Ved Prakash & Ors. Vs. State of Haryana & Ors.
EmailAppeal: Civil Appeal No. 6031 of 2000
With
(C.A. Nos. 5041, 5035-5038/2000, 5032-5034/2000, 5039-5040/2000, SLP (C) 14902-14903/2000)
With
(C.A. Nos. 5041, 5035-5038/2000, 5032-5034/2000, 5039-5040/2000, SLP (C) 14902-14903/2000)
Petitioner: Ved Prakash & Ors.
Respondent: State of Haryana & Ors.
Apeal: Civil Appeal No. 6031 of 2000
With
(C.A. Nos. 5041, 5035-5038/2000, 5032-5034/2000, 5039-5040/2000, SLP (C) 14902-14903/2000)
With
(C.A. Nos. 5041, 5035-5038/2000, 5032-5034/2000, 5039-5040/2000, SLP (C) 14902-14903/2000)
Judges: G.B. PATTANAIK & U.C. BANERJEE, JJ.
Date of Judgment: Jul 17, 2001
Head Note:
SERVICE LAWS
Punjab Forest Subordinate (Executive Section) Rules
Rule 9 – Promotion – Criteria – ‘Seniority-cum-merit’ – Connotation – If promotion is to be made only on basis of seniority alone. Held that where criteria of seniority and merit are provided, merit cannot be ignored. There can be no promotion only on seniority.
Held:
The expression “seniority-cum-merit” by any stretch of imagination cannot be construed to be equivalent to seniority alone as concluded by the learned single judge. Where a promotion is based solely on the basis of the seniority, then there is no question of adjudging the merit of the relevant contesting candidate and promotion is bound to be given on the basis of the seniority in the feeder cadre. (Para 3)
The senior persons were duly considered but were adjudged unsuitable to hold the promotional post because of their performance in the feeder cadre and/or because of some proceedings pending against them. In this view of the matter, the conclusion of the learned single judge that the promotion to the post of forester from forest guard has to be made solely based on seniority, is not sustainable in law. Necessarily therefore the ultimate conclusion that the promotion of these appellants were in contravention of the relevant rules cannot be sustained. (Para 3)
JUDGEMENT:
ORDER
C.A. No. 5031/2000
1. The appellants who had been initially recruited as forest guards, were promoted to the post of foresters in accordance with the provisions contained in Punjab Forest Subordinate (Executive Section) Rules during the period 1982-88. The necessary qualification for being considered to the post of forester was that the candidate must have passed the matriculation; must not be above 35 years of age and must have 3 years of good service records. The criteria for promotion is “seniority-cum-merit”. In the year 1991 some of the forest guards who were senior to the appellants, approached the High Court of Punjab & Haryana alleging that they have been illegally not selected for the post of forester and prayed for annulment of the promotions of these appellants. Before the High Court, the state government took the positive stand in the counter-affidavit filed that these senior forest guards were duly considered by the selection committee for ascertaining their merit and suitability but as they were not found suitable for being promoted, the persons junior to them with merit were selected and ultimately sent for the training and on completion of their training they were appointed as foresters. The learned single judge however being of the opinion that in following the criteria of “seniority-cum-merit”, the seniority is the sole basis and merit should not at all be considered, annulled the selection of these appellants and directed reconsideration of the matter. Against the judgment of the learned single judge the matter was carried in appeal to the division bench. The division bench merely reaffirmed the decision and did not interfere with the judgment of the learned single judge, without any further consideration. It is this order which is under challenge in this appeal.
2. It is contended by the learned counsel for the appellants that the learned single judge committed serious error in coming to the conclusion that where promotion is based on the criteria of “seniority-cum-merit” the seniority alone should be the basis without considering the merit of the individual candidate and such incorrect premise has vitiated the ultimate conclusion. It is also further contended that in view of the categorical assertions of the state government in its counter-affidavit that the senior persons were also duly considered but in view of their adverse records and/or they being adjudged unsuitable for the promotional post they have not been promoted, it cannot be said that their right of consideration enshrined in Article 16 of the Constitution of India has been violated in any manner and as such the impugned order is erroneous.
3. On behalf of the state government, during the pendency of this appeal, in this Court, an affidavit has been filed indicating certain subsequent events and certain subsequent directions of the High Court relating to the seniority of these officers, but we are not concerned with the same in the present case inasmuch as the only question that arises for consideration in this appeal is whether the High Court was justified in its conclusion in interpreting rule 9 of the relevant rules governing the criteria for promotion to the post of forester from forest guard and can it be said that there has been any violation or infringement of any right of the senior forest guards who were considered by the departmental promotion committee in the light of the criteria “seniority-cum-merit” and were not selected for training as they were found unsuitable. The expression “seniority-cum-merit” by any stretch of imagination cannot be construed to be equivalent to seniority alone as concluded by the learned single judge. Where a promotion is based solely on the basis of the seniority, then there is no question of adjudging the merit of the relevant contesting candidate and promotion is bound to be given on the basis of the seniority in the feeder cadre. But when rule 9 itself provides that the promotion is based on the criteria “seniority-cum-merit”, it is difficult to comprehend how “merit” will be ignored from consideration, particularly when the selecting authority brought to the notice of the court that the senior persons were duly considered but were adjudged unsuitable to hold the promotional post because of their performance in the feeder cadre and/or because of some proceedings pending against them. In this view of the matter, the conclusion of the learned single judge that the promotion to the post of forester from forest guard has to be made solely based on seniority is not sustainable in law. Necessarily therefore, the ultimate conclusion that the promotion of these appellants were in contravention of the relevant rules cannot be sustained. In our opinion, on the basis of the affidavits filed by the state government, it must be held that the promotion of these appellants to the post of foresters had been duly made and the senior forest guards who approached the High Court were also duly considered, but were not sent for training on account of the fact that the appropriate authority did not consider them suitable notwithstanding their seniority in the cadre. We are of the considered opinion that the said selecting authority did commit no mistake in following the principle of “seniority-cum-merit” and ultimately applying the said principle selecting the present appellants for being promoted to the post of forester. We, therefore, set aside the impugned judgment of the learned single judge as affirmed by the division bench in appeal and allow the appeal.
