1. This batch of writ petitions raises service problem of promotion. It is enough if I state the facts in one case.
2. In W.P. No. 618 of 1981 it is averred in the affidavit that the petitioners are working as Grade II Officers in Union Bank of India and they are entitled to be promoted as Grade I Officers and the promotion of some of the Junior Officers in November, 1979 and July, 1980 ignoring the seniority and merit of the petitioners was illegal. It is further averred in the petition that there is no policy laid down by the bank for effecting the promotions from Grade II to Grade I Officer and without any rule of uniformity and in utter violation of seniority, merit and job responsibility and other determinative factors the promotions were made. In fact, one S. Sadasivan who ranks 165 in seniority list was promoted ignoring the merit and Seniority of the petitioners. It is averred that the present promotional policy is violative of Articles 14 and 16 of the Constitution of India and it is prayed that a suitable writ shall be issued directing the respondents to consider the case of the petitioners for promotion to the Grade I Officers with effect from the dates when their juniors were promoted and fit them into Middle Management Grade, Scale-II with consequential benefits.
3. The Bank filed a counter with identical contentions in all the writ petitioners. It is stated that as per Circular No. 212, dated 13th August, 1970 and as per the minutes of the meeting held between the representatives of the Management and All India Union Bank Officers Federation from 7th February, 1978 to 10th February, 1978 at Bombay and Circular No. 2052, dated 30th March, 1979, marked as Annexures I, II and III respectively in the counter affidavit of the bank, the policy of promotion was determined and it definite and according to those circulars referred to above, it was stated that two principles were followed for promotion. (1) Merit-cum-seniority combined with suitability compared with Officer's competence backed by consistent good performance in the previous assignments (2) A special rule that Grade Officers who held the post of a Branch Manager in category C branches with over one year service coupled with five years service in the bank entitled to promotion. Hence considering the existing need the candidates upto the seniority of 110 and in the case of one S. Sadasivan as per the second principle stated above he was promoted though his rank Seniority is 147. It is also stated that the promotion committee consisting of two Joint General Managers and one Deputy General Manager has considered the merits of each candidate on the basis of their service records as reflected in their appraisal reports and consequently this Court cannot go into the merits of the case and consequently these writ petitions are liable to be dismissed.
4. The learned Advocate General appearing for the respondent-bank stated that the performance of the petitioners in the service records of the bank as reflected in their appraisal reports of the bank which are maintained by the bank are analogous to confidential reports of public servants and hence any non-communication of adverse remarks is not fatal to the present proceedings. Broadly the following questions arise for consideration :
(i) What is the true meaning of the first Rule of Promotion and whether it was followed correctly by the Promotion Committee
(ii) Whether the non-communication of adverse remarks to the petitioners has vitiated the selection of the candidates
(iii) Whether the selection of S. Sadasivan is in accordance with second rule of promotion
5. The first rule of promotion as embodied in the Staff Circular No. 2052, dated 30th March, 1979 is in the following words :
'The management has time and again made it clear that promotion is a management function and that promotion/selection to higher post/grade is made on merit-cum-seniority combined with suitability and on consideration of calibre and consistent good performance of the Officer over a period of time.'
In order to find out the true meaning of this rule, it may be necessary to look into some of the judgments of the Supreme Court touching the subject.
6. In R. B. Employee's Association v. Reserve Bank : (1965)IILLJ175SC , Hidayatullah, J. held that seniority and merit should ordinarily not have a part in promotion to higher ranks and seniority and merit should temper with each other.
7. If the promotion is to a selection post, the seniority is not relevant in making the selection and it was for the authority to select such officer as it considers more suitable. (vide Jai Narain v. State of Bihar (1970) S.L.R. 923 (S.C.). But the difficulty comes when the promotion is to be made taking into account both seniority and merit. In that context we have to examine the nature of the rule and part played by the element of seniority and the merit in the process of selection. As observed by Gajendragadkar, C.J., in State of Orrissa v. Durga Charan Das : (1967)ILLJ394SC , normally, in considering the question of a servant's claims for promotion to a selection post, his seniority and his merit have to be considered. But considering the nature of the rule of selection, the emphasis either on the seniority or on the merit will vary. Hence it is settled rule that when the posts are classified as selection grade posts the promotion to the posts is not automatically being made only on the basis of ranking in the gradation list, but the question of merit enters in promotion to the selection post. In Sant Ram v. State of Rajasthan : (1968)IILLJ830SC , the Supreme Court held that the petitioner therein was not entitled as of right to be promoted to the post of Deputy Inspector General of Police or Inspector General of Police merely on the ground that his name stood first in the gradation list as the promotion in such cases is to be based primarily on the merit and not on the seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, available.
