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Supreme Court of India
Tek Chand vs Bhakra Beas Management Board … on 29 July, 2021Author: Navin Sinha
Bench: Navin Sinha, R. Subhash Reddy
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4482 OF 2021
(arising out of SLP(C)No.28392 of 2018)
TEK CHAND AND OTHERS …APPELLANT(S)
VERSUS
BHAKRA BEAS MANAGEMENT BOARD
(B.B.M.S.) AND OTHERS …RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The appellants were promoted to the post of Leading
Fireman on 09.02.2012 under the Bhakra Beas Management
Board ClassIII and ClassIV Employees (Recruitment and
Conditions of Service) Regulations, 1994 (hereinafter called “the
Regulations”). Their promotions have been annulled by the High
Court, holding them to be ineligible for promotion under the
Regulations.
Signature Not Verified
Digitally signed by
Rajni Mukhi
Date: 2021.07.29
16:54:16 IST
Reason:
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3. The post of Fireman is a feeder post for that of Leading
Fireman. The appellants are admittedly senior to respondent no.3
having been appointed as Fireman on 09.02.1991. Respondent
no.3 was appointed as Fireman on 09.01.1992. The respondent
filed a writ petition claiming to be considered for promotion as
Leading Fireman in view of available vacancies. The appellants
came to be promoted during the pendency of the writ petition and
were impleaded as respondents. No relief was sought against the
appellants. The High Court annulled the promotion of the
appellants as ineligible under the Regulations, and directed the
promotion of respondent no.3.
4. Shri S.N. Bhat, learned counsel for the appellants,
submitted that the appellants are admittedly senior to
respondent no.3. Regulation 5 provided that promotion was to be
based on the senioritycummerit principle. The appellants held
a good service record. The Departmental Promotion Committee
after consideration of their candidature promoted them on
09.02.2012 as Leading Fireman. Respondent no.3 had sought no
relief for annulling the promotion of the appellants, yet the High
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Court travelled beyond the pleadings to grant a relief not sought
by respondent no.3.
5. Shri Bhat submits that the possession of an appreciation
certificate under serial 3 of Schedule ‘A’ of the Regulations was
not an independent requirement in addition to a good service
record. It was but only a facet of the good service record. He
relies upon a passage from Principles of Statutory Interpretation
by Justice G.P. Singh, 9th Edition, which reads as under:
“It is also not unusual to find use of pairs of
words as a composite class. An example of this
nature is found in section 22(1) of the Common
Regulation Act, 1965 which uses the
expression ‘sports and pastimes’ as a
composite class. In interpreting this expression
LORD HOFFMAN said: “As a matter of
language I think that ‘sports and pastimes’ is
not two classes of activities but a single
composite class which uses two words in order
to avoid arguments over whether an activity is
a sport or pastime. The law constantly uses
pairs of words in this way. As long as the
activity can properly be called a sport or a
pastime, it falls within the composite class. [R.
v. Oxfordshire County Council, (1999) 3 All ER
385 p.396 (HL)]”
The High Court erred in holding that the two were conjunctive
requirements and in absence of appreciation certificates, the
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appellants were ineligible to be considered for promotion. Under
the Regulations, promotion was to be based on senioritycum
merit. Since the appellants held good service records and were
senior to respondent no.3, they were rightly promoted on
09.02.2012. Appellants nos.1 and 3 have since retired from
service. The promotion of the appellants was protected, both
before the High Court and during the pendency of the present
appeal. They have uninterruptedly continued on the post of
Leading Fireman. Respondent no.3 has also been promoted
subsequently on 21.07.2014 with effect from 09.02.2012.
6. Shri Kailash Vasdev, learned senior counsel appearing for
the management, submitted that promotion from the post of
Fireman to Leading Fireman under the Regulations are based on
senioritycummerit principle alone. The appellants are
admittedly senior to respondent no.3. There were 21 other
persons above respondent no.3 in the seniority list of Fireman, as
mentioned in the counter affidavit before the High Court.
Respondent no.3 could not have been granted promotion
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superseding so many persons without examination of their
claims.
7. Shri Vikas Upadhyay, learned counsel for respondent no.3,
submitted that the requirements to show appreciable initiative
and to obtain good reports cannot be telescoped together, as
suggested on behalf of the appellants, but are separate
requirements. The respondent alone possesses an appreciable
initiative certificate dated 14.08.2011 from the Chief Engineer. It
was acknowledged that the respondent has also since been
promoted with effect from 09.02.2012. The respondent, though
junior but being more meritorious than the appellants, there has
been no violation of the senioritycummerit principle.
8. We have considered the submissions on behalf of the
parties. Regulations 4(5) and 5, relevant to the controversy, read
as follows:
“4. Mode of appointment
xxxxxx
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4(5) Notwithstanding anything contained in these
regulations appointment by promotion shall be made by
selection based on senioritycummerit and no employee
shall be entitled to such appointment as of right.
5. Qualification No person shall be appointed to the service
unless he possesses the essential qualifications and
experience prescribed in Schedule ‘A’ annexed with these
regulations.”
