RAMA NEGI versus UNION OF INDIA & ORS. on 2 March 2022

1. Leave granted. The challenge in these two appeals is to thejudgment dated 22.9.2017 in the Special Appeal Nos.87 and 88 of 2014,filed by Appellant Rama Negi and Special Appeal Nos. 96 of 2014 and97 of 2014, filed by the Cantonment Board, Ranikhet. The Division Bench H

Aof the Uttarakhand High Court under the impugned judgment dismissedthe Appeals and upheld the judgment of the learned Single Judge wherebythe appellant Rama Negi’s promotion to the post of Office Superintendentin the Cantonment Board was quashed and the Writ Petitions of therespondent no.3, Gopal Ram Arya were allowed.

B2. Heard Mr. P.S. Patwalia, learned senior counsel appearing forthe appellant. The Cantonment Board, Ranikhet is represented by Mr.Jayant Bhushan, learned senior counsel. Also heard the learned counselappearing for the Respondent no.3.

3. As the contentions of the learned counsel are based on theCinter se seniority of the two contesting parties, their service details inthe Cantonment Board, Ranikhet are reproduced, in the following chart.

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4. As can be seen from above, the appellant initially joined serviceGin the Cantonment Board, as a Steno Typist (equivalent to SeniorClerk), on 1.9.1995. The respondent no.3 after entering service initiallyas a Junior Clerk on 16.7.1990, was promoted to the Post of StenoTypist/Senior Clerk on 9.7.1997, around 22 months after the appellantdirectly joined service in the higher post. Thereafter, the respondentHno.3 though junior, was promoted to the post of Revenue Superintendent on 1.9.2005 by giving him the benefit of reservation as a ScheduledCaste person. The appellant was subsequently promoted to theequivalent post of Accountant on 1.10.2009. Since promotion to therespondent no.3 was by conferring reservation benefit, appellant beingsubsequently promoted to the said cadre on 1.10.2009, she expectedrestoration of her seniority.

5. The promotion for the next post of Office Superintendent isgoverned by Rule 5-B (8) of the Cantonment Fund Servant Rules,1937 (“the Rules” for short), and the same reads as under:

“Rule 5-B(8) - Appointments to promotion posts shall be made[by the appointing authority] on the basis of seniority listsmaintained for this purpose by the Board, subject to rejection ofthose considered unfit:

Provided that promotion of selection posts shall be made on thebasis of seniority-cum-merit.”

6. Under Annexure E of the Rules, the post of OfficeSuperintendent together with other posts of Accountant, TollSuperintendent and Revenue Superintendent in the Cantonment Boardof Ranikhet, is included in the category of “selection posts” and therelevant portion reads as under:

“ANNEXURE ‘E’

1. Post declared as Selection posts under Cantonment Boardsin Central Command.

Authority: GOC-in-C, Central Command, Lucknow LetterNo., 82562/Classification/LC6 dated 12.1.77 and [dated25.4.1980]

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24. Ranikhet Office Supdt. Accountant, Toll Supdt. Rev. Supdt.Forest Ranger, Jamadar (PWD) Sanitary Jamadar, HeadMali and Toll Moharrir (Non-Matric).”

The Rules above specify, the post of Office Superintendent as a“selection post” and under Rule 5B(8), promotion to the post is to beconsidered on the criterion of seniority cum merit.

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A7. The Cantonment Board in its meeting held on 11.1.2012considered the candidature of the persons serving in the feeder cadreand it was resolved to recommend the appellant for promotion to the“selection post” of Office Superintendent, overlooking the respondentno.3. The appellant was held to be senior as per the rule. The decisionwas taken after due consideration of the relevant materials, includingBthe fact that the respondent no.3 was drawing a lower pay scale thanthe appellant, in the feeder cadre. The Board also took into accountthat the Office Superintendent position required a service record withoutmisconduct. Respondent no.3, it was noted, was a charge sheetedperson, who had accepted the charges levelled against him. ToCdetermine the appellant to be senior to the respondent no.3 in the feedercadre, the Board relied upon the criterion that “Persons in the feedergrades given the same grading, those in higher scales of pay will ranksenior to those in the lower scale of pay”. It was noted that the payscale of the appellant Rama Negi was Rs.9300-34800 with grade payof Rs.4200 whereas, the pay scale of respondent no.3 Gopal RamDArya was Rs.5200-20200 with grade pay of Rs.2800 and accordinglythe inter se seniority of the appellant was found above the respondentno.3, in the feeder cadre.

