Research › Search › Judgment

Chhattisgarh High Court · body

2017 DIGILAW 29 (CHH)

Rajendra Tiwari v. State of C. G.

2017-01-11

MANINDRA MOHAN SHRIVASTAVA

body2017
ORDER : SHRI MANINDRA MOHAN SHRIVASTAVA, J. 1. The petitioner filed an original application before the M.P. State Administrative Tribunal, Bench at Raipur which was registered as Original Application No.2182/02. Upon abolition of the Tribunal, the petition was transferred to this Court. The petitioner has filed this petition aggrieved by his super-session in the matter of promotion to the post of Assistant District Excise Officer as also denial of benefit of scale promotion provided by the State vide various circulars dated 19/04/1999 (Annexure A/6), 12/10/1999 (Annexure A/7), 17/05/2000 (Annexure A/8) and 17/05/2000 (Annexure A/9). 2. Quintessential facts necessary for adjudication of controversy involved in the petition are stated infra. The petitioner was initially appointed as Excise Sub-Inspector in the Excise Department of erstwhile state of Madhya Pradesh in the year 1982. He was confirmed in the service in the year 1987. Upon re-organisation of the State of M.P. under M.P./C.G. Re-organisation Act, 2000, petitioner's services were allocated to the newly carved out State of Chhattisgarh. In the seniority list, showing seniority position as on 01/04/01 published on 17/10/01 vide Annexure A/3, the petitioner was placed at serial no.58 whereas respondents 2, 3, 4 and 5 were placed at serial no. 59, 60, 62 and 63 respectively. Departmental Promotion Committee was convened to consider the cases of promotion on 13/02/02. The DPC did not find the petitioner fit for promotion resulting in his super-session and his juniors as aforesaid, were promoted to the post of Assistant District Excise Officer vide order dated 21/02/02 (Annexure A/10). The petitioner also feels aggrieved as even the scale promotion was not granted to him. According to the petitioner, the petitioner was not even granted scale promotion which was due to him upon completion of 12/24 years of service. Ventilating these grievances, the petitioner filed an original application filed before the Tribunal which has now come before this Court for decision. 3. Learned counsel for the petitioner contended that under the relevant applicable rules known as M.P. Excise Service Records Rules, 1966, the criteria for promotion from Class III to Class II post is seniority-cum-fitness. As the promotion from the post of Excise Inspector to Assistant District Excise Officer was a case of promotion from Class III to Class II post, the case of the petitioner was liable to be considered by applying the criteria of seniority-cum-fitness. As the promotion from the post of Excise Inspector to Assistant District Excise Officer was a case of promotion from Class III to Class II post, the case of the petitioner was liable to be considered by applying the criteria of seniority-cum-fitness. As the petitioner's service records were un-blemish because by that time, no adverse remarks communicated to him, he was not given any major or minor penalty in the last five years preceding consideration, there was no Departmental Enquiry pending, the petitioner ought to be adjudged fit and given his seniority, he ought to be promoted to the next higher post of Assistant Excise Officer. It is contended that the respondents adopted wrong criteria of fixing a minimum merit criteria by prescribing that out of five years ACRs, three of them were required to be graded as 'kha' and last one should not have been graded as 'Ga'. This amounted to fixation of minimum benchmark of merit, meaning thereby that the respondents, while considering the case of promotion, adopted the criteria of seniority-cum-merit, even though the petitioner by virtue of fitness, in the absence of any adverse material, was entitled to be promoted in preference to his juniors by applying the criteria of seniority-cum-fitness. In the alternative, submission is that even though criteria could be applied, as grade 'Ga' has a deleterious effect in the context of the criteria fixed by the DPC, it constituted an adverse remark and therefore, this remark ought to have been communicated to the petitioner, well in advance, so that the petitioner could prefer his representation against those remarks for improvement of his grade. Without that having been done, denial of promotion on the ground that last ACR of the petitioner was 'Ga', denial of promotion is arbitrary and illegal. In support of his contention, learned counsel for the petitioner placed reliance upon the decision of the Supreme Court in the cases of B.V. Sivaiah and others v. K. Addanki Balm and ors. AIR 1998 SC 2565 , Harigovind Yadav v. Rewa Sidhi Gramin Bank and anr. 2006 (6) SCC 145 , and order dated 13/12/2012 passed by this Court in WPS No. 1006/05 (Smt. Anita Gupta v. State of C.G. and ors). 