9. Serial 3 to Schedule ‘A’ (for Group VIII) prescribing the
qualifications for promotion to Leading Fireman from Fireman
inter alia reads as follows:
Sr. Name of Method Minimum Educational and other Minimum
No. Post of qualifications Experience
Appoint
ment
3. Leading By Qualified in sub–Fire Officer’s 5 years
Fireman promoti course from National Fire Service experience in
on from College, Nagpur or equivalent Fire Service
amongst
degree with heavy vehicles driving
firemen
license
or
Qualified in Fire Course arranged 7 years
by Ministry of Defence or Home experience in
Affairs with heavy vehicles license Fire Service
or
Departmental candidates without
10 years
any course who show appreciable experience in
initiative and obtain good reports Fire Service
with heavy vehicle license
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10. The Regulations provide that appointment by promotion is
to be made by selection based on senioritycummerit and no
employee is entitled to appointment as a matter of right.
Schedule ‘A’ provides three different categories of Fireman eligible
to be considered for promotion to Leading Fireman. We are not
concerned with the first two categories. The appellants and
respondent no.3, all belong to the third category. They do not
possess any proficiency qualifications but have 10 years’
experience as Fireman. It was expected that they would acquire
sufficient experience by that time to be considered for promotion.
Experience and skill acquired during onthejob training is very
different from expertise acquired based on preceding proficiency
qualifications from accredited institutions.
11. The term selection used in Regulation 4(5) and its
connotation in respect of the third category of Fireman has to be
understood in that context. Though a good service record would
be a sine qua non for selection based on senioritycummerit, but
if a Fireman appeared to have acquired better proficiency by on
thejob training by reason of an appreciation certificate, he would
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certainly be considered in possession of an additional attribute.
The appellants have not been granted appreciable initiative
certificates in performance of their duties. We find it difficult to
uphold the reasoning that both requirements were mandatory
and conjunctive for promotion or that appreciable initiative was
only a facet of a good service record. If that were so, there was no
need to incorporate appreciable initiative as a separate head in
the Regulations. To interpret it otherwise is to render a part of
the Regulations as redundant. The language of the Regulations
being clear, it shall require a literal interpretation. The view be
taken by us is fortified from the endorsement by the Chief
Engineer on the appreciable initiative certificate given to
respondent no.3 that it should be annexed to his service record.
12. In other words, a person possessing good reports is eligible
to be considered for appointment by promotion as Leading
Fireman based on selection. Other things being equal between
competing candidates, seniority is to be given due weightage.
But it does not mean that even if a junior is more meritorious by
way of possessing an appreciable initiative certificate which the
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senior does not, irrespective of the same, the senior shall march
ahead on the senioritycummerit principle.
13. The fallacy in the thinking of the management is evident
from the letter of the Secretary dated 06.02.2011 in context of the
writ petition filed by respondent no.3, opining that under the
Regulations there was no provision for extra weightage of
appreciation letter issued to employees. We are unable to
sustain the same.
14. The senioritycummerit principle is well established in
service jurisprudence and does not need much discussion. In
B.V. Sivaiah and Ors. vs. K. Addankl Babu and Ors., (1998) 6
SCC 720, explaining the principle of senioritycummerit in
service jurisprudence, this Court observed as follows:
“10. On the other hand, as between the two principles
of seniority and merit, the criterion of “senioritycum
merit” lays greater emphasis on seniority. In State of
Mysore v. Syed Mahmood [AIR 1968 SC 1113 : (1968)
3 SCR 363] 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 senioritycummerit, this
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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 senioritycummerit, 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] A.N. Ray, C.J. has thus explained the criterion of
“senioritycummerit”: (SCC p. 335, para 38)
“With regard to promotion the normal principles
are either meritcumseniority or senioritycum
merit. Senioritycummerit means that given the
minimum necessary merit requisite for efficiency
of administration, the senior though the less
meritorious shall have priority.”
xxxxxxxxxx
18. We thus arrive at the conclusion that the criterion
of “senioritycummerit” 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
senioritycummerit.”
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15. We are unable to sustain the view taken by the High Court
that it was only if a candidate possessed an appreciable initiative
and also obtained good reports, then only he was eligible to be
considered for promotion. The use of the word ‘and’, to our
understanding does not make it compulsory for the candidate to
possess both because in that event the question of selection from
amongst the eligible post on the senioritycummerit principle
would not apply stricto senso.
16. Respondent no.3 had not sought any relief for setting aside
the promotion of the appellants. The High Court travelled beyond
the pleadings in annulling the promotion of the appellants. The
High Court even while holding that promotion was not a matter
of right, nonetheless instead of directing consideration of the
claim of respondent no.3 for promotion, exceeded its jurisdiction
by issuing a mandamus for promotion. The High Court
completely lost sight of the objection of the management that
there were many others senior to respondent no.3 in the category
of Fireman. A writ petition by respondent no.3 could not become
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a springboard for out of turn promotion superseding his seniors,
taking them by surprise without an opportunity to contest even.
The impugned order directing promotion of respondent no.3,
causes discrimination by a judicial order leaving the aggrieved
remediless as observed in Bharat Petroleum Corporation Ex
employees Association vs. Bharat Petroleum Corporation
Ltd. (1995) 2 SCC 15. Appropriately the High Court ought to
have directed consideration of respondent no.3 for promotion in
accordance with law. However, in the facts of the case we are not
inclined to interfere with the promotion of respondent no.3.
17. The appeal therefore is allowed holding that the appellants
were eligible to be considered for promotion. Their orders of
promotion are restored subject to the principle of senioritycum
merit as discussed hereinabove.
………………………….J.
[NAVIN SINHA]
………………………….J.
[R. SUBHASH REDDY]
NEW DELHI
JULY 29, 2021.
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