1.The petitioner, who was working as Divisional Manager under the administrative control of the 3rd respondent Regional Manager who is under the administrative control of respondents 1 and 2 filed this writ petition seeking issuance of a writ of mandamus declaring the action of the respondents in not considering his case for promotion to the post of Deputy Manager, a post to be filled up on the basis of seniority-cum-merit basis during 1994-95 and 1995-96 as illegal and consequently to extend all the benefits including seniority, promotion, difference in pay and to pass such other order or orders as the Hon’ble Court may deem fit and proper.
2. During pendency of writ petition, he filed WPMP No.19857 of 1996 seeking a direction to the respondents to consider his case for promotion to the post in the review exercise that was taken by the respondents to fill up 5 vacancies and this Court by order dated 14-8-1996 directed the respondents concerned to consider his case if he fulfills all the requisite qualifications and eligible for promotion pending further orders. Even after this order, the respondents did not choose to consider the case of the petitioner for promotion.
3. In the counter filed, the respondents while admitting that the post of Deputy Manager is to be filled up on the basis of seniority-cum-merit categorically stated that they have introduced the selection process and on the basis of recommendations made by the Promotion Committee several of the juniors to the petitioner were promoted. On the basis of performance appraisal in the confidential reports of the petitioner by the Reporting Officer and the two Reviewing Officers, the Committee opined that he is not suitable for promotion. They also stated that as per the promotion policy the panel of officers eligible for promotion should be drawn by the Committee by assessing the merit of the eligible officers in the ratio of
1:3. It is also their case that they have not violated the Rules with regard to the maintenance of Confidential Reports of the petitioner.
4. I perused the promotional policy, the guidelines issued and the Confidential Reports of the petitioner and some others. I have no manner of doubt that the entire process suffers from serious infirmities. Even then, the petitioner would have been on the basis of the overall performance is eligible for promotion to the post of Deputy Manager, as the post has to be filled up on the basis of seniority-cum-suitability, since he secured 67.24% during the promotion year 1994-95 and 69.36% during the year 1995-96. The principle that the appointment to be made on Seniority-cum-merit is not more res Integra and any number of decisions can be cited. In Government of India v. C.A. Balakrishnan, , ruled as follows:
“The case of respondent No.1 before the High Court was that he was senior to respondent No.2 and that his case was not considered when respondent No.2 was appointed to the post of Superintendent. The High Court was of the view that on November 1, 1957, when the respondent No.2 was promoted to the Post of Superintendent, the post was not a selection post but a post to which promotions were made on the basis of seniority-sum-fitness and that the case of respondent No.1, should have been considered on that basis and not on the basis that is was a selection post”
5. Relying on the above judgment in an unreported judgment of this Court in WP No.6029 of 1995 dated 21-9-1995 I ruled that “the law is well settled, that unless the exployee is found unfit for promotion, his right for promotion cannot be withheld whereas in case of the selection post, merit is the primary consideration and
the seniority will have an edge when merit and ability of two competing candidates are approximately equal. Changing inter se seniority of the selected candidates on the basis of marks obtained by them, is nothing but introducing a process of selection in matter of appointment to a post to be filled up on seniority-cum-fitness basis. “This judgment received approval in the judgment of a Division Bench of this Court as well as the Supreme Court. In fact Justice Shiv Kumar Sharma of Rajasthan High Court at Jaipur Bench in Mohindra Kumar Bali v. The National Insurance Company, SB Civil WP No.4881 of 1986 dated 9-5-2000, declared that “clause 7(1) of the Promotion Policy issued by the General Insurance Corporation of India applicable to all Insurance Companies to the effect that selection for promotion shall be based on seniority, Insurance qualification and merit cum-growth potentiality as brought out in performance appraisals is not in consonance with clause 1(2) of the Promotion Policy. Under these circumstances it cannot be held that clause 7(1) is in consonance with the principle of seniority-cum-merit”. His Lordship further held that “Seniority-cum-merit provided in clause 1.2 of the Promotion Policy was changed to that of merit-cum-seniority in clause 7.1. The petitioner who was at SI.No.106 in the seniority list of Assistant Managers was superseded by adopting a different criterion, which was against the object of the promotion policy. Allocation of marks prescribed in Clause 7.1 is absolutely unreasonable and irrational and has got no nexus with the object sought to be achieved”. In arriving at the conclusion, his Lordship drew support for the finding recorded by him from the judgment of the Supreme Court in B.V. Sivaiah v. Addanki Babu, (1988) 6 SCC 720. It is useful to extract the same also.
