# Bijendra Singh v. State of U.P. and others

- **Citation:** (2003) 3 ILRA 685
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-08
- **Case number:** Civil Misc. Writ Petition No. 24488 of 2001
- **Bench:** A.K. Yog, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bijendra-singh-v-state-of-u-p-and-others-40161
- **Pages:** 5

## Headnote

Constitution of India Article 226-ServicePromotion-On post of Chief Engineerdenied without plausible justificationwhile juniors considered- no specific
denial about merit of petitioner-direction
to
consider
his
case
for
notional
promotion-with
all
benefits
and
privilege.

Held- Para 18 and 19

In view of unrebutted pleadings in the
Writ Petition, referred to above, we find
that name of the petitioner has been
ignored without plausible justification.
Impugned order contains no indication
of the material which has been relied
against the petitioner.

If the petitioner is found fit for being
promoted on the date on which his
juniors were promoted, the petitioner
shall be entitled to all benefits and
privileges treating notionally promoted
w.e.f. the date his juniors have been
given promotion and place him just
above the next person junior to him in
the cadre of Superintending Engineer.
Case law discussed:
1998 (6) SCC 720
1976 (2) SCC

## Text

3 All] Bijendra Singh V. State of U.P. and others
685
of the petitioner-employer deserves to be
rejected and is hereby rejected. No other
argument was advanced on behalf of
learned counsel for the petitioner.

6. In view of what has been stated
above, this writ petition has no force and
is accordingly dismissed. The interim
order, if any, stands vacated. However,
the parties shall bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.7.2003

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 24488 of 2001

Bijendra Singh

...Petitioner
Versus
State of U.P. through Chief Secretary and
others

 ...Respondents

Counsel for the Petitioner:
Sri Pankaj Mithal

Counsel for the Respondents:
S.C.

Constitution of India Article 226-ServicePromotion-On post of Chief Engineerdenied without plausible justificationwhile juniors considered- no specific
denial about merit of petitioner-direction
to
consider
his
case
for
notional
promotion-with
all
benefits
and
privilege.

Held- Para 18 and 19

In view of unrebutted pleadings in the
Writ Petition, referred to above, we find
that name of the petitioner has been
ignored without plausible justification.
Impugned order contains no indication
of the material which has been relied
against the petitioner.

If the petitioner is found fit for being
promoted on the date on which his
juniors were promoted, the petitioner
shall be entitled to all benefits and
privileges treating notionally promoted
w.e.f. the date his juniors have been
given promotion and place him just
above the next person junior to him in
the cadre of Superintending Engineer.
Case law discussed:
1998 (6) SCC 720
1976 (2) SCC

(Delivered by Hon'ble A.K. Yog, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel
on behalf of the respondents at length.

The petitioner joined as Assistant
Engineer in the Department of Irrigation,
State of U.P., in December 1966 on adhoc
basis. Thereafter he appeared in the
competitive Combined State Engineering
Services Examination conducted by U.P.
Public Service Commission and declared
successful in the year 1968 and joined on
regular basis. His ad-hoc tenure was
added with the tenure on regular basis.

2. Petitioner was promoted on the
post of Executive Engineer on 31.1.1988.
While working as Executive Engineer he
was communicated with certain remarks
in his service record. Petitioner submitted
a representation. Petitioner was, thereafter
considered for next promotion to the post
of
Superintending
Engineer
by
the
Departmental Promotion Committee and
promoted on 29.10.1999 to the post of
Superintending Engineer w.e.f. 12.3.1998.
The petitioner, however, got aggrieved
when matter of promotion to the post of
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686 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Chief
Engineer
(Level-II)
in
the
department arose.

3. The petitioner contends that DPC
did not find favour with the petitioner's
candidature, his candidature ignored and
promotion to the next higher post denied
to him while juniors considered and
accorded promotion. It is also contended
that such juniors had much less quality
points as compared to the petitioner who
was eligible to get 19 quality points.

4. In para 14 to the Writ Petition, it
is categorically pleaded that criterion for
promotion to the post in question is
'seniority-cum-merit' to be determined on
the basis of entries in the Character Roll
preceding last ten years. The said para 14
has been replied vide para 7 of the
Counter Affidavit filed on behalf of the
contesting respondents (sworn by one
L.B. Singh). The categorical averments in
para 14 of the Writ petition to the effect
that promotion was on the basis of
criterion 'seniority-cum-merit' has not
been denied.