4. AIR 1998 SC 2565 , Harigovind Yadav v. Rewa Sidhi Gramin Bank and anr. 2006 (6) SCC 145 , and order dated 13/12/2012 passed by this Court in WPS No. 1006/05 (Smt. Anita Gupta v. State of C.G. and ors). 4. Per contra, learned State counsel supported the action of the respondents in holding the petitioner unfit for promotion by submitting that the promotion could be granted only subject to fitness as provided under the rules. The respondents, in order to standardize fitness, laid down the criteria that in the matter of evaluation of ACR of the last five preceding years, employee should have impeccable integrity; that out of five years of the preceding five years, the employee should have been graded minimum 'Kha' (good) and there should not be any adverse unity 'C' (bad) in his service records and further that the last year's ACR should not be rated as 'C'. Moreover, it was also decided that there should be no adverse remark in the confidential report and the evaluation would be based on ACR from the year 1995 to 2000. When the petitioner was judged on this criteria, he was not found fit because there was no grade provided to the petitioner in the year 1997 and in the ACRs of 1999 and 2000, the petitioner was graded as 'Ga' Therefore, the respondents have not committed any illegality in considering the case of promotion of the petitioner. It was also submitted that the same criteria was followed while considering the cases of eligible officers for grant of Kramonnati (scale promotion). Therefore, on similar consideration, the petitioner was also not found fit for grant of scale promotion. 5. In order to appreciate the submission of learned counsel for the parties, it would be appropriate to examine the statutory scheme of relevant rules and criteria fixed under the rules. It is not in dispute that relevant rules governing recruitment and promotion in the present case were M.P. Excise (Class 1 and Class II) Service Recruitment Rules, 1966 (for short 'the Rules of 1966') copy of which is placed on record as Annexure A/12. The rule, as it originally stood, provided that in the matter of promotion, selection for inclusion in the list should be based on merit and suitability in all respects with due regard to seniority. The rule, as it originally stood, provided that in the matter of promotion, selection for inclusion in the list should be based on merit and suitability in all respects with due regard to seniority. Rule 15 of the Rules of 1966 for ready reference is extracted herein below: "15. Conditions of eligibility for promotion - The committee shall consider the cases of all persons who on the first day of January of that year, had completed three years of service (whether officiating or substantive) in the post/service mentioned in column 2 of Schedule IV or any other post or posts declared equivalent thereto by the Government." However, later on, the rule was amended vide notification dated 14/07/1998 and it was provided as under - Amendment In the said rules, for sub-rule (2) of rule 15, the following sub-rule shall be substituted namely - "(2) For preparing the select list of persons for promotion from the post of Class III to Class II and from Class II to Class I, the criterion shall be seniority subject to fitness and for promotion from Class I to Class I posts, the criterion shall be merit cum seniority." 6. It would thus be clear that with amendment in the rules, while considering the cases of eligible officers for promotion from the post of Class III to Class II, the criteria was changed to seniority subject to fitness. This also indicates the intention of the Rule Making Authority that a strict criteria for promotion based on merit, as provided earlier in the Rule was relaxed in so far as promotion from Class III post to Class II post is concerned. The new criteria clearly provide for promotion on the basis of seniority subject to fitness. However, when the case of the petitioner was considered for promotion, DPC laid down a criteria which amounts to fixation of minimum benchmark of merit. As the State has come out with its return, an officer could be adjudged lit, subject to the conditions that - (a) That the employee should have impeccable integrity; (b) That the ACRs for preceding years should have minimum of 'Kha' (should be good); (c) There should be no adverse entry of 'C' (bad) in service records. (d) That the last year's ACR should not be rated as 'C'. (e) There should be no adverse remarks in the ACRs. 7. (d) That the last year's ACR should not be rated as 'C'. (e) There should be no adverse remarks in the ACRs. 7. As far as requirement of integrity being impeccable and that there should be no adverse effect in the service records are concerned, one can understand that this is essential to link with the aspect of fitness. However, fixation of criteria that all the ACRs should have minimum of 'Kha' grading means that the respondents, by laying the aforesaid criteria, fixed a minimum benchmark of merit to hold an eligible officer fit for promotion. The question, therefore, which arises for consideration is whether while considering the petitioner and other officers for promotion on the criteria of 'seniority subject to fitness', respondents were justified in laying down a minimum benchmark of merit. 