Narendra Singh Tomar v. Baran Nagrik Sahakari Bank Ltd. & Ors.

It was argued that according to clause (11) of the Urban Cooperative Banks Employees Service Rules, 1987, petitioner was junior to respondent No.2. Respondent No.2 was regularized on the same day as Clerk in the SBCWP NO.6693/97. 5 services of the respondents on which, petitioner was regularized. In the order, name of petitioner appears at Sr.No.5 whereas, respondent No.2 was at Sr.No.3. He should therefore be treated as senior to the petitioner. It is argued that final seniority list dated 22/11/1984 has lost its efficacy and force after promulgation of the Rules of 1987. Rule 11 of the Rules of 1987 would hold the field now, according to which, seniority has to be determined with reference to the date of substantive appointment on a particular post or grade or in an equivalent post or grade. It is submitted that petitioner has also been later promoted vide order dated 19/6/2006. It is, therefore, prayed that the writ petition be dismissed.

6) I have given my anxious consideration to the rival submissions of the parties and perused the material on record. 7) What is not and cannot be disputed is the fact that respondent-Bank issued seniority list on 22/11/1984 placing the petitioner above respondent No.2. While petitioner was appointed as Clerk with the respondent-Bank on 17/8/1981 and the date of initial appointment of SBCWP NO.6693/97. 6 respondent No.2 is 20/8/1981. They were regularized pursuant to the recommendations of the Selection Committee. Selection committee while recommending their regularization placed petitioner above respondent No.2. In fact, prior to issuance of final seniority list dated 22/11/1984, respondents issued provisional seniority list on 13/10/1984 and invited objections. It is not on record that respondent No.2 submitted any objection to the provisional seniority list regarding placement of the petitioner above him.

It has to be therefore accepted that petitioner was senior to respondent No.2. 8) Undisputedly, criteria for promotion was seniority-cum-merit in the Rules of 1987. What has to be seen is whether on mere basis of the fact that in relation to some of the years, remarks given to the petitioner are merely satisfactory, was the DPC justified in not recommending promotion of the petitioner notwithstanding criteria for promotion being seniority-cum-merit. Record which has been produced by the respondents indicates that out of relevant five years, petitioner was awarded “very good” grading in one year, “good” in two SBCWP NO.6693/97. 7 years, and “satisfactory” in remaining two years, as against which, respondent No.2 was awarded “very good” grading for one year, “good” for one year and “satisfactory” for three years. What however respondents contend is that since in the APARs of preceding two years, remarks were made requiring the petitioner that he did not deserve promotion, therefore he was not promoted.

In the first place, it is not on record that such remarks were communicated to the petitioner so as to enable him to represent thereagainst and therefore such remarks could not be considered against him. Even if accepting such remarks, petitioner could not be denied promotion because criteria of promotion indeed was seniority-cum- merit. In such criteria, entire service record of an employee will have to be examined by the DPC. Even minor penalty could not have come in the way of his promotion. 9) This Court in G.S. Rajawat Vs. Rajasthan Financial Corporation & Others – 1993(1) WLC (Raj.) 117 while considering the similar controversy where promotion was denied to petitioner on account of the penalty of stoppage of one annual grade increment without cumulative effect and the criteria for promotion therein SBCWP NO.6693/97. 8 was seniority subject to suitability, held hat when criteria was based on merit of those falling within zone of consideration, those who fulfill the yardstick for merit shall have to be promoted.

However, when the criteria is seniority-cum-merit, more weightage has to be given to a person who is senior and he cannot be denied promotion merely because his junior is more meritorious. When the criteria is seniority cum suitability then senior person can be ignored only if it is found that he is unfit. 10) In Het Ram Dudi Vs. State of Rajasthan & Another – 1992 (3) WLC (Raj.) 726, a co- ordinate bench of this court again had the occasion to consider a case where on account of penalty of withholding of one annual grade increment without cumulative effect, petitioner was not granted promotion and was superseded by his junior. Criteria of promotion in that case too was seniority cum merit. It was held that although, DPC is entitled to take into consideration the entire relevant record including the penalty order but ordinarily a person has right to be promoted. In Het Ram Dudi's case supra, this Court further held that if on the basis of punishment SBCWP NO.6693/97.

9 or any other adverse material, the employee is to be superseded or denied promotion, the competent authority must record reasons in support of its decision. Recording of reasons is a must for fairness in the decision of the competent authority. 11) In B.V. Sivaiah and others Vs. K.Addanki Babu and others : (1998) 6 SCC 720, again same question fell for consideration before the Supreme Court as to what would be the impact of seniority cum merit criteria vis-a-vis merit cum seniority criteria. Their Lordships in Paras 17 and 18 of the judgment, held as under:- “17. On behalf of the promoted officers, it was urged that for the purpose of promotion on the basis of seniority-cum- merit, seniority means the length of service and that among officers who were appointed on the same date and have the same length of service, seniority can have no bearing and promotion has to be made on a comparative assessment of merit of such officers.

We are unable to agree. While applying he 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. Such determination of seniority confers certain rights and the SBCWP NO.6693/97. 10 principle of seniority-cum-merit gives effect to such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion on the basis of seniority-cum-merit, seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service.