Tek Chand vs Bhakra Beas Management Board … on 29 July, 2021


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Supreme Court of India

Tek Chand vs Bhakra Beas Management Board … on 29 July, 2021

Author: Navin Sinha

Bench: Navin Sinha, R. Subhash Reddy

                                                                NON­REPORTABLE

                                 IN THE SUPREME COURT OF INDIA
                                  CIVIL APPELLATE JURISDICTION


                                  CIVIL APPEAL NO. 4482 OF 2021
                                (arising out of SLP(C)No.28392 of 2018)


          TEK CHAND AND OTHERS                                    ...APPELLANT(S)
                                               VERSUS
          BHAKRA BEAS MANAGEMENT BOARD
          (B.B.M.S.) AND OTHERS                                ...RESPONDENT(S)


                                             JUDGMENT

NAVIN SINHA, J.

Leave granted.

2. The appellants were promoted to the post of Leading

Fireman on 09.02.2012 under the Bhakra Beas Management

Board Class­III and Class­IV Employees (Recruitment and

Conditions of Service) Regulations, 1994 (hereinafter called “the

Regulations”). Their promotions have been annulled by the High

Court, holding them to be ineligible for promotion under the

Regulations.

Signature Not Verified

Digitally signed by
Rajni Mukhi
Date: 2021.07.29
16:54:16 IST
Reason:

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3. The post of Fireman is a feeder post for that of Leading

Fireman. The appellants are admittedly senior to respondent no.3

having been appointed as Fireman on 09.02.1991. Respondent

no.3 was appointed as Fireman on 09.01.1992. The respondent

filed a writ petition claiming to be considered for promotion as

Leading Fireman in view of available vacancies. The appellants

came to be promoted during the pendency of the writ petition and

were impleaded as respondents. No relief was sought against the

appellants. The High Court annulled the promotion of the

appellants as ineligible under the Regulations, and directed the

promotion of respondent no.3.

4. Shri S.N. Bhat, learned counsel for the appellants,

submitted that the appellants are admittedly senior to

respondent no.3. Regulation 5 provided that promotion was to be

based on the seniority­cum­merit principle. The appellants held

a good service record. The Departmental Promotion Committee

after consideration of their candidature promoted them on

09.02.2012 as Leading Fireman. Respondent no.3 had sought no

relief for annulling the promotion of the appellants, yet the High

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Court travelled beyond the pleadings to grant a relief not sought

by respondent no.3.

5. Shri Bhat submits that the possession of an appreciation

certificate under serial 3 of Schedule ‘A’ of the Regulations was

not an independent requirement in addition to a good service

record. It was but only a facet of the good service record. He

relies upon a passage from Principles of Statutory Interpretation

by Justice G.P. Singh, 9th Edition, which reads as under:

“It is also not unusual to find use of pairs of
words as a composite class. An example of this
nature is found in section 22(1) of the Common
Regulation Act, 1965 which uses the
expression ‘sports and pastimes’ as a
composite class. In interpreting this expression
LORD HOFFMAN said: “As a matter of
language I think that ‘sports and pastimes’ is
not two classes of activities but a single
composite class which uses two words in order
to avoid arguments over whether an activity is
a sport or pastime. The law constantly uses
pairs of words in this way. As long as the
activity can properly be called a sport or a
pastime, it falls within the composite class. [R.

v. Oxfordshire County Council, (1999) 3 All ER
385 p.396 (HL)]”

The High Court erred in holding that the two were conjunctive

requirements and in absence of appreciation certificates, the

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appellants were ineligible to be considered for promotion. Under

the Regulations, promotion was to be based on seniority­cum­

merit. Since the appellants held good service records and were

senior to respondent no.3, they were rightly promoted on

09.02.2012. Appellants nos.1 and 3 have since retired from

service. The promotion of the appellants was protected, both

before the High Court and during the pendency of the present

appeal. They have uninterruptedly continued on the post of

Leading Fireman. Respondent no.3 has also been promoted

subsequently on 21.07.2014 with effect from 09.02.2012.

