Milkhi Ram Bhagat vs State of Jammu and Kashmir

Counsels heard. Petition admitted.

With the conset of the parties, the petition is taken up for final disposal.

By projecting the seniority, the petitioner, who is working as Deputy General Manager with the Jammu and Kashmir Bank Ltd., is seeking

promotion to the post of General Manager in the aforementioned bank. He submits that he has merit also. He has given details of his service profile

and submits that he is a fit candidate to he promoted to the aforementioned post. The service profile as given by him even though, not much

relevant for the purpose of disposal of this petition, is being noticed in brief.

The petitioner submits that he is the seniormost Deputy General Manager and therefore, he should be given promotion. He came to be

appointed as Deputy General Manager in June 1995. He has 27 years of service to his credit. He has during this period held varied assignments.

He submits that the management had been acting with prejudice and he had to struggle hard to earn earlier promotions which were due to him. He

submits that he had apprehension that he would be superseded in the matter of promotion to the post of General Manager. He filed a petition in

this court. This bore No.353 of 1997. This petition, as per the petitioner, was fixed for preliminary hearing for 13.03.1997. The respondentbank

however passed order first promoting three and later on four Deputy General Managers, as General Manager. These orders were issued on

10.03.1997.

In the above circumstances, the aforementioned writ petition was withdrawn. The present petition was filed challenging the order by which the

aforementioned respondents were promoted.

Respondents' Bank lias filed the objections. It is submitted that writ cannot be issued against the bank as the bank does not fall within the

purview of the term ""authority"" as contemplated by Article 12 of the constitution. It is further submitted that the only right of the petitioner is that he

should be considered for the higher assignment. Merely because he is the senior most Deputy General Manager, would not confer any right on him

to claim the post of General Manager as a matter of right.

It has been seen that the case of the petitioner was considered by the Board of Directothers This happened on 10th of March 1997. All eligible

officers were considered. Taking into consideration the merit, suitability, service record, jobknowledge and experience, respondents No 6 to 9

were selected and promoted. The petitioner was not given the promotion.

There is no dispute that the post of General Manager is a Selection Post. It is to be filled by taking into consideration the principle law of merit

cumseniority.

What is meant by merit.

The dictionary meaning of the term ""merit"" is ""excellence that deserves honour or reward, worth, value, desert that which one deserves"", This

again, can, by no means be taken to be a complete definition of the term, ""merit"". For judging one's merit, one may also take into account the time,

and energy devoted and the suitability of a person for a higher post, the requirements of such higher post have also to be kept in view. The

recognition of merit, by and large, will depend on considerations which cannot all be put in a straight Jacket. No doubt the term ""merit"" is not

capable of easy definition but it can be safely said that ""merit"" is a sum total of various qualities and attributes of an employee, such as his academic

qualifications, his distinction in the University, his character, integrity, devotion to duty and the manner in which he discharges his officier duties.

Allied to this, may be various other matters, or factothers such as his punctuality in work, the quality and out turn of the work, done by him and the

manner of his dealings with his superiothers and subordinate officers and the general public and his rank in service.

It may again be seen that there is a clear distinction between the concept of ""meritcumseniority"" and ""meritcum fitness"" or ""senioritycummerit"".

Where the promotions are to be made on the basis of seniority cum merit then all things equal, the person senior is to be given preference.

Whereas merit is the sole criteria then merit takes precedence over all the other matters. The distinction between these terms has been pointed out

by a full Bench of Himachal Pradesh High Court in Hari Dutt Kainthla Vs. State of H.P., (1974) I SLR 208. It was observed that the

seniorityaimfitness implies that the senior person unless fit should get the promotion This principle may not be found satisfactory, because it implies

essentially that seniority be given prepondering weight. Senioritycumfitness or senioritycummerit is simply applied at the lower level. It has also

been applied in promotion from a junior scale to a senior scale within the same service. But when the question arises of appointment to a higher

service consisting of posts carrying superior responsibility, the emphasis shifts from senioritycumfitness to meritcumseniority. Meritcumseniority

principle implies of merit is the dominant factor. The principle of merit determines that the most meretorius or the best qualified is selected for

promotion, when merit is the dominant principle, the rule of meritcumseniority is applied. When the assessment of any particular officer has to be

made by higher authorities, the assessment cannot be judged by applying any mechanical formula or mathematical calculations. What has to be

considered is whether the authority concerned has properly assessed the merits of the particular officer or not. The judgment about this assessment

on merits cannot be adjusted in the pigeonholes of arithmetical calculations.

10, It is again a settled law that when the selecting authority takes a decision then the High Court in the exercise of power of judicial purview is not

to interfere with the decision of the departmental authorities. See ""Union of India Vs, Durgadass and others, AIR 1978 SC 1132. See also

Gurdial Singh Fijji Vs. Union of India, AIR 1979 SC 1622 (1623).

To sum up it can be said:

i). As to what is meant by merit and as to who is meritorious is a matter which should be left to be decided to the Selecting Authority.

ii). There is a clear distinction between the concept of ""meritcumseniority11 and senioritycummerit"".

iii). That in the case of ""merit cumseniority"", merit takes precedence over ajl other matters.

iv). If decision taken by the selecting authority is reasonable then this court is not to exercise power of judicial purview. It is not to act as Appellate

Authority. See ""Sri Kanwar Singh Vs. State of Haryana Jt (1997) 3 SC, 732.

12, It be seen that at the time of consideration, total marks were divided into sub heads. These heads were Service record, jobknowledge,

expression and thought, appearance and personality, general awareness, variety of experience, integrity and potential. On the basis of the above

breakup marks were given. The petitioner was unable to make the grade. He was not selected for the post of General Manager.

As indicated above, the petitioner had only one right. This right was for being considered for appointment to the post of General Manager. He

was duly considered. He could not come high up. In this regard, it would be apt to mention that an exercise was undertaken by the Selection

Committee. A meeting was held on 6th Aug 96 Respondents No.6 and 7 were selected When the matter was placed before the Board to ratify

the decision of the Selection committee, a decision was taken with a view to create more posts. The total strength of General manager cadre was

increased to five including one post from outside the cadre For filling these additional posts, fresh exercise was taken on 10th March 97

Respondent No.8 came to be selected as an in service candidate and respondent No. 9 came to be selected as a candidate from outside the

cadre. In these circumstance, respondents No. 6 to 9 came to be selected as General Managers. In both the Selections. the claim of the petitioner

was duly taken note of. He was judged as per the parameters indicated by the Bank. These parameters have already been noticed above. On both

the occasions, the petitioner was unable to make a mark.

Some suggestion of bias has been made in the petition. The person who might have been biased has neither been named nor arrayed as a

respondent. These vague pleas as such are liable to he ignored. It cannot be said that the nonselection of the petitioner was actuated by malafide

consideration.

As such, no fault can be found with selection by which respondents 6 to 8 came to be promoted and by which respondent No. 9 came to be

appointed as General Manager This petition as such is found without merit and is dismissed.