Relaxation in years of service and qualification granted to the employees in the course of service does not construe that the principle of merit cum seniority was not followed: Bombay High Court

 

By observing that the principle of ‘seniority cum merit' was not applicable for the posts for which the petitioner has participated, the Bombay High Court dismissed the instant petition filed by the petitioner  claiming that though he secured highest marks in the Higher Standard Departmental Examination, as compared to the respondent two- thirteen. 

A Division bench of Justice R.D. Dhanuka and Justice S.M. Modak dismissed the present petition instituted by the petitioner claiming that though he secured highest marks in the Higher Standard Departmental Examination, as compared to the respondent two- thirteen and the  principle of merit-cum- seniority was  applicable for promotion to the post of Section Officer, even then  he was not promoted earlier than other respondents, by observing that the petition was merit less and that   there was no provision in the Rules that stated that the employee who has secured more marks in a particular examination will have to be given preference over the employees who have secured less number of marks.

The present petition was preferred by the petitioner who had joined the services of the High Court Administration on Original Side as a Clerk in the year 1985 and retired in the year 2021 from the post of Master (Adm). It was the case of the petitioner that though he secured highest marks in the Higher Standard Departmental Examination, as compared to the respondents two - thirteen and that the principle of merit-cum- seniority was applicable for promotion to the post of Section Officer, even then he was not promoted earlier than other respondents. According to the petitioner the High Court Administration has wrongly applied and interpreted the Rules and has not promoted the petitioner in time. His further grievance is that, as he was not promoted in time, the other respondents superseded him in the promotion which caused great prejudice to him.

However, this Court noted the fact that the petitioner’s inference of securing highest marks as a factor for promotion was turned down by the High Court Administration and also by this Court in his first writ petition. The petitioner however, raised the same issue.

The Court dealt with the issue at hand after considering the provisions of 1981, 1995 Rules for passing examinations and also after going through the 1985 Recruitment Rules and 2002 Rules applicable to the employees of the Original Side of this Court. In pursuance of the same, the Court stated that if failed to find any support in the contention of the petitioner that securing highest marks was the criteria for promotion. Indeed, this Court was inclined to saddle heavy costs on the petitioner for raising objections on the issue that was pre- decided. 

It was further noted by the Court that to support the aforesaid ground the petitioner also raised other grounds pertaining to the exemption granted by the High Court Administration to some of the respondents from appearing the Higher Standard Departmental Examination. Also the relaxation granted by the High Court Administration to some of the respondents while considering the experience criteria. However, after going through the record, the Court discovered that these exemptions and relaxations were granted by the High Court Administration, as per the provisions of Rules.

After hearing the submissions of both the parties at length, the Court observed that both the parties relied on certain common precedents. In view of the same, this Court also took into account the case of B.V. Saviya And Ors Vs. K. Addanki Babu And Ors, wherein appeals were filed for seeking considerations  to be followed while promoting to the post of Area Manager/ Senior Manager in Regional Rural Banks under the Regional Rural Banks Rules, 1988.

Another case of Bhupendranath Hazarika Vs. State of Assam was preferred upon wherein the Apex Court stated that if the appointment is made without following the procedure prescribed under the Rules, the appointees are not entitled to have the seniority fixed on the basis of total length of the service. In essence it has been ruled that, when the appointment is made dehors the Rules, the appointee cannot claim seniority, even if his appointment is later on regularized.

In view of the same, the Court noted that in the present same ratio cannot be made applicable for the reason that various respondents were granted exemption from passing the Departmental Examination, relaxation from requisite number of service and relaxation from Educational Qualification as per the Order of Hon’ble Chief Justice. While doing that, the provisions of 1981 Departmental Examination Rules, the Provisions of 1995 Departmental Examination Rules and the Provisions of 1985 Recruitment Rules were considered, the Court noted. It was also pertinent to note that in the present case there was no challenge to the validity of those Rules and Circulars. There was no challenge that the Hon’ble chief Justice had improperly granted exemption and relaxation, the Court submitted.  

The Court further dealt with the short question that was posed for consideration was whether on the basis of the marks the petitioner was eligible for promotion and to be shown as a senior amongst the section officers selected in the promotional exercise conducted in the year 1998.  To deal with the same, the Court took into consideration the facts of the present case and relevant rules and provisions.

The Court referred to the 1981 and 1995 Rules, in respect of the same the Court noted that there was no provision in the Rules that stated that the employee who has secured more marks in a particular examination will have to be given preference over the employees who have secured less number of marks.

 In respect of the same, the Court noted the fact that the petitioner secured higher marks than the respondents was not disputed. However, after going through all the relevant rules and provisions, this Court was of the view that there was no merit in the agitated issue of the petitioner contending that the higher marks in the departmental examination is one of the factors in promotional exercise as the name was not justified by the Rules.

With respect to the contention that the above referred respondents were promoted as section officers on respective dates even though they did not pass out higher standard departmental examination, in respect of the same, the Court submitted that the reason that the respondents were exempted from appearing for the examinations was because of the notifications dated January 27, 1981 and August 31, 1988. 

In case of merit cum seniority, the seniority comes into picture only when the marks are equal. Petitioner (was senior amongst the employees coming under the zone of consideration) was not selected because he had secured less marks. Marks obtained in Higher Standard Examination were not the criteria. Just because certain employees were exempted from examination and were granted relaxation in years of service and relaxation in qualification, it does not mean that the principle of merit cum seniority is not followed, the Court remarked. 

Thus, there was no merit found in the petition initiated by the petitioner, and it was observed that the principle of ‘seniority cum merit' was not applicable for the posts for which the petitioner has participated. Hence the petition was dismissed. 

Case name: KISHORE D. RAORANE Vs. THE HIGH COURT OF JUDICATURE AT BOMBAY AND ORS  

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