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Judgment
The petitioner is before this Court assailing the order dated 03.10.2001, 05.09.2006 and 02.11.2006 impugned at Annexures-M, R and S respectively
to the petition. In that light the petitioner is seeking that the same be quashed and further mandamus be issued to direct the respondent No.1 to
promote the petitioner to E-VI grade with effect from 01.07.1999 from the date on which the respondents No.2 to 4 were promoted. In that regard,
the further promotions to E-VIA E-VII and E-VIII is also sought.
The instant petition was at the earlier instance disposed of by the order dated 09.08.2011 whereby a coordinate bench had quashed Annexures-M
and R and directed the grant of promotion. The respondent herein was before the Hon’ble Division Bench in W.A.No.16028/2011 assailing the
same. The Hon’ble Division Bench through its order dated 23.02.2015 had noticed that the order passed by the respondent herein through
Annexure-S subsequent to the earlier round of litigation in W.P.No.44434/2001 was not considered by the learned Single Judge. Accordingly having
set aside the order of the learned Single Judge the instant petition was restored for consideration in that regard.
It is in that light I have heard Sri P.S.Rajagopal, learned senior counsel for the petitioner, Sri A.G.Holla, learned senior counsel for respondent No.1
and Sri M.Sadanand, learned counsel for respondents No.2 to
The learned senior counsel for the petitioner on referring to the promotion policy and the relevant clauses more particularly clause 6.4.1 would
contend that in respect of promotion in the same cluster once the executive concerned secures 65 marks after assessment by way of determination of
merit as per clause 6.3 the seniority will assume relevance and the persons senior inter-se will have to be promoted as the job content is not relevant
for inter-cluster promotions. Thus contending that the manner in which the seniority-cum-merit should be considered has relied on the decision in the
case of B.V.Shivaiah and others - vs- K.Addanki Babu and others [(1998) 6 SCC 720] wherein it is held that the principle of ""merit-cum-seniority
lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are
approximately equal in the context of the rule considered therein which provided that the selection for inclusion in the list shall be based on merit and
suitability in all respects with due regard to seniority. It is held that on the other hand the criterion ""seniority-cum-merit"" lays greater emphasis on
seniority. But in such case also the officer cannot claim promotion as a matter of right by virtue of seniority alone. In that context it is held as
hereunder;
“We thus arrive at the conclusion that the criterion of 'seniority-cum-merit' in the matter of promotion postulates that given the minimum necessary
merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is
not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and
also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by
assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which
would entitle a person to be promoted on the basis of seniority-cum-merit.â€
The learned senior counsel for the respondent No.1 would however contend that the 65 marks as provided in clause 6.4.1 is the minimum mark that
is required to be secured by an executive to become eligible to be considered for promotion and when a relative assessment is made thereafter, the
suitability would be the essential criteria and a junior who has obtained more marks than the senior is to be considered by the DPC. The clause does
not provide for “seniority-cum-merit†and in that light when 20% of the posts are to be filled by promotion in the same cluster, the more suitable
among the eligible would be preferred after initially assessing such of those candidates who would be considered on the basis of seniority to the limit of
20% maximum posts to be filled up. In such circumstance, it would be “suitability-cum-seniority†is the contention. In support of the contention the
learned senior counsel has relied on the following decisions:
i) In the case of G. Balaji Rao and another -vs- CMD, Bharath Electronics Ltd. and others (W.A.No. 3517-3518 of 2000, dated 31.01.2005 -DB)
wherein a Hon'ble Division Bench of this Court while taking note of the very same Clauses 6.2 and 6.3 of the respondents' promotion policy had
approved the promotion accorded to the person who had secured more percentage of marks. The contention on behalf of the petitioner therein was
that it is merit-cum-seniority and they had performed well.
ii) In the case of K.A.Nagamani -vs- Indian Airlines and others [(2009) 5 SCC 515] wherein in the circumstance the Rule provided that the
promotions will be considered on the basis of suitability-cum-seniority, the consideration along with the other eligible candidates is what is provided. In
seniority-cum-merit, greater emphasis is laid on seniority, though it is not the determinative factor, while in merit -cum-seniority, merit is the
determinative factor.
iii) In the case of K.Samantaray -vs- National Insurance Co. Ltd. [(2004) 9 SCC 286] wherein it is emphasised that in matters of promotion no
employee has right to be promoted, but has a right to be considered for promotion. The principles of seniority-cum-merit and merit-cum-seniority are
conceptually different. For the former, though the emphasis is laid on seniority, it is not the determinative factor, while in the latter merit is the
determinative factor. B.V.Shivaiah's case relied on by learned senior counsel for the petitioner is referred and distinguished.
iv) In the case of Shankar Deb Acharya and others -vs- Bishwanath Chakraborty and others [(2007) 1 SCC 309] wherein it is held that when the
principle of merit-cum-seniority is applied, greater emphasis is on merit and ability and seniority plays a less significant role.
