S. Nainar Sundaram, J.
1. This Writ appeal is directed against the order of Mohan, J., in W.P. No. 2327 of 1981. The petitioner in the Writ Petition is the appellant herein. The respondent in the writ petition are the respondents herein. The parties are being referred to in this judgment as per their array in the writ petition. The petitioner is in the employee of the first respondent. Expressing a grievance that his right to promotion to the supervisory cadre has been overlooked from 1975 onwards, that he is entitled to promotion from 1-11-1975 and that respondents 2 to 12 ought not to have been promoted in preference to him, the petitioner filed the writ petition for the issue of a writ of mandamus to direct the first respondent to promote the petitioner to the supervisory cadre with retrospective effect from 1-11-1975. Mohan, J., heard the matter on 20-1-1983 and the learned Judge took note of the objection put forth on behalf of the respondents with regard to the maintainability of the writ petition in view of the existence of an alternative remedy under the Standing Orders governing the services under the first respondent, of the delay on the part of the petitioner in coming to Court to unsettle promotions effected even as early as 1975, of the fact that the norms of promotion are not seniority exclusively, but also merits and the petitioner did not possess the requisite merits, and of the fact that the petitioner has come to be promoted on 1-7-1982 after the filing of the writ petition and dismissed the same. It was found that the petitioner was not represented by his counsel when the matter was heard on 20-1-1983 and hence, the matter was, at the instance of the learned Counsel appearing for the petitioner, heard on 27-1-1983 and the learned Judge found no warrant, even after hearing the submissions made by the learned Counsel for the petitioner, to take a different view but only observed that if the petitioner is entitled to promotion with retrospective effect from 1-11- 1975, that is a matter on which he will have to agitate and take his rights.
2. Mr. G.K. Damodar Rao, learned Counsel for the petitioner, did not make a grievance over the hearing of the matter at the first instance on 20-1-1983 by the learned single Judge when there was no representation on behalf of the petitioner. Obviously, the learned Counsel had the benefit of audience and representation before the learned single Judge on 27-1-1983. No grievance is also expressed before us with regard to lack of opportunity to present the case on behalf of the petitioner in full before the learned single Judge. Learned Counsel appearing for the petitioner made his submissions on all the aspects and we are dealing with them as hereunder.
3. Promotion to supervisory cadre is by selection. Merit and ability alone counted. Seniority cannot be urged as the sole criterion for effecting promotions. The question of promotion from workman to supervisory cadre, which the petitioner claims, is governed by two settlements one dated 23-12-1970 and the other dated 29-12-1980, under Section 12(3) of the Industrial Disputes Act. According to the settlement dated 23-12-1970, promotion to supervisory cadre was to be based purely on merits. The selection was done on an assessment of overall demonstrated ability and performance on the job, gauged in terms of dependability, judgment, decisiveness, etc. Under the subsequent settlement dated 29-12-1980, for the purpose of promotion, marks were allotted to Pre-MRL (first respondent company) service and MRL (first respondent company) service, qualification and merits. These facts were not and could not be disputed before us because they are matters of record.
4. There are certain well settled principles which cannot be lost sight of on the question of promotions. Even a civil servant has no right to claim promotion as of right. He has got only a right to be considered for promotion if he comes within the norms laid down therefor in the service rules. If promotions are purely on the basis of merit and ability and if the servant has been considered on the said basis, it is not for this Court to sit over in judgment over such consideration. This Court is not a Court of appeal against orders of promotion, nor is this Court an administrative tribunal to consider the propriety or otherwise of the, orders of promotion, in the absence of patent and glaring mala fides made out and established against the employer.
5. The petitioner complains of discrimination in the matter of promotion as violative of Articles 14 and 16 of the Constitution of India. We find that the respondents put forth an objection that the first respondent company cannot come within the jurisdiction of this Court under Article 226 to enable the petitioner to give vent to his grievance that the fundamental rights guaranteed to him to have been breached, since the first respondent-company cannot come within the purview of Article 12. It is true that if this objection put forth on behalf of the respondents is to be sustained, we may have to eschew audience to the petitioner in writ jurisdiction. But, since the matter has been dealt with by the learned single Judge on merits and since arguments were also advanced before us on merits, we shall deal with the matter on merits, assuming that the first respondent company falls within the ambit of Article 12 so as to amenable in writ jurisdiction.
6. Under Article 16(1) equality of opportunity in matters relating to employment or appointment under State is wide enough to include all matters in relation to employment, both prior and subsequent and will cover matters of promotion. But, what Article 16(1) guarantees is only equality of opportunity and a civil servant, as stated above, cannot project a right that he should be promoted. A civil servant has a right to be considered for promotion to the next higher post when a vacancy arises.
7. Alagiriswami, J., as he then was, in William George v. The Union Territory of Pondicherry, W.P. Nos. 244 to 247 of 1969-Order dated 11-3-1970), observed as follows:
No Government servant has a right to claim that he ought to be promoted. He has, however, a right to claim that whenever a question of promotion comes up, his claims must be considered.... This Court is not a Court of appeal against orders of promotion, nor is this an administrative tribunal to consider the propriety or otherwise of the orders of promotion. This Court is concerned only with seeing that the provisions of the Constitution regarding equality of opportunity in all matters relating to service including promotion are observed.
