Rama Negi vs Union Of India

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1713-1714 OF 2022 (@ SLP (c) Nos.30487-30488 OF 2017)

RAMA NEGI APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. RESPONDENT(S)

WITH

CIVIL APPEAL NOS.1715-1716 OF 2022 (@ SLP (c) Nos.10513-10514 OF 2018)

J U D G M E N T

Hrishikesh Roy, J.

1. Signature Not Verified Digitally signed by Leave granted. The challenge in these two appeals Nidhi Ahuja Date: 2022.03.02 17:53:15 IST

is to the judgment dated 22.9.2017 in the Special Reason:

Appeal Nos.87 and 88 of 2014, filed by Appellant Rama Page 1 of 23 Negi and Special Appeal Nos. 96 of 2014 and 97 of 2014,

filed by the Cantonment Board, Ranikhet. The Division

Bench of the Uttarakhand High Court under the impugned

judgment dismissed the Appeals and upheld the judgment

of the learned Single Judge whereby the appellant Rama

Negi’s promotion to the post of Office Superintendent

in the Cantonment Board was quashed and the Writ

Petitions of the respondent no.3, Gopal Ram Arya were

allowed.

2. Heard Mr. P.S. Patwalia, learned senior counsel

appearing for the appellant. The Cantonment Board,

Ranikhet is represented by Mr. Jayant Bhushan, learned

senior counsel. Also heard the learned counsel

appearing for the Respondent no.3.

3. As the contentions of the learned counsel are based

on the inter se seniority of the two contesting

parties, their service details in the Cantonment Board,

Ranikhet are reproduced, in the following chart.

S.No. Gopal Ram Arya (R-3/WP in Rama Negi (appellant)

Page 2 of 23 HC) Date Description Date Description 1. 16.07.199 Appointed as 01.09.199 Appointed as 0 Typist/Junior 5 Steno Typist Clerk on ad-hoc equivalent to basis. Senior Clerk

Promoted to Senior Clerk

09.07.199 7 2. 01.09.200 Promoted to 01.10.200 Promoted to the 5 Revenue 9 post of Superintendent Accountant (feeder cadre) (feeder cadre) (as SC category) 3. 28.11.201 Charge sheet 1 for dereliction of duty, negligence

4. 01.02.201 Officiating 2 charge as Office Superintendent.

25.3.2013 Retrospectively promoted to Office Superintendent w.e.f. 1.2.2012 5. 17.8.2016 Penalty of recovery of Rs. 10,000/- on DP by Board (R2)

Page 3 of 23

4. As can be seen from above, the appellant initially

joined service in the Cantonment Board, as a Steno

Typist (equivalent to Senior Clerk), on 1.9.1995. The

respondent no.3 after entering service initially as a

Junior Clerk on 16.7.1990, was promoted to the Post of

Steno Typist/Senior Clerk on 9.7.1997, around 22 months

after the appellant directly joined service in the

higher post. Thereafter, the respondent no.3 though

junior, was promoted to the post of Revenue

Superintendent on 1.9.2005 by giving him the benefit of

reservation as a Scheduled Caste person. The appellant

was subsequently promoted to the equivalent post of

Accountant on 1.10.2009. Since promotion to the

respondent no.3 was by conferring reservation benefit,

appellant being subsequently promoted to the said cadre

on 1.10.2009, she expected restoration of her

seniority.

5. The promotion for the next post of Office

Superintendent is governed by Rule 5-B (8) of the

Page 4 of 23 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 lists maintained for this purpose by the Board, subject to rejection of those considered unfit:

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

6. Under Annexure E of the Rules, the post of Office

Superintendent together with other posts of Accountant,

Toll Superintendent and Revenue Superintendent in the

Cantonment Board of Ranikhet, is included in the

category of “selection posts” and the relevant portion

reads as under:

“ANNEXURE ‘E’

1. Post declared as Selection posts under Cantonment Boards in Central Command.

Authority: GOC-in-C, Central Command, Lucknow Letter No., 82562/Classification/LC6 dated 12.1.77 and [dated 25.4.1980] **** **** **** ****

**** **** **** ****

24.Ranikhet Office Supdt. Accountant, Toll Supdt. Rev. Supdt. Forest Ranger, Jamadar (PWD) Sanitary Jamadar, Head Mali and Toll Moharrir (Non- Matric).” Page 5 of 23 The Rules above specify, the post of Office

Superintendent as a “selection post” and under Rule

5B(8), promotion to the post is to be considered on the

criterion of seniority cum merit.

