Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Hybrid Mode Of Promotion Or Acquiescence -WP Dismissed.
JUDGEMENT TITLE : R.K. Pandey Vs. The New India Assurance Company Ltd. And Others. On 16/02/2006 By Allahabad High Court
CASE NO : WRIT - A NO. 39352 OF 2003
CORAM : Hon'ble B.S. Chauhan,J. And Hon'ble Dilip Gupta,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. 34 Civil Misc. Writ Petition No. 39352 Of 2003 R.K. Pandey Vs. The New India Assurance Company Ltd. & Ors. ~~~~~ Hon. Dr. B.S. Chauhan, J. Hon. Dilip Gupta, J. This Petition Has Been Filed For Quashing The Entire Selection Proceedings For Promotion From The Post Of Administrative Officer In The New India Assurance Company Ltd. (hereinafter Referred To As The ''Assurance Company') To The Post Of Assistant Manager And For A Direction To The Respondents To Reconsider The Case Of The Petitioner And To Promote The Petitioner With All Consequential Benefits Including Seniority, Arrears Of Salary Etc. From The Date His Juniors Were Promoted As Assistant Managers. The Petitioner Was Initially Appointed As A Development Officer In The Assurance Company On 1.6.1978. He Was, Thereafter, Promoted As The Assistant Administrative Officer And Then An Administrative Officer. The Dispute, Which Arises In The Present Petition, Is About The Next Promotion To The Post Of Assistant Manager. The Name Of The Petitioner Was Not Included In The Advance Main List Prepared By The Assurance Company For Promotion To The Post Of Assistant Manager. Feeling Aggrieved, The Petitioner Filed A Representation For Review Of His Case But He Could Not Achieve Any Success. We Have Heard The Learned Counsel For The Petitioner And Sri A.B. Saran, Learned Senior Counsel Appearing For The Respondent- Assurance Company And Have Perused The Materials Available On Record. Learned Counsel For The Petitioner Submitted That For Promotion The Selection Has Been Made On The Basis Of Total Marks Obtained In Order Of Merit Rather Than On The Basis Of Seniority After Fixing The Required Minimum Merit And That No Uniform Objective And Transparent Norms Or Yardsticks Were Followed For Awarding Marks For Performance, Traits And Growth Potential. Learned Counsel Further Submitted That The Case Of The Petitioner Was Wrongly Ignored At The Time Of Review And That Persons, Juniors To The Petitioner With Inferior Record, Have Been Promoted. It Was Also Stated That Moderation Of The Total Marks Secured By Various Candidates Was Not Done As Stipulated In The Promotion Policy And That The Petitioner Was Under Assessed Due To Bias. Sri A.B. Saran, Learned Senior Counsel Appearing For The Respondents, However, Submitted That The Selection Had Been Made Strictly In Accordance With The Promotion Policy And That From A Reading Of The Whole Policy, It Is Clear That Seniority-cum-merit Is Not The Only Criteria For Granting Promotion. He Further Submitted That The Petitioner Had Not Challenged The Promotion Policy Prior To The Selection Process And, Therefore, It Is Not Open To The Petitioner To Now Turn Around And Challenge The Policy Once He Was Not Found Successful. He Further Submitted That It Was For The Employer To Provide The Criteria For Promotion And As The Same Belonged To The Area Of Policy Making, The Petitioner Cannot Frame His Own Criteria For Promotion On The Principle Of Seniority-cum-merit. We Have Carefully Considered The Submissions Advanced By The Learned Counsel For The Parties. In Order To Appreciate The Controversy Involved In The Present Petition, It Is Necessary To Refer To The Relevant Provisions Of The Promotion Policy Framed By The Assurance Company And The Relevant Provisions Are Quoted Below:- "PROMOTION AND TRANSFER POLICY FOR OFFICERS OBJECTIVES:- I) The Main Objective Is To Rationalise And Codify The Existing Guidelines Relating To Promotions With The Officers Cadres (class 1) And To Formulate A Well Defined Promotion Policy With Built In Motivation, Providing Therein Reasonable Opportunities To Officers To Move Up In Hierarchy, Keeping In View The Legitimate Aspirations Of The Officers To Shoulder Higher Responsibilities. Ii) This Is Aimed To Be Achieved By Providing For Promotion Of Officers Through A Process Of Selection On The Basis Of