BAN WARI LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners were Assistant Store Keepers in the Ordnance Clothing Factory of Shahjahanpur. They were promoted on the recommendation of a Departmental Promotion Committee, hereinafter referred to as 'the D. P. C. ', to the post of Supervisor 'b' Grade (Non technical ). The promotion took: effect on 1 10. 1975. However, on Sep tember 30, 1976 the General Manager of the Factory reverted the petitioners to their substantive post. On the basis of recommendation of another D. P. C,, some other persons were promoted to the post in place of the petitioners. The second promotion was made on October 4, 1976. This promotion was also set aside and finally persons other than the petitioners were promoted to fill the vacancy of Supervisor 'b' Grade (Non-technical), This writ petition was admitted by this Court on October 20, 1976 and persons who had been appointed on the recommendation of the second D. P. C. were arrayed as respondents 4 to 10. The names of respondents 4 to 10 were, however, deleted from the array of the respondents. The only relief prayed for by the petitioners which survives for our consideration is whether the order, passed by the General Manager on 1. 10. 1976 reves ting the petitioners is legally valid or not. The challenge against the promotion of persons other than the petitioners, no longer survives. On behalf of the petitioners, it has been urged that the order impug ned ia this writ petition is in the teeth of sub-Rule (2) of Rule 10 of the Indian. Ordnance Factories (Recruitment and Conditions of Service of Class 111 Personnel) Rules 1956. It is submitted that in passing the impugned order, the General Manager of the Factory was misled by the summary of Rules contained in Supplement No. 1 to Procedure Manual for Factories. In other words, the petitioners challenged that the statutory rule made under Section 309 of the Constitution has incorrectly interpreted in the Procedure Manual in the counter-affidavit filed on behalf of the respondents, Annexuie 'a' contains the list of Store Keepers for promotion to the post of Supervi sor 'b' Grade Non-technical) as it'stood on 1. 11. 1976. It is evident from Che perusal of the said list that the petitioners were senior to nine out often persons who had been placed above them in the said list. Persons junior to the petitioner were placed higher to them in the list only on the basis of their merit. The classification of merit against the petitioners was 'good' while the other ten persons who are higher to the petitioners in the list have been classified as 'very Good'. The stand taken on behalf of the respondents is that the D P. C. which met on September II. 1975 committed an error in recommending the names of the petitioners for appointment as Supervisor 'b' Grade (Non technical) inasmuch as the basis of selection should have Ven merit tampered with seniority. It is contended that since the D. P. C. . while making its recommendation in favour of the petitioners overlooked the claims of those who had greater merits than the petitioners, the said election was rightly set aside and the order dated 30. 9. 1976 is valid and In accordance with the Rules. In order to appreciate the rival contentions, para (2) of Rules 10 of the Rules aforesaid is quoted below: " (2) In making their recommendation for promotions, the Depart mental Promotion Committee will have regard. (a) to the substantive seniority of an officer as determined in clauses (i) to (iii) of sub-rule (1) (b) to his temporary seniority as determined in clause (Iv") of sub-ruled); and (c) to merit. " In the Procedure Manual, however, the above Rule has been summarized to mean that the principle of selection is merit tampered with seniority. It is not in dispute between the parties that the post of Supervisor 'r' Grade (Non technical) was a selection post. The only controversy which we are called upon to resolve is to the question as to whether under para (2) of Rule 10 of the Indian Ordnance Factories (Recruitment and Conditions of Service of Calss (III) Personnel) Rules, 1956 the predominant consideration was seniority or merit. According to the contention advanced on behalf of the petitioners, their claim of promotion could have been ignored only if they had been found to be unfit to hold the higher post. The respondents, on the other hand, contend that on a true interpretation of the Rules merit was the guiding principle which was rightly taken into account. When there were more meritorious candidates available then the petitioners they have rightly been given preference over the petitioners. There is considerable diversion of opinion on the question whether in making promotion to a higher post, the appointing authority should be guided by seniority or merit. According to one view, seniority is a better principle since it reduces chances of arbitrariness and guarantees fair play. In this way, promotion on the basis of seniority strengthens the moral of the services and keeps them contented. The other view is that the main interest to be served in making promotion is public interest and not the personal interest of the members of the official group concerned. The princi pal object of promotion system is to secure the best possible incumbent for the higher position. Instead of weakening according to this view, is fair to the people at large and it ensures better 'public service. This principle encourages persons holding the inferior post to work better and harder in order to earn a chance to climb the promotion ladder. The third view is that merit and seniority should be