JUDGMENT
P. Vishwanatha Shetty, J.
The 1st respondent-National Institute of Mental Health and Neurosciences (hereinafter referred to as ‘the Institute’) is one of the premier institutions in the country which provides for specialised treatment in areas of neurosciences and mental health. The Institute has been established as an autonomous body and registered under the Societies Registration Act, 1860; and it is also a deemed University. The Institute is managed by a Board of Management. The Chairman of the Board of Management is the Union Minister for Health and Family Welfare. The other members of the Board of Management are nominees of the Central and the State Governments and Faculty Members of the Institute.
2. A few facts, which are not in serious dispute and are relevant for the disposal of this petition, may be stated as hereunder:
The petitioner is presently working as Additional Professor in the Department of Clinical Psychology in the 1st respondent-Institute. The Institute introduced a Scheme known as Assessment Promotion Scheme (hereinafter referred to as ‘the Scheme’) to the faculty members of the Institute with effect from 18th July, 1992 for the purpose of promotion from the post of Assistant Professors to Associate Professors and Associate Professors to Additional Professors without linkage to the vacancies. The Scheme also lays down the criteria for promotion. The copy of the Scheme introduced by the Institute has been produced as Annexure-A to the writ petition. Subsequently, by means of a resolution of the Board of Management of the Institute dated 22nd December, 2000, the Institute accorded the approval for extending the benefit of promotion from the post of Additional Professors to the post of Professors under Assessment Promotion Scheme with effect from 1st July, 2000 in terms of the criteria laid down in the Scheme Annexure-A.
3. In terms of the Scheme, the case of the petitioner and respondents 2 to 8 were considered by the Institute on the basis of the recommendation made by the Standing Selection Committee (hereinafter referred to as ‘the Selection Committee’) constituted to assess the fitness of the candidates for being considered for promotion to the post of Professors from the cadre of Additional Professors for the year 2000. The Selection Committee found the petitioner fit enough to be promoted to the cadre of Professor. However, the Institute by means of its Official Memorandum dated 6th July, 2001, a copy of which has been produced as Annexure-C to the writ petition, promoted the respondents 2 to 4 to the post of Professors as against the claim of by the petitioner. Even for the year 2001, the petitioner was found fit by the Selection Committee. However, the Institute again by means of its Official Memorandum dated 10th May, 2002, a copy of which has been produced as Annexure-D to the writ petition, promoted respondents 5 to 8 overlooking the claim of the petitioner. Hence, the petitioner has presented this petition challenging the correctness of orders Annexure-C, dated 6th July, 2001 and Annexure-D, dated 10th May, 2002 passed by the Institute promoting respondents 2 to 8 as against her claim.
4. Sri Ravivarma Kumar, learned Counsel appearing for the petitioner challenging the correctness of the action of the Institute promoting respondents 2 to 8 in preference to the claim of the petitioner submitted that since the petitioner was found fit both during the year 2000 and 2001 by the Selection Committee, it was not permissible for the Institute to promote respondents 2 to 8 overlooking the claim of the petitioner, who is admittedly senior to the said respondents. According to the learned Counsel, the Scheme only requires the Selection Committee to adjudge the fitness or suitability of a candidate for being promoted to the higher position; and once the Selection Committee finds that a candidate is fit or suitable for higher position, the promotion is required to be made strictly on the basis of seniority of the candidates. He also pointed out that when the claim of the petitioner for promotion was overlooked during the year 2000, he gave a representation to the Institute bringing to its notice the illegalities committed by the Institute by promoting respondents 2 to 4 as against the claim of the petitioner; and when the matter stood thus, instead of rectifying the error committed by promoting respondents 2 to 4 as against the claim of the petitioner, even for the year 2001 the Institute overlooked the claim of the petitioner and promoted respondents 5 to 8. It is his submission that it was not permissible for the Institute to make promotions on the basis of the comparative merits of the candidates assessed by the Selection Committee. In support of his contention that the Selection Committee is required to consider only the fitness of the candidates to be promoted to the higher post as per the terms of the Scheme introduced, he drew my attention to Sub-clauses (1), (2) and (4) of Clause A and Clause B(1) of the Scheme; Circular (Annexure-G) dated 15th November, 1993; and also the Circular (Annexure-L) dated 13th June, 2002 issued by the Institute.
5. However, Sri P.S. Rajagopal, learned Counsel appearing for the Institute, Sri Somashekar, learned Counsel appearing for the respondent 5 and Sri Bhojraj, learned Counsel appearing for the other respondents tried to support the action of the Institute promoting the respondents 2 to 8 as against the claim of the petitioner. It is pointed out by them that since the respondents 2 to 4 had secured more percentage of marks in the assessment made by the Selection Committee while considering the case of the parties for promotion to the post of Professors during the year 2000; and for the year 2001, since the respondents 5 to 8 had secured more marks in the assessment made, the said respondents were promoted as against the claim of the petitioner. It is their submission that the Selection Committee on a proper construction of the Scheme understood that the promotion was required to be made on the basis of the merit of the candidates assessed by the Selection Committee and not purely on the basis of seniority and the candidate being found fit for being considered for promotion.
