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Judgment
I.M. Quddusi, J.—Challenge in this appeal filed by the appellants is to the order dated 11-12-2006 passed by the learned Single Judge in W.P. No. 947/2006, allowing the writ petition. Facts of the case, in brief, are that the respondents herein were initially appointed as ''Stenographers'' in the erstwhile High Court of Madhya Pradesh and at the relevant time the respondent No. 1 was at Sr. No. 1 in the seniority list of the Stenographers. After bifurcation of the State of Madhya Pradesh into two States and formation of new State of Chhattisgarh, services of the respondents herein have been allocated to the State of Chhattisgarh at their option. In the erstwhile State of M.P. the services of the respondents were governed by the High Court of Madhya Pradesh, Officers and Employees Recruitment and Conditions of Service (Classification, Control, Appeal and Conduct) Rules, 1996 and till the C.G. High Court Establishment (Appointment and Conditions of Service) Rules, 2003 (henceforth ''the Rules, 2003''), came into force w.e.f. 1-10-2003, it continued to be governed by the said Rules.
On 18-5-2001 meeting of the Departmental Promotion Committee constituted by the Chief Justice for considering the cases of eligible Stenographers of promotion to the post of Private Secretary was convened. According to Rule 8 of the Rules, 2003 the post of Private Secretary is required to be filled by promotion against the Personal Assistants on merit-cum-seniority basis, however, at the relevant time none of the respondents was working as Personal Assistant, but they were considered for promotion to the post of Private Secretary. After consideration, the Departmental Promotion Committee recommended the names of respondent Nos. 2 to 6 for promotion to the post of Private Secretary. However, since at that time the respondent No. 1 herein was not possessing the minimum prescribed qualification for promotion, i.e., 100 words per minute pass certificates of English Shorthand, it was recommended that requisite minimum qualification may be relaxed and he may be promoted provisionally with the condition that he must pass English Shorthand examination at the speed of 100 (hundred) words per minute from any recognised Board within a period of two years and only after submission of pass certificate, his case will be considered for regular promotion. Thus, the respondent Nos. 2 to 6 were promoted to the post of Private Secretary, whereas the respondent No. 1 was provisionally promoted to the post of Private Secretary vide order dated 24-5-2001, subject to above stipulation.
Respondent No. 1 obtained the requisite minimum qualification, i.e., pass certificate of English Shorthand Examination at the speed of 100 words per minute, on 20-8-2001 and submitted the certificate with the appellants and therefore, vide order dated 1-10-2002 his promotion was regularised with effect from 20-8-2001, i.e., the date on which he acquired the requisite qualification. Subsequently, on 6-1-2004 confirmation order was passed in which the respondent No. 1 was placed at the bottom of the list of the Private Secretaries.
Respondent No. 1 aggrieved with his displacement in the seniority list submitted representation dated 14-1-2004 for fixation of his inter se seniority but the same has been rejected vide order dated 16-2-2004. Being aggrieved by the rejection of representation, the respondent No. 1 filed writ petition and the same has been allowed by the learned Single Judge by recording a finding that the petitioner''s (respondent No. 1 herein) continuous service, which he rendered in the capacity of Private Secretary, was not liable to be ignored on the garb of subsequent acquisition of requisite qualification.
Learned Counsel appearing for the appellants has submitted that in the order of provisional promotion it is clearly mentioned that only after submission of pass certificate of English Shorthand, case of the respondent No. 1 will be considered for regular promotion and accordingly, the provisional promotion order was regularised from the date of acquisition of requisite qualification, i.e., on 20-8-2001, and the respondent No. 1 was confirmed on the post of Private Secretary on 19-8-2003. It has further been argued that the provisional promotion/appointment to the post of Private Secretary, without there being a substantive appointment to the service, would not inure grant of seniority under the relevant Rules as seniority is not a fundamental right but only statutory right depending upon existing and statutory scheme of the Service Rules and therefore, respondent No. 1 is estopped to claim promotion and seniority from the date on which he was not having requisite qualification. It has further been submitted that promotion was considered on merit-cum-seniority basis and the respondent Nos. 2 to 6 were possessing better merit than the respondent No. 1 at the time of consideration for promotion as on that date the respondent No. 1 was carrying the speed of 80 words per minute in English Shorthand, whereas other respondents were possessing the qualification of 100 words per minute. Lastly, it has been argued that the respondent No. 1 did not raise any dispute when he was given regular promotion vide order dated 1-10-2002, wherein it has been specifically mentioned that his provisional promotion is regularised with effect from 20-8-2001, however, when the consequential order of confirmation was passed on 6-1-2004 whereby the respondent No. 1 was placed below the respondent Nos. 2 to 6 in the list, the dispute was raised by him and therefore, the respondent No. 1 was not entitled to raise the dispute at such a belated stage regarding the discretion exercised in his favour.
