This article is written by Ishan Arun Mudbidri, from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the recent Supreme Court verdict on the right to be considered for promotion.
The joy of getting promoted is unparalleled. It is one of those things in an employee’s life, which just happens unexpectedly and suddenly. However, the basis of giving promotions has always been an issue in India. The Supreme Court in a recent verdict held that the right to be considered for promotion and not a promotion in itself should be a fundamental right.
Why getting a promotion is important for an employee
Despite there being various debates on whether giving a promotion is a right or a privilege, what matters to an employee is that their work is getting appreciated and they are getting a reward for it. A promotion is important because it motivates the employee to work harder. It also helps the business to expand and yield better results in the future. Further, when an employee brags about his/her promotion on various social media posts, blogs, etc. customers might get influenced and would join the company’s client base, which would further expand the company.
For a third person, the promotion of an employee is just moving up in the leadership chart of an organisation, but for an employee regardless of the increased salary, and other perks, it is a matter of great pride and self-esteem.
Ajay Kumar Shukla v. Arvind Rai
“We have time and again pressed for the right to be considered for promotion as a fundamental right”, said a three-judge bench consisting of Justices DY Chandrachud, Justice Vikram Nath, and Justice BV Nagarathna of the Supreme Court, while giving their verdict in Ajay Kumar Shukla v. Arvind Rai (2021). The Apex Court in Ajit Singh v. State of Punjab (1966), and in Maj. General HM Singh VSM v. Union of India (2014), had laid emphasis on the right to be considered for promotion. The Court in these cases while referring to Article 14 and Article 16 of the Indian Constitution, stated that promotion should be given to candidates who are satisfying all the criteria and it should be given based on merit, rather than seniority.
The Division Bench of the Allahabad High Court in Rajesh Kumar Singh v. Rajeev Nain Upadhyay and 24 others (2019), had set aside the judgment of the single judge to quash the seniority lists dated 5.09.2006 and 5.03.2010 and had dismissed the writ petition. In the present case, the appellants are not happy with the seniority lists dated 5.09.2006 and 5.03.2010 and challenged the same by way of the original writ petition. The appellants are from the Mechanical and Civil engineering streams of the Department of Minor Irrigation, Uttar Pradesh, whereas the respondents are from the Agricultural stream. Both parties to the case are working as junior engineers. Earlier the seniority list dated 5.03.2010 was challenged, but during the pendency of the petition, the first seniority list dated 2006 was also challenged.
The Department of Minor Irrigation in 1998, announced the recruitment of junior engineers which had 206 vacancies available. The posts were further divided into agriculture, mechanical, and civil streams in the ratio of 50:30:20 respectively. After conducting written exams, interviews were held. The interviews of the candidates having a diploma in agricultural engineering were conducted from 7.06.1999 to 26.6.1999, whereas the interviews of the candidates holding a diploma in mechanical engineering were held from 24.06.1999 to 2.07.1999. The interviews of the remaining candidates having a diploma in civil engineering were held from 7.07.1999 to 22.12.1999. After conducting interviews successfully, the results were announced on three separate dates. 28.09.1999, for the candidates from the agricultural stream, 6.01.2000 for the candidates from the mechanical stream, and 7.11.2000, for the candidates from the civil stream. The Commission had announced three separate dates for the three streams but the sequence was the same as promised-agriculture, mechanical, and civil. The petitioner and the respondent joined on 8.01.2001, on the date when the appointment letter was sent by the Commission. It was strictly promised that the seniority will be decided later on.
In 2006, after five years, a fresh seniority list was published. The last sentence of this order stated that the candidates were appointed on a merit basis. Later, on 5.03.2010, the final seniority list was published due to the objections raised for the first seniority list. In one of the paragraphs of this order, the sequence of the streams was mentioned. It was further mentioned that the candidates were placed in the same sequence as they were received with their seniority. The agricultural candidates were placed at the top, the mechanical candidates were placed at 2nd, and the civil candidates were placed third. The appellants came to know of this after the final seniority list was published. Hence, they were bound to make representations to the authority to change the list according to the merit of marks obtained among the candidates, rather than preparing a seniority list on the basis of receipts received.
When no response came from the Uttar Pradesh Public Service Commission regarding this, the appellants filed the writ petition in the Allahabad High Court.
Senior counsel Shri Gopal Sankaranarayanan and learned counsel Shri Rohit Sthalekar, appearing for the respondents, made their submissions. The submissions made were that the appellants took a lot of time in approaching the court, and due to this extraordinary delay, their claims should not be entertained.
