(Prayer: Appeal under Clause 15 of the Letters Patent against the order dated 03.07.2014 passed in W.P. (MD) No.11261 of 2009 on the file of this Court.)
Indira Banerjee, CJ.
1. This appeal is against a judgment and order dated 03.07.2014, passed by the learned Single Bench allowing the writ petition filed by the respondent [hereinafter referred to as the "respondent/writ petitioner"], being W.P(MD)No.11261 of 2009 and setting aside the order dated 13.06.2008, impugned therein.
2. By the order under appeal, the learned Single Bench, has, in effect, directed the appellants to give the respondent/writ petitioner all the benefits of promotion against vacancies in the posts of Sub-Inspector of Police as on 31st July 2004 and fix his seniority accordingly.
3. The respondent/writ petitioner was initially appointed as a Grade II Police Constable on 14th November 1977. The respondent/writ petitioner was upgraded as Grade I Police Constable on 22nd July 1994 and promoted as Head Constable on 22nd July 1999. The next promotion post for the respondent/writ petitioner was the post of Sub-Inspector of Police.
4. Pursuant to a Memorandum being Rc.No.276060/NGB.IV(1)/2004, dated 03.01.2005 of the Director General of Police, Tamil Nadu, the Range Promotion Board was constituted to fill up 10 vacancies in the posts of Sub-Inspector of Police, as on 1st July 2004.
5. According to the appellants, Head Constables, who had completed total service of seven years and service of not less than four years as Head Constable, were eligible to be considered for promotion
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by the Range Promotion Board.
6. It is stated that 745 Head Constables participated in the proceedings before the Range Promotion Board on 7th February 2005 and appeared for the Written Test. The respondent/writ petitioner was not called to participate in the proceedings before the Range Promotion Board, in view of an enquiry pending against him for alleged assault of one Ganesan on 30th June 2004, in course of investigation, while the respondent/writ petitioner was posted at Soorankudi Police Station. A criminal case being Crime No.103 of 2004 had also been registered against the respondent/writ petitioner along with two others at Soorankudi Police Station.
7. Out of 745 candidates, who had participated on 7th February 2005, only 8 candidates were found fit for promotion and were promoted. The last promoted candidate secured 43.70 marks.
8. According to the appellants, pursuant to the orders of the Director General of Police, Tamil Nadu, an Additional Range Promotion Board was convened on 20th March 2005 to fill up the remaining two posts. 706 candidates participated in the proceedings before the Additional Range Promotion Board.
9. On consideration of a representation made by the respondent/writ petitioner to the Superintendent of Police, Thoothukudi District, the respondent/writ petitioner was permitted to participate in the proceedings before the Additional Range Promotion Board on 20th March 2005.
10. According to the appellants, the respondent/writ petitioner appeared in the written test and secured 11.50 marks out of 30. Since the respondent/writ petitioner had not been able to secure the minimum pass mark of 12, he could not appear for the Drill Test and the Viva Voce.
11. In the meanwhile, the respondent/writ petitioner had filed a writ petition being W.P(MD)No.1704 of 2005. The said writ petition was disposed of by an order dated 19th December 2007.
12. The records reveal that the affidavit in support of the writ petition seeking orders on the appellants to participate in the proceedings before the Additional Range Promotion Board, was affirmed in February 2005, that is, before the date of the Written Test on 20th March 2005. By the time the writ petition was disposed of, all the ten posts had been filled up.
13. Be that as it may, the writ petition was allowed by the said order dated 19th December 2007 and the appellants were directed to give the respondent/writ petitioner an opportunity to appear for the Drill Test and Viva Voce and to consider him for appointment, if he succeeded in the test.
14. According to the appellants, the Court directed the appellants to allow the respondent/writ petitioner to appear for the Drill Test and Viva Voce by taking the marks obtained by the respondent/writ petitioner in the written test as 12 instead of 11.50.