8. In the service jurisprudence, known criteria for promotion are selection based purely on merit, promotion on the criteria of merit-cum-seniority, promotion based on seniority-cum-merit, promotion based on seniority-cum-fitness. Promotion is a reward and whenever promotions are made, some kind of criteria is required to be fixed. Ordinarily, while granting promotion in the lower rank of post, comparative merit criteria is not resorted to and subject to fitness, promotions are made on the basis of seniority. When promotions are made to higher posts, merit starts playing role; It is in three parts - Firstly, where it is based purely on selection and seniority has no relevance. The other two criteria are merit-cum-seniority and seniority-cum-merit. In most of the public services, while in the matter of promotion to the lower rank of post, subject to fitness, seniority is made a basis, in the matter of promotion to the higher rank of post, carrying higher duties and functions, merit plays a prominent role. The well known jurisprudential concept of merit-cum-seniority and seniority-cum-merit and distinction thereof was considered by the Supreme Court in its authoritative judicial pronouncements in the case of B.V. Sivaiah (supra) the Supreme Court examined the concept of seniority-cum-merit as below - "17. On behalf of the promoted officers it was urged that for the purpose of promotion on the basis of seniority-cum-merit, seniority means the length of service and that among 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. We are unable to agree, while applying the principle of seniority-cum-merit for the purpose of promotion what is required to be considered is 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, 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 selected list for appointment. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to the such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion 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." 9. The aforesaid authoritative pronouncement of the Supreme Court has been followed in subsequent decisions in the case of Hargovind Yadav v. Rewa Sidhi Gramin Bank 2006 (6 SCC 2565), Rajendra Kumar Srivastava and ors. v. Samyut Kshetriya Gramin Bank and ors. 2010 (1) SCC 335 , Haryana State Warehousing Corporation and ors. 2011 (3) SCC 422 and Prabhu Dayal Khandelwal v. Chairman, Union Public Service Commission and ors. 2015 (14) SCC 427 . 10. The essential distinctions pointed out in the aforesaid decisions, as between criteria of seniority-cum-merit and merit-cum-seniority, is while in the cases of promotion based on merit-cum-seniority, merit prevails, in considering cases of promotion applying criteria of merit-cum-seniority, a minimum benchmark of merit is prescribed and all the eligible officers who fulfil minimum benchmark of merit are considered for promotion on the basis of their inter so seniority. Therefore, fixation of certain minimum benchmark of merit has an attribute of criteria of seniority-cum-merit because in such a case, merit does play a role. In such cases, there is no comparison on merit of two officers. For illustration, if junior and senior officers fulfil minimum eligibility criteria and minimum bench mark of merit is fixed under the rule or by the DPC, even if senior officer is more meritorious and efficient, junior officer would be preferred in the matter for promotion. In such cases, there is no comparison on merit of two officers. For illustration, if junior and senior officers fulfil minimum eligibility criteria and minimum bench mark of merit is fixed under the rule or by the DPC, even if senior officer is more meritorious and efficient, junior officer would be preferred in the matter for promotion. But in the case of merit-cum-seniority or in the case of promotion made purely based on selection, a comparative merit exercise is required to be undertaken. In such cases, a more meritorious officer, even though junior, would inarch-past his senior and would get promotion. 