The relative merit should be the governing principle for promotion, and the promotion policy should be harmoniously construed to give effect to all provisions.

1. The petitioner is before this Court assailing the order dated 03.10.2001, 05.09.2006 and 02.11.2006 impugned at Annexures-M, R and S respectively to the petition. In that light the petitioner is seeking that the same be quashed and further mandamus be issued to direct the respondent No.1 to promote the petitioner to E-VI grade with effect from 01.07.1999 from the date on which the respondents No.2 to 4 were promoted. In that regard, the further promotions to E-VIA E-VII and E-VIII is also sought.

2. The instant petition was at the earlier instance disposed of by the order dated 09.08.2011 whereby a coordinate bench had quashed Annexures-M and R and directed the grant of promotion. The respondent herein was before the Hon’ble Division Bench in W.A.No.16028/2011 assailing the same. The Hon’ble Division Bench through its order dated 23.02.2015 had noticed that the order passed by the respondent herein through Annexure-S subsequent to the earlier round of litigation in W.P.No.44434/2001 was not considered by the learned Single Judge. Accordingly having set aside the order of the learned Single Judge the instant petition was restored for consideration in that regard.

3. It is in that light I have heard Sri P.S. Rajagopal, learned senior counsel for the petitioner, Sri A.G. Holla, learned senior counsel for respondent No.1 and Sri M. Sadanand, learned counsel for respondents No.2 to 4.

4. The learned senior counsel for the petitioner on referring to the promotion policy and the relevant clauses more particularly clause 6.4.1 would contend that in respect of promotion in the same cluster once the executive concerned secures 65 marks after assessment by way of determination of merit as per clause 6.3 the seniority will assume relevance and the persons senior inter-se will have to be promoted as the job content is not relevant for inter-cluster promotions. Thus contending that the manner in which the seniority-cum-merit should be considered has relied on the decision in the case of B.V.Shivaiah and others vs. K.Addanki Babu and others [(1998) 6 SCC 720] wherein it is held that the principle of "merit-cumseniority" 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 the rule considered therein which provided that the selection for inclusion in the list shall be based on merit and suitability in all respects with due regard to seniority. It is held that on the other hand the criterion "seniority-cum-merit" lays greater emphasis on seniority. But in such case also the officer cannot claim promotion as a matter of right by virtue of seniority alone. In that context it is held as hereunder;

“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.”

5. The learned senior counsel for the respondent No.1 would however contend that the 65 marks as provided in clause 6.4.1 is the minimum mark that is required to be secured by an executive to become eligible to be considered for promotion and when a relative assessment is made thereafter, the suitability would be th