R K S CHAUHAN STATE OF UTTAR PRADESH O K BHATNAGAR Vs. STATE OF UTTAR PRADESH:O P CHATURVEDI:STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The question of promotion from the post of Assistant Director to that of Joint Director had to be considered in accordance with the U. P. Agricultural Department (Recruitment to Senior Posts) Rules, 1976. According to Rule 3 of the aforesaid rules, overriding effect is given over U. P. Agriculture Service, Class I Rules, 1934. Rule 4 of the 1976 Rules lays down the method of recruitment by promotion. That rule provides:

(2.) On the basis of the selection made by the aforesaid Selection Committee 10 persons were selected for promotion on the basis of merit. Those who were left out, therefore, challenged the selection on the ground that the selection had to be made on the basis of seniority and their seniority had been overlooked. The tribunal accepted this contention and quashed the selection. The present appellants, therefore, approached the High court under Articles 226/227 of the Constitution challenging the decision of the tribunal. The High court came to the conclusion that the criterion was merit though seniority was not an irrelevant consideration but upheld the order of the tribunal on the ground that the selection made by the Committee did not reflect the basis on which comparative merit of the eligible candidates was determined. The High court observed as under:

(3.) On a plain reading of the relevant rules there can be no doubt that the criterion for appointment to the post of Joint Director by promotion is merit pure and simple. Seniority can become a relevant consideration only when there is a tie between two candidates on merit. If out of two candidates possessing equal merit one has to be selected, seniority may become a relevant consideration. But it is nobody's case that such a situation had arisen in the instant selection. Therefore, even if we are to assume that the respondents were senior to the appellants, it would not help the respondents since the selection was based on merit. Merely because the first ten candidates in the eligibility list came to be selected it cannot be said that the selection was not made on merit. It was contended by the unsuccessful respondents in their application to the tribunal that the selection was vitiated for non-application of mind, in that, comparative merit-cum-seniority had not been taken into consideration. If it was put in issuethe parties would have placed their point of view in that behalf in the pleadings and perhaps the State would also have filed an affidavit explaining how merit was assessed. It seems to us that the only ground on which the selection was challenged was that a wrong criterion was adopted for the purpose of promotion to the post of Joint Director. According to the unsuccessful respondents the correct criterion was seniority and not merit and that was upheld by the tribunal. It was for that reason that the appellants felt aggrieved and moved the High court by way of a writ petition. The High court conceded that the correct criterion was merit but it knocked down the selection on the ground that there was no proper application of mind in that the Committee had not adjudged the comparative merit of the eligible candidates; at least the record did not reflect it. Now this was never the contention raised before the tribunal and the pleadings were not completed on that contention. It seems that the High court called for the file, looked into it and virtually made out the case which was never pleaded by the unsuccessful candidates. In doing so the High court placed the appellants to a disadvantage, in that, the selection had never been quashed by the tribunal on that ground. The ground on which the selection was quashed was not one which found favour with the High court. Even if we are to assume that the unsuccessful respondents were senior to the appellants as their ad hoc service had to be reckoned for the purposes of seniority, we fail to see how it would make any difference if the selection is purely on merit and there was no contention that there was a tie between two candidates of equal merit. We are, therefore, of the opinion that the High court fell into an error in making out a case which was not pleaded by the unsuccessful candidates in the application filed before the tribunal and which it appears was made out for the first time by the High court. Even when the matter was pending before the High court, the unsuccessful candidates never sought leave to amend their application and include this plea. The appellants as well as the State, therefore, had hardly any opportunity to place their point of view in that behalf. We are, therefore, of the opinion that the said ground on which the High court quashed the selection cannot be allowed to stand. Needless to clarify that we have not gone into the question of inter se seniority.