6. Shri Kailash Vasdev, learned senior counsel appearing for

the management, submitted that promotion from the post of

Fireman to Leading Fireman under the Regulations are based on

seniority­cum­merit principle alone. The appellants are

admittedly senior to respondent no.3. There were 21 other

persons above respondent no.3 in the seniority list of Fireman, as

mentioned in the counter affidavit before the High Court.

Respondent no.3 could not have been granted promotion

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superseding so many persons without examination of their

claims.

7. Shri Vikas Upadhyay, learned counsel for respondent no.3,

submitted that the requirements to show appreciable initiative

and to obtain good reports cannot be telescoped together, as

suggested on behalf of the appellants, but are separate

requirements. The respondent alone possesses an appreciable

initiative certificate dated 14.08.2011 from the Chief Engineer. It

was acknowledged that the respondent has also since been

promoted with effect from 09.02.2012. The respondent, though

junior but being more meritorious than the appellants, there has

been no violation of the seniority­cum­merit principle.

8. We have considered the submissions on behalf of the

parties. Regulations 4(5) and 5, relevant to the controversy, read

as follows:

“4. Mode of appointment­
xxxxxx

5
4(5) Notwithstanding anything contained in these
regulations appointment by promotion shall be made by
selection based on seniority­cum­merit and no employee
shall be entitled to such appointment as of right.

5. Qualification­ No person shall be appointed to the service
unless he possesses the essential qualifications and
experience prescribed in Schedule ‘A’ annexed with these
regulations.”

9. Serial 3 to Schedule ‘A’ (for Group VIII) prescribing the

qualifications for promotion to Leading Fireman from Fireman

inter alia reads as follows:


Sr.   Name of   Method    Minimum Educational and other         Minimum
No.   Post      of        qualifications                        Experience
                Appoint
                ment

3.    Leading   By        Qualified in sub–Fire Officer’s       5 years
      Fireman   promoti   course from National Fire Service     experience in
                on from   College, Nagpur or equivalent         Fire Service
                amongst
                          degree with heavy vehicles driving
                firemen
                          license
                          or
                          Qualified in Fire Course arranged     7 years
                          by Ministry of Defence or Home        experience in

Affairs with heavy vehicles license Fire Service
or
Departmental candidates without
10 years
any course who show appreciable experience in
initiative and obtain good reports Fire Service
with heavy vehicle license

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10. The Regulations provide that appointment by promotion is

to be made by selection based on seniority­cum­merit and no

employee is entitled to appointment as a matter of right.

Schedule ‘A’ provides three different categories of Fireman eligible

to be considered for promotion to Leading Fireman. We are not

concerned with the first two categories. The appellants and

respondent no.3, all belong to the third category. They do not

possess any proficiency qualifications but have 10 years’

experience as Fireman. It was expected that they would acquire

sufficient experience by that time to be considered for promotion.

Experience and skill acquired during on­the­job training is very

different from expertise acquired based on preceding proficiency

qualifications from accredited institutions.

11. The term selection used in Regulation 4(5) and its

connotation in respect of the third category of Fireman has to be

understood in that context. Though a good service record would

be a sine qua non for selection based on seniority­cum­merit, but

if a Fireman appeared to have acquired better proficiency by on­

the­job training by reason of an appreciation certificate, he would

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certainly be considered in possession of an additional attribute.

The appellants have not been granted appreciable initiative

certificates in performance of their duties. We find it difficult to

uphold the reasoning that both requirements were mandatory

and conjunctive for promotion or that appreciable initiative was

only a facet of a good service record. If that were so, there was no

need to incorporate appreciable initiative as a separate head in

the Regulations. To interpret it otherwise is to render a part of

the Regulations as redundant. The language of the Regulations

being clear, it shall require a literal interpretation. The view be

taken by us is fortified from the endorsement by the Chief

Engineer on the appreciable initiative certificate given to

respondent no.3 that it should be annexed to his service record.

12. In other words, a person possessing good reports is eligible

to be considered for appointment by promotion as Leading

Fireman based on selection. Other things being equal between

competing candidates, seniority is to be given due weightage.

But it does not mean that even if a junior is more meritorious by

way of possessing an appreciable initiative certificate which the

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senior does not, irrespective of the same, the senior shall march

ahead on the seniority­cum­merit principle.

