Judgment:
A.S. Oka, J.
Heard the learned counsel for the petitioner and the learned counsel for respondent nos.1 to 3. The challenge in this petition under Article 226 of the Constitution of India is to the order dated 25th February 2011 passed by the learned Principal District and Sessions Judge, Sangli, by which the fourth respondent was appointed as the Registrar of the District Court at Sangli. The case of the petitioner is that his rightful claim to the post of the Registrar has been illegally denied.
2. The submission of the learned counsel for the petitioner is that though as per the seniority reflected from the gradation list the petitioner is the senior most in the feeder cadre, the fourth respondent who is junior to the petitioner has been illegally appointed. The learned counsel for the petitioner pointed out that the petitioner was appointed as a Section Writer on 26th June 1978 and was promoted as the Superintendent on 2nd March 2009. He submitted that the entire career of the petitioner spanning over more than three decades is without any blemish. He pointed out that the promotion is governed by the seniority cum merit rule as is clear from paragraph 580 of the Civil Manual. He urged that no reasons have been assigned by the Selection Committee for ignoring the rightful claim of the petitioner as well as the claim of another candidate who was also senior to the fourth respondent. He submitted that on all earlier occasions, the appointments to the post of the Registrar were made by following the seniority-cum-merit rule. He urged that if relevant paragraphs of Civil Manual are perused, there was no option but to follow the seniority cum merit rule and it was not permissible to hold oral examination of the candidates. The learned counsel for the petitioner relied upon the decision of the Apex Court in the case of Haryana State Warehousing Corporation and others Vs. Jagat Ram and another [(2011 3 SCC 422]. He also relied upon the decision of the Apex Court in case of K.Samantray Vs. National Insurance Company Limited [(2004 9 SCC 286].
3. The learned counsel for the respondent nos.1 to 3 invited our attention to paragraph 580 as well as Appendix A of paragraph 577(iii) of the Civil Manual. He urged that merit cum seniority criteria governs the appointment to the post of Registrar. He submitted that the case of the petitioner has been duly considered.
4. The learned counsel for the petitioner urged that on plain reading of the provisions relied upon by the learned counsel for the first to third respondents, it is apparent that the merit-cum-seniority rule is not applicable.
5. We have carefully considered the submissions. It will be necessary to make a reference to paragraph 577 of the Chapter XXXI of the Civil Manual. Clause (i) of paragraph 577 provides that the appointments to all posts in the Group C and Group D of the Subordinate Judicial Service in the Civil Courts in each District shall be made by the District Judge from the list of the candidates selected by the Recruitment Committee. Clause (ii) of paragraph 577 provides that the recruitment committee shall consist of the District Judge (now known as the Principal District Judge), Joint District Judge (now known as District Judge-1), the Chief Judicial Magistrate and the Civil Judge (Senior Division). Perusal of the Exh.C annexed to the petition will show that in the present case the Committee constituted is in terms of the clause (ii) of paragraph 577 of the Civil Manual.
6. Clause (iii) of paragraph 577 reads thus :
"577 (iii) The rules for the recruitment of candidates to (Group C) and (Group D) services in Subordinate Judicial Service are contained in the Appendix attached to Government Resolution, Home Department, No.Misc.1055/62546-III, dated 26th December 1957, as amended by Government Resolution, Law and Judiciary Department No.DC.5265/3643-J dated 22nd February 1971. these Recruitment Rules are included in Appendix `A' at the end of this Chapter."
Paragraph 580 of the Civil Manual reads thus :
"580. In the matter of promotions and confirmations, the District Judge should take into consideration the following principles:-
(i) All clerks who pass the Lower Standard Departmental Examination should be confirmed immediately in the existing vacancies. Such confirmations should not be deferred till the passing of the said examination by their seniors. (Vide High Court Circular No.B-10135/50, dated the December 1950).
(ii)(a) Whenever vacancies to be filled by promotion are available, the District Judge shall consider for promotion thrice the number of eligible employees according to their seniority.
(b) The District Judge may, if for reasons to be recorded in writing, he considers it to be so desirable, appoint a Committee to subject the employees within the zone of consideration to an appropriate test, and may also consider the result of such test.
(c) While selecting an employee for promotion, the District Judge shall take into consideration:-
(i) the entire service record, and more particularly annual confidential reports for the previous 5 years.
(ii) Leave and punctuality record, for the previous 5 years.
(iii) Special reports called from the officers under whom the employees within zone of consideration are currently working;
(iv) Nature of duties of the promotional post vis-a-vis the abilities of employees within zone of consideration.