7. The Cantonment Board in its meeting held on

11.1.2012 considered the candidature of the persons

serving in the feeder cadre and it was resolved to

recommend the appellant for promotion to the “selection

post” of Office Superintendent, overlooking the

respondent no.3. The appellant was held to be senior

as per the rule. The decision was taken after due

consideration of the relevant materials, including the

fact that the respondent no.3 was drawing a lower pay

scale than the appellant, in the feeder cadre. The

Board also took into account that the Office

Superintendent position required a service record

without misconduct. Respondent no.3, it was noted, was

a charge sheeted person, who had accepted the charges

levelled against him. To determine the appellant to be

Page 6 of 23 senior to the respondent no.3 in the feeder cadre, the

Board relied upon the criterion that “Persons in the

feeder grades given the same grading, those in higher

scales of pay will rank senior to those in the lower

scale of pay”. It was noted that the pay scale of the

appellant Rama Negi was Rs.9300-34800 with grade pay of

Rs.4200 whereas, the pay scale of respondent no.3 Gopal

Ram Arya was Rs.5200-20200 with grade pay of Rs.2800

and accordingly the inter se seniority of the appellant

was found above the respondent no.3, in the feeder

cadre.

8. Following the above Resolution on 11.1.2012 for

appointment to the post of Office Superintendent, the

Cantonment Board sought the advice of the Central

Command, Lucknow furnishing the details of those under

consideration. Since nothing happened thereafter for

several months, the appellant filed the W.P (C) No.1465

of 2012 before the Uttarakhand High Court. Parallelly,

the respondent no.3 filed the W.P (C) No.1645 of 2012

before the same High Court, challenging the Cantonment

Page 7 of 23 Board’s Resolution No.28 dated 11.1.2012 in favour of

the appellant. At that stage, the Central Command,

Lucknow with its letter dated 23.11.2012 informed that

the issue of promotion to the post of Office

Superintendent falls entirely within the purview of the

Cantonment Board, under Rule 7(1) of the Rules.

9. Prompted by the above clarification, the Cantonment

Board in its meeting held on 25.3.2013 passed the

Resolution No.8 where, after having examined the rule

position, it was recorded that the appellant “Smt. Rama

Negi is the best, suitable and fit candidate for the

post of Office Superintendent. Hence she is promoted

from the post of Accountant to Office Superintendent

w.e.f. the date of her taking charge as an Officiating

Office Superintendent i.e. Feb 1st, 2012 as per rules

mentioned in the agenda side.” The Board relied upon

the legal advice tendered to it on the basis of the

O.M. dated 12.12.1988 issued by the Ministry of

Personnel, Public Grievances and Pensions, which stated

“that among the persons in the feeder grades given the

Page 8 of 23 same grading, those in the higher scales of pay will

rank senior to those in the lower scale of pay.”

10. Aggrieved by the above Resolution No.8 favouring

the appellant, the respondent no.3 filed W.P (C) No.352

of 2013. In the meantime, the W.P (C) No.1465 of 2012

filed by the appellant for her promotion was dismissed

as infructuous on 4.4.2013, by the High Court.

11. The two Writ Petitions filed by the respondent no.3

were analogously considered and the learned Single

Judge in his judgment dated 25.2.2014 concluded that

the respondent no.3/writ petitioner is senior and

rejected the contention that the appellant is to be

considered senior above the respondent no.3, by virtue

of her higher pay scale in the post of Accountant in

the feeder cadre. Insofar as the disciplinary

proceeding pending against the respondent no.3, the

learned Single Judge observed that the charge sheet was

deliberately issued on 28.11.2011 to keep out the

respondent no.3 from the zone of consideration. Such

inference was drawn since no decision was taken on the

Page 9 of 23 charges by the authorities which according to the

learned judge, demonstrate malice on their part. The

chargesheet itself was brushed aside by saying that it

was a minor irregularity not involving moral turpitude.

Therefore, the respondent no.3 by virtue of his

accelerated earlier promotion in the year 2005 in the

feeder cadre and the 2009 promotion of the appellant,

the appellant’s promotion was found to be unmerited. On

this basis, the respondent 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 conclude the departmental proceeding

against the respondent no.3 within 3 months and if the

same is not concluded, the learned Judge declared that

the chargesheet shall be deemed to have been revoked,

and thereafter denovo exercise for promotion to the

post of Office Superintendent should be undertaken.

With this, both writ petitions filed by the respondent

Page 10 of 23 no.3 were allowed by the learned Judge, under his

judgment dated 25.2.2014.

12. Aggrieved by the judgment favouring the respondent

no.3 in his two writ petitions, the appellant Rama Negi

and the Cantonment Board filed their respective Special

Appeal Nos.87 & 88 of 2014 and Special Appeal Nos.96 &

97 of 2014. While the Special Appeals were pending

consideration before the Division Bench, the

disciplinary proceeding was concluded with the report

of the inquiry officer against the delinquent, and it

was found that the Board incurred a loss of

Rs.3,50,000/- on account of dereliction of duty by the

respondent no.3 and accordingly the penalty of recovery

of Rs.10,000/- from the delinquent’s salary was ordered

by the disciplinary authority, on 17.8.2016.

