Syed Abdur Razzack vs Chairman, Andhra Pradesh State Wakf Board, Hyderabad

The petitioner was working initially as Upper Division Clerk (U.D.C.) and Inspector-Auditor in the Andhra Pradesh State Wakf Board (hereinafter referred to as Board). The seniority list of UD.Cs. was published and communicated in 1984 by proceedings No.El/134/84 dated 27-9-1984 wherein the petitioner was shown at serial No.l while the Respondents 2 to 4 were far below at serial Nos. 14,33 and 35 respectively. In 1979 the petitioner was promoted as Superintendent, Accounts Section by the Board vice Sri MA Raoof ''who had retired, The petitioner himself declined the promotion on the ground that he was required to continue at Kumool in view of the illness of his mother. He therefore refused the said promotion. Later on, he was transferred to Hyderabad in the office of the first respondent The petitioner was thus eligible for promotion and in fact the promotion given lo him in 1979 showed that he was qualified also. The petitioner submits that after he came lo Hyderabad he was not considered for promotion as Superintendent and his juniors came to be promoted through the impugned proceedings dated 8-8-1988 vide E. 1/134/84. The petitioner challenged The failure of the Board lo consider his claim for promotion though he was senior Respondents 2 to 4 were promoted ahead of him by ignoring his seniority. It is further urged that one Mr. H.A. Ansari the fifth respondent had retired from service in 1985 itself but was continued as Superintendent on temporary basis. The petitioner''s claim is that even at that time he was ignored while the retired person was re-employed/continued. In these circumstances the petitioner has approached this Court for seeking a direction that the proceedings dated 8-8-1988 promoting the respondents 2 to 4 is illegal and arbitrary and, that his claim should be considered for the post of Superintendent. It is his contention that he should be promoted and appointed as Superintendent with all consequential benefits from the date on which his juniors were promoted.

The Board has not disputed that the petitioner was senior as U.D.C. It is admitted that the petitioner was promoted as Superintendent in 1979 and that he refused the said promotion as he wanted to continue at Kumool as U.D.C. on the ground of illness of his mother. It is stated that the post of Superintendent does not go merely by seniority. The petitioner''s service record is not good. Instances have been given about the acts of dereliction/negligence of the petitioner during his service right from 1976 till 1981. It is also stated that for preparing the list of qualified persons for promotion Departmental Promotional Committee was constituted and the said Committee took into consideration certain parameters and found the Respondents 2 to 4 as the fittest persons for promotion. According to the Regulations framed by the Board the criterion for promotion is merit and, not seniority alone. As the petitioner was found lacking in merit in comparison to the candidates who were promoted, the petitioner''s case cannot be accepted. It is further pointed out that the petitioner did not exhaust his remedy under the Andhra Pradesh Wakf Regulations 1963 wherein an appeal is provided under Regulation 17(3) to the Board. The Board is the competent appellate authority. For all these reasons it is contended that the petition should be dismissed.

Before the contentions raised are considered I think that it is necessary to refer to Regulation 25 of the Regulations framed by the Board under A.P. Wakf Regulations. u/s 68 of the Wakf Act, 1954 it is permissible for the Board, with previous sanction of the State Government, to make regulations and rules for setting out the terms and conditions of service of the officers and servants of the Board. Such regulations have been framed by the Board in exercise of its power. Regulation 25 runs as follows :

"25. Promotion and efficiency :

All promotions to higher grades or ranks shall be on the basis of seniority cum merit and fitness. No one shall be promoted who is not on the basis of his record, and in the opinion of the appointing authority fit for promotion and of those who are fit only the fittest shall be promoted to any particular vacancy, the factor of seniority being taken into account only when all other factors and particularly the factor of merit are approximately equal."

The question for consideration, therefore, is as to whether this Regulation indicates that the promotion is based purely on seniority ?