(d) In case promotions are not made according to seniority a minute indicating reasons for selection shall be recorded by the District Judge.
The seniority of Senior Clerks should be determined from the date of their appointment to that post i.e the Senior Clerk and not reference to seniority in the cadre of Junior Clerk.]
(iii) If a clerk who is junior in service has passed the Lower Standard Departmental Examination before a clerk who is senior in service, the clerk junior in service should be confirmed, if there is a permanent vacancy, in preference to the clerk senior in service who has not passed the examination."
The learned counsel for the petitioner relied upon clause (d). It is obvious that clause (d) is general in nature which applies when the promotion to the relevant post is governed by the seniority cum merit rule. It will be necessary to make a reference Appendix A referred to clause (iii) of paragraph 577. Rule 3 of Appendix A is material. What is relevant is the clause (ii) of Rule 3 of Appendix A which reads thus :
"Rule 3 (ii) District Judge may, after following guidelines contained in Para 580 and 583 of Civil Manual, promote :-
(a) A Peon, Watchman, Gardener, Sweeper to the post of Bailiff/Driver
(b) Bailiff to the post of Head Bailiff or Driver.
(c) A Peon, Watchman, Gardener, Sweeper, Bailiff, Head Bailiff, Driver Xerox Operator, Book-Binder to the post of Junior Clerk, Stenographer Lower Grade/Higher Grade/Steno typist/Interpreter.
(e) Steno typist/Steno Lower Grade to the Steno Higher Grade/Interpreter.
(f) Senior Clerk to the post of Assistant Superintendent.
(g) Assistant Superintendent to the post of Superintendent.
(h) Superintendent to the post of Registrar.
(i) from any other post in lower pay scale to post in higher pay scale:
Provided that, he is properly qualified and is, in the opinion of the District Judge, fit for promotion to the higher post."
Thus, the District Judge is empowered to promote a Superintendent to the post of Registrar. We have already quoted paragraph 580 of the Civil Manual. Paragraph 583 provides that Principal District Judge shall invariably consult the Judicial Officer under whom the employee is working in the matters concerning promotions. On the conjoint reading of paragraph 580 and rule 3(ii) of Appendix A, it is not possible to accept the submission of the learned counsel for the petitioner that the promotion to the post of Registrar will be governed by only seniority-cum-merit rule. In fact, the Rules do not specifically lay down whether seniority-cum-merit should be the criteria or whether it should be merit-cum-seniority as far as the promotion to the post of the Registrar is concerned.
7. The minutes of meeting of the recruitment committee held on 24th February 2011 record that as per the seniority list, three candidates including the petitioner and the fourth respondent who were holding the posts of Superintendent were considered. The recruitment committee considered Confidential Reports of the candidates for five years, Special Reports and leave record. The marks were assigned to these three aspects as well as to the oral interview. On the meeting held on 24th February 2011, the marks assigned to the candidates were considered. Highest marks being 19 and 1/2 were secured by the fourth respondent and the petitioner secured second highest marks. On 24th February 2011, the committee recommended that the fourth respondent should be appointed as the Registrar. Accordingly, the Principal District Judge issued impugned order of appointment.
8. At this stage, it will be necessary to make a reference to the decision of the Apex Court in the case of K Samantaray (supra). Paragraph 7 of the said decision reads thus:
"7. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the latter, merit is the determinative factor. In State of Mysore V. Syed Mahmood it was observed that in the background of 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-cum-merit; 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. But these are not the only modes for deciding whether promotion is to be granted or not."
9. In paragraph 11 of the decision, the Apex Court held thus:
"11....There is no statutory rule operating. It is for the employer to stipulate the criteria for promotion, the same pertaining really to the area of policy-making. It was, therefore, permissible for the respondent to have their own criteria for adjudging claims on the principle of seniority-cum-merit giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and the requirements of efficiency for such posts." (emphasis added)
10. Even assuming that the seniority cum merit rule was applicable, the Appointing Authority was entitled to fix its own criteria for adjudging the claim on seniority-cum-merit while giving primacy to the merit as well. The Recruitment Committee was conscious of the hierarchy of administration of the District Court. The post of the registrar is the top most post in the Administration of the District Court which is required to be held by a person possessing adequate efficiency and experience. Therefore, in writ jurisdiction, we find no fault with the selection of the fourth respondent who is found to be the most meritorious and suitable candidate after considering the seniority, confidential reports, Special Reports, leave record and performance in the interview. Petition is rejected.