8. Following the above Resolution on 11.1.2012 for appointmentto the post of Office Superintendent, the Cantonment Board sought theEadvice of the Central Command, Lucknow furnishing the details of thoseunder consideration. Since nothing happened thereafter for severalmonths, the appellant filed the W.P (C) No.1465 of 2012 before theUttarakhand High Court. Parallelly, the respondent no.3 filed the W.P(C) No.1645 of 2012 before the same High Court, challenging theFCantonment Board’s Resolution No.28 dated 11.1.2012 in favour of theappellant. At that stage, the Central Command, Lucknow with its letterdated 23.11.2012 informed that the issue of promotion to the post ofOffice Superintendent falls entirely within the purview of the CantonmentBoard, under Rule 7(1) of the Rules.G9. Prompted by the above clarification, the Cantonment Board inits meeting held on 25.3.2013 passed the Resolution No.8 where, afterhaving examined the rule position, it was recorded that the appellant“Smt. Rama Negi is the best, suitable and fit candidate for the postof Office Superintendent. Hence she is promoted from the post ofAccountant to Office Superintendent w.e.f. the date of her takingH

charge as an Officiating Office Superintendent i.e. Feb 1[st], 2012as per rules mentioned in the agenda side.” The Board relied uponthe legal advice tendered to it on the basis of the O.M. dated 12.12.1988issued by the Ministry of Personnel, Public Grievances and Pensions,which stated “thatamong the persons in the feeder grades given thesame grading, those in the higher scales of pay will rank senior tothose in the lower scale of pay.”

10. Aggrieved by the above Resolution No.8 favouring theappellant, the respondent no.3 filed W.P (C) No.352 of 2013. In themeantime, the W.P (C) No.1465 of 2012 filed by the appellant forher promotion was dismissed as infructuous on 4.4.2013, by the HighCourt.

11. The two Writ Petitions filed by the respondent no.3 wereanalogously considered and the learned Single Judge in his judgmentdated 25.2.2014 concluded that the respondent no.3/writ petitioner issenior and rejected the contention that the appellant is to be consideredsenior above the respondent no.3, by virtue of her higher pay scale in thepost of Accountant in the feeder cadre. Insofar as the disciplinaryproceeding pending against the respondent no.3, the learned Single Judgeobserved that the charge sheet was deliberately issued on 28.11.2011 tokeep out the respondent no.3 from the zone of consideration. Suchinference was drawn since no decision was taken on the charges by theauthorities which according to the learned judge, demonstrate malice ontheir part. The chargesheet itself was brushed aside by saying that itwas a minor irregularity not involving moral turpitude. Therefore, therespondent no.3 by virtue of his accelerated earlier promotion in theyear 2005 in the feeder cadre and the 2009 promotion of the appellant,the appellant’s promotion was found to be unmerited. On this basis, therespondent no.3 was asked to officiate as the Office Superintendent,replacing the appellant who hitherto was discharging such responsibility.The Court also directed the Cantonment Board to expeditiously concludethe departmental proceeding against the respondent no.3 within 3 monthsand if the same is not concluded, the learned Judge declared that thechargesheet shall be deemed to have been revoked, and thereafterdenovo exercise for promotion to the post of Office Superintendentshould be undertaken. With this, both writ petitions filed by the respondentno.3 were allowed by the learned Judge, under his judgment dated25.2.2014.

