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2005(3) JLJ 268
R.V. Raveendran, C.J. and Dipak Misra, J.
Narmada Prasad Saxena v. State of M.P. and others
Writ Petition No. 1689 of 2002, with Writ Petitions No. 4569, 4570,
4824 and 5880 of 2003 : against the order of M.P. Administrative Tribunal, Gwalior, passed in OA No. 655 of 1998;
Decided on 16.2.2005.
What is necessitous to be dwelled upon as a matter of fact is whether the DPC had formulated guidelines of such nature which introduced and ushered in the parameter of merit-cum-seniority or it has fundamentally adhered to the conception of seniority-cum-merit. [Para 5
Held: There should be a correct balance between seniority and merit in a proper promotion policy. The criteria of ‘seniority-cum-merit‘ and ‘merit-cum-seniority‘ which take into account seniority as well as merit, seek to achieve such a balance.
The principle of ‘merit-cum-seniority‘ 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. (1988) 6 SCC 720 followed. [Para 6
The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the latter, merit is the determinative factor. (2004) 9 SCC 286 followed. [Para 7
There is certain distinction between merit-cum-seniority and seniority-cum-merit and while adopting one, the other cannot be taken recourse to. 1998(11) MPWN 97 (SC) followed. [Para 10
On a perusal of the guidelines it is perceivable that the DPC had formulated five critelia to appreciate the ACRs. On a prismatic scrutiny they are in the arena of merit-cum-seniority and not seniority-cum-merit. We say so as the DPC has adopted both negative and positive modes to adjudge the suitability of the incumbents whereby the basic conception has gone a real sea change. Once there is an erroneous adoption of the method, it goes to the very root of things. Hence, we have no hesitation in holding that the DPC had taken recourse to a different method of assessment which was not permissible. We may repeat at the cost of some space that though it is manifestly exposited as seniority-cum-merit, on a deeper probe and closer penetration the real thing emerges which is quite clear that the process of merit-cum-seniority has come into play. [Para 12
(2) Civil Servant--promotion--promoted employees superannuated--also not made parties--their promotions cannot be quashed -- review DPC directed to be convened to consider the case of petition all principles of seniority-cum-merif. [Para 13
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Misra, J. -- 1. In invocation of jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioners in each case have called in question the legal propriety and defensibility of the order passed by the M.P. Administrative Tribunal, Gwalior (in short 'the Tribunal') in OA No. 655/98. The impugned order being a singular one and the factual matrix being the same, all the writ petitions were heard analogously and are disposed of by this common order.
2. Be it noted at the very beginning that a Division Bench of the Tribunal at Gwalior did not agree with the view taken by the Division Bench of Tribunal at Indore in the cases of Arun Kumar Bhatt v. State of M.P. [1988.MPLSR 535] and Dr. Ashalata Sharma v. State of M.P. [1998 MPLSR 767] and accordingly referred the controversy to a larger Bench. The question that was required to be answered by the Full Bench whether an entry in the annual confidential report is found to be of the category 'c' and that creates an impediment in the way of promotion of the incumbent should be considered as adverse and what would be the impact and import of its non-communication. The Full Bench of the Tribunal in paragraphs 23 to 26 proceeded to express the view as under :
"23. There is another aspect of the matter. It can be argued that when the competent authority to convene the meeting of the DPC decides upon calling such meeting then it should review the last 5 years ACRs and see whether in terms of the anticipated criteria which the committee might adopt whether any of the ACRs should be communicated i.e. whether C, B or A report should be communicated and to communicate, the same if in its opinion it is likely to stand in the way of promotion of the officer. This would mean that even ACR entries which are four years old would be required to be communicated and the officer asked to make representation against them and on receipt of representations the comments of the officer who might have given the particular report should be obtained. This is a wholly unacceptable proposition. It is meaningless to communicate a report after four years and to try to seek comments of the officer who might have recorded the report after such long length of time. The report would have obviously become state and officer recording the report would not be in a position to recall all the facts and submit his comments. Such officer might have also retired after recording the report. Further this would also lead to an unnecessary delay in the convening of the meeting of the DPC as sufficient time would be required to be given for making of the representation and, obtaining the comments of the officers thereon. Furthermore this practice would also greatly increase administrative work. Thus, quite clearly this proposition is an unworkable proposition and, therefore, unacceptable proposition.
24. We may also add that in case the position that any report which stands in the way of promotion of an officer should be communicated is accepted it would mean that every C, B or A grade report would have to be communicated. This would lead to a huge increase in the work of administration. Almost every officer to whom the report is communicated would represent contending that he should have been given a higher grade. The representations would have to be sent to the officers recording the reports and the matter considered on receipt of their replies. Thus, the administration would be practically doing no other work but only dealing with representations made against the confidential reports by the officers reported upon. This would made the work of administration highly onerous and its work would come to a grinding halt. The communication of such reports would also lead to hostility, bad feelings and bad blood between the officers reported upon and the officers who have recorded the reports thus affecting morale and discipline in the government hierarchy. We are, therefore, unable to accept this proposit
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