PETITIONER: C.P. KALRA Vs. RESPONDENT: AIR INDIA DATE OF JUDGMENT08/04/1993 BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) ANAND, A.S. (J) CITATION: 1994 SCC Supl. (1) 454 ACT: HEADNOTE: JUDGMENT:
ORDER
1.Under a Promotion Policy evolved by Air India on June
15, 1988, promotions to various managerial posts in the
hierarchy had to be finalised in terms thereof. The
appellant, who joined Air India on May 12, 1964 as Junior
Traffic Assistant, was duly promoted to the next higher post
of Assistant Station Superintendent on October 1, 1979. He
was seeking promotion to the next higher post of Station
Superintendent but he complains that on account of the
change in the promotion policy in June 1988 he has been kept
out from promotion even though his record has been
throughout good. He complains that he has been stagnating
as Assistant Station Superintendent since his appointment to
that post in 1979.
2.It is true that the promotion policy underwent a
change in June 1988. According to the said policy the
promotion from the post of Assistant Station Superintendent
to Station Superintendent had to be on the criteria of
merit-cumseniority. Rule 2.3 of the Promotion Policy
provides that only those employees will be eligible for
being considered for promotion, who, on the date of the
meeting of the Promotion Committee or earlier, have been
confirmed in the post, in the scale of pay next below the
scale of pay of the post to which the promotion is to be
made. The zone of consideration is set out in Rule 2.4. The
basis for promotion is to be found in Rule 2.5. This Rule
inter alia states that the basis for promotion would be
merit-cum-seniority; merit to be determined by the
performance and conduct of an employee in the post held by
him and an assessment of the employee’s potential for
development to shoulder higher responsibilities and
seniority to prevail after meritorious candidates have been
identified. According to Rule 2.5.3, the revised promotion
policy provides for a selection criteria which suitably
balances merit and seniority, so as to ensure that higher
positions are filled by Officers possessing requisite
qualities and attributes. The process of determination of
merit is set out in Rule 2.6 which states that all
promotions from the level of Assistant Station
Superintendent/equivalent categories and above will be based
on the overwhelming consideration of merit which should be
objectively assessed by measuring the abilities, qualities
and attributes of the employee necessary for the promotion
post. This merit has to be determined on the basis of
Annual Performance Appraisal Reports, personal records as
well as personal interview. Out of a total 100 marks, 60
marks are reserved for Annual Performance Appraisal Reports
and 40 marks for personal interview. Rule 2.6.2 indicates
the factors and points to be assessed at the personal
interview. The factors mentioned are professional
knowledge, managerial ability, communication ability,
interpersonal skills/general awareness and professional
qualifications relevant to the job attained while in the
grade held immediately before promotion. The marks assigned
for the last three are 5 each and for the first and
457
the second 15 and 10, respectively. Rule 2.6.4 states that
the marks secured by an employee on the basis of ratings in
the Annual Performance Appraisal Reports and Personal
Interview will be added together and those who have obtained
70 marks or more would be considered suitable for promotion.
After the candidates found suitable for promotion on the
basis of merit are thus identified, they have to be arranged
in the order of their inter se seniority in the panel which
would operate for one year. This in brief is the promotion
policy discernible from the document placed on record.
3.Briefly stated, the promotion policy is that promotion
to the post of Station Superintendent shall be on the basis
of merit-cum-seniority, merit to be determined on the basis
of the assessments found in the Assessment Reports as well
as the performance at the interview. The minimum marks
required for being empanelled is 70 per cent. If a
candidate gets less than 70 per cent he is not considered
suitable for promotion to the next higher post. From
amongst the candidates who have secured 70 per cent and
above, a list has to be prepared in the order of their inter
se seniority regardless of the marks secured and promotions
given according to their placement in the panel.
4.Thus after the merit of each candidate is determined
and those found meritorious are identified, seniority plays
a role at the stage of empanelment. This is the thrust of
the promotion policy introduced in 1988 with a view to
strengthening the managerial cadres.
