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Judgment
R.C. Gandhi, J.—Through the medium of this petition, the petitioner is seeking relief of issuance of a Writ of Mandamus directing the
Respondent No. 1 to promote the petitioner to the post in the cadre of AssistantDivisional Manager/Senior Branch Manager and in the alternative
for quashing the promotions of the respondents 5 to 67.
The petitioner has averred in the petition that he was appointed as Assistant Administrative Officer pursuant to All India Competition and sent
for one year training at Officers Training College, Bombay and Life Insurance Corporation Divisional Office, Jabalpur. He was adjudged as
second best Officer of the group during the training course and awarded a silver medal and wrist watch for his best performance. He was
promoted as Administrative Officer in the year 1984. He has submitted that he is eligible for consideration and promotion to the post of Assistant
Divisional Manager/Senior Branch Manager, but the respondents 1 to 4 have not considered and promoted the petitioner to the next higher grade.
The Officers for promotion have been considered up to the year 1984 batch and for such consideration, no interview was conducted for adjudging
merit and suitability of the eligible Officers. The Departmental Promotion Committee was left with confidential reports of the Officers to be
considered for promotion. The petitioner further submits that his ACRs for the years 1984 to 1988 do not contain any adverse entry and no
adverse remarks have been communicated to the petitioner. The petitioner illegally had been denied promotion by the respondents 1 to 4 and
against the illegal and improper denial of promotion, the petitioner made a representation to the Managing Director, Respondent No. 1, but failed
to get justice as the petitioner has not heard anything about the fate of his representation and his request for personal interview. The petitioner has
alleged that the record of performance of the petitioner has remained excellent and despite that fact, the petitioner being senior to respondents 5 to
67 having no adverse entry in the Confidential Reports, has been deprived of the promotion illegally.
The contesting respondent No. 1 has filed the counteraffidavit controverting the factual and legal grounds. Respondents 1 to 4 have stated that
the selection of the candidates for promotion to the next higher post have been made in accordance with Regulation No. 7(3) of the Life Insurance
Corporation of India (Staff) Regulations, 1960. The number of eligible Officers for according consideration for selection and promotion would
normally be two/three times more to the required number of vacancies to be filled up. The respondentChairman under his order dated 19.1.1989
appointed a Assisting Committee as required in terms of SubRegulation (2) of Regulation 7 of the (Staff) Regulations, 1960. The Assisting
Committee was furnished with the Confidential Reports of Officers eligible for promotion and after considering the eligible Officers, the committee
recommended 243 Officers for promotion to the cadre of Assistant Divisional manager/Senior Branch Manager. It is further submitted that the
petitioner was also considered by the Assisting Committee and was not recommended for promotion as he was not found suitable for promotion in
terms of Regulation 7(3) of the Staff (Regulations), 1960.
The petitioner has filed the rejoinder, controverting the counter filed by the respondents, stating therein that the case of the petitioner was not
properly considered by the Assisting Committee and the service record made available to the Assisting Committee was neither proper nor correct,
which consisted of adverse entry in the Confidential Reports, which was neither served nor communicated to the petitioner. Such adverse entries
would not have been read and used against the petitioner. The Committee has also not given reasons for nonsuitability of the petitioner for
promotion.
The respondents filed CMP (SWP) No. 3493/90 for amendment of the reply affidavit. The petitioner has also filed CMP No. 1776/90 for a
direction to the respondents 1 to 4 to file better written statement specifically admitting or denying the allegations as highlighted in the application.
Both these applications were allowed by the Court on 22.11.1991 permitting the respondents to file fresh replyaffidavit within four weeks
mentioning all the pleas and also to specifically denying or admitting the pleas raised by the petitioner. Perusal of the file reveals that the
respondents sought and were granted further opportunities, but ultimately on 17.11.1993, the right to file the fresh replyaffidavit was closed.
For clarity and appreciation of pleadings, the respondents 1 to 4 were directed to produce the record of selection and promotion, which was
made available at the time of hearing by the learned counsel for the respondents.