From the above noticed decisions as cited by both sides, the manner of consideration when the promotion is based on “seniority-cum-merit†or
when it is “merit-cum-seniority†has been elaborately considered therein and the position as laid down is that even in the case of “seniority-
cum-merit†though greater emphasis is laid on seniority, the seniority alone is not the determinative factor when the suitability is also to be considered
by the DPC. But in the “merit-cum-seniority†merit is the determinative factor. Hence it is clear that in cases of “seniority-cum-meritâ€, when
all other aspects relating to two candidates is similar or they are on equal footing, the decision to promote will tilt in favour of the person who is senior
unlike a time bound promotion based only on seniority or time spent in the lower cadre. However, in the instant facts, the promotion policy and the
relevant clauses thereunder does not specify as to whether it is either “seniority-cum â€"merit†or “merit-cum-seniorityâ€. Hence, the relevant
clauses will have to be noticed and a decision be taken in that regard by gathering the intention of the existing clauses.
On that aspect of the matter, the learned senior counsel for both the parties and also the learned counsel for respondents No.2 to 4 have sought to
emphasise the need for harmonious construction of the provisions to give effect to all the clauses. The learned senior counsel for the petitioner in that
regard has relied on the following decisions:
i) In the case of Anwar Hasan Khan -vs- Mohd. Shafi and others [(2001) 8 SCC 540] wherein it is held that for interpreting the particular provision of
an Act, the import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, nature of the subject
matter and the purpose and intention of the statute. Effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious
construction. The statute or rule should be read as a whole and effect should be given to all the provisions and a construction that reduces one of the
provisions to a 'dead letter' is not harmonious construction.
ii) In the case of J.K.Cotton Spinning and Weaving Mills Co. Ltd. -vs- State of U.P and others ( AIR 1961 SC 1170) wherein the manner in which
two clauses are to be harmonised is stated. It is held that in such situation the general provisions should yield to the special provisions.
The learned senior counsel for respondent No.1 has on the aspect relating to harmonious contention relied on the following decisions:
i) In the case of Radha Sundar Dutta -vs- Mohd. Jahadur Rahim and others (AIR 1959 SC 24) wherein it is held that if there be admissible two
constructions of a document, one which will give effect to all the clauses should be adopted rather than the one which will render one or more of them
nugatory.
ii) In the case of Sultana Begum -vs- Prem Chand Jain (AIR 1997 SC 1006) wherein it is held that if there are two conflicting provisions in an Act,
which cannot be reconciled with each other, they should be so interpreted that, if possible both should be given effect. Therefore there should be
harmonious construction.
Learned counsel for the respondents No.2 to 4 has also relied on the decision in the case of J.K.Cotton Spinning and Weaving Mills Co.Ltd (supra).
Hence, the promotion policy in the instant facts more particularly the clauses contained in 6.2, 6.3 and 6.4.1 are to be harmoniously construed to
arrive at the an appropriate conclusion. In that regard, it is seen that the promotion to be made in the respondent company is regulated by the
promotion policy for the executives dated 22.02.1989 as at Annexure-F to the petition. In the instant facts the issue relates to the inter-cluster
promotion wherein the petitioner has raised the grievance relating to the promotion from Grade E-V to E-VI. In so far as inter-cluster it provides that
the promotions are to specific vacancies. The principles governing promotion is provided under the policy. Keeping in perspective the nature of the
rival contentions and in that light to take note of the purport of the guidelines, it would be appropriate to extract and notice the relevant clauses which
read as hereunder;
 “6.2. Types of Promotion:
a) Promotions within the same Cluster without reference to availability of vacancies.
b) Promotions between Clusters, subject to availability of vacancies.
Relative merits shall be the governing principle in both the types of promotions.
6.3. Determination of Merit:
The relative merit referred to in Clause 6.2 shall be determined in terms of the following factors:
MAXIMUM MARKS
a) Average Performance Index (API) 35
b) Educational Qualifications 30
c) Length of Service in the grade 20
d) Suitability 15 Average Performance Index (API): API = Total of ratings for preceding 3 years X 35 Highest possible ratings in a year X 3
As a general rule, not more than 5% of executives are expected to have an API of 35 (exceptional performance). In case the percentage is much
higher, the Departmental Promotion Committees shall be expected to apply suitable moderation.
b) Educational Qualifications:
Professional Qualification prescribed for induction at E-II level .. 30 marks
ii) Professional Intermediate .. 20 marks
iii) Under-Graduate, Diploma in Engg/ Graduate in Science/Commerce/ Arts relevant to their functions. .. 15 marks
iv) Matric/ITI .. 5 marks
v) Below Matric/ITI .. 0 marks
A statement of qualifications deemed equivalent to professional and professional intermediate referred to in (i) and (ii) above is given at Annexure-II.
No extra weightage shall be given for qualifications acquired while in service and for qualifications higher than minimum prescribed at the induction
point.
c) Length of Service:
The minimum service eligibility prescribed under Clause (5) shall constitute the datum line. For additional service in the grade, 2.5 marks shall be
allotted for every six months of service over and above the prescribed service eligibility, subject to a maximum of 20 marks.
d) Suitability:
Suitability shall be assessed taking into consideration factors such as potential for growth, work discipline, exposure to different work areas or Units
and any other factor that the Committee may consider relevant. The maximum marks allotted to this factor will be 15 marks.