The petitioner''s whole case is based on the argument that he being the senior most, his claim should have been considered first and he was entitled to be promoted in view of his seniority. The settled legal position is that if the rules or concerned regulations provide a certain mode of promotion the employee cannot contend that he should have been promoted in violation of those regulations or rules. Promotions can be on the basis of mere seniority, or, they can be on the basis of seniority cum merit or, on the basis of merit cum seniority or, purely on merit It all depends on the rule position in respect of the particular promotion which is the subject of consideration. While making selections for promotion to higher post, if the promotion is based on seniority cum merit basis then the seniority will be respected normally and a person who is not unfit but senior will get his due promotion. It is only when person is unfit that he can be ignored for promotion when the promotion is based on seniority cum merit basis. Where the promotion is to be given only on the basis of seniority it is not necessary to even assess the fitness or unfitness of the person. Promotion will go only by seniority. However, where the promotions are to be made on the basis of merit cum seniority the merit has to be considered first and while promoting the candidates having merit they take along with them their seniority in the promotional post. In cases where the promotion is based purely on merit in the promotional cadre, the seniority will be fixed according to the respective merit of the candidates as assessed by the Promotional Committee. These are the broad features of various schemes of promotion. It is, therefore, necessary to find out as to in which of the schemes Regulation 25 fits in. It appears that Regulation 25 is not very artistically drafted. The drafting is clumsy to some extent. However, on reading the Regulation as a whole, I find that the pith and substance of the said regulation is that it adopts merit cum seniority as the criterion. In the first part of the regulation it is no doubt staled that promotions to the higher grade or rank shall be on the basis of seniority, merit and fitness. However, the later part of the Regulation in no uncertain terms states that no one shall be promoted unless he is the fittest among the fit and that the factor of seniority will be taken into account only when all other factors, particularly the factor of merit, are approximately equal. Therefore, if the factor of merit is not equal then the seniority is inconsequential. It is thus clear that the regulation in effect gives priority to merit and seniority will be respected only if merit of two candidates is approximately equal. Otherwise the seniority does not have any primacy. It is due to the clumsy language used in the regulation that the petitioner thought that mere seniority was sufficient to claim the promotion in question.

It is difficult to accept the contention of the petitioner that because he was promoted in 1979 he has acquired right of promotion to the subsequent vacancies also. I think, this is a misconception. May be that he was found suitable for promotion in 1979. He had declined the said promotion. There is no vested right in any employee to urge that once he figures in the list of selected candidates he ought to be included in all future selection lists. The selection list can be operated only for that particular year or, for filling the particular vacancies, as the case may be, The selection list cannot remain operative in perpetuity. In other words, a person selected once, cannot claim that he can take up the promotional post at any time in future as per his wishes, in any year and in any vacancies that may arise subsequently. The concerned person must figure in the concerned selection list. In view of this true position, the contention of the petitioner that his selection in 1979 for the post of Superintendent enables him to claim the said post even in 198 8 is totally meritless.

It appears from the counter that the Board had received certain complaints about the petitioner right from 1976. Instances have been given about his unsatisfactory work and performance in 1976, 1977 and 1979. Obviously these instances are not relevant because admittedly in 1979 the petitioner was promoted and therefore it clearly showed that the Board had ignored or waived the past unsatisfactory conduct of the petitioner. But that cannot be stated about the instances which have been quoted in respect of conduct after 1979. Be that as it may, the fact remains that petitioner was considered by the Departmental Promotional Committee which was constituted by the Board for the promotion which is now under challenge. The petitioner was not found amongst the list fittest persons drawn up by the Departmental Promotional Committee. He cannot, in the circumstances, agitate that he should have been considered ahead of the persons who were found as the fittest by the Departmental Promotional Committee..

As far as the petitioner''s contention that Sri H.A. Ansari was continued in service even after his retirement. I fail to understand as to how it is relevant for petitioner''s claim for promotion. Ultimately unless the petitioner is found fit among the fittest for the promotion his case cannot be considered in any promotional vacancy.

The view, which I have taken regarding the interpretation of Regulation 25, is strengthened by the observations made by a learned single Judge while deciding writ petition No. 7221 of 1979. The said writ petition was disposed of on 4-10-1985 by Justice Lakshman Rao (as he then was). The learned single Judge observed while interpreting Regulation 25 as follows:

"So the promotion to a higher post is intended to be on the basis of selection having due regard to the merit and, seniority is taken into consideration only when merit is found to be approximately equal. Though the regulation is somewhat ambiguous, in view of the clear indication given in the later portion of Regulation 25(1) it will be proper to hold that a promotion to a higher post is intended to be made on the basis of merit, seniority playing a subsidiary role."

Having regard to all the facts and circumstances I do not find that the petitioner had any right to promotion merely on account of seniority. His case was considered and he was not found amongst the fittest candidates and therefore was not promoted. The only right the petitioner had was of his case being considered. The case was considered and the petitioner had no further right of promotion as such.

There is considerable substance in the contention raised by the Board that the petitioner did not exhaust the alternative effective remedy by filing appeal under Regulation 17(3) before the Board. However, it is not necessary to dismiss the writ petition on that ground as in view of the considerable lapse of time it would be meaningless to drive the petitioner to file an appeal now. But on merits itself I find that the petitioner has not made out any case, as a result it deserves to be dismissed.

Writ Petition is accordingly dismissed. No order as to costs in the circumstances.