6. In the light of the rival contentions advanced by the learned Counsels appearing for the parties, the only question that would arise for consideration in this petition is as to whether the promotion to the post of Professors from the post of Additional Professors under the Scheme is required to be made on the basis of comparative merit assessed by the Selection Committee constituted by the Institute or on the basis of the seniority when the Selection Committee finds the candidate is fit to be promoted?
7. It may be useful to briefly refer to the criteria laid down for promotion to the post of Professors from the post of Additional Professors in the Scheme introduced by the Institute to decide the question that has arisen for consideration. Clause 3 of the Scheme provides for the number of chances a faculty member is entitled to take at each level in the Assessment Promotion Scheme. The said provision reads as follows:
“3. A faculty member could avail of a total of three chances at each level in Assessment Promotion Scheme. The time interval between the first and second chance would be two years and between the second chance would be two years and between the second and third chance three years. In case a candidate is found fit, but not given promotion due to ceiling then it would not be considered as a chance availed of and his/her case will be reviewed subject to nothing adverse having come up within the year”.
(emphasis supplied)
Clause A prescribes the procedure to be followed in the interview. Clause A(1) and (2) which are relevant for our purpose read as follows:
“A. Procedure for Interview.-
(1). The object of the interview is to find out whether a candidate is adequately equipped for the post for which he is being assessed. For this purpose, it is necessary to assess the level and depth of his professional knowledge. It is mainly the responsibility of the Advisers/Experts to do this. More important than this, they must ascertain whether he has the ability to use the knowledge in practice and whether he can think independently.
The question at the interview should relate to the duties of the post and the latest developments in the field of specialisation of the candidate. Where required, his knowledge of the conditions of rural areas and problems of rural population should also be assessed. Some hints on interview technique are given in paragraph ‘B’ below.
(2) Procedure for conducting interviews.–
(1)……….
(2)……….
(3)……….
(4) The Experts / Advisers will be supplied with a form of each candidate where the Fitness / Unfitness only is to be recorded”.
(emphasis supplied)
Clause B lays down the guidelines for Experts/Advisers to be kept in mind at the time of interview. Sub-clause (1) of Clause B referred to by Sri Ravivarma Kumar reads as follows:
“B. Hints on interview technique for the guidance of Experts/Advisers.-
(1) The Experts are to assist the Selection Committee in assessing the candidate as fit for the next higher post in question. They should assess the suitability of the candidate without fear, favour or any other consideration”.
Clause 6 gives suggestions in respect of the matters to be followed by the Expert Committee. Sub-clause (i) of Clause 6 provides that the main stress of the experts should be to find out whether the candidate is suitable to the post. The reading of the provisions in the Scheme referred to above, to my mind makes it clear that what is required to be considered by the Selection Committee is with regard to the suitability or fitness of an Additional Professor to be promoted as a Professor. There is no provision set out in the Scheme providing for the power conferred on the Selection Committee to make recommendation for appointment to the post of Professors from the cadre of Additional Professors on the basis of assessment of comparative merits of the Additional Professors and the marks secured on such comparative assessment of the merit From the Scheme as noticed by me earlier, it is clear that the merit was required to be considered by the Selection Committee only for the purpose of adjudging as to whether the Additional Professors are fit or suitable enough to be promoted as Professors. Circular (Annexure-G) which is also made applicable for promotion to the post of Professors from the cadre of Additional Professors provides that if a candidate who is considered for promotion from the post of Associate Professor -to the post of Additional Professor and found fit by the Selection Committee is not promoted due to ceiling of 75 per cent, the said candidate is required to submit his bio-data again for consideration by the Selection. Committee for the subsequent year. The said circular further states that such a candidate will not be called for interview; and if the Selection Committee declares the said candidate fit for promotion, the said post will be given to the faculty member that year. Similar is the effect of Circular (Annexure-L) dated 13th June, 2002. In Circular (Annexure-L), it is stated that the officers who are found qualified for promotion but not given promotion due to ceiling need not submit their applications and they will not be assessed again. The said Circular further states that their Confidential report of the intervening year will be reviewed. Therefore, it is clear that the candidates who were found fit in one year are not called for interview for the next year if they are not promoted on account of the ceiling fixed for promotion during the previous year and their case could be considered for promotion in the subsequent year. If the selection is required to be made on the basis of comparative merits assessed by the Selection Committee as contended by the Counsels for the respondents, it is reasonable and fair to expect that all the eligible candidates would be interviewed at the time of every year of selection. As noticed by me earlier, that is not the position. The Scheme introduced is Assessment Promotion Scheme. This is different from the selection to be made by way of assessment of