13. The Division Bench considered the basis for

declaring the appellant to be senior to the respondent

no.3 by virtue of her higher pay scale in the feeder

cadre, and by adverting to the wrong O.M. dated

10.09.1985 (Incorrectly mentioned as 1995) conclusion

Page 11 of 23 was reached that the said O.M. does not provide for

declaration of seniority, on the basis of higher pay

scale. It was further held that the date of appointment

in the feeder cadre should be the basis for considering

inter se seniority for the purpose of promotion to the

post of Office Superintendent. The disciplinary

proceeding against the respondent no.3 was brushed

aside in a summary manner by declaring that the same

was initiated for the fault committed by the

subordinate staff of the delinquent officer to deny him

the benefit of promotion. With such finding the Special

Appeals filed by the appellant and the Cantonment Board

were dismissed, and the judgment rendered by the

learned Single Judge favouring the respondent no.3 was

affirmed by the Division Bench by their judgment dated

22.09.2017.

14. Taking exception to the above judgment, the present

appeals are filed. We have heard the learned counsel

for the parties and also read the relevant materials on

record.

Page 12 of 23

15. On the issue of inter se seniority, it is necessary

to bear in mind that the respondent no.3 entered

service earlier on 16.7.1990 but in the lower grade and

was promoted to the post of Senior Clerk, only on

9.7.1997. In contrast, the appellant entered service on

1.9.1995 in the higher grade as a Steno-Typist

(equivalent to Senior Clerk). Thus, she was senior to

the respondent no.3 in the post, just below the feeder

cadre. Overlooking the inter-se seniority position of

the two, the respondent no.3 as a Scheduled Caste

person was granted accelerated promotion on 1.9.2005,

to the post of Revenue Superintendent.

16. Besides, the appellant by virtue of her higher pay

scale in the post of Accountant in the feeder cadre,

also deserves seniority above the respondent no.3 with

his lower pay scale, on account of the provision made

in the O.M. dated 12.12.1988.

17. The Rule 5-B (8) read with Annexure ‘E’ of the

Rules makes it clear that the post of Office

Superintendent is a “selection post” and the criterion

Page 13 of 23 for promotion is seniority-cum-merit. The parameters

for determining promotion based on such criterion are

well established by this Court. Justice S.C. Agrawal in

B.V. Sivaiah v. K. Addanki Babu1, speaking for a three

Judges Bench, held that,

“10. On the other hand, as between the two principles of seniority and merit, the criterion of “seniority-cum-merit” lays greater emphasis 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 Services General Recruitment Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, this Court has observed that the Rule required promotion to be made by selection on the basis of “seniority subject to the 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.

11. In State of Kerala v. N.M. Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227] A.N. Ray, C.J. has thus explained the criterion of “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 means that given the minimum necessary merit requisite for efficiency

1 (1998) 6 SCC 720 Page 14 of 23 of administration, the senior though the less meritorious shall have priority.

17. ... While applying the principle of seniority- cum-merit for the purpose of promotion, what is required to be considered is the inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the select list for appointment. ...

18. We thus arrive at the conclusion that the criterion of “seniority-cum-merit” in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. ”

Justice Arijit Pasayat, speaking for a Division

Bench in K. Samantaray v. National Insurance Co. Ltd.2,

noted the following distinction,

“7. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative

2 (2004) 9 SCC 286 Page 15 of 23 factor, while in the latter, merit is the determinative factor.”

18. The appraisal of the facts before us reveals that

the respondent no.3 faced a disciplinary proceeding

following the chargesheet issued against him on

28.11.2011. But the High Court questioned the timing of

the disciplinary action and observed that the same was

issued to deny promotion to the respondent no.3. On

this, the inquiry report finding (17.8.2016) is

important, which indicates that the Cantonment Board

suffered a pecuniary loss of Rs.3,50,000/- due to

dereliction of duty by the delinquent. Significantly,

the respondent no.3 accepted the charge and the

disciplinary authority imposed the penalty of

Rs.10,000/- recoverable from his salary.