13. The fallacy in the thinking of the management is evident

from the letter of the Secretary dated 06.02.2011 in context of the

writ petition filed by respondent no.3, opining that under the

Regulations there was no provision for extra weightage of

appreciation letter issued to employees. We are unable to

sustain the same.

14. The seniority­cum­merit principle is well established in

service jurisprudence and does not need much discussion. In

B.V. Sivaiah and Ors. vs. K. Addankl Babu and Ors., (1998) 6

SCC 720, explaining the principle of seniority­cum­merit in

service jurisprudence, this Court observed as follows:

“10. On the other hand, as between the two principles
of seniority and merit, the criterion of “seniority­cum­
merit” lays greater emphasis on seniority. In State of
Mysore v. Syed Mahmood
[AIR 1968 SC 1113 : (1968)
3 SCR 363] while considering Rule 4(3)(b) of the
Mysore State Civil Services General Recruitment
Rules, 1957 which required promotion to be made by
selection on the basis of seniority­cum­merit, this

9
Court has observed that the Rule required promotion
to be made by selection on the basis of “seniority
subject to the fitness of the candidate to discharge the
duties of the post from among persons eligible for
promotion”. It was pointed out that where the
promotion is based on seniority­cum­merit, the officer
cannot claim promotion as a matter of right by virtue
of his seniority alone and 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.

11. In State of Kerala v. N.M. Thomas [(1976) 2 SCC
310] A.N. Ray, C.J. has thus explained the criterion of
“seniority­cum­merit”: (SCC p. 335, para 38)
“With regard to promotion the normal principles
are either merit­cum­seniority or seniority­cum­
merit. Seniority­cum­merit means that given the
minimum necessary merit requisite for efficiency
of administration, the senior though the less
meritorious shall have priority.”
xxxxxxxxxx

18. We thus arrive at the conclusion that the criterion
of “seniority­cum­merit” in the matter of promotion
postulates that given the minimum necessary merit
requisite for efficiency of administration, the senior,
even though less meritorious, shall have priority and a
comparative assessment of merit is not required to be
made. For assessing the minimum necessary merit,
the competent authority can lay down the minimum
standard that is required and also prescribe the mode
of assessment of merit of the employee who is eligible
for consideration for promotion. Such assessment can
be made by assigning marks on the basis of appraisal
of performance on the basis of service record and
interview and prescribing the minimum marks which
would entitle a person to be promoted on the basis of
seniority­cum­merit.”

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15. We are unable to sustain the view taken by the High Court

that it was only if a candidate possessed an appreciable initiative

and also obtained good reports, then only he was eligible to be

considered for promotion. The use of the word ‘and’, to our

understanding does not make it compulsory for the candidate to

possess both because in that event the question of selection from

amongst the eligible post on the seniority­cum­merit principle

would not apply stricto senso.

16. Respondent no.3 had not sought any relief for setting aside

the promotion of the appellants. The High Court travelled beyond

the pleadings in annulling the promotion of the appellants. The

High Court even while holding that promotion was not a matter

of right, nonetheless instead of directing consideration of the

claim of respondent no.3 for promotion, exceeded its jurisdiction

by issuing a mandamus for promotion. The High Court

completely lost sight of the objection of the management that

there were many others senior to respondent no.3 in the category

of Fireman. A writ petition by respondent no.3 could not become

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a springboard for out of turn promotion superseding his seniors,

taking them by surprise without an opportunity to contest even.

The impugned order directing promotion of respondent no.3,

causes discrimination by a judicial order leaving the aggrieved

remediless as observed in Bharat Petroleum Corporation Ex­

employees Association vs. Bharat Petroleum Corporation

Ltd. (1995) 2 SCC 15. Appropriately the High Court ought to

have directed consideration of respondent no.3 for promotion in

accordance with law. However, in the facts of the case we are not

inclined to interfere with the promotion of respondent no.3.

17. The appeal therefore is allowed holding that the appellants

were eligible to be considered for promotion. Their orders of

promotion are restored subject to the principle of seniority­cum­

merit as discussed hereinabove.

………………………….J.

[NAVIN SINHA]

………………………….J.

[R. SUBHASH REDDY]
NEW DELHI
JULY 29, 2021.

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