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Judgment
Rule Mr. K. S. Nanavati waives service of rules on behalf of respondent Nos. 1 and 2. Mr. K. G. Vakharia waives service of rule on behalf of
respondent No. 3. At the request of and with the consent of the parties the matter is ordered to be heard today.
Petitioner and respondent No. 3 are serving with respondent No. 1-Bank. They are serving as clerks. The dispute pertains to the posting for the
post of Special Assistant. Both, the petitioner as well as respondent No. 3, are serving at Ahmedabad in different branches of respondent No. 1-
Bank. As per the agreement arrived at between the employees'' union of respondent No. 1-Bank and respondent No. 1-Bank, posting to the post
of Special Assistant is to be made according to para 15 of the agreement, which reads as follows :
Para 15 :
It was agreed that after holding interview for the post of Special Assistants option for the place of posting from the employees declared successful
will be called for. Actual posting shall, however, be made as per availability of vacancies, taking into consideration the seniority aspect. Such
option is to be exercised within 3 days of the receipt of the offer.
Admittedly respondent No. 3 is senior to the petitioner and respondent No. 3 has been asked option in priority to that of the petitioner.
Respondent No. 3 has exercised option in favour of a post at Ahmedabad. Hence petitioner will be required to leave Ahmedabad if she wants to
avail of the promotion to the post of Special Assistant.
Grievance of the petitioner is that respondent-Bank has not followed the relevant provisions of the agreement and has given undue importance to
the seniority aspect. In short the grievance is that seniority has been made the sole basis of decision. From the affidavit-in-reply filed by
respondent-Bank it appears that seniority alone has been taken as the criterion for eliciting the option from the candidates concerned and for giving
posting at a particular place. If one reads para 15 of the agreement, which has been reproduced hereinabove, it is abundantly clear that the phrase
''taking into consideration the seniority aspect'' does not mean that seniority alone is the basis of determination of question regarding posting. After
calling the options from the successful candidates, actual posting is to be made (i) as per the availability of vacancies and (ii) by taking into
consideration the seniority aspect. Thus what the agreement provides is that seniority is also one of the aspects which should be taken into
consideration along with all other relevant aspects for determination of posting at a particular place. Specific mention of ''seniority aspect'' in clause
15 (para 15) of the agreement does not mean that all other relevant factors for determining suitability are excluded.
In service jurisprudence the factor of seniority has so much dominating influence on the minds of the executives that almost every one is
obsessed by the seniority aspect. On account of this obsession other more important and relevant factors often pale into insignificance. Whenever
seniority is made the sole basis for arriving at a particular decision it is nothing but application of an accidental or fortuitous circumstances so as to
avoid another conscious arbitrariness. Seniority may be decided on any relevant principle such as : (i) date of entry in service; (ii) continuous
officiation; (iii) date of confirmation in the order; or (iv) date of passing of certain examination. In all such cases the rank in seniority list will be a
matter of accident in service career of an employee. Seniority is being made the basis or sole criterion for determining certain points or questions
with a view to avoid conscious arbitrariness (which would be nothing but legal malice). To avoid malicious arbitrariness, probably as a lesser evil,
criterion of seniority is being adopted. By doing so, one can to a great extent, avoid conscious application of malicious arbitrariness, but one cannot
in most of the cases, find out meritorious and suitable persons, for merit and suitability do not depend upon accident (of seniority) alone.
Undue importance to seniority aspect cannot be given whenever suitability of a candidate is to be judged. It is obvious that in the instant case the
appropriate authority of the Bank has missed this point. The Bank authority has been misled probably on account of the obsession regarding
seniority aspect which is almost omnipresent like God (or Demon).
In above view of the matter, the decision taken by the respondent authorities offering option to respondent No. 3 solely on the basis of seniority
is required to be quashed and set aside.
In the result the petition is allowed. The decision taken by the respondent-authorities in offering option to respondent No. 3 first for posting on
the post of Special Assistant at a particular branch at Ahmedabad is quashed and set aside. Respondents Nos. 1 and 2 are directed to take
decision afresh taking into consideration all the relevant aspects and also by taking into consideration seniority as one of the relevant aspects. The
fresh decision shall ''be taken on or before January 14, 1989. Rule made absolute accordingly.