19. It was a “selection post” and the appellant

contrastingly had an unblemished service record all

throughout her career. Moreover, she was found to be

senior by the Board on 11.1.2012 and for this reason

was recommended for promotion, in preference to the

Page 16 of 23 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 entire service record of the candidates in

line for promotion,

“29. …In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. …”

20. On the same aspect, Justice Kuldip Singh, also held

for a Division Bench in Jagathigowda C.N. v. Chairman,

Cauvery Gramina Bank & Ors.4,that the totality of the

circumstances factor as a pivotal consideration with

respect to seniority cum merit,

3 (1991) 4 SCC 109 4 (1996) 9 SCC 677 Page 17 of 23 “8. ... It is settled proposition of law that even while making promotions 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. ...” (emphasis added)

For a Division Bench in Haryana State Electronics

Development Corporation Limited & Ors. Vs. Seema Sharma

& Ors.5, Justice A.K. Ganguly also reiterated the

distinguishable features for the criterion of seniority

cum merit, and the requirement to consider the entirety

of the candidate’s service record,

“8. The principle of merit-cum-seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted.

9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority and promotion to a senior person cannot be denied unless the person concerned is found totally unfit on merit to discharge the duties of the higher post. The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum-merit (see Jagathigowda, C.N. v. 5 (2009) 7 SCC 311 Page 18 of 23 Cauvery Gramina Bank [(1996) 9 SCC 677: 1996 SCC (L&S) 1310: AIR 1996 SC 2733] ).” (emphasis added)

21. While rejecting the appellant’s seniority claim in

the feeder cadre by virtue of her higher salary vis-à-

vis the respondent no.3, the Division Bench,

unfortunately, referred to the incorrect O.M. (dated

10.9.1985), overlooking the applicable O.M. (dated

12.12.1988) of the Ministry of Personnel. In this O.M.,

as noted earlier, it was clearly stated that the

persons in the feeder cadre drawing higher scale will

rank senior to those drawing lesser pay scale.

Admittedly, the pay scale drawn by the appellant as an

Accountant in the feeder cadre was higher than the

respondent no.3 and therefore the benefit of O.M.

(dated 12.12.1988) would surely accrue to the

appellant, in the determination of her inter se

seniority. However, the learned Division Bench by

adverting to the incorrect O.M., wrongly rejected the

contention that the higher pay scale can be the basis

Page 19 of 23 for claiming the seniority in the feeder cadre in the

circumstances referred to in the O.M. dated 12.12.1988.

22. In the present case, the Cantonment Board in their

deliberations made on 11.1.2012 not only considered the

appellant to be senior to the respondent no.3 but also

considered her to be more deserving for promotion as

the best, suitable and fit candidate, for the

responsible post. The respondent no.3 was penalized

pursuant to the disciplinary proceeding for dereliction

of duty and misconduct and he suffered the penalty of

recovery of Rs.10,000/- from his salary. Seen in this

context, the appellant was more deserving. That apart,

the disciplinary action was not challenged by the

respondent no.3. He cannot therefore set up a better

claim for promotion, to a selection category post.

23. Insofar as the contention of the respondent no.3

that the issue of selection category post was not

argued before the High Court, it is necessary to bear

in mind that arguments based on the Rules were advanced

by all the contesting parties before the High Court.

Page 20 of 23 Therefore, the status of the promotion post and the

criterion for promotion specified in the Rules, must in

our opinion, receive due consideration.

24. As far as the issue of higher pay scale being the

basis for seniority in the feeder cadre, the same is

clearly provided in the O.M. dated 12.12.1988. The

issue received due consideration by the Cantonment

Board and was answered in favour of the appellant. But

this aspect was held against both the appellant and the

Board, due to an inadvertent reference to the wrong

Office Memorandum dated 10.09.1985 by the High Court.

Having regard to the manner in which the issue was

examined and decided by the Board, we deem it

appropriate to 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 Cantonment Board applied the criterion of

seniority-cum-merit and treated the post to be of the

Page 21 of 23 “selection category”. Moreover, the unblemished service

record of the appellant vis-à-vis the pending

disciplinary proceedings against the respondent no.3,

(eventually resulting in penalty), were taken into

account. All these circumstances in our opinion, weigh

in favour of the appellant Rama Negi. Her Suitability

for the selection post was attributable to two factors

i.e. merit of the candidate and the inter-se seniority.

Despite the difficulty in encapsulating the parameters

for ‘merit’, a significant marker can be found in the

unblemished record of the employee. A marred service

record, though not an insurmountable bar, must carry

some consequences, and it could be a comparative

disadvantage in promotion for a selection post. The

employer’s preference for a person with a clean service

record can be well appreciated.

26. Moreover, the higher pay in the same grade as per

the applicable O.M., is a reliable indicator for

determining inter-se seniority. In this Court’s

perception, the decision to prefer the appellant over

Page 22 of 23 the respondent no.3 for promotion is in tune with

the applicable parameters. As such the contrary

opinion by the High Court does not merit our

approval. Accordingly, the Appeals stand allowed by

setting aside the impugned judgment. The parties to

bear their own cost.

……………………………………………………J. [K.M. JOSEPH]

……………………………………………………J. [HRISHIKESH ROY] NEW DELHI MARCH 2, 2022

Page 23 of 23