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2016 DIGILAW 384 (GAU)

Dilip Goswami v. State Financial Corporation

2016-05-06

UJJAL BHUYAN

body2016
JUDGMENT AND ORDER : Ujjal Bhuyan, J. This case was heard on 02.05.2016 and 4.5.2016 was fixed for delivery of judgment. For paucity of time, judgment could not he delivered on that day. Accordingly, judgment is being delivered today. 2. Heard Mr. K.K. Mahanta, learned Senior Counsel for the petitioner. Mr P.K. Kalita and Ms. T. Goswami, learned counsel for respondent Nos. 1, 2 and 3. Also heard Mr. L.P. Sharma, learned counsel for respondent Nos. 7 to 10. 3. None has appeared for respondent Nos. 4 to 6, though served. 4. By filing this petition under Article 226 of the Constitution of India, petitioner has challenged the legality and validity of the Resolution No. 10, adopted by the Board of Directors of Assam Financial Corporation (hereinafter, referred to as 'AFC' in short) in its meeting dated 11.10.2007, whereby respondent Nos. 4, 5 and 6 were recommended for promotion from Assistant Manager to Manager superseding the petitioner and the consequential promotion granted to the said respondents. Petitioner has also questioned ti e relevant portions of the Recruitment, Promotion. Seniority and Transfer Policy, 1907. 5. Case of the petitioner is that he had entered into service in the AFC as Senior Clerk on 23.02.1979. In the course of his long service, he has risen through the ranks and ultimately, he came to occupy the post of Assistant Manager (Legal). In the gradation list of Assistant Manager, petitioner was placed at Serial No. 2, whereas, respondent Nos. 4, 5 and 6 were placed at Serial Nos. 9, 10 and 11. 6. There were 4 (four) vacancies in the post of Manager, which were required to be filled up by way of promotion. Post of Assistant Manager is the feeder cadre for the post of Manager. As per AFC Recruitment, Promotion, Seniority and Transfer Policy, the criteria adopted for considering promotion is seniority-cum-merit. Departmental Promotion Committee (DPC) was constituted to consider cases of eligible candidates for such promotion. Petitioner appeared before the Departmental Promotion Committee (DPC) on 15.09.2007. Departmental Promotion Committee (DPC) recommended 4 (four) persons for promotion namely, Sri. PK Bordoloi (Serial No. 1 in the gradation list) and respondent Nos. 4, 5 and 6. Board of Directors in its meeting held on 11.10.2007, approved the recommendation of the Departmental Promotion Committee (DPC) where after consequential promotion orders were issued. 7. Departmental Promotion Committee (DPC) recommended 4 (four) persons for promotion namely, Sri. PK Bordoloi (Serial No. 1 in the gradation list) and respondent Nos. 4, 5 and 6. Board of Directors in its meeting held on 11.10.2007, approved the recommendation of the Departmental Promotion Committee (DPC) where after consequential promotion orders were issued. 7. Petitioner submitted representation before the respondent No. 2, complaining that his seniority was overlooked and respondent Nos. 4, 5 and 6 were illegally promoted. But no decision was taken on such representation. Aggrieved, present writ petition has been filed. 8. Respondent Nos. 1, 2 and 3 in their common affidavit have stated that in the gradation list of Assistant Manager, the position of the petitioner was at Serial No. 6 and that of respondent Nos. 4, 5 and 6 at Serial Nos. 17, 18 and 20 respectively. But it is admitted that petitioner was senior to respondent Nos. 4, 5 and 6 in the cadre of Assistant Manager. It is contended that Departmental Promotion Committee (DPC) had conducted the promotion exercise in accordance with the 1997 Policy. Petitioner's claim for promotion only on the basis of seniority is untenable when the criteria for promotion is seniority-cum-merit. His performance in the interview was inferior to those recommended by the Departmental Promotion Committee (DPC). 9. An application was filed by the petitioner to bring on record those officers, junior to the petitioner, who were subsequently promoted to the post of Manager ahead of the petitioner. The said application was registered as Misc Case No. 2579 of 2013. In the Misc. Case, it has been noticed that those officers had already filed counter affidavit to the writ petition as far back as on 20.06.2014. In the circumstances, those officers have been formally added as respondents Nos. 7, 8, 9 and 10 in the present proceeding by a separate order passed today in Miscellaneous Application No. 2579 of 2013. 10. Before proceeding further, two facts which have been admitted by both the sides at the Bar may be noted. First is the seniority of petitioner over respondent Nos. 4, 5, 6 and 7 in the feeder cadre of Assistant Manager and second is the application of the criteria of seniority-cum-merit while considering promotion from Assistant Manager to Manager. 11. 10. Before proceeding further, two facts which have been admitted by both the sides at the Bar may be noted. First is the seniority of petitioner over respondent Nos. 4, 5, 6 and 7 in the feeder cadre of Assistant Manager and second is the application of the criteria of seniority-cum-merit while considering promotion from Assistant Manager to Manager. 11. Short point for consideration is whether the Departmental Promotion Committee (DPC) while making the recommendation on 15.09.2007 had correctly applied the criteria of seniority-cum-merit. 12. Before answering this question, it would be apposite to briefly examine the criteria of seniority-cum-merit. 