5.The appellant appeared at the interview in 1989 and it
appears that he secured a total of 65.67 marks i.e. he fell
short of the minimum requirement of 70 per cent marks for
being entered in the list of candidates suitable for
promotion to the next higher post. Having thus been
unsuccessful in securing promotion, he filed a writ petition
in the High Court challenging the decision to refuse him
promotion, being Civil Writ Petition No. 1048 of 1990. A
Division Bench of the High Court considered the main
argument, namely, that 40 per cent marks reserved for the
interview was excessive and contrary to the ratio laid down
by this Court in a number of decisions beginning from Ajay
Hasia v. Khalid Mujib1 and ending with Ashok Kumar Yadav v.
State of Haryana2. The High Court took the view that this
Court had clarified that there can be no hard and fast rule
regarding the precise weight to be given to the viva voce
test as against the weight to be given to the appraisal
reports and hence, in the absence of allegations of mala
fides it could not be said that weightage given to the
interview test was capable of being arbitrarily exercised.
In this view that the High Court took, it dismissed the writ
petition and hence the present appeal.
6.Mr Rajeev Dhavan, learned counsel for the appellant,
put forward three submissions in the main. His first
contention was that the viva voce test which I reserves 40
per cent marks for the purpose of assessment of merit, was
in fact not to assess the merit of the candidate but to
eliminate candidates and, therefore, it did not meet the
requirement of the law laid down in the decisions referred
to by the High Court as well as other decisions cited before
us, namely, Mohinder Sain Garg v. State of Punjab3, Munindra
Kumar v. Rajiv Govil4 and
1 (1981) 1 SCC 722: 1981 SCC (L&S) 258
2 (1985) 4 SCC 417: 1986 SCC (L&S) 88
3 (1991) 1 SCC 662: 1991 SCC (L&S) 555: (1991) 16 ATC 495
4 (1991) 3 SCC 368: 1991 SCC (L&S) 1052: (1991) 16 ATC 928
458
Indian Airlines Corpn. v. Capt. C.C Shukla5. According to
him such exclusive interview requirement being wholly
disproportionate to the level for which selection has to be
made can only be described as unfair, arbitrary and wholly
unconnected to the object of the exercise. We do not think
that there is any merit in this submission. The promotion
policy clearly envisages that merit shall be the primary
consideration for promotion to the next higher post. Once
the candidates falling within the zone are tested for the
purpose of determining their merit on the basis of their
performance emanating from the appraisal reports as well as
their performance at the interview, the total number of
marks secured, if not less than 70 per cent, would entitle
the candidate to be placed in the group of meritorious
candidates suitable for promotion to the next higher post.
Once this group of meritorious candidates is determined,
their arrangement in the select list has to be on the basis
of the inter se seniority. This method of assessing the
merit of the candidate cannot be said to be, in any manner,
arbitrary or one which has no relevance to the object to be
achieved. The basic idea under the promotion policy is that
the managerial post should be manned by candidates of merit
and once meritorious candidates are identified, seniority
would assume relevance for the limited purpose of their
placement in the panel. It is true that on the basis of the
appraisal reports and the grading given to each candidate,
marks are assigned out of 60 marks. Out of the remaining 40
marks, marks are assigned to each candidate on the basis of
the performance at the interview. If a candidate secures 70
per cent and above he is taken to be meritorious enough for
promotion to the next higher post. We see nothing arbitrary
in the method of determining merit. We, therefore, find it
difficult to agree with the learned counsel that the sole
purpose of interviews is only to eliminate candidates. When
candidates having merit are to be chosen, any method of
choice employed will necessarily eliminate those without
merit. A cut-off line has to be drawn for determining merit
and in this case it is fixed at 70 per cent. There is
nothing arbitrary, unfair or irrational about the
prescription of the minimum eligibility marks for
empanelment. We, therefore, reject this contention.
