WP/17945/1999 of K.VIKRAM REDDY AND 5 ORS. Vs VC AND MD A.P.I.D.C.L. HYD AND 3 ORS. on 29 December 2008

ORDER:-

This writ petition is filed for a Writ of Mandamus to declarethe action of respondent No.1 in promoting respondent Nos.2 to 4,as illegal and contrary to the provisions contained in judgmentdated 27.12.1994 in WA.No.1431 of 1987. The petitioners soughtfor a consequential direction to respondent No.1 to promote themas Deputy Managers with effect from the date on which theirimmediate juniors were promoted with all consequential benefitsincluding seniority, pay fixation, payment of arrears of salary andallowances etc.

Heard Sri Abhinand Kumar Shavili, learned counsel for thepetitioners.

At the hearing, it is represented that respondent Nos.2 and4 took voluntary retirement subsequent to the filing of this writpetition and that respondent No.4 died. As there was norepresentation for respondent No.1 at the hearing on 23.12.2008,this writ petition has been adjourned for today to enable thelearned counsel for respondent No.1 to argue the case. However,despite the name of the learned counsel having been shown in thecause list on both the occasions, he is not present at the hearing.

The petitioners entered the service of respondent No.1Corporation (for short, ‘the Corporation’) as Junior Stenographers.

They were promoted to the next higher post, which was re-designated as Assistant Manager. The petitioners averred that theposts of officers up to the Senior Deputy Manager are non-selection posts, to be filled up by following the method of seniority-cum-merit. The petitioners have felt aggrieved by the action ofrespondent No.1 in not promoting them to the post of DeputyManagers and promoting respondent Nos.2 to 4, who are juniors tothem in the feeder category, namely, Assistant Managers. Theyhave pleaded that while the method of promotion is seniority-cum-merit, respondent No.1 has followed the method prescribed forselection post. They have referred to and relied on judgmentdated 27.12.1994 of the Division Bench of this Court in K.Satyanarayana vs. A.P. Industrial Development CorporationLimited, Hyderabad (WA.No.1431 of 1987) and also the judgmentof the Supreme Court in B.V. Sivaiah and others vs. K. AddankiBabu and others[[1]]in support of their contention.

A counter affidavit has been filed on behalf of respondentNo.1. It is inter alia admitted therein that all the posts of officersup to the level of Assistant General Manager shall be treated asnon-selection posts and that promotions shall be made on thebasis of seniority-cum-merit. It is further stated that the posts inthe grades of Deputy General Manager and above shall be treatedas selection posts and promotions shall be made purely byselection on merit giving due weightage to the seniority. It isfurther stated that a selection committee was constituted with fourpersons headed by Vice Chairman and Managing Director, thatdue weightage has been given for all the criteria mentioned in thepromotion policy such as seniority, merit, suitability, performanceappraisal, track record etc., and that the selection was made on a sum total of all the aforesaid criteria. In paragraphs 8 and 9 it isstated as under:

“The selection committee has first taken intoconsideration the length of service of the employee renderedin the Corporation, the overall performance in the post held bythem prior to the selection, performance in the interview toassess the suitability for the post and prepared the panel inaccordance with the said guidelines. Seniority is not the onlycriterion in the process of selection. Due weightage wasgiven to seniority. The said selection and appointments madeby the Corporation to the post of Deputy Manager on21.04.1999 are not violative of the decision in writ appealNo.1431/87. In fact the directions given in the said judgmenthave been followed strictly in appointing in the order ofseniority the non-official respondents and others who satisfiedthe threshold level of merit and suitability of WP.No.14689 of1999 and para 15 of WP.No.17945 of 1999.

In regard to the allegation made in para 11 of theaffidavit, it is submitted that confidential reports have beenobtained uniformly for all the employees who had been calledfor interview and as such no irregularities have beencommitted on this count. Generally the confidential reportsare written by the reporting officers and the same areforwarded to HRD Division, which is the controlling authorityfor all the staff members/ ‘B’ category employees forobservations and comments. In the case of the writpetitioners, the DGM (Finance) who is the reporting officerand the controlling authority concerned had rightly written theirconfidential reports.”

In K. Satyanarayana (supra), the appellant therein raised asimilar contention as raised in the present writ petition. TheDivision Bench while allowing the writ appeal held:

