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IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice Dr. B.S. Chauhan
The Hon’ble Mr. Justice V. Gopala Gowda
Civil Appeal No(s). 1273 of 2004
Balbir Singh Bedi
v.
State of Punjab & Ors.
{Decided on 11/02/2013}
Service Law--Promotion--The principle of "seniority-cum-merit" and "merit-cum-seniority" are conceptually different.
Service Law--Promotion--Even in the absence of the executive instructions, the State/Employer has the right to adopt any reasonable and bonafide criteria to assess the merit, for the purpose of promotion on the principle of "seniority-cum-merit."
(A) Service Law--Promotion--To Junior--Present case is not the one where, Respondent No. 5 was found to be more meritorious, in fact, the same is admittedly a case, where the appellant was unable to achieve the benchmark set, as it is evidence from the record that his ACRs were average, and the benchmark fixed by the State was 'Good'--Promotion upheld--Appeal dismissed. (Para 18)
(B) Service Law--Promotion Seniority cum merit--Even if a promotion is to be made on the basis of "seniority-cum-merit", a person who is lower in the seniority list, can in fact be promoted, ignoring the claim of the senior person, who failed to achieve the benchmark i.e. minimum requisite merit. (Para 8)
(C) Service Law--Promotion--The principle of "seniority-cum-merit" and "merit-cum-seniority" are conceptually different, as in the case of the former, there is greater emphasis upon seniority even though the same is not the deciding factor, while the case of the latter, merit is the deciding factor. (Para 11)
(D) Service Law--Promotion--Where a promotion is to be given on the principle of "seniority-cum-merit", such promotion will not automatically be granted on the basis of seniority alone--Efficiency of administration cannot be compromised with at any cost--Thus, in order to meet said requirements, all eligible candidates in the feeder cadre must be subject to a process of assessment to determine whether or not an individual in fact possesses the specified minimum necessary merit, and in the even that he does possess the same, his care must be considered giving due weightage to his seniority. (Para 15)
Furthermore, the statutory authority must adopt a bonafide and reasonable method to determine the minimum necessary merit, as is required to be possessed by the eligible candidate--It must also take into account his period of service, educational qualifications, his performance during his past service for a particular period, his written test, interview, etc.--The authority must further be competent to allocate separate maximum marks on each of the aforesaid counts--Fixing such criteria, or providing for minimum necessary merit, falls within the exclusive domain of policy making--Thus, it cannot be interfered with by courts in the exercise of their judicial powers, unless the same is found to be off the mark, unreasonable, or malafide.
(E) Service Law--Promotion--Even in the absence of the executive instructions, the State/Employer has the right to adopt any reasonable and bonafide criteria to assess the merit, for the purpose of promotion on the principle of "seniority-cum-merit"--Executive instructions are nothing but codification of directions issued by Supreme Court. (Para 18)
(F) Service Law--Promotion--Executive Instructions--Challenge made to the executive instructions on the ground that they were issued at a date subsequent to the date on which the vacancy arose, is meaningless. (Para 18)
Dr. B. S. Chauhan, J.:- This appeal has been preferred against the impugned judgment and order dated 9.10.2003 passed by the High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition No. 15672 of 2003 by way of which the claim of the appellant for promotion has been rejected.
2. The facts and circumstances giving rise to this case are that:
A. The appellant was appointed as Civil Defence Instructor in the year 1964, and was promoted as Company Commander in October 1968. He was later promoted to the post of District Commander in July 1989. He, then claimed to have become eligible for substantive promotion to the post of Battalion Commander as per the rules applicable.
B. The case of the appellant was considered alongwith other eligible candidates, and vide order dated 30.1.2001, a person junior to him (Respondent No. 5), was promoted to the said post after considering his past five years’ Annual Confidential Reports (hereinafter referred to as ‘ACR’) and other records.
C. The appellant made repeated representations in this regard, but the same were not considered. Employees of the other department governed by the same rules, filed Civil Writ Petition Nos. 4491 and 11011 of 2001 in the Punjab and Haryana High Court contending that their cases for promotion were not to be considered in the light of executive instructions dated 29.12.2000, as the vacancies on promotional posts had occurred much before the issuance of said executive instructions. The said writ petitions were disposed of by the High Court vide judgment and order dated 14.1.2003, by which the High Court directed the authorities to consider the promotion of the parties therein, ignoring the instructions dated 29.12.2000.
D. The appellant retired on 31.12.2001 and filed Civil Writ Petition No. 15672 of 2003, seeking promotion and quashing of executive instructions issued on 29.12.2000 as well as on 6.9.2001. However, the High Court dismissed the said Civil Writ Petition vide impugned judgment and order dated 9.10.2003.
Hence, this appeal.
3. Shri P.S. Patwalia, learned senior counsel appearing on behalf of the appellant, has submitted that if the criteria for promotion is “seniority-cum-merit”, the question of ignoring the seniority does not arise. Additionally, recruitment to the post of Battalion Commander is governed by Rule 8 of the Punjab Home Guard, Class-I Rules, 1988 (hereinafter referred to as the `1988 Rules’), which provides that 75 per cent posts of this cadre would be filled up by promotion from the Battalion 2nd-in-Command consisting of District Commanders, the Chief Instructor, and Junior Officers at the State Headquarters, working under the control of the Commandant General, Punjab, all having a minimum work experience of 8 years. However, it prescribes that selection to the post must be made on the principle of “seniority-cum-merit”. The High Court committed an error by not giving weightage to seniority. Furthermore, as the executive instructions followed therein were issued subsequent to the date on which the vacancy occurred, the said instructions must not be applied to the present case. Appellant was given officiating charge of the post, and he performed the duties and functions on the said post, he could not be found unfit for any reason whatsoever, at a later stage. Therefore, the judgment and order impugned is liable to be set aside.
4. On the other hand, Shri Jagjit Singh Chhabra, learned counsel appearing on behalf of Respondent Nos. 1 to 4, has submitted that the aforementioned rule provides for promotion only on the basis of “seniority-cum-merit”. Therefore, the State, even in the absence of any executive instructions, could fix the required benchmark. The same, however, must be fixed prior to considering a case for promotion, as once the process of promotion begins, it would not be fair to change the rules of the game. The fixing of such a benchmark is completely unrelated to the date on which the vacancy occurred. Appe
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