In R.S. Wickey v. Government of India, (W.P. No. 3188 of 1978 -Order dated 28-1-81) one of us (Nainar Sundaram, J.) had occasion to follow the above dictum of the learned Judge. These are all well settled principles and we are only recapitulating them.
8. If once it is shown that the civil servant has been considered for promotion, this Court shall not sit over in judgment as an appellate forum to assess the propriety or otherwise of the order of promotion, unless malice is pleaded and established. In Sant Ram v. State of Rajasthan : (1968)IILLJ830SC , it has been countenanced that in the absence of substantiation was no consideration of the party's case for promotion, there is no scope for pleading violation of Articles 14 and 16. In Union of India v. Durgadas, : (1978)IILLJ83SC , the Supreme Court discountenanced the High Court's interference in the matter of promotion, where it was not shown and proved to satisfaction that the cases of the petitioners before the High Court were not considered for promotion. In Rameshwar Prasad v. State of Bihar, : 1SCR456 , the Supreme Court found abundant material on record to show that the case of the petitioner therein was fully considered for promotion and hence, Article 16 could not be stated to have been violated. The Supreme Court further found in that case that it was faintly suggested that there was a colour of malice, but no such clear plea was taken in the petition or proved in the affidavit filed by the petitioner and in those circumstances, the Supreme Court did not take any notice of such an allegation. We shall not omit to keep in our mind these well settled principles before we examine the case of the petitioner, put forth in the writ petition.
9. It is not the case of the petitioner, as we could see from the pleadings in the writ petition, that he was not at all considered for promotion whenever the chances for promotion arose. According to him, he was the senior most above respondents 2 to 12 and overlooking his seniority, granting promotions to respondents 2 to 12 was illegal. It is not disputed before us that selections for promotion were made by a committee consisting of departmental managers and this was the modus operandi adopted for promotions. Hence, this is a case where the petitioner was, in fact, considered for promotion, but since the criteria for promotion were merit and suitability and obviously, on the ground that his work performance during the relevant years was not commendable, the petitioner was not selected for promotion. If this is the factual position-and in our view, it is so-then the petitioner cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India, calling upon us to sit in judgment over the merits and demerits of each of the candidates and substitute our own views in the place of the views of the departmental heads, in the absence of a clear plea of malice and substantiation thereof. Even otherwise, the petitioner has not pleaded that he was comparatively superior from the angle of merits. On the other hand, the first respondent company has put forth a plea that respondents 2 to 12 were better qualified. Even in the reply affidavit filed by the petitioner, he has not chosen to put forth a specific plea that his work performance was more meritorious than that of respondents 2 to 12. The first respondent company in its counter affidavit, has referred to the appraisal reports made periodically and it has appended an annexure to its counter affidavit, reflecting the relative merits of the various candidates. The Petitioner, in his reply would attack this annexure as a fabrication, The annexure merely reflects the appraisal reports. Though we are not obliged to probe into this aspect, yet, we perused the appraisal reports produced by the first respondent company and we found that they had been prepared and maintained in implementation of the norms adopted in the settlements referred to above. The appraisal reports for the relevant years are not at all in complimentary terms so far as the petitioner is concerned. Mr. G.K. Damodar Rao, learned Counsel for the petitioner, made some comments on these appraisal reports in his attempt to dissuade us from placing any reliance on them. As we stated above, we perused the appraisal reports produced by the first respondent company and we found nothing suspicious in them so as to compel us to eschew them as fabrications. Learned Counsel pointed out that in some of the appraisal reports, the column relating to discussion with the employee is either blank or not signed by the concerned officer. These features are not sufficient to attach any spuriousness to these appraisal reports. At the risk of repetition, we must state that once the petitioner was found to have been considered for promotion as and when the chances arose but if, on assessment of his merit and suitability the first respondent company did not choose to promote him, this Court shall not arrogate to itself the function of an administrative tribunal, to reassess these aspects and express a different view, unless malice is pleaded and proved.
10. Coming to the aspects of malice, the pleadings put forth by the petitioner are completely silent. There is no allegation of malice thrown against any one concerned in the first respondent company. Mr. G.K. Damodar Rao, learned Counsel for the petitioner, in the course of his arguments, made a causal reference to the name of a particular officer. This, we shall not take note of. As held by the Supreme Court in Rameshwar Prasad v. State of Bihar, : 1SCR456 , in the absence of a clear plea and proof of malice, the Court shall not take notice of any such allegation.
