Constitution of India, Art. 14 - Selection Post - Petitioner considered for the grade of 2nd-in-command - Not found eligible in terms of criteria fixed for the selection posts - Petitioner having not challenged the criteria - Held cannot complain against supersession.

Advocates who appeared in this case :
Mr. M.K. Bhardwaj, Advocate for Petitioner
Mr. Tashi Rabstan, Advocate for Respondents

Cases referred : Chronological
1. State of U.P. v. Yamuna Shanker Misra and Another (1997) 4 SCC 7
2. Jagdish Lal v. State of Haryana AIR 1997 SC 2366
3. U.P. Jal Nigam v. Prabhat Chandra Jain AIR 1996 SC 1661

2. The grievance of the petitioner is that unblemished service record of the petitioner was ignored by the official respondents while promoting the private respondents when order dated 27-02-1996 was issued by respondent-2 pursuant to the order dated 27-11-195 issued by the respondent 1 by virtue of which private respondents were promoted to the grade of 2nd-in-Command. He was thus superseded without giving any reason although he had excellent service record and was senior to all the private respondents. He, therefore, seeks quashing of the order of promotion of the private respondents and a direction to the official respondents to promote him from the date his juniors were promoted.

3. The stand of the respondents is that promotion from the, Sub-Inspector upto the post of Deputy Commandant is on the basis of seniority. Further promotion to the rank of 2nd-in-Command and above is by selection. Since the petitioner did not possess required bench-mark, therefore, departmental promotion committee did not recommend him for promotion. It is, therefore, not a case of supersession, but his non-selection by the selection committee as he failed to make out the grade to qualify for promotion.

4. The contention of Mr. Bhardwaj, learned counsel appearing for the petitioner is that ever since his appointment, the petitioner has earned his promotion from time to time as and when he was due for it. His performance has all along been outstanding because at no stage, he was ignored for promotion. Even after his promotion to the rank of Deputy Commandant, no adverse remarks were ever conveyed to him in the absence of which his claim for promotion to the grade of Deputy Commandant could not be ignored. Since the petitioner was not even advised to improve his performance, therefore, any grading which has the effect of taking away his right to be promoted to the next higher grade is deemed to be an adverse entry and as such ignored for consideration. Any entry which has the effect of down-grading the petitioner as compared to his previous grading according to Mr. Bhardwaj could be used against the petitioner only if he was informed about it. The contention of Mr.Tashi Rabstan, on the other hand is that since petitioner did not earn any adverse entry, therefore, the question of conveying the same did not arise. His further argument is that appointment to the post of 2nd-in-Command is by selection on the basis of criteria prescribed by the Government, so the departmental promotion committee had to consider the record of eligible officers. As per the criteria followed officers graded as outstanding rank on bloc senior to those who are graded as "Very Good" and officers graded as "Very Good" rank on bloc senior to those who are graded as "Good", the petitioner could not be promoted because he did not fulfill the criteria.

5. There is no dispute to the seniority assigned to the petitioner in the rank of Deputy Commandant. It is also not disputed that petitioner was senior to the private respondents before they were promoted as 2nd-in-Command.

6. Admittedly promotion to the post of 2nd-in-Command is not by seniority but by selection. This is the specific case set up by the respondents which the petitioner has not controverted. The criteria for selection is that officers graded as outstanding would rank on bloc senior to those who are graded as "Very Good" and officers graded as very god would rank on bloc senior to those who are graded as "Good" and placed in the select panel accordingly upto he number of vacancies, officers with same grading maintaining their inter seniority in the feeder post.

7. The Government instructions further provide that in respect of all posts which are in the level of Rs.3700-5000 and above, the Bench mark grade should be ‘Very Good’. However, officers who are graded as outstanding would rank on bloc senior to those who are graded as ‘Very Good’ and placed in the select panel accordingly upto the number of vacancies, officers with same grading maintaining their interse seniority in the feeder post. The appointment from the panel are then made in the order of names appearing in the panel of promotion. The petitioner has not challenged the criteria prescribed for promotion. He has also not disputed the stand of the respondents that promotion to the post of 2nd-in-command is by selection. Thus in case the petitioner was unable to make grade on the basis of the above parameters, he cannot be entitled to the relief claimed by him. It was in this background that on the specific plea of the learned counsel for the petitioner, the respondents were asked to produce the record with regard to the assessment of the petitioner. This record has been produced and photo copy of the same was retained after the same was compared with the original. As per record, the petitioner was graded ‘Very Good’ for the year 1989-90 but he was graded ‘good’ for the year 1991-92 and 1992-93. He was again graded as "Very Good" for the year 1993-94. So out of three years gradings, he has been graded "Very Good" only once. Although he has been graded very good from 01-04-1989 to 30-04-1990, but this was before his promotion as Deputy Commandant and, therefore, the same is not relevant.