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A12. Aggrieved by the judgment favouring the respondent no.3 inhis two writ petitions, the appellant Rama Negi and the CantonmentBoard filed their respective Special Appeal Nos.87 & 88 of 2014 andSpecial Appeal Nos.96 & 97 of 2014. While the Special Appeals werepending consideration before the Division Bench, the disciplinaryproceeding was concluded with the report of the inquiry officer againstBthe delinquent, and it was found that the Board incurred a loss ofRs.3,50,000/- on account of dereliction of duty by the respondent no.3and accordingly the penalty of recovery of Rs.10,000/- from thedelinquent’s salary was ordered by the disciplinary authority, on 17.8.2016.

13. The Division Bench considered the basis for declaring theCappellant to be senior to the respondent no.3 by virtue of her higher payscale in the feeder cadre, and by adverting to the wrong O.M. dated10.09.1985 (Incorrectly mentioned as 1995) conclusion was reachedthat the said O.M. does not provide for declaration of seniority, on thebasis of higher pay scale. It was further held that the date of appointmentDin the feeder cadre should be the basis for considering inter se seniorityfor the purpose of promotion to the post of Office Superintendent. Thedisciplinary proceeding against the respondent no.3 was brushed asidein a summary manner by declaring that the same was initiated for thefault committed by the subordinate staff of the delinquent officer to denyhim the benefit of promotion. With such finding the Special Appeals filedEby the appellant and the Cantonment Board were dismissed, and thejudgment rendered by the learned Single Judge favouring the respondentno.3 was affirmed by the Division Bench by their judgment dated22.09.2017.

14. Taking exception to the above judgment, the present appealsFare filed. We have heard the learned counsel for the parties and alsoread the relevant materials on record.

15. On the issue of inter se seniority, it is necessary to bear inmind that the respondent no.3 entered service earlier on 16.7.1990 but inthe lower grade and was promoted to the post of Senior Clerk, only onG9.7.1997. In contrast, the appellant entered service on 1.9.1995 in thehigher grade as a Steno-Typist (equivalent to Senior Clerk). Thus, shewas senior to the respondent no.3 in the post, just below the feedercadre. Overlooking the inter-se seniority position of the two, therespondent no.3 as a Scheduled Caste person was granted acceleratedHpromotion on 1.9.2005, to the post of Revenue Superintendent.

16. Besides, the appellant by virtue of her higher pay scale in thepost of Accountant in the feeder cadre, also deserves seniority abovethe respondent no.3 with his lower pay scale, on account of the provisionmade in the O.M. dated 12.12.1988.

17. The Rule 5-B (8) read with Annexure ‘E’ of the Rules makesit clear that the post of Office Superintendent is a “selection post” andthe criterion for promotion is seniority-cum-merit. The parameters fordetermining promotion based on such criterion are well established bythis Court. Justice S.C. Agrawal in B.V. Sivaiah v. K. Addanki Babu[1],speaking for a three Judges Bench, held that, “10. On the other hand, as between the two principles of seniorityand merit, the criterion of “seniority-cum-merit” lays greateremphasis on seniority. In State of Mysore v. Syed Mahmood[AIR 1968 SC 1113 : (1968) 3 SCR 363 : (1970) 1 LLJ 370]while considering Rule 4(3)(b) of the Mysore State Civil ServicesGeneral Recruitment Rules, 1957 which required promotion tobe made by selection on the basis of seniority-cum-merit, thisCourt has observed that the Rule required promotion to be madeby selection on the basis of “seniority subject to the fitness ofthe candidate to discharge the duties of the post from amongpersons eligible for promotion”. It was pointed out that wherethe promotion is based on seniority-cum-merit, the officer cannotclaim promotion as a matter of right by virtue of his seniorityalone and if he is found unfit to discharge the duties of the higherpost, he may be passed over and an officer junior to him may bepromoted.

11. In State of Kerala v. N.M. Thomas [(1976) 2 SCC 310 : 1976SCC (L&S) 227] A.N. Ray, C.J. has thus explained the criterionof “seniority-cum-merit”: (SCC p. 335, para 38)

“With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit. Seniority-cum-merit meansthat given the minimum necessary merit requisite for efficiencyof administration, the senior though the less meritorious shall havepriority.