Supporting the impugned order passed by the learned Single Judge, it has been argued on behalf of the respondent No. 1 that the promotion given to the respondent No. 1 was neither ad hoc promotion nor without any post or against the stop-gap arrangement, he was promoted against a permanent vacant post relaxing the rules in existence. It has further been submitted that in case there is a condition imposed on any employee in his promotion order, the only requirement of law is that within the stipulated period he should fulfill the condition else the department has right to proceed against him in accordance with law and rules. Therefore, an employee who is promoted to any cadre is entitled for his inter se seniority according to the order of promotion and not from the date when he fulfills the condition. It is further argued that only by order dated 6-1-2004 the respondent No. 1 came to know about his downfall to lowest rung of ladder of seniority and only thereafter he raised his grievance by moving a representation which came to be rejected by a laconic order followed by the writ petition.
We have heard learned Counsel for the parties and perused the records.
The question before us for determination is that for promotion to the post of Private Secretary, whether the seniority of the respondent No. 1 is to be counted from the date of his initial appointment, or from the date when he acquired the requisite qualification, i.e., pass certificate of English Shorthand examination at the speed of 100 (hundred) words per minute ?
If the seniority of the respondent No. 1 is to be reckoned from the date of his initial appointment, and continuous'' officiation from the said date is to be taken to be the criteria to determine seniority, the respondent No. 1 will be senior. However, if the seniority is to be counted from the date of acquiring requisite qualification, i.e., passing of English Shorthand at the speed of 100 w.p.m., the respondent Nos. 2 to 6 will be senior.
Part IV of the Rules, 2003 deals with the source and method of appointment to various Class II posts and Rule 5 (2) of the Part IV prescribes the source & method of appointment of Private Secretary which reads thus :--
Private Secretary: By promotion strictly on merit-cum-seniority basis from Stenographers of the establishment subject to condition that the Stenographer must have passed English shorthand Examination at the speed of 100 words per minute from any recognised Board.
Rule 22 of the Rules, 2003 deals with the power to relax, which reads as under:--
Power to relax.-
(i) Nothing in these Rules shall be construed to limit or abridge the powers of the Chief Justice to deal with Employee of the establishment in such manner as may appear to him to be just and reasonable.
(ii) Where the Chief Justice is satisfied that the operation of any of these rules causes undue hardship in any particular case, he may by order dispense with or relax the particular rule to such extent and subject to such exceptions and conditions as he may deem necessary:
Provided that where any Rule, is applicable to an employee of the Establishment, his case shall not be dealt with in the manner less favourable to him than that provided by the said Rules.
A plain reading of Rule 5(2) makes it amply clear, that possessing of pass certificate of English Shorthand Examination at the speed of 100 wpm from any recognised Board is an essential qualification for holding the post of Private Secretary. This Rule also makes it further clear that consideration for promotion is "merit-cum-seniority".
Further, Rule 22 says that where the Chief Justice is satisfied that operation of any of the rules of Rules, 2003 causes undue hardship in any particular case, he may, by order, dispense with or relax the particular rule to such extent and subject to such exceptions and conditions as he may deem necessary. The proviso to Rule 22 provides that where any Rule is applicable to an employee of the Establishment, his case shall not be dealt with in the manner less favourable to him than that provided by the said Rules.
