Doddakale Gowda, J.
1. Petitioner and Respondent-2 who were simultaneouslyrecruited as Regional Transport Officers in the Departmentof Motor Vehicles in Karnataka vie for earlier promotionand for consequential seniority in higher cadres. Admittedly,second Respondent is senior to petitioner in the cadre ofR.T.Os.
2. Mode of filling up of the cadre of Deputy TransportCommissioner as per C & R Rules of the Department ispromotion by selection of R.T.Os. Departmental PromotionCommittee constituted for the purpose after examiningclaims of all eligible officers opined that petitioner is suitablefor promotion as Deputy Transport Commissioner. Departmental Promotion Committee further held on considerationof service records of Respondent-2, that he is not suitable forpromotion as Deputy Transport Commissioner. It is open tothe State Government either to accept the recommendation orto reject it. In case of rejection, Government on evaluationof merits of all eligible candidates may reach a conclusion ofits own. State Government discarded the views of the Promotional Committee, as it felt that there is no justification tosupersede the claim of second Respondent for promotionand promoted him accordingly. It is the validity of the saidpromotion that is challenged in this Writ Petition.
3. There is no controversy regarding principles governingconsideration of promotion, but its application. In orderto decide as to whether there is a proper application of principles or consideration, it is necessary to mention inbrief principles governing consideration.
4. Supreme Court in Sant Ram Sharma - v. - State ofRajasthan and Others, : (1968)IILLJ830SC has stated thus: at page 11914:
'xx xx In our opinion, the respondents are right in theircontention that the ranking or position in the Gradation List does notconfer any right on the petitioner to be promoted to selection post andthat it is a well established rule that promotion to selection grades orselection posts is to be based primarily on merit and not on seniorityalone. The principle is that when the claims of officers to Selectionposts is under consideration, seniority should not be regarded exceptwhere the merit of the officers is judged to be equal and no othercriterion is, therefore available. xx xx xx'
What emerges from the above principle is seniority plays itspredominance if merit is equal.
The theory of fair and equitable consideration as enunciatedin Union of India - v. - M.L. Kapoor and others, : (1973)IILLJ504SC readsthus:
'In the context of the effect upon the rights of aggrieved persons,as members of a publish service who are entitled to just and reasonabletreatment, by reason of protections conferred upon them by Articles 14and 16 of the Constitute in, it was incumbent on the Selection Committeeto have stated reasons in a manner which would disclose how the recordof each officers superceded stood is in relation to records of others whowere to be preferred, particularly, as this is practically the only remainingvisible safeguard against possible injustice and arbitrariness in makingselections xx xx xx xx.'
It is in the light of these well established principles, thequestion as to whether there is a proper consideration by theGovernment before promoting second Respondent as DeputyTransport Commissioner or not, has to be decided. Asalready indicated, the Departmental Promotion Committeeon an examination of the service records of all the candidateseligible for promotion, found that petitioner alone is eligiblefor promotion as Deputy Transport Commissioner and thesecond respondent though senior, his service records are notgood and is not suitable for promotion. Object of securingaid or assistance of the Departmental Promotion Committee is to avoid possibility of arbitrariness and nepotism;assessment made by the Selection Committee can be departed,if special circumstances exist. A look at the Governmentrecords goes to show that it has considered the case of 2ndRespondent alone and not of others. Government hasproceeded on the premise that mode of promotion is byseniority cum merit and ther is no good ground to supersede his promotion as he is placed at the top of seniority listof R.T.Os. But, unfortunately, method of filling up of postis promotion by selection and in that process, Governmentwas under an obligation to consider independently merits ofeach candidate in case it did not accept the views of theDepartmental Promotion Committee. In promotion byselection, merit is the sole consideration and process involvesa comparative merit and suitability of eligible candidatesand best among them should be selected. In other words,there must be evaluation of merit and suitability of alleligible candidates with reference to the record of performance. Consideration of the second Respondent's casealone cannot be treated as consideration of the claims of alleligible candidates. As Supreme Court often repeated onlyvisible safeguard to eliminate arbitrariness and non application of mind is to ascertain from records whether reasonsare assigned for selecting one in preference to others.
5. Contention of Government Pleader as well as LearnedCounsel for Respondent-w is that entire records includingthe views of the Committee were before Government andGovernment has examined the merits of respective claims ofeligible candidates. Mere presence of records before theauthority does not suffice, but there must be an application ofmind with reference to these records. As has been alreadymentioned in minute of Government, except consideringthe case of 2nd Respondent there is no reference to othersclaim. Government appears to have acted as an appellateauthority so as to set aside the order of super session. Inorder to over come this infirmity, it is urged next that itmust be deemed to have considered the claims of all eligiblepersons and/or it must be inferred that there is an impliedrejection of claims of others. Such 'deemed rejection' willnot be inconsonance with the declaration of law by SupremeCourt to the effect that authority must assign reasonsin a manner which would disclose consideration of record ofeach officer superseded and how it stood in relation to therecords of others who are preferred. There is not evenwhisper, let alone detailed consideration of records of othercandidate for being promoted as Deputy transport Commissioner.Promotion of the 2nd Respondent without consideringthe claim of all eligible candidates is illegal and has resultedin substantial prejudice infringing Constitutional Guarantee.
6. Hence, Writ Petitions succeeds. Impugned promotion folaredas null and void and is hereby quashed. First respondentis directed to consider claims of all eligible candidates afreshin accordance with law. However, second Respondent ispermitted to continue in the present post for a period of 6consider the case of promotion afresh in accordance withlaw. His continuation in the post will not affect the rightsof the petitioner particularly having regard to the fact thathe has been subsequently promoted as Deputy TransportCommissioner and further promoted as Joint Commissionerfor Transport.
7. In connected Writ Petition No. 19550/83 secondRespondent has questioned the validity or correctness ofpromotion of the present petitioner as Joint Commissionerfor Transport is seniority-cum-merit. Unless, seniority inthe lower cadre is determined, it may not be possible towho is no other than the 2nd Respondent in this case, hence,hearing of W.P. NO. 19550/1983 is deferred.
8. Rule made absolute.