Ummed Singh v. Rajasthan Paryatan Vikas Nigam Limited
2005-09-16
GOVIND MATHUR
body2005
DigiLaw.ai
Judgment Govind Mathur, J.-The petitioner by this petition for writ has questioned decision of the respondents to supersede him by his juniors while making promotion to the post of Senior Manager under Rajasthan Tourism Development Corporation (Recruitment, Selection and Promotion) Rules, 1980 (hereinafter referred to as “the Rules of 1980”). The petitioner has also challenged the order dated 26.05.1994 whereby selection grade is allowed to him w.e.f. 25.01.1994 instead of 25.01.1992. 2. The facts leading to present writ petition are as follows:- 3. The petitioner entered in services of Rajasthan Tourism Development Corporation being appointed as Manager in the year 1981. 4. A Manager working with the corporation is having an avenue for promotion to the post of Senior Manager under the Rules of 1980. Appointment to the post of Senior Manager under the Rules of 1980 is required to be made only by way of promotion. Such promotions are required to be made in accordance with the criteria of merit and seniority in the ratio of 1:1. 5. The respondent corporation under an order dated 211.1995 on recommendations of Departmental Promotion Committee constituted under Sub-rule (4) of Rule 13 of the Rules of 1980 promoted eight Managers as Senior Managers. Out of eight persons promoted by order dated 211.1995 four persons viz. Shri Pramod Sharma, Mrs. Pramila Sharma, Shri Sanjeev Sharma and Shri G.L. Meena were said to be promoted according to the criteria of seniority. Shri G.L. Meena was promoted against the vacancy reserved for Scheduled Tribes. 6. It is contended by the petitioner that all the persons promoted by order dated 211.1995 are junior to him in the cadre of Manager, therefore, his supression while making promotions to the post of Senior Manager is unjust, unreasonable and arbitrary. It is also averred in the petition that the promotion may have been denied to him due to an adverse remark in his Annual Confidential Report for the year 1990-91. 7. The petitioner has also given challenge to deferment to the grant of selection grade by two years. By order dated 26.05.1994 selection grade was allowed to all juniors of the petitioner w.e.f. 25.01.1992 but it was allowed to the petitioner w.e.f. 25.01.1994. 8. A reply to the writ petition is filed on behalf of the respondents stating therein that the Departmental Promotion Committee after considering the service record found the petitioner unfit and unsuitable for promotion.
By order dated 26.05.1994 selection grade was allowed to all juniors of the petitioner w.e.f. 25.01.1992 but it was allowed to the petitioner w.e.f. 25.01.1994. 8. A reply to the writ petition is filed on behalf of the respondents stating therein that the Departmental Promotion Committee after considering the service record found the petitioner unfit and unsuitable for promotion. According to the respondents, the Departmental Promotion Committee objectively considered service record of the petitioner as well as the adverse remark communicated to him and after due application of mind, the committee was of the opinion that the petitioner was unfit and unsuitable to the post of Senior Manager. It is also stated by the respondents in their reply that the selection grade was denied to the petitioner on basis of adverse remarks in his Annual Confidential Report for the year 1990-91. .9. A rejoinder to the reply has been filed on behalf of the petitioner mainly reiterating the averments contained in the writ petition. .10. Heard Counsel for the parties. 11. The first contention of Counsel for the petitioner is that the respondents wrongly denied promotion to him on basis of adverse remarks entered in his Annual Confidential Report for the year 1990-91 as the criteria for promotion under the Rules of 1980 is seniority. According to Counsel for the petitioner wherever the criteria for promotion is seniority then adverse remark is not required to be considered while giving promotions. .12. Per Contra, it is contended by Counsel for the respondents that though the criteria for promotion is seniority and the persons junior than the petitioner were promoted by the order impugned dated 211.1995 but no illegality took place as the petitioner was not found fit and suitable by the Departmental Promotion Committee to be promoted as Senior Manager. According to Counsel for the respondents that even while considering candidature of a person for promotion under the criteria of seniority, his entire service record is required to be looked into and in the present case as the petitioner suffered an adverse remark for the year 1990-91, therefore, the Departmental Promotion Committee rightly found him unsuitable for promotion. .13. I have considered the arguments advanced by Counsel for the parties. 14.