8. As compared to this, gradings of all the private respondents is either "Very Good" or outstanding. Moreover, the petitioner is not the only person who has been ignored on the basis of this criteria. There are others also in between him and N.K.Singh who have been ignored such as Mr.C.D.Lahiri. So criteria has been uniformally applied for making selection and since this criteria is not challenged, the petitioner cannot complain against his supersession.

9. This takes us to the question whether there has been down grading of the petitioner which has affected his chance of promotion and therefore, he was entitled to be informed. In support of this, Mr.Bhardwaj relied on the following dictum to U.P. Jal Nigam v. Prabhat Chandra Jain AIR 1996 SC 1661 :

"The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not down grading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view it the extreme illustration given by the High Court may reflect an adverse element compulsarily communicable, but if the graded entry is of going a step down, like falling from ‘very good’ to ‘good’ that may not ordinarily bean adverse entry since both are a positive grading. All what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted by not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the setting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualifatively damaging may not be true. In the instant case, we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain. Having explained in the manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court."

10. The question before the High Court was a different one where a person who had earned an outstanding report in a particular year was reduced to the level of satisfactory in one go. However, in this case, the petitioner was graded very good as Inspector, but after his promotion as Deputy Commandant, he was twice graded as Good and it is only once that too after having worked for two years as deputy Commandant that he was graded very good for the year 1993-94, it appears he improved after putting up two years as Deputy Commandant. Every post has its own duties and responsibilities. The post of Deputy Commandant being promotion post may be more onerous. So the petitioner could not maintain the grading which he has earned as Inspector. This is a matter of assessment by the Initiating Officer as also the Reviewing Authority. However, their lordships of the Supreme Court have ruled that both ‘very good’ and ‘good’ are positive gradings and not necessarily adverse. In this view of thematter, the judgement does not advance the case of the petitioner. The other case relied by Mr. Bhardwaj is State of U.P. v. Yamuna Shankar Misra & Anr. (1997) 4 SCC 7. However, the facts of this case are entirely different. It was a case of compulsory retirement based on his service record where his entries such as fair, below average etc. were recorded. This, however, is not a case of adverse remarks.

11. Finally, the petitioner has no vested right of promotion. He has right of consideration. He was considered, but could not make the grade on the basis of the criteria applicable for promotion. He cannot, therefore, challenge the promotion of private respondents because he had no right to be promoted as laid down in Jagdish Lal v. State of Haryana AIR 1997 SC 2366. It reads as under :

"In State of Maharashtra Vs. Chandrakant Anant Kulkarni, (1981) 4 SCC 130, another bench of three Judges inparagraph 16 at page 141 had held that "Mere chances of promotion are not conditions of service, and the fact that there was reduction in thechances of promotion did not tantamount to a change, in the conditions of service." In K.Jagadeesan Vs. Union of India, (1990)2 SCC 228 at 230 (AIR 1990 SC 1072 at p 1074), in para 6, it was held that "a right to be considered for promotion is a term of service. But mere chances of promotion are not", so also the eligibility for promotion. Passing of the departmental examination is nothing but a mere chance of promotion. In Ashok Kumar Gupta Vs. State of U.P. (1997)(3) Scale 289 at 299 para 22, this court comprising all the three of us, had held that "in service jurisprudence, a distinction between a right and interest had always been maintained. Seniority is given as per ranking given and by govern by sch rules as was laid in the rules."

Similar view taken in A.K.Bhatnagar Vs. Union of India (1991)1 SCC 544, was upheld by this Court. In Akhil Bhartiya Soshit Karamchari Sang Vs. Union of India (1996) 6 SCC 65 to which two of us, K.Ramaswamy and G.B.Pattanaik, were members, this Court had held that no member of theservice has a vested right to promotion or seniority but an officer has an interest in seniority acquired by working out the rules. In Md.Ghujat Ali Vs. Union of India (1975)1 SCR 449: (AIR 1874 SC 1631), a Constitution Bench had held that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing conditions of service. In Mohd.Bhakar Vs. Krishna Reddy, 1970 Serv LR 768, a Bench of three Judges Judges had held that any rule which affects the promotion of a person, relates to conditions of service. In State of Mysore Vs. G.N.Purchit, 1967 Serv Lr 753, a Bench of two Judges had held that rule wich merely affects chances of promotion cannot be regarded as varying the conditions of service. Chances of promotion are not conditions of service. In Syed Khalid Rizvi Vs. Union of India 1993 Supp (3) SCC 575, to which one of us R.R.S.J. was member, it was held in para 31 that no employee has a right to promotion; the only right is that he is entitled to be considered for promotion according to rules. Chances of promotion are not conditions of service which are defeasible in accordance with the rules. Thus, it is settled principle in the service jurisprudence that mere chances of promotion are not conditions of service and a candidate appointed in accordance with the rules can steal a march over his erstwhile seniors in the feeder/lower cadre."