comparative merit. As noticed by me earlier, there is no provision in the Scheme which provides for assessment of comparative merits by the Selection Committee. The object of the Scheme is to remove stagnation and to provide a career progression opportunity to the Additional Professors, Assistant Professors and Associate Professors in the Institute who have not been able to earn promotion in the process of selection conducted by the Institute to various posts notified for selection in the Institute. The Scheme also has fixed a ceiling of 50 per cent of eligible candidates to be promoted each year to the post of Professor. The eligibility fixed is seven years of experience in the cadre of Additional Professor for promotion to the post of Professors. From the reading of the Scheme, it also emerges that the confidential report of the candidate is reviewed by the Selection Committee, for the year subsequent to the year where a candidate was found fit and was not able to secure promotion on account of the ceiling fixed, only to decide as to whether any adverse change in performance has taken place to make such a candidate unfit for promotion. It is only the candidates whose cases were not considered for the previous year are invited for interview. Therefore, from the criteria laid down in the Scheme, I am of the view that the only criteria that is required to be considered by the Institute while giving promotion under the Assessment Promotion Scheme is to find out as to whether a candidate is fit or suitable enough to be promoted to the higher position; and once the Selection Committee finds a candidate is fit or suitable enough for promotion to the higher position, the claim of all aspirants will have to be considered purely on the basis of seniority. This is also clear from the fact that the assessment regarding suitability or fitness is made by different Committees in different areas of teaching/specialisation. There is no method or procedure prescribed for assessment of comparative merit of all the candidates for promotion. However, from the stand taken by the Institute in the statement of objections and also from the submissions advanced by the learned Counsel, it is clear that the promotions were given to respondents 2 to 8 purely on the basis of assessment of comparative merit of the candidates assessed by the Selection Committee. In my view, the said procedure adopted by the 1st respondent is not correct and unsustainable. The view I have taken above is also supported by the decision of the Hon’ble Supreme Court in the case of Union of India and Ors. v. Lt. General Rajendra Singh Kadyan and Anr., of the said judgment, it is observed as follows:
“12. Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. “Seniority-cum-merit” postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion to All India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them”.
Therefore, the petitioner, who is undisputedly senior to the respondents 2 to 8, was entitled to be promoted to the post of Professor on the date on which the respondents 2 to 4 came to be promoted by means of Order (Annexure-C) dated 6th July, 2001. Further, for the very reason, the promotion of respondents 5 to 8 during the year 2001, by means of order (Annexure-D), dated 10th May, 2002 in preference to the claim of the petitioner, is also unsustainable. In fact, the 1st respondent has fairly stated in the statement of objections that once the petitioner is found fit she would be entitled for restoration of original seniority. This is clear from the statement made at paragraph 11 of the statement of objections. It is useful to refer to the relevant portion of statement made in paragraph 11 of the statement of objections, which reads as hereunder:
“. . . The Institute further clarifies that whenever the petitioner succeeds in the promotion process and she is promoted as Professor, her original seniority above the private respondents will stand restored. The petitioner is a candidate for the post of Professor this year and her case for promotion to the post of Professor has already been considered as per the normal procedure by the result has not been yet announced as it requires acceptance and approval of the Board of Management which is the Appointing Authority and the matter is awaiting meeting of the Board of Management. As soon as Board of management meets and decides selection, the result would be announced”.
8. Therefore, in the light of what is stated above, a direction is required to be issued to the Institute to give retrospective promotion to the petitioner with effect from the date on which the respondents 2 to 8 came to be promoted by means of Order (Annexure-C) dated 16th July, 2001 with continuity of service and all consequential benefits. However, liberty is reserved to the Institute not to disturb the promotion of respondents 2 to 8, if the petitioner could be given retrospective promotion without disturbing any one of them.
9. In the light of the discussion made above, I make the following:
ORDER (i) The 1st respondent is directed to promote the petitioner to the cadre of Professor in Clinical Psychology under the Assessment Promotion Scheme with effect from 1st July, 2000 i.e., the date on which the respondents 2 to 4 came to be promoted with continuity of service and seniority and all the consequential benefits flowing therefrom, including the monetary benefits. (ii) However, liberty is reserved to the Institute to promote the petitioner without disturbing the promotions already made. (iii) The 1st respondent is given four weeks' time from the date of receipt of a copy of this order to comply with the direction given above, so far as the extension of benefit of retrospective promotion is concerned and six weeks' time from the date of receipt of a copy of this order is given to settle all the monetary benefits payable to the petitioner. 10. In terms stated above, this petition is allowed and disposed of. Rule is issued and made absolute. However, no order is made as to costs.