In this connection the statement of Leonard D. White in his Introduction to the Study of Public Administration, 4th Edition, pp. 380, 383 has received the approval of the Supreme Court and it may be useful to extract the said passage :
'The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the moral of the whole organization. The main interest to be served is the public interest, not the personal interest of members of the official group concerned. The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment ..... Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience id certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lower to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level, it is a dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade; the very opposite may be true.'
In contrast to this principle where the selection was said to be on the seniority-cum-merit, the Supreme Court ruled in State of Mysore v. Syed Mahmood, : (1970)ILLJ370SC 'Where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.' So in such case if the senior is found to be suitable he cannot be overlooked. This principle was further clarified in Mohd Usman v. State of Andhra Pradesh, : (1971)ILLJ534SC wherein Hegde, J., held that 'the selection was made on the basis of seniority-cum-merit, the seniors among the clerks were selected subject to suitability.'
8. No doubt while construing the rule of seniority-cum-merit of merit-cum-seniority, some of the observations of the decided cases are not uniform. In State of Mysore v. C. R. Seshadri [1974-I L.L.J. 301] Krishna Iyer, J., held that 'if the criterion for promotion is one of seniority-cum-merit, comparative merit may have to be assessed if length of service is equal or an outstanding junior is available for promotion.' The rule of promotion which in in the following terms was construed by the Supreme Court in Union of India v. M. L. Capoor, : (1973)IILLJ504SC 'the selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority.' The High Court of Allahabad construing the said rule held that after satisfying the minimum standard of individual merit and suitability for inclusion in the list comparable to the pass marks in an examination, in which seniority played the dominant role, seniority also determined the order on the list according to which the officer selected were to be promoted. Disagreeing with that view the Supreme Court held :
'The Selection Committee has an unrestricted choice the best available talent, from amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor. A simple reading of the Regulation 5(2) clearly indicates this to be the correct view. The required number has thus to be selected by a comparison of merits of all the eligible candidates of each year,'
9. On the question what is the true meaning of the rule of promotion I must refer to another judgment of the Supreme Court in State of Kerala v. N. M. Thomas, [1976-I L.L.J.-376] wherein A. N. Ray, C.J., observed 'with regard to promotion the normal principles are either merit-com-seniority or seniority-cum-merit. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority.' Though the learned Judge did not define the meaning of merit-cum-seniority the dicta clearly indicates that mere suitability which is sufficient in the case of seniority-cum-merit will not be sufficient in the case of merit-cum-seniority. It is true some times the rule of promotion may specifically say that the selection is the basis of seniority-cum-fitness and in such cases the principles laid down in State of Mysore v. Syed Mahmood, (1968) 2 S.C.J. 713 that 'the senior must be selected unless found to be unfit' would apply, and in fact the Supreme Court adopted the test of suitability laid down in State of Mysore v. Syed Mahmood (supra), when the rule is promotion on the basis of seniority cum-fitness. Vide Government of India v. C. A. Balakrishnan [1975-I L.L.J. 301]. Further the following cases fall under the rule of seniority-cum-fitness or suitability. In Roshan Lal v. Union of India : (1968)ILLJ576SC , the Supreme Court directed that when the rule governing the promotion is seniority-cum-suitability the authorities cannot abandon the same and proceed to select candidates on merit, though the said problem was mingled with the rule of discrimination between the in-service candidates and direct recruits. Similarly in the District Registrar of Palghat v. M. B. Koyyakutty (A.I.R. 1979 S.C. 1060), the Supreme Court ruled that when the relevant rule 28 prescribes that the promotion should be made in accordance with seniority subject to the person's fitness for appointment, the insistence by the authorities that the candidate should possess minimum educational qualification was found to be illegal. The latest observation of the Supreme Court in this connection is G. S. Broca v. State of J. and K. (A.I.R. 1982 S.C. 1169), may be noted. 'The question of promotion to the higher ranks did not depend upon seniority alone; the suitability of the candidate for promotion had to be judged in each individual case on the basis of the reports in regard to his efficiency, integrity and general reputation.'