.13. I have considered the arguments advanced by Counsel for the parties. 14. Under the Rules of 1980, the appointment by way of promotion to the post of Senior Manager is required to be made by adopting the criteria of seniority and merit with the ratio of 1:1. The respondents while making promotion against eight existing vacancies filled in four posts of Senior Manager on basis of merit and four by adopting the criteria of seniority. Whenever promotions are made on basis of merit, it is open for the competent authorities to compare merits of all the persons coming within the zone of consideration for promotion and to promote even a person junior, if he is found meritorious than his senior. The seniority is having no much role to play while making promotions under the criteria of merit. However, wherever promotions are made under the criteria of seniority then the merit of persons falling within the zone of consideration is not at all required to be considered. Promotions under the criteria of seniority is required to be made purely on basis of seniority. 15. The respondents by order impugned dated 211.1995 while making promotions to the post of Senior Manager in accordance with the criteria of seniority superseded the petitioner by his juniors by taking into consideration the adverse remarks pertaining to the year 1990-91. The same is totally contrary with regard to the consideration required to be kept in mind while making promotions in accordance with the seniority. The petitioner is admittedly senior to the persons promoted by the order dated 211.1995 wherever the criteria for promotion is one of sheer seniority, the promotion is a matter of course. This Court in the case of Balkishan vs. District & Sessions Judge, Pali, 1998 (1) WLN 190 held that claim for promotion could not be denied only on the ground of non satisfactory remark for a year in ACR, where the criteria is seniority cum merit. The present one is a case where the criteria required to be adopted while making promotion is seniority, therefore, certainly it was not open for the respondents to deny promotion to the petitioner on basis of one adverse remark in his confidential reports. The respondents denied promotion to the petitioner for a reason which was not available while making promotions on the basis of seniority. 16.
The respondents denied promotion to the petitioner for a reason which was not available while making promotions on the basis of seniority. 16. The position emerges out is that the respondents erroneously considered the adverse remarks in the ACRs of the petitioner while making promotion to the post of Senior Manager. 17. The next contention of Counsel for the petitioner is that the selection grade was erroneously denied to him, for which he is entitled to get w.e.f. 25.01.1992. The reason given by the respondents to deny selection grade to the petitioner is that the selection grades are granted in lieu of promotion and the petitioner earned adverse remarks in his Annual Confidential Report for the year 1990-1991, therefore, he was not found fit to be granted selection grade w.e.f. 25.01.1992 and, therefore, the same was deferred for a period of two years. I do not find any force in the reason so given. As stated above, the criteria for promotion is seniority, therefore, the adverse remark entered in the Annual Confidential Report of the petitioner for the year 1990-91 was required to be ignored while considering candidature of the petitioner for grant of selection grade. The petitioner entered in services of the respondents in the year 1981 and completed 9 years of service in 1990, therefore, he is certainly entitled for getting selection grade w.e.f. 25.01.1992. 18. Accordingly this petition for writ is allowed. The respondents are directed to consider the candidature of the petitioner for promotion to the post of Senior Manager from the date persons junior to him were promoted, ignoring the adverse remarks in Annual Confidential Report of the petitioner for the year 1990-91. The respondents are further directed to consider candidature of the petitioner for the purpose of grant of selection grade to him in accordance with the Notification dated 25.01.92 by ignoring the adverse remark entered in his Annual Confidential Report for the year 1990-91. The respondents are expected to comply with the directions above within a period of three months from the date the petitioner serves a certified copy of this Judgment upon the Managing Director, Rajasthan Paryatan Vikas Nigam Limited, Jaipur. 19. No order as to costs.