Dismissed

Sat Prakash Sharma and Another v. District Judge Bulandshahar and Others

Allahabad HC5 Dec 2017SPLA/868/2010

Case brief

AI extract

What is this about?

The Court dismissed an intra-court appeal regarding a selection promotion to the post of Sadar Munsarim. It held that where a post is filled by selection with the prospect of merit-cum-seniority, the procedure followed by the Selection Committee was bona fide and no error was made in rejecting the petitioners' challenge to the inclusion of a junior candidate.

What did the court decide?

Special Appeal No. 868 of 2010 dismissed.

Sat Prakash Sharma and Another Vs District… — Pension and Retirement Benefits | Allahabad HC (2017)

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C ourt No. - 34

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Case :- SPECIAL APPEAL No. - 868 of 2010

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Appellant :- Sat Prakash Sharma And Another Respondent :- District Judge, Bulandshahar And Others Counsel for Appellant :- J.H. Khan,Gulrez Khan,W.H. Khan Counsel for Respondent :- Santosh Kumar Pandey

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Hon'ble Sudhir Agarwal,J. Hon'ble Ajit Kumar,J.

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This intra-Court appeal is directed against the judgment and order dated 7.5.2010 passed in civil misc. writ petition no. 25649 of 2010. The ground of challenge to the decision of the learned Single Judge is that the statutory Rules have not been followed in the matters of selection for promotion against the vacancy of Sadar Munsarim, which had fallen vacant due to retirement of Sri. K.K.Singhal on 31^st March, 2010.

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According to petitioners, U.P. Civil Court Ministereial Establishment Rules, 1947 (hereinafter referred to as “Rules”) are applicable in the matters of promotion on the post of Sadar Munsarim and according to Sub-rule 3 of Rule 20 of Establishment Rules, promotion has to be made on merit with due regard to seniority, thus, it is petitioners/ appellants own case is that promotion to the post of Sadar Munsarim in judgeship is on the basis of selection.

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According to petitioner, seniority list which was issued by judgeship Bulandshahar for the year 2009, appellant no. 1 was at serial no. 3, whereas appellant petitioner no. 2 was at serial no. 5. Seniority list mention name of respondent no. 4 at serial no. 16. Further fact pleaded is that Sri V.K.Bhatnagar who was at serial no. 1 since was to retire on 21^st May, 2010, therefore, he did not put his name for promotion and Sri Hukum Singh who was at serial no. 2 had already been promoted to the post of Senior Administrative Officer. Thus ultimate argument is that appellants being at serial no. 1 and 2 of seniority list, were senior most class-III employees to be considered for promotion as Sadar Munsarim as on 1 April, 2010.

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Learned counsel for the appellants/petitioners have further admitted the position that post of Sadar Munsarim is a selection post and criteria laid down is merit with due regard to seniority. The fact as

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pleaded in para 10 and 11 of the affidavit filed in support of application in special appeal are quoted hereunder:

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“10. That as in the present case the post of Sadar Munsarim is a selection post and the criteria laid down by Rule 20(3) of Rules 1947 is merit with due regard to seniority. According to Rule 4 of the 2^nd Amendment Rules 2001 the eligibility list should have been prepared of 8 candidates according to seniority. The respondent no. 4 who is at Sl No. 10 could have not been included at all but the selection committee in order to show undue favour to respondent no. 4 prepared a list of 10 candidates, which the respondent no. 4 was at Sl No. 10. Thus, the respondent no. 4 who was not even eligible for being included in the eligibility list was not only included in the list but also selected and promoted illegally.

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11. That Rules 1947 do not provide for any subject wise, written or oral test or interview for promotion to the post of Sadar Munsarim. Sub Rule 3 of Rule 20 of the Rules 1947 provides that promotion shall be based on merit with due regard to seniority and according to the note appended in passing over a person for inefficiency as well as promotion for a selection post due weight shall be given to his previous record of service and seniority should be disregarded only when the junior official promoted is of outstanding merit as compared with his seniors.”

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It so happened that Chairman, Selection Committee passed an order on 22^nd March, 2010 issuing eligibility list of 10 persons and thereafter written examination and interview was held. What is interesting to notice that petitioners- appellants never raised any grievance either about order passed by Chairman, Selection Committee dated 22^nd March, 2010 or inclusion of name of respondent no. 4.