10. In D. D. Suri v. Union of India [1979-II L.L.J. 431], the Supreme Court reiterated its earlier view expressed in Union of India v. M. L. Capoor, (supra) holding that 'The Process of appointment to the super time scale is by selection and when the element of selection comes in, this promotion must be subject only to the claims of exceptional merit and suitability, and is not a matter of right.' In this connection a problem close to the question may also be noticed. Where though the governing rule is the merit but not the seniority the persons selected may be placed in the order of seniority in their original service but not in the order of the merit of the selection list. Such question was examined in Narjeet Singh v. Union of India. : (1980)IILLJ143SC
11. Thus these decisions disclose that there is a clear distinction between a rule of promotion of seniority-cum-merit and merit-cum-seniority. In the case of seniority-cum-merit given the minimum necessary merit requisite the senior though less meritorious shall have priority but in the case of merit-cum-seniority the most meritorious person be selected. Though a person stood first in the merit list among the selected candidates he may be ranked according to seniority in the original service among the selected candidates. In the case of seniority-cum-merit, seniority will be given predominant weight ... and the merit lakes second place and the test is suitability but in the case of merit seniority, merit is the dominant element. Whether a given rule is a merit-cum-seniority of seniority-cum-merit and which element is dominant depends upon the language of the rule and reading the same as a whole.
12. Now the language of the present rule clearly warrants a finding that it is a rule of merit-cum-seniority where merit plays a dominant part. The rule as already extracted above indicates that while selecting the candidates not only the element of merit should be taken in the foremost but the suitability, calibre and good performance also have to be taken. These three elements also go to show that the predominant element is the merit but not seniority. Though the element of suitability may go in favour of the rule of seniority-cum-merit where the seniority is the dominant element, the other two elements calibre and good performance make it clear that the merit is a dominant element in selecting the candidate. Thus on the total reading of the rule I am clear that the merit plays an important role in selecting the candidates and the seniority takes the second place. Hence, I hold on the true construction of the rule that the authorities are entitled to take into account merits of all the competing candidates and make the selection of the best person among them.
13. The text question is whether the said rule was followed correctly. I must again refer to the judgment of the Supreme Court in Union of India v. M. L. Capoor (supra), where their Lordships have examined the function of the Selection Committee for promotion-whether being purely administrative or quasi-judicial. Their Lordships held that the process of selection could hardly be spoken of as to the process of a litigation, where two or more parties, who prefer claims to the same subject matter, have to be informed of each other's cases and issue on points in dispute are framed and then decided. It was held that 'the process of selection by evaluation of respective records of service is more akin to that of an examination of candidates than to any quasi-judicial proceedings'. In the same case Beg. J., has laid down that 'In the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections conferred upon them by Articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in making selection.' Though in that case Regulation 5(5) required the authority the principle laid down by Supreme Court is of general application. However it is necessary to remember that generally speaking as held by Wanchoo, J., in Brooke Bond Ltd, v. Their workmen : (1966)ILLJ402SC a promotion is a management function. Though the said observation occurred with reference to service problem arose under the Industrial Disputes Act, it is equally true in respect of civil servant also. In fact the present rule starts with a preliminary note saying 'the management has time and again made it clear that the promotion is a management function'. This emphasises the principle that unless the promotion is vitiated due to improper considerations the Court cannot interfere.
14. Thus it is clear, the selection process of service personnel to the higher post by the selection committee is not a quasi-judicial proceeding but akin to the examination of candidates. Though essentially it is the function of the management the authorities are bound to assign reasons before overlooking the senior in the process of selection. It the selection is proceeded upon wrong and inadmissible basis or proceeded on improper and irrelevant considerations or violative of principles of natural justice or constitutes discriminatory as offending. Articles 14 and 16 of the Constitution of India, the proceedings can be interdicted by this Court under Article 226 of the Constitution of India.
15. Now, I have to examine whether the selection is vitiated by any of the principles stated above. For examining this I must also see whether the non-communication of the adverse remarks to the petitioners has vitiated the selection of the candidates. The learned Advocate General contended that the appraisal reports are akin to the confidential reports and the impugned proceedings based upon such reports are well within the jurisdiction of the authorities and hence cannot be agitated in this Court. For that he relied upon Prakash Chand v. Oil and Natural Gas Commission (1970) S.L.R. 116, wherein the Supreme Court held that the adverse remarked on the basis of the confidential reports were taken into account by the Promotion Committee to consider their promotions. Their Lordships were observing that the adverse remarks were not communicated to the persons affected, but held that it was suggested that the promotion committee acted mala fide and at best the committee's taking into consideration confidential reports with respect to which the petitioner was given no chance to make a representation was merely fortuitous and hence in such a state of affairs, they were not inclined to interfere with proceedings.
