and scanned, but a pregnant one the said controversy really does not arise in the case at hand inasmuch as it is also contended by Mr. Raghuvanshi and other learned counsel that the DPC has actually scrutinised the cases of employees on the anvil and touchstone of merit-cum-seniority whereas the posts should have been filled up on the parameter of seniority-cum-merit. The said assertion relating to criterion for promotion is not disputed by Mr. Sharma, learned counsel for the State. 5. In view pf the aforesaid factual backdrop what is necessitous to be dwelled upon as a matter of fact is whether the DPC had formutaled guidelines of such nature which introduced and ushered in the parameter of merit-cum-seniority or it has fundamentally adhered to the conception of seniority-cum-merit. Before we delve into the aforesaid spectrum it is appropriate to appreciate the basic and conceptual difference between the principles of merit-cum-seniority and seniority-cum-merit. 6. In this context we may refer with profit to the decision rendered in the case of B. V. Sivajah and others v. K. Addanki Babu and others [ (1998) 6 SCC 720 ] wherein in paragraphs 8 to 11 it has been held as under : "8. 6. In this context we may refer with profit to the decision rendered in the case of B. V. Sivajah and others v. K. Addanki Babu and others [ (1998) 6 SCC 720 ] wherein in paragraphs 8 to 11 it has been held as under : "8. In the matter of formulation of a policy for promotion to a higher post, the two competing principles which are taken into account are inter se seniority and comparative merit of employees who are eligible for promotion. In Sant Ram Sharma v. State of Rajasthan this Court has pointed out that the principle of seniority ensures absolute objectivity by requiring all promotions to be made entirely on grounds of seniority and that if a post falls vacant, it is filled by the person who had served longest in the post immediately below. But the seniority system is so objective that it fails to take any account of personal merit. It is fair to every official except the best ones. An official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. The criterion of merit, on the other hand, lays stress on meritorious performance irrespective of seniority and even a person, though junior but much more meritorious than his seniors, is selected for promotion. The Court has expressed the view that there should be a correct balance between seniority and merit in a proper promotion policy. The criteria of 'seniority-cum-merit' and 'merit-cum-seniority' which take into account seniority as well as merit, seek to achieve such a balance. 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 rule 5(2) of the Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations, 1955, which prescribed that '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. Mohanlal Capoor has said (SCC p. 856, para 37) : '[F]or inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play only 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.' Similarly, Beg. J. (as the learned Chief Justice then was), has said (SCC p. 851, para 22) : '22. Thus, we think that the correct view, in conformity with the plain meaning 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 ?' 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, while considering rule 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. 11. In State of Kerala v. N.M. Thomas, A.N. Ray, C.J., has thus explained the criterion of 'seniority-cum-merit' (SCC p. 335, para 38): 'With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority?" 7. In the case of K. Samantaray v. National Insurance Co. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority?" 7. In the case of K. Samantaray v. National Insurance Co. Ltd. [(2004) 9 SCC 286], a two-Judge Bench of the apex Court has held as under : 7. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the latter, merit is the determinative factor. In State of Mysore v. Syed Mohmood, it was observed that in the background of Rule 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; 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 unior to him may be promoted. But these are not the only modes for deciding whether promotion is to be granted or not." 8. In the aforesaid case their Lordships have referred to the decision rendered in the case of Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association (Regd.) and others v. Union of India and others [(1990) Suppl. 350]. In the said case while dealing with the concept of promotion on these two aspects their Lordships also conceived the idea of hybrid promotion which is in the arena of third category. 9. At this juncture it would be seemly to refer to the decision rendered in the case of Ved Prakash and others v. State of Haryana and others [(2002) 10 SCC 359]. In the aforesaid case their Lordships expressed the view that the persons who were not found suitable in the feeder post were not suitable to hold the promotional post because of their performance. A distinction was drawn between seniority-cum-merit and seniority alone. 10. In the aforesaid case their Lordships expressed the view that the persons who were not found suitable in the feeder post were not suitable to hold the promotional post because of their performance. A distinction was drawn between seniority-cum-merit and seniority alone. 10. In this regard it is condign to refer another decision rendered in the case of Sher Singh and others v. Surinder Kumar and others [1998(II) MPWN 97 = (1998) 9 SCC 652 ]. In the said case their Lordships expressed the view that there is certain distinction between merit-cum-seniority and seniority-cum-merit and while adopting one, the other cannot be taken recourse to. 11. The purpose of referring to the aforesaid decisions is that the distinction between the two conceptions cannot be merged into one or the classification cannot be made so thin so that it reaches to a melting point overriding the other and militates its fundamental character. 12. Keeping in view the aforesaid pronouncements, it is imperative to x-ray the guidelines adopted by the DPC to find out whether by such stipulations it has encroached into the realm of merit-cum-seniority and conceptually introduced a different lens for scrutiny. On a perusal of the guidelines it is perceivable that the DPC had formulated five criteria to appreciate the ACRs. On a prismatic scrutiny they are in the arena of merit-cum-seniority and not seniority-cum-merit. We say so as the DPC has adopted both negative and positive modes to adjudge the suitability of the incumbents whereby the basic conception has gone a real sea change. Once there is an erroneous adoption of the method, it goes to the very root of things. Hence, we have no hesitation in holding that the DPC had taken recourse to a different method of assessment which was not permissible. We may repeat at the cost of some space that though it is manifestly exposited as seniority-cum-merit, on a deeper probe and closer penetration the real thing emerges which is quite clear that the process of merit-cum-seniority has come into play. 13. Once we arrive at such a conclusion, ordinarily we would have quashed the promotions and issued further directions, but we have been apprised at the Bar that all the incumbents who had been promoted to the higher posts have been superannuated. That apart, they have not been arrayed as respondents. 13. Once we arrive at such a conclusion, ordinarily we would have quashed the promotions and issued further directions, but we have been apprised at the Bar that all the incumbents who had been promoted to the higher posts have been superannuated. That apart, they have not been arrayed as respondents. In the obtaining state of affairs, we are disposed of hold that their promotions need not be quashed 'and benefit conferred on them should not be unsettled. To put a step in the ladder of justice and subserve the cause of justice what is requisite in praesenti is that a review DPC should be convened by the competent authority which shall consider the cases of the petitioners on the guided method of seniority-cum-merit keeping in view the law laid down above within a period of three months from the date of receipt of the order passed today and we so direct. Needless to emphasise if the petitioners are found suitable they shall be conferred the benefits notionally from the date their juniors were conferred so that they can get higher pay-scale if they are continuing in service. If they have retired they shall be extended the pensionary benefits accordingly. This relief is restricted and constricted to the petitioner before this Court. 14. Before parting with the case we are disposed to say, the order of the Tribunal has not been lanceted as the Tribunal has addressed itself to a different field. We may also state that M.P. Administrative Tribunal has been abolished. The correctness of the proposition being academic in the case at hand is not adverted to and further more the order of the Tribunal would not cause any remora when cases are decided by this Court. 15. The writ petitioners are accordingly disposed of without any order as to costs. ................