05 October 2004
Supreme Court
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STATE OF U.P. Vs JALAL UDDIN .

Bench: ARIJIT PASAYAT,C.K. THAKKER
Case number: C.A. No.-006511-006511 / 2004
Diary number: 2441 / 2004


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CASE NO.: Appeal (civil)  6511 of 2004    of 2004

PETITIONER: State of Uttar Pradesh  

RESPONDENT: Jalal Uddin and Ors.

DATE OF JUDGMENT: 05/10/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

(Arising out of SLP ) No. 5002 of 2004)

ARIJIT PASAYAT, J.

       Leave granted.  

       The State of Uttar Pradesh calls in question legality of the  judgment rendered by a Division Bench of the Allahabad High Court. The  writ petition was filed by the present respondent No.1 with the prayer  that he should be promoted as Principal of the Government Degree  College. Grievance was made that though his juniors have been promoted  but he had not been promoted.  Relying on earlier judgment of the High  Court in N.K. Agarwal v. Kashi Gramin Bank, Varanasi (2003 (2) UPLBEC  1333), the writ petition was allowed. Direction was given that present  respondent No.1 should be promoted as Principal of a Government Degree  College with effect from the earliest date on which his juniors were  promoted, his seniority was to be fixed with effect from that date and  he shall be given arrears within two months. According to the High  Court, the criteria for promotion have to be so as given in Rule 16 of  the U.P. Higher Education (Group A) Service Rules, 1985. According to  the said rules, seniority subject to rejection of unfit was the  criteria in terms of Rule 16(1)(b).

       In support of the appeal, learned counsel for the appellant-State  submitted that the High Court completely ignored the relevant rules and  based its judgment on a rule which was no longer operative. The 1985  Rules had become inoperative in view of the Uttar Pradesh Government  Servant Criteria for Recruitment by Promotion Rules, 1994 (in short the  ’1994 Rules’) as modified/amended from time to time. The said rules  have been framed in exercise of powers conferred by proviso to Article  309 of the Constitution of India, 1950 (in short the ’Constitution’).  In Rule 2 it was clearly stipulated that the rules had over-riding  effect over any other rules made by the Government under the proviso to  Article 309 of the Constitution or otherwise. It is clearly stipulated  that the rules shall have effect notwithstanding anything to the  contrary contained in any other rules as noted above.   The High  Court proceeded to decide the case on the basis of 1985 Rules which was  not permissible to be done.  

       In response, learned counsel for the respondent No.1 submitted  that even under the 1994 Rules the respondent was entitled to be  promoted and even though specifically the 1994 Rules have not been  referred to, the same was kept in view while deciding the writ

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petition. The distinction between the seniority-cum-merit and merit- cum-seniority consideration is too well known and needs no reiteration.  

In all services, whether public or private there is invariably a  hierarchy of posts comprising of higher posts and lower posts.   Promotion, as understood under the Service Law Jurisprudence, is  advancement in rank, grade or both and no employee has right to be  promoted, but has a right to be considered for promotion.  The  following observations in Sant Ram Sharma v. State of Rajasthan and  Ors. (AIR 1967 SC 1910) are significant:

"The question of a proper promotion policy depends  on various conflicting factors.  It is obvious that  the only method in which absolute objectivity can be  ensured is for all promotions to be made entirely on  grounds of seniority.  That means that if a post  falls vacant it is filled by the person who has  served longest in the post immediately below.  But  the trouble with the seniority system is that it is  so objective that it fails to take any account of  personal merit.  As a system it is fair to every  official except the best ones; an official has  nothing to win or lose provided he does not actually  become so inefficient that disciplinary action has  to be taken against him.  But, though the system is  fair to the officials concerned, it is a heavy  burden on the public and a great strain on the  efficient handling of public business.  The problem,  therefore, is how to ensure reasonable prospect of  advancement to all officials and at the same time to  protect the public interest in having posts filled  by the most able man?  In other words, the question  is how to find a correct balance between seniority  and merit in a proper promotion-policy."

       The principles of seniority-cum-merit and merit-cum-seniority are  conceptually different.  For the former, greater emphasis is laid in  seniority, though it is not  the determinative factor, while in the  latter merit is the determinative factor.  In The State of Mysore and  Anr. v. Syed Mahamood and Ors. (AIR 1968 SC 1113), it was observed that  in the background of 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 seniority-cum-merit, that the rule  required promotion to be made by selection on the basis of "seniority  subject to 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 seniority-cum-merit 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. But  these are not the only modes for deciding whether promotion is to be  granted or not.   

       These aspects were highlighted in K. Samantaray v. National  Insurance Co. Ltd. (AIR 2003 SC 4422). It has to be noticed that in the counter affidavit filed by the  State, a clear reference was made to the 1994 Rules and the amendment  made in 1996. Though the High Court referred to some paragraphs of the  counter affidavit, it did not take note of 1994 Rules and its effect on  the controversy. We are therefore of the considered opinion that when  relevant rules have not been kept in view the proper course would be to  direct the High Court to hear the writ petition afresh. The  applicability and the effect of 1994 Rules to the facts of the present  case shall be considered by the High Court in the proper perspective.

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We make it clear that we have not expressed any opinion in that regard.  

       The appeal is allowed to the aforesaid extent with no order as to  costs.