16. He also relied upon R. L. Butail v. Union of India [1970-II L.L.J. 514] and Union of India M. E. Reddy [1980-I L.L.J. 7], wherein their Lordships upheld the validity of orders of compulsory retirement on the basis of the confidential reports they are not communicated to them. However even in respect of an order of compulsory retirement in Brij Behari Lal v. High Court of M.P. [1982-I L.L.J. 1], their Lordships of the Supreme Court observed that it is possible that a Government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service and the failure to take his service records of later years is fatal for the order of compulsory retirement.
17. On the other hand the petitioners' Counsel relied upon Gurdial Singh v. State of Punjab : 3SCR518 , wherein their Lordships of the Supreme Court held that :
'The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide in a consideration of the explanation offered by the person concerned, whether the adverse report is justified.'
Further a Division Bench of this Court in Writ Appeal No. 711 of 1973 dated 11th April, 1974 while explaining the dicta of the Supreme Court in Prakash Chand v. Oil & Natural Gas Commission (supra), held that their Lordships did not lay down any law that uncommunicated adverse entries in the confidential records can lawfully be relied upon by the promotion committee. In the above writ appeal the Division Bench further held : 'Whenever the Public Service Commission or any Governmental Authority considers the question of promotion, it is free to consider the adverse entries even in the confidential record, but it is necessary to enquire whether the adverse entries were communicated to the officer concerned and an opportunity provided to him to say what he has got to say in that behalf. If it is found that they were not communicated and no opportunity was given then it is clear that the authority concerned cannot depend upon such uncommunicated adverse entries. It should either postpone consideration till the entries are communicated and an opportunity afforded to the officer concerned for being heard, or consider the case with a clear understanding that if the adverse remarks subsequently communicated are expunged, the decision would be reviewed.'
18. In Regional Manager v. Pawan Kumar [1976-II L.L.J. 266], the Supreme Court while affirming the judgment of the High Court setting aside the order of reversion inflicted on the employee on the basis of the adverse entries, their Lordships held that.
'The only possible justification which could be offered for this discriminatory treatment were the sudden adverse entries of 1972-73 against the respondent which were quite vague.'
They further held that
'Even the bona fides of the list, adverse entry becomes doubtful when we find that the respondent was not, despite his requests, given particulars of any facts upon which the conclusion that he was disrespectful or disobedient was based. To allege such misconduct against him and then to stigmatise the respondent as 'not fit' for working in and circumstances of the particular case, to be more vindictive than just and fair. It may bar or delay his chances of promotion in future.'
Though this case relates to the .... disciplinary proceedings the necessity of communication and the correction of the entries at an earliest possible time must be ensured to the civil servant in the interests of general administration of justice and fair play. Union of India v. Durgadass [1978-II L.L.J. 83], is a case where the Supreme Court held that when the departmental promotion committee fully considered the candidature of each petitioner on the basis of their confidential reports, the High Court is not justified in interfering with the selection proceedings. In the said case no question of want of opportunity on the basis of adverse entries in service records was raised. It is not in dispute that the service records bear out adverse entries regarding the service career of the petitioners and they are not communicated to them.
19. The decision on Union of India v. M. E. Reddy (supra), relates to the case of compulsory retirement and Their Lordships held, 'that an order no prejudices to the Government servant who is made to lead a restful life enjoying full pensionary and other benefits and on the other hand gives new animation and equanimity to the service'. Hence the omission to communicate the adverse remarks was considered to be not fatal for such proceedings and as such cases of compulsory retirement are clearly distinguishable.
20. It is true that the appraisal reports consisting of job assessment alone need not be communicated unless the rules enjoin any duty to do so. The appraisal reports in the present case consist of dependability, human skill, mental alertness, job relation judgment and initiative. An officer may earn the remarks relating to his performance as good, satisfactory, brilliant or efficient or other meritorious compliments. The remarks so far they relate to general conduct, integrity and reputation may stand on different footing. A failure to communicate such remarks will cause greater injury as promotional chances will be marred. It is true as observed by the Supreme Court in Mir Ghulam v. Union of India [1973-I L.L.J. 417], that the absence of adverse remark is no criterion of the quality of an officer. But if the adverse remarks play a part marring his career he must be given an opportunity.