synthesised in making pro motion to the higher posts. According to this view, both seniority and merit should he taken into account In making promotion. In the third category there is again a divergence of opinion. According to some, the true principle of promotion should be seniority subject to the rejection of the unfit. This principle is some times called as the principle of seniority cum merit or as seniority tampered with merit. According to yet another opinion, merit should hold the field. When two persons hold a subordinate Position having equal merit that seniority should be allowed to enter and till the balance in favour of the person who is more senior to his rival candidate. This view is generally referred to as the principle of merit cum seniority or merit tampered by seniority. Fortunately, for us, we have a definite rule which we are only requir ed to interpret. It is not for us to pronounce about the wisdom of different opinions outlined by us earlier. The relevant merits of the views stated above has been actually discussed by the Supreme Court in Sant Ram Sharma v. State of Rajasthan (A. I. R. 1967 S. C. 1910.) and by R. S. Pathak, J. (as he then was) in the Full Bench opinion of the Himachal Pradesh High Court in Sri Hari Dutt Kointhala v. State of Himachal Pradesh and others (1974 (1)S. L. R. 208. ). It may be stated at once that what is given in the Procedure Manual has no statutory force. However, the Rules embodied in the Indian Fac tories (Recruitment and Conditions of Service of Clause lit Personnel) Rules 1956 have been framed by the President under Article 309 of the Consti tution of India and were published in the Government Gazette under S. R. O. 4 dated 4th January, 1956. These rules are per force statutory Rules and have a binding effect. As already indicated by us, the Procedure Manual contains only a summary of the Rules prepared according to the under standing of the Officer who was entrusted with the responsibility of drafting the Manual. In case there is any conflict between the Rules contained in the Government Notification S. R. O. 4 dated 4th January, 1956 and the terms of the Procedure Manual, the latter has to yield to the former. This position has not been seriously challenged on behalf of the respondents. On a fair reading of Rule 10 (2) of the Rules it is evident that precedence has been given by the rule-making authority to seniority and merit has been relegated to a secondary position. This Rule, therefore, enshrines the principle of seniority-cum-merit or seniority tampared with merit. In State of Kerala v. N. M. Thomas (A. I R 1976 S. C. 190.) Ray, C. J. in his opinion observed: "with regard to promotion the normal principle are either Merit-cum-seniority or seniority-cum-merit. Seniority cum merit means that given the necessary minimum merit, requisite for efficiency of adminis tration, the senior, though less meritorious shall have priority. " In Hari Datt (supra) the same point has been emphasised by the Full Bench of the Himachal Pradesh High Court in these words; "this means the seniority-cum-fitness principle and what it implies is that the senior person unless fit should get the promotion. " Similar opinion has been expressed in the case of State of Mysore v. Syed Mahmood (1968 S. L. R. 411. ). In order to appreciate the true meaning of the principle of seniority-cum-merit or seniority tampered with merit, we may profitably refer to the observations of the Supreme Court in the case of Sant Ram (supra), In that case, their Lordships were propounding the principle of merit-cum-seniority or merit tampered with seniority. The Supreme Court said; "in our opinion, the respondents are right in their contention that the ranking or position in the Gradation List does not confer any right on the petitioner to be promoted to selection post and that it is a well established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when claim of officers to selection posts is under con sideration, seniority should not be regarded to except where the merit of the officers is judged to be equal and no other criterion is, therefore, available. From the above discussion, it follows that sub-Rule (2) of Rule 10 of the Rules envisages a situation where a senior is entitled to promotion un less it can be said that he is unfit for such promotion. We have already stated above that according to the respondents' own case, the petitioners were classified as 'good'. From this classification, the only conclusion which is possible to be drawn is that the petitioners were considered to be good workers and could not be deemed to be 'unfit' for a higher post. The selection of the petitioners to the higher post was set aside on the mis taken belief that the relevant Rule provided for selection on the basis of merit-cum-seniority or merit tampered with seniority. The belief stemmed from the fact that the Rule had not been correctly summarised in the Procedure Manual where it is stated that the selection should be made on the basis of merit tampered by seniority. In our view, the summary of the relevant Rule is patently incorrect. The order dated September 30, 1976 is not only unjust to the petitioners but also suffers from a manifest error of law. The said order deserves to be quashed and to this extent this writ petition must succeed. The result is that this writ petition is allowed. The order passed by the General Manager, Ordnance Clothing Factory, Shahjahanpur, on Sep tember 30, 1976, reverting the petitioners from the post of Supervisor 'b' Grade (Non-technical) is hereby quashed. Petitioners shall be entitled to their costs. .