13. In the case of B.V. Sivaiah & Ors. v. K. Addanki Bahu & Ors., reported in (1998) 6 SCC 720 ; the Supreme Court held that the criteria of seniority-cum-merit lays greater emphasis on seniority though the officer cannot claim promotion as a matter of right by virtue of his seniority alone, if he is found unfit to discharge the duties of the higher post. Referring to its earlier decision in the case of State of Kerala v. N.M. Thomas, reported in (1976) 2 SCC 310 , it was held that seniority-cum-merit would mean that given the minimum necessary merit requisite for efficiency of administration, the senior though less meritorious shall have priority. 14. This position has been reiterated in Union of India & Ors. v. Lt. Gen. Rajendra Kumar Kadyan & Anr.; reported in (2000) 6 SCC 698 , wherein, the Supreme Court held that the criterion seniority-cum-merit postulates the requirement of certain minimum merit or satisfying a Bench mark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit in a case where criteria adopted for promotion is seniority-cum-merit. 15. In the case of Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya Gramin Bank; (2006) 12 SCC 574 , the Supreme Court reiterated the above proposition and held that in seniority-cum-merit. greater emphasis is on seniority though it is not the determinative factor. 16. A Division Bench of this Court in the case of Shah Syed Ahadur Rahman v. Gauhati High Court, reported in 2015 (4) GLT 658 : (2015) 2 GLR 618, after surveying the law in this regard summed up the position as under:- "23. greater emphasis is on seniority though it is not the determinative factor. 16. A Division Bench of this Court in the case of Shah Syed Ahadur Rahman v. Gauhati High Court, reported in 2015 (4) GLT 658 : (2015) 2 GLR 618, after surveying the law in this regard summed up the position as under:- "23. From a careful analysis of the above judgments it is evident that when the criterion of “seniority-cum-merit” is applied, once minimum necessary merit requisite for efficiency of administration is achieved, the senior even though less meritorious shall have priority. Comparative assessment of merit is not required. The requirement of minimum merit can he prescribed by fixing a Bench mark. The underlying emphasis when the criterion of' seniority-cum-merit” is applied is of minimum merit. What then can be construed to be minimum merit while applying the criterion of “seniority-cum-merit" which lays greater emphasis on seniority'? Though minimum merit is not capable of any precise definition and would depend on the fact situation of the particular case, in the context of the criterion of “seniority-cum-merit”, the minimum merit should be such that the emphasis on seniority does not get diluted.” 17. Having noticed the legal position as above, the affidavit filed by respondent Nos. 1, 2 and 3 may now be adverted to. While admitting that the criteria for promotion was seniority-cum-merit, it has been contended that performance of the petitioner in the interview was inferior to those recommended by the Departmental Promotion Committee (DPC). Therefore, from the stand of the respondents themselves in the affidavit, it is evident that what was assessed by the Departmental Promotion Committee (DPC) was the relative merit of the officers, who were being considered for promotion. Because the performance of the petitioner was found to be inferior to those recommended, he was not recommended. Beyond this, nothing has been stated regarding fixation of any minimum merit or Bench mark or whether petitioner had filled to meet the minimum merit. Nothing is discernible as to how seniority has been factored in. As already discussed above, in the event of application of the criteria of seniority-cum-merit. once minimum merit is achieved the senior even though less meritorious shall have priority. 18. It is admitted by the respondents that petitioner was senior to respondent Nos. 4, 5 and 6 in the cadre of Assistant Manager. Yet, respondent Nos. As already discussed above, in the event of application of the criteria of seniority-cum-merit. once minimum merit is achieved the senior even though less meritorious shall have priority. 18. It is admitted by the respondents that petitioner was senior to respondent Nos. 4, 5 and 6 in the cadre of Assistant Manager. Yet, respondent Nos. 4, 5 and 6 have been promoted ahead of the petitioner without any justifiable reason. 19. In the course of hearing. Mr Mahanta, learned Senior Counsel for the petitioner submitted that petitioner was subsequently recommended for promotion by the Departmental Promotion Committee (DPC), where after, he was promoted to the post of Manager on 02.01.2010. In view of pendency of the writ petition, petitioner did not join. Thereafter. he was again recommended for promotion on the basis of his performance in the interview, where after, he was promoted on 11.09.2013. This time petitioner accepted the promotion and joined in the promoted post of Manager on 18.09.2013, without prejudice to his claim ventilated in the present writ petition. 20. In the light of the above discussion, Court is of the view that non-recommendation of the petitioner by the Departmental Promotion Committee (DPC) for promotion from the post of Assistant Manager to the post of Manager on 15.09.2007 was not justified. Firstly, his seniority could not have been ignored and secondly, subsequent Departmental Promotion Committee (DPC) found him to be suitable for promotion. Respondent Nos. 1, 2 and 3 are, therefore, directed to give effect to the promotion of the petitioner to the post of Manager with effect from the date respondent Nos. 4, 5 and 6 were promoted with all consequential benefits, since it would not be justified at this stage to interfere with the promotion of respondent Nos. 4. 5 and 6 or for that matter, any of the officers such as the newly added respondents, who were promoted subsequently. 21. In view of the above finding and direction. adjudication on the other issue raised by the petitioner is considered not necessary. 22. Writ petition is allowed, but. without any order as to costs.