It is an undisputed fact that on the date when the meeting of the Departmental Promotion Committee was convened for considering the case of the respondents for promotion to the post of Private Secretary, the respondent Nos. 3 to 6 were carrying the speed of 100 words per minute in English Shorthand but the respondent No. 1 was not carrying the said speed and therefore, the respondent Nos. 2 to 6 had been appointed on promotion to the vacant permanent post of the Private Secretary, whereas the respondent No. 1 was given provisional promotion on the condition that he shall acquire requisite prescribed qualification within a period of two years. It has further been mentioned in the said order that only after submitting the said certificate, he will be considered for regular promotion. The first respondent acquired the said qualification on 20-8-2001 and therefore, the appellant No. 1 vide order dated 1-10-2002 appointed the respondent No. 1 on promotion to the post of Private Secretary in the officiating capacity for a period of two years from 20-8-2001. Thereafter, vide order dated 6-1-2004 the respondent Nos. 2 to 6 herein have been confirmed on the post of Private Secretaries w.e.f. 24-5-2003 and the respondent No. 1 has been confirmed w.e.f. 19-8-2003 and placed accordingly in the seniority list of Private Secretaries, Being aggrieved by the said placement in the seniority list, the respondent No. 1 made representation and after rejection of the representation, filed writ petition before the learned Single Judge, which was allowed by the learned Single Judge.
In the matter of Shri Vaijanath Shinde Vs. The Secretary, Marathwada Shikshan Prasarak Mandal, Jeevanrao Deshmukh and The Education Officer (Primary), Zilla Parishad, a conflict in the views expressed by two Division Benches of the Bombay High Court was noticed as one Division Bench has held that the seniority of primary school teachers has to be determined on the basis of date of joining service and continuous officiation irrespective of the date of acquiring D. Ed. qualification, whereas the another Division Bench has held that there is no doubt that for the purpose of seniority, the initial date of appointment is required to be considered but for teachers who fulfill the required qualifications for such appointment. The learned Judges counted the seniority of primary school teacher from the date of acquisition of D.Ed. qualification. Hence, the matter was referred to the Full Bench and a three Judges Bench of the Bombay High Court while answering the reference has held thus :--
For appointment to the post of Head Master (by promotion) of a primary school, the seniority of the teacher is to be counted from the date he acquires educational and training qualifications as prescribed under Schedule B of the MEPS Rules. The seniority cannot be counted from the date of initial appointment and continuous officiation devoid of requisite qualification as prescribed in Schedule B.
In the matter of Shitla Prasad Shukla Vs. State of U.P. and Others, , Hon''ble Supreme Court has held thus :--
An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different streams, and cannot claim seniority vis-a-vis those who have been regularly and properly appointed, till their appointments became regular or are regularised by the Appointing Authority as a result of which their stream joins the regular stream. At that point of confluence with the regular stream, from the point of time they join the stream by virtue of the regularisation, they can claim seniority vis-a-vis those who join the same stream later. The latecomers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellants cannot therefore, succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the Competent Authority, so long as the Competent Authority has acted bonafide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the Court will not overturn the determination unless it would be unfair not to do so. In any view of the matter the appellant who did not even belong to the stream of regularly (he was allowed to teach only in an irregular and unauthorised manner) and lawfully appointed lecturers cannot claim seniority against any one already in the stream before he joined the stream himself. The view taken by the High Court is unexceptionable.
In the matter of Sankar Deb Acharya and Others Vs. Biswanath Chakraborty and Others, the Hon''ble Supreme Court while considering the criteria of ''merit-cum-seniority'' in the promotion has held thus:--
When the principle of merit-cum-seniority is applied, it is now a well-settled principle that great emphasis is on merit and ability and seniority plays a less significant role. Seniority has to be given weightage only when merit and ability are approximately equal....
