A two-judge Bench of Justice KM Joseph and Justice Hrishikesh Roy has held that an unblemished record of an employee is an important factor for promotion in a selection post.

In this context, the Court opined –

"Despite the difficulty in encapsulating the parameters for 'merit', a significant marker can be found in the unblemished record of the employee. A marred service record, though not an insurmountable bar, must carry some consequences, and it could be a comparative disadvantage in promotion for a selection post. The employer's preference for a person with a clean service record can be well appreciated."

Senior Counsel Mr, PS Patwalia appeared for the Appellant while Senior Counsel Mr. Jayant Bhushan appeared for the Cantonment Board, Ranikhet before the Apex Court.

Appeals were preferred assailing the judgment of the Uttarakhand High Court which had upheld the judgment of the Single Judge whereby the Appellant's promotion to the post of Office Superintendent in the Cantonment Board was quashed and the Writ Petitions of the Respondent No. 3 were allowed.

In this case, the Cantonment Board had resolved to recommend Appellant for promotion to the 'selection post' of Office Superintendent, overlooking Respondent No. 3. The Appellant was held to be senior as per the Rule. Allegedly, Respondent No. 3 was a charge-sheeted person against whom disciplinary charges were leveled.

Following the Cantonment Board's resolution for the appointment of the Appellant to the post of Office Superintendent, the Board sought the advice of the Central Command, Lucknow. Since nothing happened thereafter for several months, the Appellant filed a Writ Petition before the High Court and also the Respondent challenged the Cantonment Board's resolution in favor of the Appellant.

Aggrieved, by the decision of the Division Bench of the High Court favoring the Respondent, the Appellant approached the Supreme Court.

The Apex Court noted that besides the Appellant by virtue of her higher pay scale in the post of Accountant in the feeder cadre, deserved seniority about Respondent No. 3 with his lower scale pay.

Further, the Bench observed that the Rules made it clear that the post of Office Superintendent was a selection post and the criterion for promoting is seniority-cum-merit.

Additionally, the Court opined that it was a selection post and the Appellant had an unblemished service record all throughout her career. Moreover, she was also found to be senior by the Board.

The Court placed reliance on Union of India & Ors. vs. K.V. Jankiraman & Ors., where it had emphasized the necessity to consider the entire service record of the candidates in line for promotion.

Furthermore, the Bench placed reliance on Jagathigowda C.N. v. Chairman, Cauvery Gramina Bank & Ors., where it was held that the totality of the circumstances factor as a pivotal consideration with respect to seniority cum merit.

The Bench also observed –

"Admittedly, the pay scale drawn by the appellant as an Accountant in the feeder cadre was higher than the respondent no.3 and therefore the benefit of O.M. (dated 12.12.1988) would surely accrue to the appellant, in the determination of her inter se seniority."

The Court held that the Division Bench by adverting to the incorrect OM wrongly rejected the contention that the higher scale pay can be the basis for claiming seniority in the feeder cadre.

"…the Cantonment Board in their deliberations made on 11.1.2012 not only considered the appellant to be senior to the respondent no.3 but also considered her to be more deserving for promotion as the best, suitable and fit candidate, for the responsible post. The respondent no.3 was penalized pursuant to the disciplinary proceeding for dereliction of duty and misconduct and he suffered the penalty of recovery of Rs.10,000/- from his salary. Seen in this context, the appellant was more deserving. That apart, the disciplinary action was not challenged by the respondent no.3. He cannot therefore set up a better claim for promotion, to a selection category post," the Bench opined.

The Court also noted that the Appellant's suitability for the selection post was attributable to two factors i.e., the merit of the candidate and the inter-se seniority.

Moreover, the Bench held that the higher pay in the same grades as per the applicable OM was a reliable indicator for determining inter-se seniority.

Accordingly, the Court held, "In this Court's perception, the decision to prefer the appellant over the respondent no.3 for promotion is in tune with the applicable parameters. As such the contrary opinion by the High Court does not merit our approval."

In the light of these observations, the Court allowed the appeals and set aside the impugned judgment of the High Court.

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