6.4. SELECT LIST:
6.4.1. Promotion within the same Cluster:
Subject to clearance from vigilance and disciplinary angles, all Executives securing 65 marks or more shall be eligible for promotion in the order of
inter-se seniority in the lower grade. However, in case of promotion from E V to E VI, not more than 20% of eligible candidates will be promoted at
any time.â€
(emphasis supplied)
In the background of the decisions cited by the respective learned senior counsel for the parties, a perusal of the different clauses in the promotion
policy which are relevant, extracted and emphasised above would indicate that it does not explicitly provide as to whether it is based on ""seniority-
cum-merit"" or ""merit-cum-seniority"" for the purpose of promotion from grade E-V to E-VI so as to squarely apply the decisions, which undoubtedly
provides that for the former, greater emphasis is to be laid on seniority but it will not be the determinative factor and in the latter, merit is the
determinative factor. Therefore, taking note of the principle laid down, the other aspects as contained in the Policy noted above, especially clause 6.2
and 6.4.1 will have to be construed in a harmonious manner to gather the purport and to give effect to both the clauses.
In that regard a perusal of clause 6.3 indicates the different aspects on which the relative merit of the executives in E-V is to be assessed. Once
the same is done, clause 6.4.1 will come into operation. The executives who have been assessed and secured up to 64 marks will stand excluded from
the process of consideration for promotion irrespective of their seniority, as they will not be eligible. The executives who have secured 65 or more
marks and are also cleared by the vigilance and there being no disciplinary proceedings pending against them shall become eligible for promotion in the
order of inter-se seniority in the lower grade. The question therefore is as to whether an executive who has obtained 65 marks and falling within the
limit of 20% and senior to an executive who has obtained more marks in the determination of the relative merit is automatically entitled to be promoted
as a matter of right based on his seniority or whether their relative merit is to be taken note for the purpose of promotion.
In order to consider this aspect, a closer examination of clause 6.4.1 with reference to the expressions employed therein will indicate that it does
not state that all executives securing 65 marks or more shall be promoted in the order of inter-se seniority in the lower grade. Instead it employs the
word ""eligible"" and as such a proper understanding would be that all executives who were in E-V and have secured 65 or more marks in their order of
inter-se seniority will be eligible to be considered in the process for actually according the promotion by taking note of the assessment and suitability to
the next higher post and executives among them who have faired better on relative merit from the top can be preferred till 20% of the candidates are
considered and promoted. The others will not be entitled though eligible. This should be the position if the explanation in clause 6.2 is taken note since
it provides that the relative merit shall be the governing principle.
To understand this more appropriately, it would be necessary to provide an illustration.
(i) Executive-A in the assessment of relative merit secures the marks as follows;
a) Average Performance Index (API) 10
b) Educational Qualifications 30
c) Length of Service in the grade 20
d) Suitability 05
Total 65
(ii) Executive-B in the assessment of relative merit secures marks as follow;
a) Average Performance Index (API) 30
b) Educational Qualifications 30
c) Length of Service in the grade 20
d) Suitability 15
Total 95
In the inter-se seniority of grade E-V, Executive A is above Executive B. Both are eligible as per clause 6.4.1 to be promoted to grade E-VI since
both have secured 65 and more marks. Does not the DPC have the discretion to choose Executive-B over Executive-A because on seniority he is
below Executive-A or should it only go by seniority as claimed by the petitioner herein? To answer the question, it is to be noticed that even to assess
suitability which is one of the criteria to assess relative merit, the criteria such as potential for growth, work discipline, exposure to different work
areas or units and such other factors are to be considered. If in that light on assessment the Executive B who is junior but eligible to be considered and
having obtained more marks in the ‘Average Performance Index’ as well as ‘suitability’ criteria and is thus in the relative merit more
meritorious than his senior, he has to be preferred. That would be the effect if clause 6.2, 6.3 and 6.4.1 are harmoniously construed, since the criteria
will be seniority subject to suitability, as otherwise if seniority alone is considered once an executive secures 65 marks, performance and suitability will
get ignored and the requirement of the promotion policy that relative merit shall be the governing principle will not be complied. On the other hand, the
other two categories of Educational Qualification and Length of Service in the grade were the only criteria for assessment, in that case it would be in
the nature of time bound promotion, based on seniority. The other two criteria of relative merit makes all the difference to the nature of consideration.
In that circumstance when the petitioner did not succeed on the relative merit as on 01.07.1999, though he was eligible to be considered and had
accordingly been considered and further when he has been promoted with effect from 01.07.2003 when he was entitled on applying the same criteria,
the petitioner cannot make out any grievance.
 Hence the impugned communications do not call for interference.
 The petition accordingly being devoid of merit stands dismissed with no order as to costs.