We propose to examine the facts of present case, in the light of the above principles of law. In the present case, the criteria for promotion to the post of Private Secretary, as prescribed in the Rules, 2003, is ''merit-cum-seniority'' and the requirement of passing of the English Shorthand Examination at the speed of 100 wpm is essential for promotion. It is not in dispute that on the date when the DPC was convened, the respondent No. 1 did not possess the pass certificate of English Shorthand, whereas the respondent Nos. 2 to 6 possessed the same. Thus, it is clear that at the time of consideration for promotion, the respondent No. 1 did not possess the requisite qualification and the same was acquired by him afterward and therefore, the claim of respondent No. 1 for promotion from the date his juniors were granted cannot be accepted for the reason that retrospective effect cannot be given to his qualification. In this view, we are fortified with a decision of the Hon''ble Apex Court in the matter of Puran Das Vs. Union of India (UOI) and Others, , wherein the Hon''ble Supreme Court has held thus :--
For not having requisite basic qualification under the Rules at the time of consideration for promotion--Acquisition of qualification subsequently by appellant would not entitle him to promotion as retrospective effect cannot be given to his qualification.
Further, it is now a well settled principle, as held in Sankar Deb Acharya (supra), that when the principle of merit-cum-seniority is applied, great emphasis is on merit and ability and seniority plays a less significant role. Seniority has to be given weightage only when merit and ability are approximately equal, which is lacking in the case of the respondent No. 1, as in no manner he can be said to be at par with the respondent Nos. 2 to 6, who were carrying 100 wpm English Shorthand speed at the time of consideration for promotion, and respondent No. 1 did not.
Therefore, it can be safely presumed that the probation of respondent Nos. 2 to 6, who were possessing necessary requisite qualification at the time when the meeting of the Departmental Promotion Committee was convened for promotion, had started immediately on their appointment by promotion, whereas, the probation of the respondent No. 1 had started only when he obtained the requisite qualification as the retrospective effect cannot be given to his qualification. In other words, it cannot be said that the person promoted provisionally was holding the promotional post substantially or regularly as at that time he was not possessing the minimum requisite qualification to hold the post and grant of provisional promotion was mercy of the Committee and on that basis, he cannot get any benefit at par with those who were having minimum requisite qualification at the time of such selection for promotion.
So far as the relaxation given to the respondent No. 1 is concerned, it is true that the Chief Justice under Rule 22 of the Rules, 2003 may by order dispense with or relax the particular rule to such extent and subject to such exceptions and conditions as he may deem necessary, but, this Rule cannot be read to mean that while granting benefit under this Rule, the beneficiary can be placed at an advantage as against the one who is otherwise qualified and does not deed the relaxation. The power of relaxation exercised by the Chief Justice in the case of respondent No. 1 can only give him provisional promotion but his appointment could have been regularised only when he acquire the requisite qualification. Since the respondent No. 1 did not possess the requisite qualification at the time of consideration for promotion, his claim for promotion from the date his juniors were granted promotion cannot be accepted. For this view, we are supported by a decision of Hon''ble Supreme Court in the matter of K. Balarama Raju Vs. Ch. V. Subramanya Sarma and Others, wherein the Hon''ble Apex Court, while dealing wit the question regarding determination of seniority of the persons not possessing requisite qualification and given time to acquire the same by the Andhra Pradesh High Court, has held thus:--
...Any such relaxation to permit unqualified candidates cannot be to the prejudice of the qualified candidates. They can be taken into the service but cannot steal a march over the qualified and the selected candidates.
For the foregoing discussions, we are of the considered opinion that for appointment on promotion to the post of Private Secretary, a person must possess requisite qualification at the time of consideration, i.e., pass certificate of English Shorthand at the speed of 100 words per minute, and no person can be legally appointed on promotion who does not hold the requisite qualification. Since upto 20-8-2001 the respondent No. 1 was not having requisite qualification entitling him to hold the post of Private Secretary, the services rendered by the respondent No. 1 during this period as Private Secretary will not qualify for being counted to determine seniority. In the result, the writ appeal is allowed, the impugned order dated 11-12-2006 passed by the learned Single Judge in W.P. No. 947/2006 is hereby set aside and W.P. No. 947/2006 stands dismissed having no force. No order as to costs.