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It is after select list came into being and the recommendation of the Selection Committee was accepted by District Judge in favour of respondent no. 4, present petitioners appellants filed writ petition no. 25649 of 2010 challenging selection made by Selection Committee and further challenging order of 22^nd March, 2010. Learned Single Judge has considered the entire arguments raised by petitioners questioning selection and promotion of respondent no. 4 and finally held that once petitioners themselves were party to selection process and faced Selection Committee, it was not open for them to challenge the same only on their failure to succeed in the selection held.

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Even otherwise, we have ourselves gone through the rules and regulations. We do not find any error much less a substantial one in the

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procedure followed by Selection Committee in holding selection for the post of Sadar Munsarim. It is well settled law that where promotion is made by selection or where post is to be filled by promotion through selection amongst 'in house candidates' on the basis of merit with due regard to seniority then seniority, becomes secondary as due weight to seniority is given only in the circumstances where merits of competing candidates are found at par.

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8. In Sarat Kumar Dash v. Biswajit Patnaik, 1995 Supp (1) SCC

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434, the Supreme Court while dealing with issue of Merit-cumsuitability criterion in matters of promotion and in the background of seniority has held :

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“8. In case of merit-cum-suitability, the seniority should have no role to play when the candidates were found to be meritorious and suitable for higher posts. Even a junior most man may steal a march over his seniors and jump the queue for accelerated promotion. This principle inculcates dedicated service, and accelerates ability and encourage merit to excel merit. The seniority would have its due place only where the merit and ability are approximately equal or where it is not possible to assess interse merit and the suitability of two equally eligible competing candidates who come very close in the order of merit and ability. Under those circumstances, the seniority will play its due role and calls it in aid for consideration. But in case where the relative merit and suitability or ability has been considered and evaluated, and found to be superior, then the seniority has no role to play. In our view the PSC has evolved correct procedure in grading the officers and the marks have been awarded according to the grading. It is seen that the four officers have come in the grading of 'B'. In consequence, the PSC had adopted the seniority of the appellants and Panda in the lower cadre in recommending their cases for appointment in the order of merit. “

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Similarly again in Central Council for Research In Ayurveda & Siddha and Another v. Dr. K. Santhakumari (2001) 5 SCC 60 while interpreting relevant rule which provided for promotion on selection post, Court has held that principle of merit-cum- seniority is an approved method of selection and while referring to earlier judgment in Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910 it has agreed with the view that promotion on selection grade post is not automatic based on ranking in gradation list. Promotion is primarily on merit and not on seniority alone. The relevant pragraph of the judgment in Sant Ram Sharma (supra) reads as under:

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“The circumstance that these posts are classed as 'selection grade posts' itself suggests that promotion to these posts is not automatic being made only on the basis of ranking in the gradation list but the question of merit enters in promotion to selection posts. In our opinion, the respondents are right in their

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contention that ranking or position in the gradation list does not confer any right on the petitioner to be promoted to selection post and that it is a well-established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, available.”

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(Emphasis added)

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In Rajendra Kumar Srivastava and Others v. Samyut Kshetriya Gramin Bank and Others, (2010) 1 SCC 335, Court held that only in cases, where seniority-cum-merit is criteria, select list is prepared first on the basis of minimum necessary merit and thereafter on the basis of seniority from feeder cadre promotion is made. But this is only in cases where post is to be filled by promotion on the basis of seniority-cum-merit. Para 13 of judgment reads as under:

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Thus it is clear that a process whereby eligible candidates possessing the minimum necessary merit in the feeder posts is first ascertained and thereafter, promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary merit is recognised and accepted as complying with the principle of `seniority-cum-merit'. What would offend the rule of seniority-cum-merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority-cum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the functions of the higher post, is not violative of the concept of promotion by seniority-cum-merit.

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In view of clear admission of petitioners themselves that it is a post to be filled up by promotion through selection amongst candidates working in the feeding cadre of judgeship, we find that there is no error much less a legal or substantial one in the selection process. We do not find fault with the judgment of learned single judge and accordingly special appeal is dismissed.

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Order Date :- 5.12.2017 Sanjeev

Sat Prakash Sharma and Another v. District Judge Bulandshahar and Others

Case brief

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Sat Prakash Sharma and Another v. District Judge Bulandshahar and Others

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