Their Seniority-Cum-Merit. While Seniority Is A Known Fact Depending Upon The Number Of Years Of Service Put In, Merit Would Inter-alia Comprise Of Job Knowledge Past Performance Appraisal Growth Potential. These Are To Be Assessed On The Basis Of Performance Appraisal Systems. Suitability And Growth Potential Can Be Assessed From Recommendations And Remarks Of Officers In The Appraisals And Interviews, Where Applicable. Iii) The Total Number Of Officers To Be Promoted Would Depend Upon Promotional Vacancies, Available Each Year. 6. PROMOTION OF OFFICERS TO THE RANK OF MANAGER, DY. MANAGER, ASSISTANT MANAGER AND ADMINISTRATIVE OFFICER: 6.1 To Be Considered For Promotion, An Officer Should Have Completed In The Existing Cadre A Minimum Three Full Years From The Date Of Selection To The Cadre As On 31st March Immediately Preceding The Year In Which The Promotions Are Considered. The Period For Which An Officer Was On Loss Of Pay During His/her Tenure In The Cadre Will Not Qualify For Determining The Length Of Service For The Purpose Of The Provision. 6.2 After Determining The Eligibility Of Officers As Per Para 6.1 Above, Panels Of Such Officers Shall Be Prepared In Order Of Seniority, Limited To The Proportions. (a) Asstt. Admn. Officer To Administrative Officer Twice The Number Of Vacancies. (b) Administrative Officers To Asstt. Manager Thrice The Number Of Vacancies. (c) Assistant Manager To Deputy Manager -do- Provided That All Eligible Officers Either Belonging To Same Batch Or Selected On Same Date Shall Be Considered, Even If The Total Numbers Exceed The Above Proportions. Provided Further That If The Total Number Of Officers Is Less Than The Above Proportions, All The Eligible Candidates Shall Be Considered For Promotion. (d) Deputy Manager To Manager Five Time The Number Of Vacancies. 7. CRITERIA FOR PROMOTION AND WEIGHTAGE ; 7.1 Selection For Promotion Shall Be Based On Seniority, Insurance Qualifications And Merit-cum-growth Potential, As Brought Out In Performance Appraisals. In Addition For Promotion To The Cadre Of Manager There Shall Be Interview Before Selection. In Assessment, Maximum Weightage In Terms Of Numerical Marks For Various Criteria Shall Be Worked Out As Under. A.A.O.TOA.O. A.O.TOA.M. A.M.TODy. MGR Dy. MGRTOMANAGER (a) Seniority 60 42 30 20 (b) Insurance Qualification 10 8 - - (c) C.R. Form:(i) Traits In C.R.(ii) Performance(iii) Growth Potential 1012.57.5 151520 202525 152525 (d) Interview - - - 15 TOTAL: 100* 100* 100* 100 NOTE: Marks For Insurance Qualification Has Come Into Effect For Promotion Exercise For 1994 And Onwards. 9. PROMOTION COMMITTEES: 9.1 The Promotion Committee Shall Mean And Include Middle Management Services Committee. 10. SELECTION 10.1 The Promotion Committee Will Study The Information Contained In The Summary Sheets And Also Give Suitable Weightage Either Plus Or Minus For The Inconsistencies And Or Exaggerated Remarks, As May Be Observed From The Confidential Reports/work Records Of The Officers Concerned. Thereafter, The Total Marks Shall Be Suitably Moderated And Recorded By The Committee, Take Into Account The Marks Secured In Interviews, Where Applicable. While Giving Such Weightage The Committee Shall Also Take Into Account Regional Imbalances, Noticed If Any, 10.2 The Committee, On The Above Basis Shall Select Officers For Promotion And Forward A List Of Such Officers To The Appointing Authority. The List Shall Be So Prepared As To Maintain The Interse Seniority Of The Concerned Officers In The Existing Cadre. Such Selection Of Officers For Promotion By The Committee Shall Be Final. This List Which Shall Be Called The Main List Shall Be In Respect Of The Promotions To Be Effected To Fill The Vacancies Which Have Actually Arise Till The Date Of Selection Of Officers For Promotion By The Committee." Learned Counsel For The Petitioner Placed Heavy Reliance Upon Clause 1(i) Of The Promotion Policy And Submitted That The Process Of Selection Should Be Made On The Basis Of Seniority-cum-merit Only. We Express Our Inability To Accept This Contention Of The Learned Counsel For The Petitioner. Clause 1 Of The Promotion Policy Cannot Be Read Dehors The Other Provisions Of The Promotion Policy Which Deal With The Criteria