11. Another comment made by Mr. G.K. Damodar Rao, learned Counsel for the petitioner, is that there are adverse remarks in the appraisal reports and in fairness to the employee, namely, the petitioner, they ought to have been communicated to him. This is a factual misconception. The appraisal of the work performance done periodically cannot be equated to any adverse remark. They are nothing but evaluation of the work done by the employee, which would form a guidance in matters like promotion, where the criteria are merit and suitability. It is not as if the employee is being penalised or reduced in rank on the basis of these appraisal reports. Hence, it cannot be stated that it is incumbent on the employer to communicate the remarks adumbrated in the appraisal reports to the employee. Learned Counsel draws our attention to the decision of Padmanabhan, J., in Sankarasundaram, T.N. v., The Director of Stationery and Printing, 95 L.W. 382. There, the learned Judge dealt with appointment to a post, which was not a selection post, and promotion was by seniority only. The administrative instructions issued in this behalf compelled the Government to communicate the adverse entries to the employee and in those contingencies, the learned 3udge opined that the Government is bound to follow its own instructions and it will not be open to it to say that it has merely issued the administrative instructions and that the same can be violated even though the violation of the procedure may adversely affect the Government servant.
12. There is one factor that has been put against the petitioner by the learned single Judge and which again is being advanced before us by Mr. N.G.R. Prasad, learned Counsel for the first respondent Company, and Mr. A.L. Somayaji, learned Counsel for respondents 2 to 12. and that is, laches. The very prayer in the writ petition is to direct the first respondent company to promote the petitioner from 1-11-1975 when the second respondent was promoted. On 1-11-1975, respondents 2, 3 and 4 were promoted. On l-4-1976, the sixth respondent was promoted. On 1-10-1979 and 1-11-1979, respondents and 7 respectively, were promoted. On 1-1-1981 respondents 5 and 9 to 12 were promoted. In service matters and especially when a party has got a grievance with reference to promotions effected which, according to him, are derogatory of the equality provision of the Constitution of India, utmost expedition is the rule, unless he has got a very convincing and reasonable explanation for not seeking the relief earlier which he is entitled to before this Court. It is true that where there is a complaint of breach of fundamental rights guaranteed under the Constitution of India, this Court shall not persuade itself to refuse the reliefs solely on the jejune ground of laches, delay or the like. This presupposes that the breach of fundamental rights gets substantiated before this Court. Delay in challenging orders of promotion brings in a situation where, on account of lapse of time and other circumstances following, the opposite party is placed in a situation that the relief to be granted to the petitioner will cause prejudice to the opposite party. In those circumstances, laches are viewed as amounting to negligence or omission to assert the right at the appropriate time and it will operate as a bar in a Court of equity. This negligence jeopardises the claim of the petitioner because, the circumstances stand altered by lapse of time. In the instant case, the petitioner has no convincing explanation to offer for the delay in approaching this Court, agitating for the relief of promotion to be given to him from 1-11-1975. What all he stated is that the petitioner was making representations to the Personnel Manager and the Management since 1976 and the Union Office-bearers were advancing the cause of the petitioner subsequently. These features have no sanctity in the eye of law to water down the repercussions of laches and lapses. As pointed out by the Supreme Court in Rajalakshmiah v. State of Mysore : (1967)IILLJ434SC , merely because the superior authority had espoused the petitioners' cause and was writing letters frequently to the Government to do something for the petitioners, it did not mean that they could rest upon their oars if they were really being discriminated against. In our view, laches on the part of the petitioner speaks against him. But, we have not declined to accord him the relief on the ground of laches alone because, even on merits we have found the case of the petitioner to be of no substance, as could be seen from the discussion supra.
13. Another factor put forth against the petitioner by Mr. N.G.R. Prasad, learned Counsel for the first respondent company, and Mr. A.L. Somayaji, learned Counsel for respondents 2 to 12, is that the petitioner has an adequate alternative remedy provided under the Standing Orders of the first respondent company. Our attention has been drawn to Standing Order 42, wherein the 'grievance procedure' is prescribed. On going through the same, it is possible to state that the grievance of the petitioner on the question of promotion could as well be agitated under the said procedure. But the case, both before the learned single Judge and before us, has been argued on merits and in this view, we are not putting forth the existence of any adequate alternative remedy under the Standing Orders as disentitling the petitioner from having reliefs if he is otherwise entitled to at the hands of this Court. Merits have been discussed and merits have spoken against the petitioner.
14. We have already pointed out that the respondents object to the very maintainability of the writ petition against the first respondent company on the ground that it cannot fall within the ambit of Article 12 of the Constitution of India. It is true that a Government company can be regarded as an authority for purposes of Article 12 if it has the attributes of an instrumentality or agency of the Government. We are not expressing opinion on this aspect for two reasons. One is, the materials disclosed are not adequate for us to express any categoric opinion as to whether the well-laid down tests in this behalf are satisfied or not. The second is, we have decided the matter on merits as the parties did not shirk to project their pleas on merits also and in fact, the decision was rendered by the learned single Judge on merits and we have also done it, taking for argument's sake that the first respondent company would come within the ambit of Article 12 of the Constitution of India.
15. The foregoing discussion leaves us with no other alternative but to dismiss the writ appeal. Accordingly, this writ appeal is dismissed. There will however, be no order as to costs.