I have heard the learned counsel for the parties and perused the record.
The respondents 1 to 4 have contended that the selection has been made in terms of Regulation 7(2) and 7(3) of the Life Insurance Corporation
of India Staff (Regulations), 1960, which are reproduced as under:
7(2) In making selections and promotions the appointing authority (vide Schedule I) shall be assisted by Committees herein prescribed :
(i) Posts belonging to Class I.
(a) Posts in the cadre of Zonal Managers and above or equivalent cadres Executive Committee.
(b) Posts in the cadres of Dy. Zonal Manager/Sr. Divisional Manager, Divisional Manager and equivalent cadres Chairman and three Officers not
below the rank of Zonal Manager.
(c) Posts in the cadres of Assistant Divisional Manager/Sr. Branch Manager and equivalent cadres Managing Director and three Officers not
below the rank of Zonal Manager.
(d) Posts in the cadres of Administrative Officer/Branch Manager and equivalent cadres Three Officers not below the rank of Zonal Manager.
(e) Other posts in Class I One Officer not below the rank of Divisional Manager and two officers not below the rank of Divisional Manager at
least one of whom will be from the Central Office.
xxx xxx xxx
xxx xxx xxx
Provided, however, the appointing authority may nominate on the aforesaid committees additional members if necessary.
7(3) Promotion shall be based on merit, suitability of the candidate for particular post and seniority. Merit and suitability may be judged by
confidential reports and/or interviews and/or examinations.
Regulation 7(2) provides for appointment of Assisting Committee. Regulation 7(3) envisages that the promotion shall be based on merit,
suitability and seniority. Merit and suitability is required to be adjudged on the basis of the confidential reports, and/or interviews and/or
examinations.
In the present case, the respondents 1 to 4 have neither conducted interview nor examination. The merit and suitability appears to have been
determined on the basis of the confidential reports only. It is not disputed by the respondents that the petitioner is not senior to the respondents 5
to 67. However, the stand of the respondents 1 to 4 is that the petitioner was considered and had not been found suitable for promotion. The
petitioner has been superseded by a number of his juniors. The perusal of the ACRs of the petitioner for the period 1984 to 1988 reveals that he
has been assessed by giving Rating : Outstanding A, well above average B+, Above average B, AverageC, below AverageD. He has secured
Rating A and B+mostly. The respondents 1 to 4 have also submitted list of Branch Managers considered for selection as Assistant Divisional
Manager/Senior Branch Manager. The petitioner appears to have been considered at Serial No. 385 and have not been shown as selected. The
only thing, suggestive on the list of consideration, that a candidate has been selected, is that, his serial No. is marked. The columns in the list of
consideration are:
(1) Serial No.
(2) Name, qualification, posting place.
(3) Date of birth.
(4) Remarks.
Every page of the list has not been signed by the members of the Assisting Committee and the remarks column is totally blank. It does not suggest
as to what was the criteria for consideration and what was required to be achieved or secured by the candidate for his selection. The consideration
list does not depict anything except the criteria of pick and choose. The petitioner appears to have not been selected by adopting as subjective
approach and no objective reason is apparent for his nonselection. The consideration for promotion is a fundamental right of an employee and such
consideration should not be subjective but objective. The respondents 1 to 4 though are not under an obligation to keep the record of spade work,
still the respondents cannot escape the legal obligation of justifying the selection/rejection and supersession. Nothing on the record suggests that the
respondents 1 to 4 have promoted 248 Officers as stated by them in their counter, which fact also is not correct on perusal of the record. The
respondents have annexed with the record Officer Nos. 10, 11, 12 and 13 dated 13th May, 1989. Office Order No. 10 of 13.5.1989 indicates
the promotion of 251 Administrative Officer/Branch Managers to the cadre of Assistant Divisional Manager/Senior Branch Manager. Office Order
No. 11 dated 13.5.1989 indicates the approval of 53 Officers to the cadre of Assistant Divisional Managers/Senior Branch Managers. Office
Order No. 12 of 13.5.1989 depicts the placement of six Administrative Officers in the pay scale of Assistant Divisional Managers/Senior Branch
Managers and Office Order No. 13 dated 13.5.1989 further indicates placement of 9 Branch Managers in the pay scale of Assistant Divisional
Manager/Senior Branch Manager.