For Promotion And Weightage. As Seen Above, Clause 7.1 Clearly Provides That The Selection For Promotion Shall Be Based On Seniority, Insurance Qualifications And Merit-cum-growth Potential, As Brought Out In Performance Appraisals. It Further Provides That For The Purposes Of Assessment, Maximum Weightage In Terms Of Numerical Marks For Various Criteria Shall Be In The Manner Provided. The Supreme Court In K. Samantaray Vs. National Insurance Co. Ltd. (2004) 9 SCC 286 Considered A Similar Promotion Policy Wherein In Clause 1.2 It Was Provided That The Promotion Of Officers Shall Be Made Through Process Of Selection On The Basis Of Their Seniority-cum-merit And Merit Would Comprise Of Job Knowledge, Past Performance, Suitability And Growth Potential. In Clause 7.1 Criteria For Promotion And Weightage Was Further Indicated. It Was Submitted Before The Supreme Court That In View Of The Provisions Of Clause 1.2 Of The Promotion Policy, The Basis Of Promotion Should Be Seniority-cum-merit Alone. The Supreme Court Repelled The Submission And Observed That A Reading Of The Whole Policy Reveals That Stress Was Not On Seniority Alone And Weightage Was Sought To Be Imposed On Merit And Other Relevant Aspects Also. We May Point Out That Paragraph 8 Of The Judgment Of The Supreme Court Contains The Relevant Clauses Of Promotion Policy Including Clauses 1.2 And 7.1. We Have Compared The Aforesaid Clauses With The Clauses Contained In The Promotion Policy In Issue In The Present Petition And Find Them To Be Identical. We May Further State That In All Services There Is Invariably A Hierarchy Of Posts Comprising Of Higher Pots And Lower Posts. Promotion, As Understood Under The Service Law Jurisprudence, Is Advancement In Rank, Grade Or Both And No Employee Has A Right To Be Promoted, But Has Only A Right To Be Considered For Promotion. The Following Observations Of The Supreme Court In Sant Ram Sharma V. State Of Rajasthan And Ors. , AIR 1967 SC 1910, Are Relevant And Are As Follows:- "The Question Of A Proper Promotion Policy Depends On Various Conflicting Factors. It Is Obvious That The Only Method In Which Absolute Objectivity Can Be Ensured Is For All Promotions To Be Made Entirely On Grounds Of Seniority. That Means That If A Post Falls Vacant It Is Filled By The Person Who Has Served Longest In The Post Immediately Below. But The Trouble With The Seniority System Is That It Is So Objective That It Fails To Take Any Account Of Personal Merit. As A System It Is Fair To Every Official Except The Best Ones; An Official Has Nothing To Win Or Lose Provided He Does Not Actually Become So Inefficient That Disciplinary Action Has To Be Taken Against Him. But, Though, The System Is Fair To The Officials Concerned, It Is A Heavy Burden On The Public And A Great Strain On The Efficient Handling Of Public Business. The Problem, Therefore, Is How To Ensure Reasonable Prospect Of Advancement To All Officials And At The Same Time To Protect The Public Interest In Having Posts Filled By The Most Able Man? In Other Words, The Question Is How To Find A Correct Balance Between Seniority And Merit In A Proper Promotion-policy" In The Case Of K. Samantaray (supra), The Supreme Court While Considering The Promotion Policy Which As Seen Above Was Similar, Pointed Out That Service Structure Is Like A Pyramid. The Higher One Goes In The Ladder Of Promotional Posts Remarkably The Seniority Loses Importance And Merit Gets Primacy. In This Connection, It Was Observed:- "The Principles Of Seniority-cum-merit And Merit-cum-seniority Are Conceptually Different. For The Former, Greater Emphasis Is Laid In Seniority, Though It Is Not The Determinative Factor, While In The Latter Merit Is The Determinative Factor. In The State Of Mysore And Anr. V. Syed Mahamood And Ors., AIR 1968 SC 113, It Was Observed That In The Background Of Rule 4(3)(b) Of The Mysore State Civil Services (General Recruitment) Rules, 1957 Which Required Promotion To Be Made By Selection On The Basis Of Seniority-cum-merit, That The Rule Required Promotion To Be Made By Selection On The Basis Of "seniority Subject To Fitness Of The Candidate To Discharge The Duties Of The Post From Among Persons Eligible For Promotion." It Was Pointed Out That Where The Promotion Is Based On Seniority-cum-merit The Officer Cannot Claim Promotion As A Matter Of Right By Virtue Of His Seniority Alone And If He Is Found Unfit To Discharge The Duties Of The Higher Post, He May Be Passed Over And An Officer Junior To Him May Be Promoted. But, These Are Not The Only Modes For Deciding Whether Promotion Is To Be Granted Or Not. ............ While Laying Down The Promotion Policy Or Rule, It Is Always Open To The Employer To Specify Area And Parameter Of Weightage To Be Given In Respect Of Merit And Seniority Separately So Long As Policy Is Not Colourable Exercise Of Power Or Has The Effect Of Violating Of Any Statutorily Scope Of Interference And Other Relatable. The Decision In B.V. Sivaiah And Ors. V. K. Addanki Babu And Ors. 1998 (6) SCC 720, Is Clearly Distinguishable On Facts And In Law. That Was A Case, Where Statutory Rules Governed The Field. This Court, Inter Alia, Held That Fixing Terms Which Are At Variance With The Statutory Rules Is Impermissible. In The Case At Hand, Prior To The Formulation Of Policy In February, 1990, There Were No Codified Prescriptions. It Was The Stand Of The Respondent-employer That Prior To The Formulation Of The Policy, Certain Guidelines Existed And The Objectives Of The Policy Were To Rationalize And Codify The Existing Guidelines Relating To Promotions Within Officers Cadre. There Is No Statutory Rule Operating. It Is For The Employer To Stipulate The Criteria For Promotion, The Same Pertaining Really To The Area Of Policy Making. It Was, Therefore, Permissible For The Respondent To Have Their Own Criteria For Adjudging Claims On The Principle Of Seniority-cum-merit Giving Primacy To Merit As Well, Depending Upon The Class, Category And Nature Of Posts In The Hierarchy Of Administration And The Requirements Of Efficiency For Such Posts." It May Also Be Pointed Out That In The Aforesaid Decision Of The Supreme Court, In K. Samantaray (supra), Placed Reliance Upon Its Earlier Decision In Syndicate Bank Scheduled Castes And Scheduled Tribes Employees Association. (Regd.) Through Its General Secretary, K.S. Badlia & Ors. V. Union Of India, Through Its Additional Secretary, Ministry Of Finance (Deptt. Of Economic Affairs) Banking Division & Ors. 1990 Supp. SCC 350 Wherein In Paragraph 14 It Has Been Observed That A Third Mode (apart From Seniority-cum-merit And Merit-cum-seniority Modes) Has Been Recognized. This Third Mode Has Been Described As A "hybrid Mode Of Promotion" In Which Seniority Is Duly Respected And Merit Is Appropriately Recognized. In State Of U.P. Vs. Jalal Uddin & Ors. (2005) 1 SCC 169 The Supreme Court Reiterated The Propositions Contained In The Earlier Decisions Given In Sant Ram Sharma (supra), Syndicate Bank (supra) And K. Samantaray (supra). Reliance Placed By The Learned Counsel For The Petitioner Upon The Decision Of The Supreme Court In B.V. Sivaiah Case (supra) Is Misconceived Inasmuch As The Said Decision Is Clearly Distinguishable On Facts And Law As Was Observed By The Supreme Court In K. Samantaray (supra) And We Have Already Referred To That Portion Of The Judgment Of The Supreme Court. In Sr. Jagathigowda C.N. & Ors. Vs. Chairman, Kaweri Gramin Bank & Ors., AIR 1996 SC 2733, The Supreme Court Observed As Under:- "It Is Settled Proposition Of Law Even While Making Promotion On The Basis Of Seniority Cum Merit, The Totality Of The Service Record Of The Officer Concerned Has To Be Taken Into Consideration. The Performance Appraisal Forms Are Maintained Primarily For The Purpose That The Same Are Taken Into Consideration When The Person Concerned Is Considered For Promotion To The Higher Rank." In View Of The Aforesaid Decisions Of The Supreme Court, It Is Clear That While Laying Down The Promotion Policy It Is Always Open To An Employer To Specify The Area And Parameter Of Weightage To Be Given In Respect Of Merit And Seniority Separately And That Apart From The Two Well Known Concepts Of Granting Promotion On The Basis Of Seniority-cum-merit Or Merit-cum-seniority, There Is A Third Mode Which Has Been Recognised In Which Seniority Is Duly Respected And Merit Is Appropriately Recognised. In The Present Case, We Find That For Promotion To The Post Of Assistant