5. The meaning of expression
'seniority-cum-merit'
came
up
for
consideration before the Apex Court and
the same has been explained in the case of
B.V. Sivaiah and others Versus K.
Addanki Babu and others- (1998) 6 SCC
720 pp 726 (Paras 9,10 & 11)- which are,
for convenience, reproduced:-

"9. The principle of "merit-cumseniority" lays greater emphasis on merit
and ability and seniority plays a less
significant role. Seniority is to be given
weight only when merit and ability are
approximately equal. In the context of
Rule 5 (2) of the Indian Administrative
Service/Indian
Police
Service
(Appointment by Promotion) Regulations,
1955 which prescribed that "selection for
inclusion in such list shall be based on
merit and suitability in all respects with
due regard to seniority" Mathew, J. in
Union of India V. Mohan Lal Capoor
(1973) 2 SCC 836: 1974 SCC (L&S) 5,
has said: (SCC p 856 para 37)

(F) or inclusion in the list, merit and
suitability in all respects should be the
governing
consideration
and
that
seniority should play only a secondary
role. It is only when merit and suitability
are roughly equal that seniority will be a
determining factor, or, if it is not fairly
possible to make an assessment inter se of
the merit and suitability of two eligible
candidates and come to a firm conclusion,
seniority would tilt the scale."

6. Similarly, Beg, J. (as the learned
Chief Justice then was) has said: (SCC P.
851, para 22)

"22. Thus, we think that the correct
view, in conformity with the plain
meaning of words used in the relevant
Rules, is that the 'entrance' or 'inclusion'
test for a place on the select list, is
competitive and comparative applied to
all eligible candidates and not minimal
like pass marks at an examination. The
Selection Committee has an unrestricted
choice of the best available talent, from
amongst eligible candidates, determined
by reference to reasonable criteria
applied in assessing the facts revealed by
service records of all eligible candidates
so that merit and not mere seniority is the
governing factor."

10. On the other hand, as between
the two principles of seniority and merit,
the criterion of "seniority-cum-merit" lays
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3 All] Bijendra Singh V. State of U.P. and others
687
greater emphasis on seniority. In State of
Mysore V. Mahmood 3 while considering
Rule 4 (3) (b) of the Mysore State Civil
Services General Recruitment Rules, 1957
which required promotion to be made by
selection on the basis of seniority-cummerit, this Court has observed that the
rule required promotion to be made by
selection on the basis of "seniority subject
to the fitness of the candidate to discharge
the duties of the post from among persons
eligible for promotion." It was pointed out
that where the promotion is based on
seniority-cum-merit, the officer cannot
claim promotion as a matter of right by
virtue of his seniority alone and if he is
found unfit to discharge the duties of the
higher post, he may be passed over and
an officer junior to him may be promoted.

11. In State of Kerala V. N.M.
Thomas (1976) 2 SCC 310: 1976 SCC
(L&S) 227, A.N. Ray, C.J. has thus
explained the criterion of "seniority-cummerit": (SCC p.335, para 38).

"With regard to promotion the
normal principles are either merit-cumseniority
or
seniority-cum-merit.
Seniority-cum-merit means that given the
minimum necessary merit requisite for
efficiency of administration, the senior
though the less meritorious shall have
priority."

7. In the case of Manna Prasad
Jaiswal Versus District Inspector of
Schools,
Deoria
and
others-1999
Allahabad civil Journal 1021, (Pr. 12), a
Division Bench of this Court had the
occasion to explain the meaning of the
expression-"Seniority subject to rejection
of Unfit"- in the following words-

"12. In B.V. Sivaiah (supra) the
Supreme Court has held that "criterion of
seniority-cum-merit in the matter of
promotion postulates that given the
minimum necessary merit requisite for
efficiency of administration, the senior,
even though less meritorious, shall have
priority and a comparative assessment of
merit is not required to be made." It was
further held in that case that for assessing
the
minimum
necessary
merit,
the
competent authority can lay down the
minimum standard that is required and
also prescribe the mode of assessment of
merit of the employee who is eligible for
consideration for promotion. It would be
seen from Rule 16 of the Rules that it does
not lay down any standard of judging the
minimum merit apart from prescribing the
standard of judging unfitness. In other
words of merit of a teacher for the
purpose of promotion under rule 16 is
that no criminal case involving moral
turpitude is pending enquiry or trial
against him; and/or no disciplinary
proceeding is being conducted against
him. Absence of the disabilities referred
to in clause (b) of the Explanation to Rule
16 of the Rules, in our opinion, would be
taken to be merit for the purpose of giving
ad-hoc promotion on the basis of
"seniority subject to rejection of unfit.
Accordingly
keeping
in
view
the
distinction, albeit very thin between the
principles of "Seniority-cum-merit" and
"seniority subject to rejection of unfit"
we are of the considered view that for the
purpose of ad-hoc promotion in Section
18 of the Act read with Rule 16 of the
Rules, seniority will prevail except where
the senior teacher suffers from any of the
demerits referred to in clause (b) of the
Explanation appended to Rule 16. In so
far as assessment of job performance is
concerned, the same is not comprehended
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688 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
unwed rule 16 of the Rules and since adhoc promotion under Section 18 is
required to be made in the manner
prescribed in the Rules aforestated, it
would not be permissible to cull out any
other criterion of ad-hoc promotion. On
the admitted facts the order passed by the
District Inspector of Schools, in our
opinion, id not suffer from any infirmity
and the Learned Single Judge was not
right in remitting the mater to the District
Inspector of Schools with a direction to
re-examine the matter on the basis of
comparative assessment of the merits of
the rival claimants."

