Service Law – Promotion – Seniority-cum-merit – In the instant case, the appellant was promoted to the post of Office Superintendent (selection post) in the Cantonment Board – The promotion of respondent no.3 was declined on the ground that respondent no. 3 was drawing lower pay scale than the appellant in the post of Accountant (the post from which promotion was to be made) and was also charge-sheeted under discplinary proceeding, which charges were also accepted by respondent no.3 – Aggrieved by the resolution favouring the appellant, respondent no.3 filed appeals before the single judge of the High Court, claiming, amongst other things, promotion to such post – Single Judge allowed the writ petition on the basis of the finding that respondent no. 3 is senior to the appellant and the appellant should not have been considered senior to him by virtue of her higher pay scale in the post of Accountant and also that no decision, as such, was taken by the authority over the charges – Aggrieved by the decision, appellant approached Division Bench of the High Court – In the meantime, disciplinary proceedings took place over the charges and respondent no.3 was found guilty – The Division Bench of the High Court dismissed the appeal holding that the disciplinary proceedings intiated for the fault committed by the subordinate staff of the delinquent officer – Hence instant appeal – Held: 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 – 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 respondent no.3 – He cannot, therefore, set up a better claim for promotion, to a selection category post – As far as the issue of higher pay scale being the basis for seniority in the feeder cadre, the same is clearly provided in the O.M. dated 12.12.1988 – The issue received due consideration by the Cantonment Board and was answered in favour of the appellant – Cantonment Fund Service Rules, 1937.
Allowing the appeals, the Court
HELD: 1. Rule 5-B (8) read with Annexure ‘E’ of the Cantonment Fund Service Rules, 1937 makes it clear that the post of Office Superintendent is a “selection post” and the criterion for promotion is seniority-cum-merit. [Para 17][495-B] B.V. Sivaiah v. K. Addanki Babu (1998) 6 SCC 720 : [1998] 3 SCR 782; K. Samantaray v. National
Insurance Co. Ltd. (2004) 9 SCC 286 : [2003] 3 Suppl. SCR 669; Jagathigowda C.N. v. Chairman, Cauvery Gramina Bank & Ors. (1996) 9 SCC 677 : [1996] 4 Suppl. SCR 190; Haryana State Electronics
Development Corporation Limited & Ors. Vs. Seema Sharma & Ors. (2009) 7 SCC 311 : [2009] 7 SCR 662 – relied on.
2. In the present case, 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. [Para 22][498-H; 499-A-B]
3. As far as the issue of higher pay scale being the basis for seniority in the feeder cadre, the same is clearly provided in the O.M. dated 12.12.1988. The issue received due consideration by the Cantonment Board and was answered in favour of the appellant. But this aspect was held against both the appellant and the Board, due to an inadvertent reference to the wrong Office Memorandum dated 10.09.1985 by the High Court. Having regard to the manner in which the issue was examined and decided by the Board, it would be appropriate to endorse the Board’s declaration of seniority in favour of the appellant, based on the reasoning contained in the Board’s Resolution dated 25.3.2013. [Para 24][499-D-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.