A.M. Ahmadi, J.
1. These two petitions raise a common question as to whether the Departmental Promotion Committee had while preparing the select list for promotion applied the correct criterion. The facts leading to these two petitions, briefly stated, are as under.
2. Re: Special C.A. 512 of 1983 : The petitioner was appointed a daily rated clerk with effect from 2nd August 1974. In due course she was appointed as Lower Division Clerk from 1st April 1977. She was then promoted to officiate as Upper Division Clerk (Grade VI) with effect from 8th September 1982. The select list prepared on 7th January 1983, Annexure 'D' to the petition, for promotion as Upper Division Clerk shows that her juniors shown at S. Nos. 4 to II have been . included in the said list while her name does not figure therein. She has, therefore, challenged the validity of the said select list.
3. Re : Special C.A. No. 880 of 1983 : The petitioner and respondent No. 3 were appointed Junior Clerks on the same day, that is, 11th September 1970 and were promoted as Senior Clerks/Upper Division Clerks (Grade VI), again on the same day, that is, 12th September 1978. However, since the petitioner was older in age to respondent No. 3, he was shown to be senior to respondent No. 3. The petitioner was promoted on ad hoc basis as Assistant in the scale of Rs. 425-700 with effect from 18th September 1982. However, when the Departmental Promotion Committee considered the case of the petitioner as well as respondent No. 3 and others for the purpose of preparing a select list for promotion, the name of respondent No. 3 was included in the said list but the name of the petitioner, his senior, did not figure therein. He has, therefore, filed this petition challenging the said select list.
4. In exercise of powers conferred by the proviso to Article 309 of the Constitution, the President made rules for recruitment and promotion called Central Passport and Emigration Organisation (Recruitment and Promotion to Class III posts) Maintenance Rules, 1968, (hereinafter called 'the Rules'). Chapter III of the Rules deals with promotion. Rule 6(B) which relates to Grade VI reads as under:
6. (B)(a) All posts, the functions of which are those of Upper Division Clerks, shall be filed in the following order of preference:
(i) xxx xxx xxx
(ii) by promotion from amongst officers of Grade VII who have completed five years of service in that grade, on seniority-cum-fitness basis.
Rule 7 next provides that promotions to Grade VI shall be made on the recommendations of the Junior Departmental Promotion Committee referred to in Rule 8. Rule 8 speaks about the constitution of the Committee with which we are not concerned. Rule 9(Z)(1) provides that as the promotion of Lower Division Clerks to Upper Division Clerks' Grade is to be made on the basis of seniority subject to rejection of unfit, seniority of persons promoted at the same time to the grade of Upper Division Clerk shall be the same as their relative seniority in the grade of Lower Division Clerk. It is not necessary to refer to the other provisions of the rules as they are not relevant for the question arising in these two petitions.
5. It is quite clear from Rule 6(B)(a)(ii) reproduced earlier, that promotion from amongst employees of Grade VII who have completed five years of service in that grade shall be on the basis of seniority-cum-fitness. Rule 9(2) which deals with seniority has relevance because it clarifies what Rule 6(B)(a)(ii) means when it uses the expression 'seniority-cum-fitness'. That rule says that as the promotion of Lower Division Clerks to Upper Division Clerks is to be made on the basis of seniority, subject to rejection of unfit, seniority in the higher grade shall be the same as in the lower grade. The words 'subject to rejection of unfit' clearly indicate that unless an incumbent is found to be unfit, if he is senior he will be entitled to promotion as Upper Division Clerk. Therefore, if these two rules are read together, it becomes crystal clear that for the purposes of promotion of Lower Division Clerks to Upper Division Clerks, the Departmental Promotion Committee must apply the seniority-cum-fitness test meaning thereby the negative test, that is, rejection of those only who are found to be unfit for promotion.
6. In State of Mysore v. Syed Mahmood : (1970)ILLJ370SC , the Court was concerned with the criterion 'seniority-cum-merit' which applied for promotions under the relevant recruitment rules. Explaining the criterion. Their Lordships in paragraph 3 of the judgment observed as under:
In spite of their seniority, officers junior to them could be promoted if they were unfit to discharge the duties of the post. Promotion could not be claimed as a matter of right by virtue of seniority alone.
