Judgment · High Court · 2012

The subject matter of assailment in the instant appeal is the judgment and order dated 11.01.2012 passed in WP(C) No.3996/2011. Thereby, the challenge against t he selection of the Respondent No.6 and her ranking above the writ petitioner wa s negated by the learned Single Judge. We have heard Mr. K.K. Mahanta, learned Senior Counsel for the writ appellant (w rit petitioner) Mr. A. Deka, learned Standing Counsel, Education Department, Gov t. of Assam and Mr. B.D. Goswami, learned counsel for Respondent No.6. Briefly, stated the facts relevant for the disposal of the instant appeal are th at both the writ appellant and the respondent No.6 are Assistant Teachers with t he Dhing Girls’ High School in the district of Nagaon in their substantive capac ity. At the relevant point of time, when their candidatures were scrutinized by the State Selection Board (for short hereinafter referred to as the Board) for promotion to the post of Headmistress of the School, the writ appellant was offi ciating in that capacity. In the selection, however the respondent No.6 and the writ appellant, vis-à-vis the said School, for the said office were ranked at Sl . No.1 & 2 respectively. Being aggrieved, the writ appellant approached this C ourt, contending chiefly, that the respondent No.6 judged by the parameters pres cribed by Rule 14 of the Assam Secondary Education (Provincialization) Service R ules, 2003 (hereinafter for short referred to as the Rules) was unfit for being recommended for promotion and to be placed above her in order of preference. Ac cording to her, the Board did not consider the Annual Confidential Reports of th e candidates, for which the writ appellant was left with a lower ranking vis-à-v is the respondent No.6. The Director, Secondary Education, Assam, in his affidavit while admitting that the selection had been conducted as per Rule 14 of the Rules, affirmed that the Board on an evaluation of the contending parties had placed the respondent No.6 above the writ appellant. This, according to the answering respondent was on th e basis of an assessment of their qualifications, the Annual Confidential Report s for the relevant years as well as their performance in the interview. Conten ding that in terms of Rule 14, seniority and satisfactory Annual Confidential Re ports for the 3 consecutive years were the determinative criteria for promotion, the departmental authority pleaded that the selection was valid and that the re spondent No.6 was rightly recommended for promotion in preference to the writ ap pellant. The learned Single Judge by the judgment and order impugned in the inst ant appeal sustained this plea and on an examination of the relevant Annual Conf idential Reports of the parties concluded that both of them were suitable for pr omotion. Noticing the admitted fact that the respondent No.6 was senior to the writ appellant in service, relying on the decision of the Apex Court in B.V. SIV AIAH AND OTHERS Versus K. ADDANKI BABU AND OTHERS (1998) 6 SCC 720 the impug nment of the selection and ranking of the respondent No.6 was rejected. Mr. Mahanta has urged with particular reference to Rule 14(2) of the Rules that as the norms for promotion to the post involved are seniority and satisfactory A nnual Confidential Reports for 3 consecutive years, seniority by no means can be construed to be the decisive factor. According to him, the words (cid:28)satisfactory Annual Confidential Report (cid:29) connotes (cid:28)satisfactory (cid:29) grading of the incumbent co ncerned for the period in reckoning and that having regard to the criteria presc ribed for promotion, any grading below satisfactory would render him/her unfit t herefor. The learned Senior Counsel further pleaded that as generally acknowled ged grading (cid:28)Good (cid:29) is inferior to that of (cid:28)Satisfactory (cid:29) and thus as the respond ent No.6 could not secure the grading of satisfactory, she could not have been r ecommended for promotion in the teeth of Rule 14(2) of the Rules. Without preju dice to this plea, Mr. Mahanta has insisted that in absence of any objective cri teria of interpreting the word (cid:28)satisfactory (cid:29) to identify the cut-off level of f itness for promotion, the Board on the basis of the relevant Annual Confidential Reports of the respondent No.6 could not have recommended her for promotion to the post of Head Mistress of the institution. As admittedly the Annual Confiden tial Reports of the writ appellant was superior than that of the respondent No.6 , judged by the yardstick enumerated in Rule 14(2) of the Rules, the writ appell ant ought to have been recommended in preference to the respondent No.6, he main tained. To reinforce his contentions, Mr. Mahanta has placed reliance the decisi on of the Apex Court in B.V. SIVAIAH AND OTHERS Versus K. ADDANKI BABU AND OT HERS (Supra) and in K. SAMANTARAY Versus NATIONAL INSURANCE CO. LTD., (2004) 9 SCC 286 . Mr. Deka, in reply with reference to the original Annual Confidential Reports ha s submitted that as it would appear therefrom that both the candidates had been recommended for promotion, their gradings notwithstanding, the view adopted by t he learned Single Judge in the context of Rule 14(2) of the Rules cannot be said to be illogical or untenable and thus no interference therewith is warranted. Mr. Goswami while reiterating the stand taken on behalf of the State respondent s has maintained that (cid:28)satisfactory Annual Confidential Report (cid:29) does not per se signify that the grading of the employee concerned has to be essentially (cid:28)satisf actory (cid:29) to meet the minimum level of fitness contemplated for promotion to the p ost involved. Moreover, as in the assessment of the learned Single Judge on the basis of the relevant