C.A. Nos. 5041, 5035-5038/2000, 5032-5034/2000, 5039-5040/2000, SLP (C) 14902-14903/2000
4. All these appeals and S.L.Ps. stand disposed of in terms of the aforesaid order in C.A. No. 5031/2000.
C.A. No. 5031/2000
1. The appellants who had been initially recruited as forest guards, were promoted to the post of foresters in accordance with the provisions contained in Punjab Forest Subordinate (Executive Section) Rules during the period 1982-88. The necessary qualification for being considered to the post of forester was that the candidate must have passed the matriculation; must not be above 35 years of age and must have 3 years of good service records. The criteria for promotion is “seniority-cum-merit”. In the year 1991 some of the forest guards who were senior to the appellants, approached the High Court of Punjab & Haryana alleging that they have been illegally not selected for the post of forester and prayed for annulment of the promotions of these appellants. Before the High Court, the state government took the positive stand in the counter-affidavit filed that these senior forest guards were duly considered by the selection committee for ascertaining their merit and suitability but as they were not found suitable for being promoted, the persons junior to them with merit were selected and ultimately sent for the training and on completion of their training they were appointed as foresters. The learned single judge however being of the opinion that in following the criteria of “seniority-cum-merit”, the seniority is the sole basis and merit should not at all be considered, annulled the selection of these appellants and directed reconsideration of the matter. Against the judgment of the learned single judge the matter was carried in appeal to the division bench. The division bench merely reaffirmed the decision and did not interfere with the judgment of the learned single judge, without any further consideration. It is this order which is under challenge in this appeal.
2. It is contended by the learned counsel for the appellants that the learned single judge committed serious error in coming to the conclusion that where promotion is based on the criteria of “seniority-cum-merit” the seniority alone should be the basis without considering the merit of the individual candidate and such incorrect premise has vitiated the ultimate conclusion. It is also further contended that in view of the categorical assertions of the state government in its counter-affidavit that the senior persons were also duly considered but in view of their adverse records and/or they being adjudged unsuitable for the promotional post they have not been promoted, it cannot be said that their right of consideration enshrined in Article 16 of the Constitution of India has been violated in any manner and as such the impugned order is erroneous.
3. On behalf of the state government, during the pendency of this appeal, in this Court, an affidavit has been filed indicating certain subsequent events and certain subsequent directions of the High Court relating to the seniority of these officers, but we are not concerned with the same in the present case inasmuch as the only question that arises for consideration in this appeal is whether the High Court was justified in its conclusion in interpreting rule 9 of the relevant rules governing the criteria for promotion to the post of forester from forest guard and can it be said that there has been any violation or infringement of any right of the senior forest guards who were considered by the departmental promotion committee in the light of the criteria “seniority-cum-merit” and were not selected for training as they were found unsuitable. The expression “seniority-cum-merit” by any stretch of imagination cannot be construed to be equivalent to seniority alone as concluded by the learned single judge. Where a promotion is based solely on the basis of the seniority, then there is no question of adjudging the merit of the relevant contesting candidate and promotion is bound to be given on the basis of the seniority in the feeder cadre. But when rule 9 itself provides that the promotion is based on the criteria “seniority-cum-merit”, it is difficult to comprehend how “merit” will be ignored from consideration, particularly when the selecting authority brought to the notice of the court that the senior persons were duly considered but were adjudged unsuitable to hold the promotional post because of their performance in the feeder cadre and/or because of some proceedings pending against them. In this view of the matter, the conclusion of the learned single judge that the promotion to the post of forester from forest guard has to be made solely based on seniority is not sustainable in law. Necessarily therefore, the ultimate conclusion that the promotion of these appellants were in contravention of the relevant rules cannot be sustained. In our opinion, on the basis of the affidavits filed by the state government, it must be held that the promotion of these appellants to the post of foresters had been duly made and the senior forest guards who approached the High Court were also duly considered, but were not sent for training on account of the fact that the appropriate authority did not consider them suitable notwithstanding their seniority in the cadre. We are of the considered opinion that the said selecting authority did commit no mistake in following the principle of “seniority-cum-merit” and ultimately applying the said principle selecting the present appellants for being promoted to the post of forester. We, therefore, set aside the impugned judgment of the learned single judge as affirmed by the division bench in appeal and allow the appeal.
C.A. Nos. 5041, 5035-5038/2000, 5032-5034/2000, 5039-5040/2000, SLP (C) 14902-14903/2000
4. All these appeals and S.L.Ps. stand disposed of in terms of the aforesaid order in C.A. No. 5031/2000.