7.It was next submitted that the promotion policy was
unconstitutional as the marks assigned for the interview
test were far in excess of the permissible norm or limit.
The 40 per cent prescription for interview is based on Rule
2.6 of the promotion policy. This 40 per cent is divided
under different heads or factors as stated hereinabove. The
submission of the learned counsel for the petitioner was
based on the observations of this Court in Ashok Kumar
YadaV2 wherein this Court observed that 33.3 per cent marks
reserved for oral test were excessive and would suffer from
the vice of arbitrariness. The High Court has dealt with
this submission and has pointed out that no hard and fast
rule can be evolved in this behalf because much would depend
on the job requirement for each post and the level of the
post. A whole line of decisions were brought to our notice
beginning from Ajay Hasia case’ but it would be sufficient
for us to refer to the latest decision in the case Indian
Airlines Corpn. v. Capt. K.C Shukla5. In that case this
Court after referring to the decisions in Ajay Hasial, Lila
Dhar6, Ashok Kumar Yaday2 and Rafiquddin7 observed that a
distinction
5 (1993) 1 SCC 17: 1993 SCC (L&S) 114: (1993) 23 ATC 407
6 Lila Dhar v. State of Rajasthan, (1981) 4 SCC 159: 1981
SCC (L&S) 588
7 State of U.P. v. Rqfiquddin, 1987 Supp SCC 401 :1988 SCC
(L&S) 183: (1987) 5 ATC 257
459
appears to have been drawn in interviews held for
competitive examination or admission in educational
institutions and selection for higher posts. Efforts have
been made to limit the scope of arbitrariness in the former
by narrowing down the proportion as various factors are
likely to creep in, but the same standard cannot be applied
for higher selections and this is clearly brought out in
Lila Dhar case6. It is, therefore, clear that this Court
was also of the view that no hard and fast rule can be laid
down in these matters because much would depend on the level
of the post and the nature of the performance expected from
the incumbent. In that case the method of evaluation was
based 50 per cent on ACRs and 50 per cent on interviews and
this Court upheld the said method notwithstanding the fact
that the weightage for interview performance was as high as
50 per cent. We are, therefore, of the view that the
contention that because in the instant case the weightage
for the viva voce test is 40 per cent, it is perse
excessive and hence arbitrary, cannot be accepted.
8.Placing reliance on the decision of this Court in Atul
Khullar v. State of J & K8counsel argued that it was
incumbent on the respondent to maintain and produce the
record in regard to the interview test to satisfy this Court
that no arbitrariness had crept in. In that case this Court
observed in paragraph 20 as under:
“We find it necessary, however, to emphasise
that a Selection Committee conducting the viva
voce test should maintain the entire record,
including the original work-sheets on which
the marks have been recorded by each member
separately, for a minimum period of one year
after the examination. Failure to do so can
strengthen an allegation of mala fides against
the Selection Committee.”
It may be mentioned that no allegation was made before us
that the decision of the Selection Committee was mala fide
and therefore the question of strengthening the allegation
does not arise. We may also state that all that has been
pleaded in the pleadings before this Court is that the
Selection Committee -devoted hardly a few minutes for
interviewing each candidate and, therefore, there was no
effective application of mind and the entire viva voce test
was farcical. In the counter that has been filed, this
allegation has been denied and it has been contended that
between 20 and 30 minutes were devoted per candidate on an
average and, therefore, there was an effective interview
undertaken for assessing the merit of each candidate. A
selection process cannot be interfered with on such vague
allegations made by an unsuccessful candidate. We,
therefore, do not see any merit in this contention also.
9.Having applied our mind to the contentions urged by the
learned counsel, we have not been able to take the view that
the selection process was in any manner vitiated and hence
we see no merit in this appeal and dismiss the same with no
order as to costs.
8 1986 Supp SCC 225: 1986 SCC (L&S) 608
460