“According to the policy, promotion to the post of non-selection post had to be made on the basis of seniority-cum-merit which means, the case of the senior most person eligiblefor promotion category shall be considered first and only whenhe is found to be unsuitable for promotion, the case of the nextsenior most employee shall be considered. In the presentcase, this procedure has not admittedly been followed. Whiletesting the suitability of the candidate, the suitability shall notbe assessed by comparative standards and it shall beassessed with reference to the merit/fitness of the candidate to hold the higher post on promotion. That procedure has notbeen followed in the present case. Whereas respondents 2and 3 had been promoted as Assistant Managers on09.05.1986, the appellant was promoted only on 25.12.1987 asAssistant Manager. It is stated that respondents 2 and 3 hadbeen further promoted to the post of Deputy Manager in theyear 1993. Even the post of Deputy Manager is a non-selection post. As we have already mentioned, the appellanthad been working as Personal Assistant since 06.11.1981whereas respondents 2 and 3 had been working asAccountants from 27.08.1982 and 28.08.1982 respectively. The post of Personal Assistant and that of Accountant are thefeeder posts for promotion to the post of Assistant Manager. Thus, the appellant is senior to respondents 2 and 3. By thetime the vacancy in the post of Assistant Manager has ariseni.e., by 09.05.1986, the appellant and the respondents 2 and 3were eligible for consideration for promotion to that post; butoverlooking the claim of the appellant, respondents 2 and 3were promoted. This is clearly in violation of the recruitmentand promotion policy formulated by the Corporation in the year1985. The learned Single Judge, however, dismissed the writpetition on 08.09.1987.”

On the above reasoning, the Division Bench gave thefollowing direction:

On the above reasoning, the Division Bench gave thefollowing direction:

“Therefore, we direct that he shall be promoted to thepost of Assistant Manager with effect from 09.05.1986 onwhich date respondents 2 and 3 had been promoted to thatpost. In fixing the seniority in the cadre of Assistant Manageramong the three candidates, the appellant shall be placedabove respondents 2 and 3. He shall be entitled to all theconsequential benefits including the seniority with effect from09.05.1986 except to the arrears of salary for the period from09.05.1986 to 24.12.1987.”

In B.V. Sivaiah (1 supra), the Supreme Court explained thefundamental difference in the method to be followed between aselection post and a non-selection post. It has relied upon itsearlier judgment in Union of India vs. Mohan Lal Capoor[[2]],State of Kerala vs. N.M. Thomas[[3]]and State of Mysore vs.C.R. Sheshadri[[4]]and held that in the case of seniority-cum- merit, given the necessary merit requisite for efficiency ofadministration, the senior, though less meritorious, shall havepriority and that the said mode enables an assessment to be madeabout the minimum necessary requisite for efficiency ofadministration and it cannot be construed as importingassessment of comparative merit of the officers eligible forpromotion. In paragraph 18, the Supreme Court held as under:

“We thus arrive at the conclusion that the criterion of“seniority-cum-merit” in the matter of promotion postulatesthat given the minimum necessary merit requisite forefficiency of administration, the senior, even though lessmeritorious, shall have priority and a comparativeassessment of merit is not required to be made. Forassessing the minimum necessary merit, the competentauthority can lay down the minimum standard that isrequired and also prescribe the mode of assessment ofmerit of the employee who is eligible for considerationfor promotion. Such assessment can be made byassessing marks on the basis of appraisal ofperformance on the basis of service recorded andinterview and prescribing the minimum marks whichwould entitle a person to be promoted on the basis ofseniority-cum-merit.” (Emphasis added)

From a perusal of the counter affidavit, it is evident thatrespondent No.1 has adopted a method, which is not inconsonance with the law declared in the abovementionedjudgments. There is no averment as to how many marks wereallotted for the length of service, the confidential reports, theperformance appraisal etc. The counter is also silent as to theminimum required marks fixed to assess merit, which can beotherwise called a benchmark. No record is produced to satisfythis Court that the limited assessment of merit is only for thepurpose of ascertaining whether the candidates had minimumnecessary merit requisite for efficiency of administration.

In the absence of this material and from the tenor of the contents of the counter affidavit, there is no option for this Courtexcept to construe the method followed by respondent No.1 asintended to assess the comparative merit of the candidates andnot the minimum required merit. Respondent No.1 has not statedin the counter affidavit that the petitioners have not possessed theminimum required merit for promotion. Admittedly, they areseniors to respondent Nos.2 to 4. I have therefore no hesitation tohold that respondent No.1 has not followed the method that oughtto be followed for the purpose of giving promotion to a seniority-cum-merit post.

For the abovementioned reasons, the writ petition isallowed.

Conclusion

The learned counsel for the petitioners submitted thatpetitioner Nos.1, 3 and 4 were promoted on 22.09.2007, petitionerNos.2 and 6 left respondent No.1 Corporation by obtainingvoluntary retirement and petitioner No.5 has not so far beenpromoted. The proceeding sheet discloses that the writ petitionhas been dismissed as withdrawn insofar as it relates to petitionerNo.2. Respondent No.1 is therefore directed to promote all thepetitioners except petitioner No.2 with effect from the date onwhich respondent Nos.2 to 4 were promoted and give them all theconsequential benefits.

As a sequel to disposal of the writ petition in the mannerindicated above, WPMP.Nos.22370 of 1999 and 22116 of 2000 aredisposed of as infructuous.

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C.V.NAGARJUNA REDDY, J

[1](1998) 6 SCC 720(1998) 6 SCC 720

[2](1973) 2 SCC 836(1973) 2 SCC 836

[3](1976) 2 SCC310(1976) 2 SCC310

[4](1974) 4 SCC 308(1974) 4 SCC 308