21. Thus non-communication of mere appraisal report relating to ability may not be fatal while considering the promotion but the non-communication of adverse remarks relating to conduct must be communicated while considering the promotion of the candidates and the preponderance of judicial authority supports that view.
22. Hence it is not possible to contend for the respondent-bank that in the absence of any rule to communicate the adverse remarks they can take into account the appraisal reports along with the adverse remarks. Once the service records consist both factual assessment of the ability of the officer and conduct and character, the failure to communicate the adverse remarks will undoubtedly cause great prejudice and the denial of the promotional opportunity on the basis of such adverse remarks cannot be allowed to stand.
23. I have seen some of the appraisal reports where the authorities recommended the promotion having found him fit. In some cases the comments made in the appraisal reports are marginal and do not deserve condemnation of the officer altogether. As I have not permitted the petitioner's Counsel to see the appraisal reports which are said to be confidential I am not extracting those remarks even as specimen cases but the record discloses that the consideration of the candidatures of the petitioners is not uniform and even the appraisal reports were disregarded on the ground some audit objectives were taken about particular individuals even though the authorities prepared the appraisal reports and recommended the promotion of particular individuals. Hence I hold that the rule of promotion is merit-cum-seniority where the merit is a dominant element. But the promotion committee has not acted on mere appraisal reports but have taken into account adverse remarks. It also ignored the findings of the authorities who prepared the appraisal reports and hence the promotion is not effected uniformly or objective tests, and consequently the petitioners are entitled to relief.
24. Regarding the third point, the second rule of promotion and its application must be examined. The second rule is in the following terms :
'All Branch Managers of Branches in Category 'c' should be in officer Grade I Cadre. It may be pointed out that position is equal to that of Assistant Superintendents in Zonal Office or Central Office and hence they should legitimately be promoted to Grade I cadre immediately on the following basis :
(a) They should have been holding the present post for a minimum period of one year as on 31st December, 1977.
(b) They should have completed minimum period of service of 5 years in the Bank.'
Two requirements must be satisfied before the rule could be invoked. The Candidate must have worked for a minimum period of five years in the Bank and also one year service as Branch Manager in Category 'C' as on 31st December, 1977. It is not disputed that the said Sadasivan has not satisfied the requirement of holding the post for one year as on 31st December, 1977. For this the learned Advocate-General submitted that Annexure-I to the minutes of the meeting held between the representatives of the management and those of the All India Union Bank Officers Federation from 7th February, 1978 to 10th February, 1978 at Bombay, are only proposals pending finalisation and hence they are not binding on the bank. The bank having stated in the counter-affidavit that the promotional policies are embodied as per the minutes mentioned above in Appendix-II it is difficult to hold that a portion of the minutes is binding and the other portion is not binding. Hence I hold that irrespective of the merits of the other candidatures compared to the candidature of promotion is not satisfied and accordingly the same is liable to be aside.
25. Further Sri K. Narasimhan, urged in W.P. No. 5706 of 1980 that circular dated 20th March, 1978 has circulated the minutes referred above to all branch offices for their guidance and their implementation and it is not possible for the bank to contend that those minutes are not binding on them, It is also urged that as per clause 7 of above minutes the Assistant Branch Manager of the Bank in Categories A and B and the Accountants of the Branch in Category A should also be promoted to Grade I cadre on the following basis.
'Clause 7. The Assistant Branch Manager of Branches in Categories 'A' and 'B' and Accountants of branches in category A should also be promoted to Grade I cadre on the following basis.
(a) They should have been holding the present post for a minimum period of one year as on 31st December, 1977.
(b) They should have completed minimum period of service of 5 years in the Bank.'
Sri Narasimhan urges that if the said rule is applied the 2nd petitioner in his writ petition is entitled to promotion to Grade I. but the said averment of the petitioner stood uncontradicted. In the counters filed uniform denials were made as already noticed. Hence I am of the opinion that the minutes referred above as Appendix II in the counter-affidavit are binding on the bank and their omission to implement fully the several clauses of those minutes is not satisfactorily explained and the failure to implement the minutes and follow the norms laid down therein is fatal to the proceedings.
26. Hence I direct that an appropriate writ shall issue directing the respondent-bank to consider the case of the petitioners for promotion as Grade I Officers with effect from the dates when their juniors were promoted and fit them in the middle management Grade, Scale II after giving them an opportunity of explaining the adverse remarks against them and also after applying the uniform rule of appraisal reports. In the result, all the writ petitions are allowed with similar directions. I make no order as to costs in all writ petitions.