1 (1998) 6 SCC 720

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A17. ... While applying the principle of seniority-cum-merit forthe purpose of promotion, what is required to be considered isthe inter se seniority of the employees who are eligible forconsideration. Such seniority is normally determined on the basisof length of service, but as between employees appointed on thesame date and having the same length of service, it is generallyBdetermined on the basis of placement in the select list forappointment. ...

18. We thus arrive at the conclusion that the criterion of “seniority-cum-merit” in the matter of promotion postulates that given theminimum necessary merit requisite for efficiency of administration,Cthe senior, even though less meritorious, shall have priority and acomparative assessment of merit is not required to be made. Forassessing the minimum necessary merit, the competent authoritycan lay down the minimum standard that is required and alsoprescribe the mode of assessment of merit of the employee whoDis eligible for consideration for promotion. Such assessment canbe made by assigning marks on the basis of appraisal ofperformance on the basis of service record and interview andprescribing the minimum marks which would entitle a person tobe promoted on the basis of seniority-cum-merit. “

EJustice Arijit Pasayat, speaking for a Division Bench in K.Samantaray v. National Insurance Co. Ltd.[2], noted the followingdistinction, “7. The principles of seniority-cum-merit and merit-cum-seniorityare conceptually different. For the former, greater emphasis isFlaid on seniority, though it is not the determinative factor, while inthe latter, merit is the determinative factor.”

18. The appraisal of the facts before us reveals that the respondentno.3 faced a disciplinary proceeding following the chargesheet issuedagainst him on 28.11.2011. But the High Court questioned the timing ofGthe disciplinary action and observed that the same was issued to denypromotion to the respondent no.3. On this, the inquiry report finding(17.8.2016) is important, which indicates that the Cantonment Boardsuffered a pecuniary loss of Rs.3,50,000/- due to dereliction of duty by the delinquent. Significantly, the respondent no.3 accepted the chargeand the disciplinary authority imposed the penalty of Rs.10,000/-recoverable from his salary.

19. It was a “selection post” and the appellant contrastingly hadan unblemished service record all throughout her career. Moreover, shewas found to be senior by the Board on 11.1.2012 and for this reasonwas recommended for promotion, in preference to the respondent no. 3.Adverting to the role of promotion committees, Justice P.B. Sawant,speaking for a three Judges bench in Union of India & Ors. vs. K.V.Jankiraman & Ors.[3 ]has emphasized the necessity to consider the entireservice record of the candidates in line for promotion, “29. …In fact, while considering an employee for promotion hiswhole record has to be taken into consideration and if a promotioncommittee takes the penalties imposed upon the employee intoconsideration and denies him the promotion, such denial is notillegal and unjustified. If, further, the promoting authority cantake into consideration the penalty or penalties awarded to anemployee in the past while considering his promotion and denyhim promotion on that ground, it will be irrational to hold that itcannot take the penalty into consideration when it is imposed ata later date because of the pendency of the proceedings, althoughit is for conduct prior to the date the authority considers thepromotion. …”

20. On the same aspect, Justice Kuldip Singh, also held for aDivision Bench in Jagathigowda C.N. v. Chairman, Cauvery GraminaBank & Ors.[4], that the totality of the circumstances factor as a pivotalconsideration with respect to seniority cum merit, “8. ... It is settled proposition of law that even while makingpromotions on the basis of seniority-cum-merit the totalityof the service record of the officer concerned has to betaken into consideration. The performance appraisal forms aremaintained primarily for the purpose that the same are taken intoconsideration when the person concerned is considered forpromotion to the higher rank. ...” (emphasis added)

3 (1991) 4 SCC 109

4 (1996) 9 SCC 677

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AFor a Division Bench in Haryana State Electronics DevelopmentCorporation Limited & Ors. Vs. Seema Sharma & Ors.[5], Justice A.K.Ganguly also reiterated the distinguishable features for the criterion ofseniority cum merit, and the requirement to consider the entirety of thecandidate’s service record, B“8. The principle of merit-cum-seniority puts greater emphasis onmerit and ability and where promotion is governed by this principleseniority plays a less significant role. However, seniority is to begiven weightage when merit and ability more or less are equalamong the candidates who are to be promoted.