15. According to the appellants, the respondent/writ petitioner was permitted to participate in the proceedings before the Special Range Promotion Board conducted on 12th June 2008 by taking the Drill Test and Viva Voce, but, he was not successful, as he had only obtained 50.30 marks out of 100. Accordingly, the order impugned in the writ petition was passed declaring the respondent/writ petitioner unsuccessful.
16. In allowing the writ petition and setting aside the order impugned, the learned Single Bench took note of the fact that one Head Constable, A.Balasubramanian, Grade No.502, who had secured 43.70 marks, had been included in the list of promotees to the post of Sub-Inspector of Police lying vacant as on 31st July 2004.
17. It appears that in passing the order under appeal, setting aside the order impugned in the writ petition and directing the appellants to fix the seniority of the respondent/writ petitioner and giving him all other consequential benefits by treating him as promoted to the post of Sub- Inspector of Police, the learned Single Bench had overlooked the fact that out of 706 candidates, who had participated in the proceedings before the Additional Range Promotion Board held on 20th March 2005, the candidates, who had secured the highest marks, that is, 74.63 and 79.14 had been selected. The respondent/writ petitioner secured only 50.30 marks and is therefore, not entitled to promotion.
18. In the instant case, the Range Promotion Board was convened on 7th February 2005. The respondent/writ petitioner was not allowed to participate apparently in view of pending disciplinary proceedings. The pendency of a disciplinary proceeding or a criminal prosecution can be a relevant ground for withholding promotion, as held by the Supreme Court in Union of India v. K.V.Jankiraman reported in AIR 1991 SC 2010. However, the respondent/writ petitioner was allowed to participate in the proceedings before the Additional Range Promotion Board convened on 20th March 2005, but was unsuccessful.
19. The respondent/writ petitioner did not question his exclusion from consideration in the proceedings on 7th February 2005. In the writ petition being W.P(MD)No.1704 of 2005 filed by the respondent/writ petitioner, the Court did not interfere with the selection of eight Head Constables for promotion to the post of Sub-Inspector of Police, pursuant to the proceedings on 7th February 2005.
20. Promotion is a normal incident of service. Every person in a feeder post for promotion has a right to be considered for promotion. Non- consideration of the case of a person eligible for promotion would amount to infringement of the right of equality under Article 14 read with Article 16 of the Constitution of India.
21. When the rules or instructions or contract of service require that promotion is to be granted taking into consideration factors which pertain to assessing or evaluating the fitness of the aspirants for promotion, promotion depends on the result of such assessment and/or evaluation.
22. In State Bank of India v. Mohd. Mynuddin reported in AIR 1987 SC 1889, the Supreme Court held as under:
'Whenever promotion to a higher post is to be made on the basis of merit no officer can claim promotion to the higher post as a matter of right by virtue of seniority alone with effect from the date on which his juniors are promoted. It is not sufficient that in his confidential reports it is recorded that his services are 'satisfactory'. An officer may be capable of discharging the duties of the post held by him satisfactorily but he may not be fit for the higher post. Before any such promotion can be effected it is the duty of the management to consider the case of the officer concerned on the basis of the relevant materials. If promotion has been denied arbitrarily or without any reason ordinarily the Court can issue a direction to the management to consider the case of the officer concerned for promotion but it cannot issue a direction to promote the officer concerned to the higher post without giving an opportunity to the management to consider the question of promotion. There is good reason for taking this view. The Court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. The duties of such posts may need skills of different kinds - scientific, technical, financial, industrial, commercial, administrative, educational etc. The methods of evaluation of the abilities or the competence of persons to be selected for such posts have also become now-a-days very much refined and sophisticated and such evaluation should, therefore, in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post to be nominated (sic.) by the employer.'
23. The right to be considered for promotion obligates the authority concerned to consider the case of an aspirant for promotion in accordance with law, that is, statutory rules or conditions contained in the contract of service or executive instructions or policies or norms as the case may be. Where the rules require the convening of a Promotion Board to consider fitness on the basis of tests - Written Test, Drill Test and Viva Voce, an employee only has a right to appear in such tests. Right to promotion accrues only upon successful clearance of each phase of the selection process.
