R.L. Anand, J. - (1.) THIS is a defendant's appeal and has been directed against the judgment and decree dated 3.5.2001, passed by the Court of Additional District Judge, Gurgaon, who, dismissed the appeal of the appellant by affirming the judgment and decree of the trial Court for the reasons given in paras No. 12 and 13 of the judgment and these paras are reproduced as under : - " 12. After giving due consideration to the contentions raised by the learned counsel for both the parties in course of arguments and also going through the case law cited by the parties before me I have found that although as per the by -laws adopted by the Corporation the promotions were to be made on merit -cum -seniority and not on the basis of seniority alone. In the instant case there is nothing on record against the respondent -plaintiff No. 1 as to on what basis he was ignored for promotion and also as to what were the grounds on the basis of which he was adjudged by the Committee to the lower in the merit to respondent No. 2. The report of the Internal Promotion Assessment Committee Ex.D. 1 is quite silent in this regard. The respondent -plaintiff No. 1 made representations against the order of the Internal Promotion Assessment Committee Ex.D. 1 two times i.e. as per Ex.DC and Ex.DD wherein it was only expressed that the representations of respondent -plaintiff No. 1 were considered and filed. The order passed on both the representations made by plaintiff -respondent No. 1 was not speaking one whereas the competent authority was required to pass speaking order and also to express its disagreement of the representations made by the respondent -plaintiff No. 1. The report of the Internal Promotion Assessment Committee Ex.D1 and the orders passed on the representations made by respondent -plaintiff No. 1 Ex.DC and Ex.DD seem to me arbitrary on the face of it. Nothing adverse against respondent -plaintiff No. 1 in course of his service period could be brought by the appellant -defendant on record thus the presumption arises that his service record throughout was quite good. Adjudging the respondent -plaintiff No. 1 by the Assessment Committee as lower in merit to respondent No. 2 seems on the face of it to be whimsical and arbitrary one. As per office orders Ex.P3 and P4 the respondent -plaintiff No. 1 was rather awarded two additional increments for doing excellent work. 13. With regard to the second contentions raised by learned counsel for the appellant, I am of the view that there is no bar in filing a suit for declaration for getting an illegal or arbitrary order set aside. The ratio as applied in, 1984(2) S.L.R. 446 (S.C.), A.L. Kalra v. Project and Equipment Corporation of India Ltd., is fully applicable on the facts and circumstances of the instant case wherein an employee has been found to be entitled to obtain a declaration from the civil Court regarding the service matter even if where there is a contract of personal service under the Specific Relief Act."
(2.) LEARNED counsel appearing on behalf of the appellant submitted that it was for the Selection Committee to consider the procedure of promotion and the criteria for promotion was "merit -cum -seniority". The case of the plaintiff was duly considered by the Departmental Promotion Committee and he was not found eligible. He further submits that unless some bias is shown in the proceedings of the Departmental Committee, the Civil Court cannot sit as a Court of appeal over the proceedings of the Departmental Committee. I am not convinced with the argument raised by the learned counsel for the appellant for the reasons advanced by the first appellate Court as contained in paras Nos. 12 and 13 of its judgment quoted above.
(3.) DURING the course of submissions, Shri Aman Chaudhary fairly stated before me that there was no adverse entry against the plaintiff -respondent. In the circumstances, the decision of the departmental Committee was arbitrary as rightly observed by the first appellate Court. The rule of merit -cum -seniority does not mean that a junior person can be promoted as a matter of right. It means that unless something is shown adverse to the senior, his seniority cannot be ignored.;