Annual Confidential Reports of the respondent No.6 she was fit for promotion, having regard to her seniority in service, no interference i s called for. According to him, without prejudice to the above, the grading of s atisfactory is inferior to that of good and that measure, judged by, the respond ent No.6 is superior to the writ appellant on merit as well. We have considered the pleadings on record as well as the submissions made on th e basis thereof. That both the incumbents in the fray are serving as Asstt. Tea chers of the School in their substantive capacity is a matter of record. Though , following the determination made by the learned Single Judge, the respondent N o.6 claims that she had started functioning as the Head Mistress of the aforena med School, Mr. Mahanta has urged on behalf of the writ appellant that it is not so. Be that as it may, that the respondent No.6 is senior to the writ appellan t in service in the feeder post of Asstt. Teacher, it is an admitted fact. Rule 14(2) of the Rules, which occupies the centre stage of the debate is extrac ted hereinbelow for ready reference. (cid:28)Rule 14 & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &. (2) The post of Head Master, Head Mistress and Superintendent shall be filled up by promotion from the School-wise seniority list on the recommendation of the S tate Selection Board. The selection of Head Master/Head Mistress/Superintendent shall be based upon seniority and satisfactory Annual Confidential Report for 3 (three) consecutive years. Recommendation for such promotion has to be made by the State Selection The criteria of selection is seniority and satisfactory Annual Confident The promotion to the post of Head Master, Head Mistress and Superintende The above extract brings out the following salient features: (a) nt of the school has to be on the basis of school -wise seniority; (b) Board; (c) ial Report for 3(three) consecutive years. Though it has been sought to be impressed upon us by the learned Senior Counsel for the writ appellant that (cid:28)satisfactory Annual Confidential Report (cid:29) would sign ify (cid:28)satisfactory (cid:29) grading of the candidate concerned in the Annual Confidential Report, we are left un-persuaded thereby. In our view, having regard to the cri teria for promotion prescribed by Rule 14(2), (cid:28)satisfactory Annual Confidential Report (cid:29) is synonymous to minimum level or quality of performance making the can didate deserving for promotion to the post involved. In other words, in our est imate, even if a candidate does not earn (cid:28)satisfactory (cid:29) grading in the relevant Annual Confidential Reports, if his/her performance otherwise is rated to be suf ficient to construe him or her to be fit for promotion, the norm prescribed by R ule 14(2) would stand satisfied. We have perused the original Annual Confidential Reports for the relevant years vis-à-vis both the candidates. On a scrutiny thereof it transpires that both th e candidates on the essential aspects of performance are at par and both of them have been recommended for promotion by the authority concerned. Though, notice ably, the writ appellant has been graded (cid:28)A (cid:29) and the respondent no.6 as (cid:28)B+ (cid:29), th ere is nothing to indicate in the face of the said recommendation made by the de partmental authority to infer that the grading/assessment qua the respondent No. 6 i.e. B(+) would make her unfit for such promotion. The Apex Court in B.V. SIVAIAH AND OTHERS Versus K. ADDANKI BABU AND OTHERS ( Supra) while elucidating the criteria of seniority-cum-merit held that in the matter of promotion on the basis thereof, minimum necessary merit is required f or efficiency of administration and if the same is satisfied, the senior even th ough less meritorious shall have priority and a comparative assessment of merit is not called for. Their Lordships observed that for assessing the minimum nece ssary merit, the competent authority can lay-down the minimum standard that is r equired and also prescribe the mode of assessment of merit of the employee to be eligible for consideration for promotion. In such a case, it was held, that th e assessment can be made by assigning marks on the basis of appraisal of perform ance on the basis of service record and by prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. In K SAMANTARAY Versus NATIONAL INSURANCE CO. LTD.,(Supra) , the Apex Court whi le recalling its decision in State of Mysore v. Syed Mahmood, AIR 1968 SC 1113 reiterated the oft quoted proposition that while applying the principle of seni ority-cum-merit, greater emphasis is laid on seniority, though, it is not the de terminative factor. It was held that when the promotion is based on seniority-c um-merit, the officer cannot claim promotion as a matter of right by virtue of s eniority alone and if he is found unfit to discharge the duties of a higher post , he may be passed over and a officer junior to him may be promoted. Applying the above judicially evolved principles in the facts of the case, we ar e of the view that the selection and ranking of the respondent No.6 awarded by t he Board when viewed in the perspective of the criteria prescribed by Rule 14(2) cannot be repudiated as untenable or flawed. To reiterate, the relevant Annual Confidential Reports of the candidates reveal in no unmistakable terms that the authority concerned on an evaluation of their performance had recommended both of them for promotion to the higher post. In that view of the matter, having regard to the fact that respondent No.6 is se nior to the writ appellant, we are of the opinion that the conclusion reached by the learned Single Judge cannot be held to be unsustainable in law and on fact s. The appeal fails and is dismissed. No costs.