24. In the instant case, the candidates who were successful in the Written tests were to take a Drill Test and thereafter, a Viva Voce Test and total marks were to be computed on the basis of all three tests along with the marks on the basis of pass performance. The respondent/writ petitioner could not take the Drill Test and Viva Voce on 20th March 2005 as he could not clear the Written Test by securing the minimum pass mark of 12.
25. Promotion on the basis of a merit factor does not carry with it any potentiality of arbitrariness as held by the Supreme Court in Sant Ram Sharma v. State of Rajasthan reported in AIR 1967 SC 1910, wherein the Supreme Court observed as under:
'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.'
26. There can be no doubt that when there is a delay on the part of the authorities in considering or releasing promotion without any reasonable ground, an employee would be entitled to claim that his promotion should be effective from the date when he ought to have been promoted, but for the delay.
27. However, the question of promotion of an employee is inextricably linked with the evaluation of suitability of the employee concerned for such promotion. It is in the context of this principle that the question of the effect of pendency of departmental proceedings or the currency of a punishment when the question of promotion of an employee is being considered, assumes relevance.
28. Though the process of consideration for promotion and selection is subject to judicial review, the scope of such review is subject to well defined limitation. Judicial review of promotion will be proper only when the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. If the Promotion Committee has proceeded in a fair, impartial and reasonable manner, Courts should not interfere. Generally the Courts do not interfere with the details of promotional policy, for example, the assignment of marks for Written Tests, appraisal reports and interview or the prescription of minimum eligibility marks.
29. The respondent/writ petitioner was permitted to participate on 20th March 2005, but was unsuccessful in the written test, inasmuch as he could not secure the minimum pass mark of 12, but secured only 11.50. The respondent/writ petitioner was not the only candidate to participate in the proceedings on 20th March 2005. 706 Head Constables had participated, out of whom, two were selected. Those who were selected had not only cleared the written test, but they had got 74.63 and 79.14 marks respectively.
30. By the order dated 19th December 2007, the respondent/writ petitioner was directed to be given an opportunity to participate. He participated, but obtained 50.30 marks. He may have got marks higher than the cut-off marks for the candidates selected for the promotion pursuant to the test held on 7th February 2005. However, as observed above, those appointments had assumed finality there being no challenge to those appointments and the Court not having interfered with the same. Those candidates, who had been selected pursuant to the proceedings before the Additional Range Promotion Board on 20th March 2005, had secured far higher marks than the respondent/writ petitioner. The seniority of the respondent/writ petitioner could not possibly have been fixed above them.
31. There can be do doubt as held in Pilla Sitaram Patrudu and others v. Union of India and others reported in JT 1996 (4) S.C. 731 that when an appointment is delayed for no fault of an employee, he is entitled to the ranking given in the select list and to appointment. The principle is that no employee should be penalised for no fault of his own. However, the situation is entirely different in this case, where the respondent/writ petitioner was first not allowed to participate on the ground of pendency of proceedings and in the second round, though he participated, did not qualify.
32. In the instant case, the ranking as aforesaid, has been overlooked. The respondent/writ petitioner secured less marks than the two candidates appointed on the basis of the selection process on 20th March 2005.
33. The judgment of the Division Bench of this Court in The Deputy Inspector General of Police, Tirunelveli Rural Range, Tirunelveli - 11 and others v. S.Arputhanantham [W.A.(MD)No.784 of 2013, delivered on 4th April 2017], is clearly distinguishable on facts.
34. With the greatest of respect, in passing the order under appeal, the learned Single Bench has overlooked the combined merit position. The order under appeal, cannot, therefore, be sustained. The appeal is accordingly allowed and the order dated 03.07.2014 passed in W.P. (MD) No.11261 of 2009 is set aside. No costs. Consequently, the connected civil miscellaneous petition is closed.