Promotion is a condition of service and consideration is a fundamental right. The petitioner's performance is adjudged as excellent and well
above average and he expects equal treatment in terms of his consideration and promotion visavis his cadre counterparts. Merely writing of the
name or date of birth of an employee in the list of consideration does not by any standard amount to any consideration. The consideration involves
an application of mind. The Committee should have before it, the ACRs and the criteria adopted for selection. After applying mind on the ACRs,
the Committee should have spelt out the achievement or the gradation of the individual officer according to the criteria, which should objectively
reveal the application of mind. The record of selection to this extent is silent. The Committee has only signed the selection list and there appears to
be no criteria on which the selection list has been prepared. Regulation 7(3) suggests that the promotion shall be based on merit, suitability and
seniority. The record of the Committee does not justify that the Committee has determined the merit and suitability and the selected candidates
have secured better merit and suitability as compared to the petitioner.
The petitioner has been superseded on the ground that he was not found suitable for promotion. Where an employee is superseded as being
not found fit or suitable, the Committee is under legal obligation to record reasons, placing justification to the supersession. No such reasons have
been recorded by the Committee.
The Supreme Court has settled this proposition of law in case Gurdial Singh Fijji v. State of Punjab and others, reported in AIR 1979 S.C.
1622, holding.
We may also indicate, since the High Court saw the file and discovered that the appellant was not brought on the Select list because he was 'not
found suitable otherwise', that regulation 5 which deals with the preparation of a list of suitable officers provides by clause 7 that 'if in the process
of selection, review or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the
proposed supersession'. While dealing with an identical provision in clause 5 of Regulation 5 of the same Regulations as they stood then, this Court
observed in Union of India v. Mohan Lal Capoor, (1974)1 SCR 797 that 'rubber stamp' reasons given for the supersession of each officer to the
effect that the record of the officer concerned was not such as to justify his appointment ""at this stage in preference to those selected"" do not
amount to 'reasons for the proposed supersession' within the meaning of clause 5. 'Reasons' according to Beg, J. (with whom Mathew, J.
concurred) 'are the links between the materials on which certain conclusions are based and the actual conclusions'. The Court accordingly held that
the mandatory provisions of Regulation 5(5) were not complied with by the Selection Committee. That an officer was 'not found suitable' is the
conclusion and not a reason in support of the decision to supersede him. True, that it is not expected that the Selection Committee should give any
thing approaching the judgment of a Court, but it must at least state, as briefly as it may, why it came to the conclusion that the officer concerned
was found to be not suitable for inclusion in the Select List. In the absence of any such reason, we are unable to agree with the High Court that the
Selection Committee had another 'reason' for not bringing the appellant on the Select List.
I see no reason or justification for upholding the selection and promotion, which apparently has been made only on the criteria of pick and choose.
I hesitate to quash the selection because of the legal impediments that the petitioner has not arrayed the promoted officers as party respondents.
The Assisting Committee has selected all the promotees in the same manner, as discussed earlier. Despite that their promotion cannot be set aside
at their back, being not arrayed as party respondents. The position, which emerges is that if the selection cannot be set aside, under such
circumstances, it shall be unjust to deprive the petitioner of his promotion as no reasons whatsoever have been recorded for his rejection or
supersession, though a large number of his juniors have been promoted, who have not been found on record more meritorious.
For the aforesaid reasons, the writ petition is allowed directing the respondents 1 to 4 to promote the petitioner to the post of Assistant
Divisional Manager/Senior Branch Manager from the date of respondents 5 to 67 have been promoted with all consequential benefits. It also
disposes of CMP Nos. 831 of 1989 and 1457 of 1994.