8. In para 19 of the Writ Petition,
petitioner has given details of the entries
awarded to him during 1989-90 to 19992000. It shows that the petitioner had
earned three entries for three years 'good',
four year's entries 'outstanding', and one
year's entry 'very good'.

9. Further in para 29 of the Writ
Petition it is asserted that on the basis of
relevant entries in the Character Roll he
was entitled to 19 points on merit before
DPC.

10. In para 30 of the Writ Petition it
is contended that the DPC which met in
March, 2000 for considering promotion of
Superintending Engineer to the higher
post, without rhyme or reason, refused to
recommend the name of the petitioner on
the post of Chief Engineer (Civil) level-II
and instead recommended name of juniors
to him.

11. In para 31 it is also pleaded that
the candidate recommended by the DPC
has obtained only 18 quality points.

Para 19,29,30 and 31 of the Writ
Petition have been replied vide para 9, 14
& 15 of the Counter Affidavit.

Contents of para 19 of the Writ
Petition, wherein petitioner has elaborated
his character roll entries, have not been
denied.

12.

The
respondents
merely
questioned the propriety of the Petitioner
having knowledge of the confidential
entries. Respondents have not, as of fact,
denied contents of para 19 of the Writ
Petition. How petitioner came to know of
the 'entries' is not relevant for our
purpose.

13. In para 19 & 21 of the Counter
Affidavit again it is being alleged that
criterion for promotion is the merit and
that petitioner's name was ignored by the
DPC because of the service record of the
petitioner not being up to the mark.

14. The respondents have however
not taken the trouble to point out
categorically the material which has been
taken into account against the petitioner
or the relevant rule providing for the
criterion of promotion.

15. In other words it has not been
pointed out which year entries have been
found not good and what was the material
on the basis of which the members of
DPC
did
not
find
the
petitioner's
candidature
to
be
considered
for
promotion.

16. Averments in para 29 of the Writ
Petition (that petitioner was entitled to 19
quality points on merit, to be awarded on
the basis of service record/Character Roll)
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3 All] Rakesh Kumar Singh V. State of U.P. and others
689
have not been specifically denied in para
14 of the Counter Affidavit.

17. Perusal of the impugned order
dated September 11, 2000 Annexure 18 to
the Writ Petition also does not disclose as
to which records were taken into account
and what was the material on the basis of
which members of the DPC ignored the
name of the petitioner for promotion.

18. In view of unrebutted pleadings
in the Writ Petition, referred to above, we
find that name of the petitioner has been
ignored without plausible justification.
Impugned order contains no indication of
the material which has been relied against
the petitioner.

19. In view of the above, the
impugned order dated September 11,
2000 is hereby quashed, concerned
respondents and its authorities, servants,
nominees, etc. are directed to consider the
name of the Petitioner within four weeks
of the receipt of the certified copy of this
judgment and pass appropriate order in
accordance with law. If the petitioner is
found fit for being promoted on the date
on which his juniors were promoted, the
petitioner shall be entitled to all benefits
and
privileges
treating
notionally
promoted w.e.f. the date his juniors have
been given promotion and place him just
above the next person junior to him in the
cadre of Superintending Engineer.

20. Writ Petition succeeds.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 29108 of 2003

Rakesh Kumar Singh

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B. Prasad

Counsel for the Respondents:
Sri Subodh Kumar
S.C.

Constitution
of
India-Article
226
violation
of
Injunction
order-interim
injunction-proper
remedy
is
to
file
application under order 39 Rule 2A of
C.P.C. and not to file writ petition. The
petition is misconceived and dismissed
with a Special Cost of Rs. 25,000/-

Held- Para 2

If this temporary injunction was not
being obeyed then the petitioner should
have filed an application under Order 39
Rule 2 A of the CPC, but instead this writ
petition has been filed. There can be no
clearer case of abuse of the process of
this Court. This writ petition should
never have been filed, and we are
constrained to observe that learned
counsel in this case has not given correct
advice to his client.

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition discloses how
the process of the High Court is being
abused by filing frivolous writ petitions in
large numbers when there is already a
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