Further, there is no violation of any statutory provisions mentioned in the Uttar Pradesh Government Servants Seniority Rules, 1991 and the Uttar Pradesh Minor Irrigation Department Subordinate Engineering Service Rules, 2009.
On behalf of the appellants, learned senior counsel Shri Sidhartha Dave and Ms. Preetika Dwivedi made their submissions. The submissions made were that the appellants came to know about the corrections in the seniority list after it was published in 2010. Hence, there is no delay on the part of the appellants in approaching the Court.
The list has been prepared based on the order of the receipts received, hence, it is violating the provisions mentioned in the 1991 and 2009 Rules.
Point of debate
Both parties heavily relied on the provisions mentioned in the 1991 and 2009 Rules. These rules are framed under Article 309 of the Indian Constitution. Article 309 states that the legal provisions of that particular Legislature can regulate the recruitment and conditions for services of persons for jobs and posts in connection with the Union or any State.
Now, Rule 5 of the 1991 Rules provides for the rule of seniority only in case of direct recruitment. This Rule states that, when appointments are made through direct recruitment, seniority among the persons appointed on the result of any one selection shall be the same as it is shown in the merit list prepared by the Commission. Provided that, the candidate appointed directly should have a valid reason. The Rule further states that the persons appointed subsequently shall be junior to the person appointed in the previous selection.
In the 2009 Rules, Part V laid down the procedure for recruitment of candidates from Rule 14 to 17. In this, Rule 15 states that the Commission should prepare the list of candidates according to their proficiency, and the total number of marks from the written exam and the interview. The list should be further submitted to the final Authority. Rule 16 states that, the recruitment of candidates by promotion shall be done on the basis of seniority. And lastly, Rule 21 states that the seniority of the persons appointed in any category of service shall be according to the 1991 Rules.
Findings of the Court
The Allahabad High Court had allowed the writ petition and issued the writ of mandamus ordering for a fresh seniority list in accordance with Rule 5 of the 1991 Rules. The Supreme Court however observed:-
Rule 5 and Rule 8 of the 1991 Rules state that the seniority appointments should be made only by direct recruitment and the persons so appointed, as a result of any one selection shall be the same as is shown in the merit list prepared by the Commission. Hence, in the above case, there was one selection for three streams, agriculture, mechanical, and civil. Hence, there has to be one seniority list of junior engineers also. Further, the Commission has mentioned in its counter-affidavit, that it failed to combine all three streams in one merit-list and left the responsibility for the same on the Appointing Authority. Hence, it was noted that the Appointing Authority had committed an error while preparing the seniority list. The Authority had placed three lists on different dates, as per the dates of the receipt of the three lists.
Further, the appellants came to know about the three lists when the final seniority list in 2010 was published. When the first seniority list was published in 2006, while the list stated that it was according to merit, in reality, it was placed in the order of receipts received, hence, a huge error was committed by the final authority and the Commission.
Regarding the extraordinary delay in approaching the Court remark by the respondents, the Court opined that when the first seniority list was published in 2006, it did not mention anything about three separate lists for three streams. It was in 2010 when the appellants came to know of the three separate lists. They filed their first writ petition in 2012, which was two years from the date of the published list. Hence, this cannot be a ground for the delay, as the appellants had started pursuing their case after 5.03.2010, i.e after the list was published.
Dealing with the issue of promotion, the Court stated that, the promotion of junior engineers would be to the post of assistant engineers, which has no separate stream. Hence, the engineers from the agricultural stream (batch of 2001) should have first promotion than the junior engineers from the mechanical and civil streams despite having low marks.
Finally, the Court opined that the Authority should have a combined merit list based on merit and proficiency. Hence, the Court allowed the appeal.
Merit vs. seniority
Now that we have talked about a case where merit was considered to be the first choice, it is important to know why this is a debate. Seniority means the experience and the years put in by an employee, whereas, merit is the proficiency and the qualifications possessed. This is often a difficult task for the leadership in an organization because there is always going to be frustration among the staff regarding promotion. While seniority brings in more experience and an influential mind, merit-based promotions are fueled with efficiency and create healthy competition among the staff. While merit-based critics might hold the decision of promoting a certain individual to be biased, others might say following a strict performance-based promotion policy will foster the growth of the organization. Similarly, for seniors, some people might say we need fresh talent and expertise, others might say “you still got it”. Hence, merit vs seniority poses a huge challenge to the HR department in the company.
The debate between merit vs seniority is an eternal one. Both in their own ways are important for a company to function. Amidst this, the Supreme Court’s remark of ‘right to be considered for promotion’, is what people must look at.
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