In WRIT PETITION NO.2295 OF 2008-BOM HC- If certain employees were exempted from examination and granted relaxation in qualification and years of service, it will not be construed that principle of merit-cum-seniority is not followed: Bombay HC Justices R.D. Dhanuka & S.M. Modak [15-06-2022]

Read Order: KISHORE D. RAORANE Vs. THE HIGH COURT OF JUDICATURE AT BOMBAY AND ORS 

Mansimran Kaur

Mumbai, June 16, 2022: In a case pertaining to the Bombay High Court Departmental Examination Rules, 1995 and Rules for passing Lower and Higher Department Examination Rules, 1981, the Bombay High Court has observed that seniority in the feeder cadre is not be considered while fixing seniority in promotional post.

The Division Bench of Justice R.D. Dhanuka and Justice S.M. Modak observed that no provision in the Rules mentioned that the employee who has secured more marks in a particular examination will have to be given preference over the employees who have secured less number of marks and dismissed the present petition instituted by the petitioner who had joined the services of the High Court Administration on Original Side as a Clerk in the year 1985 and retired in the year 2021 from the post of Master (Adm). 

It was the case of the petitioner that though he secured higher marks in the Higher Standard Departmental Examination, as compared to the other respondents and the principle of merit-cum- seniority was applicable for promotion to the post of Section Officer, even then he was not promoted earlier than the other respondents. According to the petitioner the High Court Administration had wrongly applied and interpreted the Rules and had not promoted the petitioner in time.

The Court discovered that the exemptions and relaxations were granted by the High Court Administration to certain employees, as per the provisions of Rules.The Bench also took into account the judgments of the Top Court in B.V. Saviya And Ors Vs. K. Addanki Babu And Ors, and Bhupendranath Hazarika Vs. State of Assam  and noted that in the present case, same ratio could not be applied for the reason that various respondents were granted exemption from passing the Departmental Examination, relaxation from requisite number of service and relaxation from Educational Qualification as per the Order of Hon’ble Chief Justice. While doing that, the provisions of 1981 Departmental Examination Rules, the Provisions of 1995 Departmental Examination Rules and the Provisions of 1985 Recruitment Rules were considered. It was also noted that in the present case there was no challenge to the validity of those Rules and Circulars. There was also no argument made that the Chief Justice had improperly granted exemption and relaxation. 

The Court was of the view that there was no merit in the agitated issue of the petitioner contending that the higher marks in the departmental examination is one of the factors in promotional exercise as the name was not justified by the Rules. With respect to the contention that the respondents were promoted as section officers on respective dates even though they did not pass out higher standard departmental examination,, the Court opined that the reason that the respondents were exempted from appearing for the examinations was because of the notifications dated January 27, 1981 and August 31, 1988. 

In case of merit cum seniority, the seniority comes into picture only when the marks are equal and the petitioner, who was senior amongst the employees coming under the zone of consideration was not selected because he had secured less marks. Marks obtained in Higher Standard Examination were not the criteria. Just because certain employees were exempted from examination and were granted relaxation in years of service and relaxation in qualification, it does not mean that the principle of merit cum seniority is not followed,remarked the Court. 

Thus, without finding any merit in the petition and observing that the principle of ‘seniority cum merit’ was not applicable for the posts for which the petitioner has participated, the Bench dismissed the petition.