11. From the aforesaid well settled legal position, it is clearly discerned that prescription of minimum benchmark of merit would be applicable in the matter of promotion based on the criteria of seniority-cum-merit. Seniority subject to fitness, on its rational, fair and logical interpretation would only mean that the officer is fit for promotion when there is nothing adverse against him. In such cases, where integrity is not in doubt, there are no adverse entries, no departmental enquiry pending or any penalty or any other kind of adverse material, the officer has to be adjudged as fit. A distinction between fit for promotion and merit for promotion has to be underlined. Even if an officer may not achieve minimum benchmark, meaning thereby that higher ACR grading like Excellent or Very Good, yet he may be fit i.e. there is nothing adverse against him. Therefore, the scale of fitness is different from scale of merit. May be in a given case, in the necessity of particular employment, the employer may lay down particular standard of fitness with an award grade of ACR. As long as it is not done, it must be understood that there is nothing adverse against the employee and he is not required to be possessed of any minimum standard of merit. In the present case, promotions are based on the rules framed by the Governor in exercise of power under Article 309 of the Constitution of India which has statutory force. In the present case, promotions are based on the rules framed by the Governor in exercise of power under Article 309 of the Constitution of India which has statutory force. The historic development of the rule applicable in the present case has been noticed by this Court that earlier, the criteria of promotion was based on merit and later on, rule was relaxed in so far as promotion from Class III to Class II post is concerned, while retaining the requirement of merit as a criteria for promotion in the matter of promotion from Class II to Class I post. In this background, the interpretation of rule and criteria of promotion on seniority-cum-fitness should only be understood in the sense that the employee should be promoted on the basis of seniority provided that there is nothing adverse against him like doubtful integrity, departmental enquiry, criminal case, penalty, deleterious material etc. 12. What has been done in the present case is that a minimum benchmark has been prescribed by the DPC, without any such prescription or methodology provided in the statutory rules of 1966, nor in the circular of the Government, issued to fill up the gap in the rules. Therefore, irresistible conclusion would be that the respondents, while considering the case of the petitioner along with other officers, applied a criteria which was in effect and substance, the criteria of seniority-cum-merit and not the criteria of seniority subject to fitness. The original records have been placed before me by the State counsel and in the case of the petitioner, following ACR gradings were taken into consideration- 1996 Ka 1997 No grading awarded 1998 Kha 1999 Ga 2000 Ga It would thus appear that even though the ACR grading in the case of the petitioner, taken in isolation are not adverse, by laying a minimum benchmark of merit, the ACR grading as 'Ga' have been made a basis to hold the petitioner unfit for promotion. In the absence of there being any such prescription under the rules, this exercise, in the opinion of this Court, was against the spirit of rule, in the matter of considering cases of promotion of the officers from Class III to Class II post by application of the criteria of seniority subject to fitness prescribed under the rules. In the absence of there being any such prescription under the rules, this exercise, in the opinion of this Court, was against the spirit of rule, in the matter of considering cases of promotion of the officers from Class III to Class II post by application of the criteria of seniority subject to fitness prescribed under the rules. The jurisprudential concept of different criteria of selection including seniority-cum-merit and merit-cum-seniority with due regard to seniority was explained by the Supreme Court in the case of Union of India and others v. Lt. Gen. Rajendra Singh Kadyan and anr. 2000 (6) SCC 698 as below - "12. Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "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. Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion to All-India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them." The aforesaid decision was also considered by the Supreme Court in the subsequent decision in the case of Central Council For Research in Ayurveda & Siddha and anr. v. Dr. K. Santhakumarf 2001 (5) SCC 60 , while expounding the principle of merit-cum-seniority in contradistinction with principle of seniority-cum-fitness. 