Manager, Which Is Quite A Senior Post, Seniority May Not Have That Much Of Importance And Merit Gets Primacy. In This View Of The Matter We Do Not Find Any Merit In The Contention Advanced By The Learned Counsel For The Petitioner That The Assurance Company Should Have Resorted To The Provisions Of Seniority-cum-merit Only While Granting Promotion To The Post Of Assistant Manager. We Also Do Not Find Any Force In The Contention Of The Learned Counsel For The Petitioner That Uniform Objective And Transparent Norms Were Not Followed For Awarding Marks Under The Various Categories. Learned Counsel For The Petitioner Contended That Out Of The 50 Marks For C.R. Only 15 Marks Are Allotted For Performance Whereas 35 Marks Are Allotted For Traits And Growth Potential. As Stated Above, It Is For The Employer To Satisfy The Area And Parameter Of Weightage And So Long As The Policy Is Not A Colourable Exercise Of Power, The Courts Should Not Interfere In The Said Policy. Learned Counsel For The Petitioner Has Not Been Able To Substantiate That This Policy Was, In Any Way, A Colourable Exercise Of Power. This Apart, In The Case Of K. Samantaray (supra), The Supreme Court Examined The Same Criteria For Promotion From The Post Of Administrative Officer To The Post Of Assistant Manager In The Insurance Company And Found Nothing Objectionable In The Award Of 35 Marks For Traits And Growth Potential. Thus This Contention Of The Learned Counsel For The Petitioner Cannot Also Be Accepted. In This Connection, It May Further Be Pointed Out That The Petitioner Had Subjected Himself To The Promotion Knowing Fully Well The Criteria For Promotion And Weightage But He Had Not Objected To The Allocation Of Marks Under The Various Heads Prior To The Declaration Of Result. We Are Of The Opinion That In Such Circumstances It Is Not Open To The Petitioner To Now Contend That The Allocation Of Marks Under The Various Heads Is Not Correct. In This Connection, Reference May Be Made To The Decision Of The Supreme Court In Union Of India & Anr. Vs. N. Chandrasekharan & Ors., AIR 1998 SC 795 In Which It Was Observed:- "It Is Not In Dispute That All The Candidates Were Made Aware Of The Procedure For Promotion Before They Sat For The Written Test And Before They Appeared Before The Departmental Promotion Committee. Therefore, They Cannot Turn Around And Contend Later When They Found That They Were Not Selected, By Challenging That Procedure........." The Criteria For Promotion Cannot Be Challenged By Such Candidates Who Had Participated In The Selection Without Raising Any Objection (Vide Dr. G. Sarena Vs. University Of Lucknow, AIR 1976 SC 2428; Maj. Chandrabhan Singh Vs. Latafat Ullah Khan & Ors., AIR 1978 SC 1814; Om Prakash Shukla Vs. Akhilesh Kumar Shukla & Ors., AIR 1986 SC 1043; Madan Lal & Ors. Vs. State Of Jammu & Kashmir & Ors., AIR 1995 SC 1088 And Utkal University & Ors. Vs. Dr. Nrusingha Charan Sarangi & Ors., JT 1999 (1) SC 101). Learned Counsel For The Petitioner Then Contended That He Had Filed A Review Petition As Provided For In Clause 14 Of The Promotion Policy But The Name Of The Petitioner Did Not Appear In The List Finalised By The Committee. We Find That Apart From The Fact That A Bald Statement Has Been Made In Paragraph 9 Of The Petition That He Had Filed A Representation Under Clause 14 Of The Promotion Policy, The Petitioner Has Not Challenged The Decision Taken By The Committee Not To Promote The Petitioner. In The Absence Of Any Specific Challenge Having Been Made In The Writ Petition, We Are Not Inclined To Consider This Legal Submission As No Factual Foundation Has Been Laid In The Writ Petition. Learned Counsel For The Petitioner Then Contended That Certain Persons Junior To The Petitioner Had Been Promoted And, Therefore, Discrimination Has Been Practiced By The Assurance Company. This Contention Cannot Be Accepted For The Simple Reason That Promotion Was Not To Be Made On The Basis Of Seniority Alone But On The Basis Of The Criteria Laid Down In Clause 7.1 Of The Promotion Policy. Thus There Is No Merit In Any Of The Submissions Advanced By The Learned Counsel For The Petitioner. The Writ Petition Is, Accordingly, Dismissed.

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