C9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority andpromotion to a senior person cannot be denied unless the personconcerned is found totally unfit on merit to discharge the duties ofthe higher post. The totality of the service of the employeehas to be considered for promotion on the basis of seniority-Dcum-merit (see Jagathigowda, C.N. v. Cauvery GraminaBank [(1996) 9 SCC 677: 1996 SCC (L&S) 1310: AIR 1996SC 2733] ).” (emphasis added)

21. While rejecting the appellant’s seniority claim in the feedercadre by virtue of her higher salary vis-à-vis the respondent no.3, theEDivision Bench, unfortunately, referred to the incorrect O.M. (dated10.9.1985), overlooking the applicable O.M. (dated 12.12.1988) of theMinistry of Personnel. In this O.M., as noted earlier, it was clearlystated that the persons in the feeder cadre drawing higher scale willrank senior to those drawing lesser pay scale. Admittedly, the payFscale drawn by the appellant as an Accountant in the feeder cadrewas higher than the respondent no.3 and therefore the benefit of O.M.(dated 12.12.1988) would surely accrue to the appellant, in thedetermination of her inter se seniority. However, the learned DivisionBench by adverting to the incorrect O.M., wrongly rejected thecontention that the higher pay scale can be the basis for claiming theGseniority in the feeder cadre in the circumstances referred to in theO.M. dated 12.12.1988.

22. In the present case, the Cantonment Board in their deliberationsmade on 11.1.2012 not only considered the appellant to be senior to the H5 (2009) 7 SCC 311

respondent no.3 but also considered her to be more deserving forpromotion as the best, suitable and fit candidate, for the responsible post.The respondent no.3 was penalized pursuant to the disciplinary proceedingfor dereliction of duty and misconduct and he suffered the penalty ofrecovery of Rs.10,000/- from his salary. Seen in this context, the appellantwas more deserving. That apart, the disciplinary action was not challengedby the respondent no.3. He cannot therefore set up a better claim forpromotion, to a selection category post.

23. Insofar as the contention of the respondent no.3 that the issueof selection category post was not argued before the High Court, it isnecessary to bear in mind that arguments based on the Rules wereadvanced by all the contesting parties before the High Court. Therefore,the status of the promotion post and the criterion for promotion specifiedin the Rules, must in our opinion, receive due consideration.

24. As far as the issue of higher pay scale being the basis forseniority in the feeder cadre, the same is clearly provided in the O.M.dated 12.12.1988. The issue received due consideration by theCantonment Board and was answered in favour of the appellant. Butthis aspect was held against both the appellant and the Board, due to aninadvertent reference to the wrong Office Memorandum dated10.09.1985 by the High Court. Having regard to the manner in whichthe issue was examined and decided by the Board, we deem it appropriateto endorse the Board’s declaration of seniority in favour of the appellant,based on the reasoning contained in the Board’s Resolution dated 25.3.2013.

25. This Court must also be mindful of the fact that the CantonmentBoard applied the criterion of seniority-cum-merit and treated the postto be of the “selection category”. Moreover, the unblemished servicerecord of the appellant vis-à-vis the pending disciplinary proceedingsagainst the respondent no.3, (eventually resulting in penalty), were takeninto account. All these circumstances in our opinion, weigh in favour ofthe appellant Rama Negi. Her Suitability for the selection post wasattributable to two factors i.e. merit of the candidate and the inter-seseniority. Despite the difficulty in encapsulating the parameters for ‘merit’,a significant marker can be found in the unblemished record of theemployee. A marred service record, though not an insurmountable bar,must carry some consequences, and it could be a comparative disadvantagein promotion for a selection post. The employer’s preference for a personwith a clean service record can be well appreciated.

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A26. Moreover, the higher pay in the same grade as per the applicableO.M., is a reliable indicator for determining inter-se seniority. In thisCourt’s perception, the decision to prefer the appellant over therespondent no.3 for promotion is in tune with the applicable parameters.As such the contrary opinion by the High Court does not merit ourapproval. Accordingly, the Appeals stand allowed by setting aside theBimpugned judgment. The parties to bear their own cost.

Devika Gujral

Appeals allowed.

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