13. For yet another reason, the petitioner is entitled to succeed in this petition. Assuming for the argument's sake, that the criteria laid down by the respondents was permissible under the law, that would mean that grade 'Ga' and grade 'Ga' in the last ACR under consideration would be attributable to unfitness as per the criteria. It means that Grade 'Ga' though in isolation, is not adverse remark, but if seen in the context of the criteria, it has deleterious effect because it denies promotion. If that be so, it was required to be communicated to the petitioner well in advance and within reasonable time so as to afford him due opportunity to comment against, by preferring representation for expungement of those remarks. If that be so, it was required to be communicated to the petitioner well in advance and within reasonable time so as to afford him due opportunity to comment against, by preferring representation for expungement of those remarks. This aspect was considered by this Court in the case of Smt. Anita Gupta (supra). A similar situation arose in that case that the ACR grading, that by itself not adverse in the context of promotion criteria, it constituted adverse remarks. Relying upon decision of the Supreme Court in the case of Dev Dutt (supra), this Court held - "9. In an identical situation, where ACRs having "good" entry were found to have adverse impact in the context of benchmark for consideration for promotion, the Supreme Court in the case of Dev Dutt (supra) held as below :- "9. In the present case the benchmark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have "very good" entry for the last five years. Thus in this situation the "good" entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion, Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology The grant of a "good" entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. 10. Hence, in our opinion, the "good" entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-1994 should be upgraded from "good" to "very good". Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the "good" entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the "good" entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the "good" entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable." 10. In the aforesaid case, it was found that even ACR grading of "good" was found to have adverse remark, and therefore, such entry requires communication. Present case is squarely covered by the aforesaid decision of the Supreme Court. In this case also, as against requirements of "good" grading for promotion, the petitioner was given average grading for the ACRs 1989-90 and 1991-92. Therefore, the effect and impact of this grading was adverse, which required it to be communicated to the petitioner. 11. It is apparent that the official respondents did not communicate the adverse entry to the petitioner, because in their opinion, it was not adverse, which, for the reasons assigned above, cannot be sustained. In fact, in the case of one Deopal Singh Sisodiya, where entry was treated as adverse, the same was directed to be communicated to him and her representation to be obtained and then to be placed before the DPC by way of circulation. 12. In the opinion of this Court, the same procedure was required to be followed in the case of the petitioner also before denying her promotion on the basis of average gradings in her ACRs for the year 1989-90 and 1991-92." 14. In the present case also, admittedly, those remarks have not been communicated earlier and later on, it was communicated under Right to Information Act vide Annexure P/20 which is annexed along with rejoinder. Therefore, for all these reasons, super-session of the petitioner is held illegal. Consequently, the State Government is directed to hold review DPC as on 13/02/2002 to consider the case of the petitioner in the light of orders passed by this Court by applying the criteria of seniority subject to fitness as interpreted in this order. Un-communicated remarks shall not be treated as adverse to the petitioner. Consequently, the State Government is directed to hold review DPC as on 13/02/2002 to consider the case of the petitioner in the light of orders passed by this Court by applying the criteria of seniority subject to fitness as interpreted in this order. Un-communicated remarks shall not be treated as adverse to the petitioner. If upon consideration in this manner, the petitioner is found fit subject to all other considerations like integrity, passing of any penalty order, departmental enquiry or any criminal case, the petitioner shall be entitled to promotion as Assistant District Excise Officer from the same date respondents 3, 4, 5, 6 were promoted as Assistant District Excise Officer with all consequential benefits as per seniority and shall also consider the case of the petitioner for promotion to the next higher post, in case, those juniors were further considered and promoted to the higher post ahead of the petitioner. 15. It is placed on record that the petitioner was ultimately promoted to the post of Assistant District Excise Officer in the year 2008 and is presently working as the same. The petition is accordingly allowed to the extent and in the manner indicated as above. No orders as to cost.