These observations make it clear that if according to the recruitment rules promotion is on the basis of seniority-cum-fitness or seniority-cum-merit, seniors are not entitled to promotion as of right but in addition to seniority, it must also be shown that the senior is not unfit to discharge the duties of the post to which he seeks promotion. Again in State of Mysore v. C.R. Seshadri A.I.R. 1974 S.C. 460, Their Lordships observed that if the rule of promotion is one of sheer seniority it may well be that promotion is a matter of course. On the other hand if seniority-cum-merit is the rule, promotion is problem-atical. In Special Civil Application No. 1292 of 1976 decided on 15th September 1977, J. B. Mehta, J. sitting singly, considered the aforesaid two decisions of the Supreme Court and observed as under:
'However,' if the criterion for promotion was one of seniority-cum-merit, the comparative' merits would have to be assessed if the length of service was equal, or the outstanding junior was available for promotion. Therefore, when the question of relevant rule lays down the test of seniority-cum-merit, the question' of . comparative merit as per the settled legal position would arise if the length of service was equal or the outstanding junior was available for promotion. Otherwise seniority is a vital factor which could not be discharged. It is only unfitness which would enable the authority to disregard seniority; otherwise the test of comparative merit may be applied only when the length of service was equal or Outstanding junior was available.
7. In a recent decision rendered in Special Civil Application No. 317 of 1980 by B. Mehta, J., while dealing with the criterion of seniority-cum-merit observed that in order to decide the question of promotion, the concerned authorities have to consider whether the senior is positively unfit for being promoted; otherwise the factor of seniority must have an overriding consideration. In other words, the authorities have to come to the conclusion that the employee is positively unfit to be promoted to the next higher post notwithstanding his seniority. These decisions, therefore, further clarify the position which is already clarified by the rules as pointed out earlier.
8. In the present two petitions it is not in dispute that the petitioners have not been chosen for inclusion in the select list prepared for promotion to the next higher post even though their juniors figure in the said list. In the case of the petitioner of Special Civil Application No. 512 of 1983, the promotion is to the post of Upper Division Clerk (Grade (VI) while in the case of the petitioner of the other petition the promotion post is (hat of Assistant. Insofar as 10th the promotion posts are concerned, (he criterion is (be same, namely, seniority-cum-fitness. That is a fact which is admitted. If we now turn to the affidavit-in-reply filed on behalf of the Department, it is clear that the petitioners were not included in (he select list because they were not found to be fit for promotion by the Departmental Promotion Committee. In Special Civil Application No. 512 of 1983 it is stated in paragraph 7 of the affidavit-in-reply that 'the petitioner was duly considered for promotion and was not found suitable for promotion to Grade VI Upper Division Clerk's post, by the duly constituted Departmental Promotion Committee'. Proceeding further, in paragraph II of the affidavit-in-reply it is stated that:
The Departmental Promotion Committee examines the records of performance of eligible candidates on the basis of their confidential reports which are normally recorded every year by the superiors in service and those who are found fit are included in the panel for promotion to' the higher grade.
This statement made in the affidavit-in-reply clearly discloses the approach of the Departmental Promotion Committee. The approach is clearly to find out who are fit for promotion and not to weed out those who are unfit for promotion. In other words, instead of applying the negative test, the Committee appears to have applied the positive-test. In the affidavit-in-reply filed in the other petition also it is averred in paragraph 12 that 'the petitioner was duly considered for promotion against regular post by the duly constituted Departmental Promotion Committee but he was not found fit for promotion on regular basis'. Proceeding further the deponent in the same paragraph states that 'Taking into account the overall record of service of the petitioner the Departmental Promotion Committee did not find him fit for promotion to Grade V of the Central Passport and Emigration Organization'. This observation betrays the fact that the Departmental Promotion Committee had applied the positive test and not the negative test.
9. From the above discussion it becomes clear that the Departmental Pi emotion Committee applied the wrong test in deciding the question of selection of candidates for promotion to the next higher post. The select lists prepared by the application of an erroneous test cannot therefore be sustained. The select lists prepared by the Departmental Promotion Committee which are challenged in both the petitions are, therefore, quashed and set aside. The Departmental Promotion Committee is directed to reconsider the cases of the petitioners along with all the other candidates eligible for promotion on the basis of the negative test, namely, whether the seniors are unfit for promotion to the next higher post. In applying the test the fact that the petitioner and respondent No. 3 of Special Civil Application No. 880 of 1983 entered service at one and the same time may also be tome in mind. The Departmental Promotion Committee will reconsider the claim of the petitioners for promotion afresh in the light of the negative test explained earlier and finalise the list as early as possible, preferably within a period of three months from to-day. Both the petitions are allowed. The rule is made absolute in both the petitions. The petitioners will get their costs from the respondent.