- (1.) The writ petition challenges the non-consideration of the petitioner's request for promotion to the higher post from the post as the Branch Manager to the Senior Branch Manager and still further higher posts. It is seen from the records that his name was listed amongst the candidates eligible for consideration for promotion in the list published on 31.5.1985 where he had been shown in Serial No. 84. For all the subsequent years when selections were made and when the petitioner was not promoted, the petitioner has been making representations till the time when he filed the writ petition in 2000. At every turn, the response from the respondents has been that his case was considered but he was not found eligible for promotion. The rejection of this claim for consideration for promotion has come through written responses from the respondents on 17.1.1992, 4.1.1993, 31.12.1994, 7.6.1995, 13.12.1996 and still later on 8.3.2000 when he filed writ petition in CWP No. 5058 of 2000. The Bench of this Court has pointed out to him that the non-selection and the rejection of his claim for all the periods from 1990 cannot be urged whereupon the petitioner has sought permission to withdraw the writ petition with liberty to challenge the non-consideration for promotion from the year 1997 onwards. However, when the present writ petition has been filed, the challenge has again been for the non-selection from the panel of the year 1990 onwards. The petitioner's contention is that the promotion in terms of Section 7(3) of the Staff Regulations, 1960 requires that the promotion shall be based on merit, suitability of the candidate for a particular post and seniority. It records that merit and suitability may be judged by confidential reports and/or interviews and/or examinations. It is pointed out by the Counsel Mr. Sharma that he had been assessed as 'Good' and the proficiency step-up had been awarded to him from the period from 1990 to 2000 and when there was nothing adverse that was ever communicated to the petitioner, he could not have been denied the consideration for promotion.
(2.) The contention on behalf of the respondents has been that for every year his name was considered but not recommended for promotion. According to the Counsel for the respondents, in a case of promotion by merit-cum-seniority, the consideration of relative lower merit of the petitioner was sufficient to deny the right of promotion. I find this to be rather a strange way of rejecting a person's candidature for consideration. When the criteria for selection was merit, suitability and seniority, the non-consideration must be by a transparent process that would show that he was less meritorious. A mere statement that it was considered and rejected cannot answer the test of requirement under Section 7(3) of the Regulations. Indeed the Regulation itself shows that the ACRs will form the basis for assessment of merit. In N.C. Das v. Gauhati High Court, 2012 2 SCC 321, the Supreme Court underscored the remarks in ACR as the key test for assessing comparative merit, when criterion for promotion is merit-cum-seniority. [Departmental exam has been held to be a method of determination of merit in Shankar Deb Acharya v. Biswanath Chakraborty, 2007 1 SCC 309. Guidelines for assessing merit and sticking to them also provide an acceptable norm as found in Union of India v. Major Bahadur Singh, 2006 1 SCC 368. Assessment of merit through written test and interview is always a sure way of determining merit All India Judges Association v. Union of India, 2002 4 SCC 247. I have to observe that if there was no written test or interview as a method of assessing merit, the only objective criterion could only be the assessment of performance in ACRs. There is no material brought by respondents to support the plea that any of the juniors, who were promoted had a better grading in ACRs. A bald statement by the respondents that the petitioner was 'not considered to be suitable' for promotion or that the petitioner's case was 'considered and rejected' without affording any objective yardstick for such consideration is a perverse approach.
(3.) Even as I have observed the serious flaw, which has occasioned the denial of the petitioner's case for consideration for promotion, I am afraid, I cannot avail to the petitioner any relief for three reasons: (i) The petitioner has been guilty of laches in not approaching the Court for the relief as soon as his case was rejected in the various years right from 1992 to 2000 and communicated to him at every time; (ii) Again when he had filed earlier writ petition in CWP No. 5058 of 2000 and had it withdrawn to make a challenge for selection from the year 1997 to 2000, he was bound to implead those persons, who had been promoted between 1997 to 2000 and over whom the plaintiff had a claim that he had better record for consideration for selection. That was also not done; and (iii) It now appears that the petitioner has also since been superannuated in the year 2001. The question of consideration for promotion cannot avail to him to a selection post after the superannuation.;