“We thus arrive at the conclusion that the criterion of ‘seniority-cum-merit’ in the matter of promotion postulates that
given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit”
6. In this case also the respondents having not understood the principle ‘seniority-cum-merit’ and ‘merit-cum-seniority’ followed the principle of ‘merit-cum-seniority’ though the post is to be filled up, on the basis of ‘seniority-cum-merit’ and the respondents while superseding the claims of the petitioner promoted about 100 officers in these two years, some of whom were junior to him by one year, some by two years and some by three years. With the result grave injustice was done to the petitioner in denying the promotion and in promoting several of his juniors to the detriment of his interest. On this count alone, the writ petition is liable to be allowed following the judgment of the Rajasthan High Court (supra).
7. But having seen the record how injustice was done to the petitioner on the basis of arbitrary appraisals of his performance in the confidential reports by Sri V.S. Angadi, first Reviewing Officer and Sri S.N. Chaturvedi, the then Regional Manager, Hyderabad 2nd Reviewing Officer, I felt that it is my duty to bring out the callous manner in which the superior officers are behaving in the Government as
well as Public Sector undertakings conferring undue favour on some and ruining the career of some, so that the judgment may be an eye opener to them or atleast the affected parties can affectively put forth their case in the Court of law.
8. In highlighting the injustice done to the petitioner, the factual background of the case with ihe relevant rules of promotion policy have to be looked into. The petitioner started his career in the respondent-organisation as a Stenographer in the year 1969. He was promoted as Assistant Administrative Officer in the year 1975 thereafter as Assistant Branch Manager during the year 1984-85, Branch Manager in the year 1984 and Administrative Officer during 1985-89 and thereafter as Divisional Manager. It is not in dispute that the petitioner passed highest Insurance qualification i.e., Fellowship and none of the Divisional Managers possessed this qualification in Hyderabad region. It is also admitted case that he secured eligibility for promotion to the post of Deputy Manager during the year 1993-94. But he was consistently superseded and more than 100 Officers junior to him were promoted from time to time.
9. The promotion policy adumbrated by General Insurance Corporation of India, which is applicable to all Insurance Companies, came into force during the year 1990. The relevant rules are extracted hereunder.
Para 1 deals with objectives of the policy.
Clause 1.1 states that the existing guidelines relating to promotion of the Officers and to formulate a well defined Promotion Policy with built in motivation providing therein reasonable opportunities to Officers to move up in hierarchy, keeping in view the legitimate aspirations of the Officers to shoulder higher responsibility.
Clause 1.2 that the above aim is sought to be achieved by promoting Officers through process of selection on the basis of their ‘seniority-cum-merit’. While seniority is a known fact depending upon number of years of service put in, merit would inter alia comprise of job knowledge, past performance, suitability and growth potential based on performance appraisal system on the basis of recommendations and remarks of Officers in the appraisals and interviews where applicable. In case of Deputy Manager the promotions to be made only on the basis of seniority and remarks of the Officers in appraisals and there is no interview as such.
Chapter-II deals with Promotion of Officers to the rank of Manager, Deputy Manager, Assistant Manager and Administrative Officer.
Para 6.2 (c): Promotion to the post of Deputy Manager: The claims of Assistant Managers thrice the number of vacancies will be considered. The Promotion policy was amended in the Board meeting held on 21-12-1992 and para 6(A) was introduced.
6(A) Merit Channel: 20 per cent of the vacancies may be earmarked and filled by promotion through merit channel which will be implemented with the introduction of KPA (Key Performance Areas) and CRs/Performance Appraisal based on such KPAs related objective assessment.
Para 7: Criteria for Promotion and Weightage
7.1: Selection for promotion shall be based on Seniority, Insurance qualification and merit-cum-Growth potential for the promotion to the post of Deputy Manager. The following marks are awarded to various traits.
to Dy Mngr.
Traits in C.R.
In sub-clause (b) Insurance qualification was introduced by the Board by way of an amendment on 24-1-1992. While weightage marks were given for promotion to the post of Administrative Officer and Assistant Managers, no weightage marks were given for promotion to the post of Deputy Managers. It is not known the rational behind the promotion policy of giving weightage marks to the superior posts, and denying the same to lower posts though the employee gets highest qualification such as Fellowship in Insurance as in the case of the petitioner. Be that as it may. Clause (c) deals with C.R. Forms and marks were divided under various categories.
Para 7(A): Merit Channel Selection: All candidates eligible under Para 6(A) shall be interviewed and /or if deemed necessary may be subjected to personal/group discussion by the respective Promotion Committee and selection will be made in order of inter se merit as revealed at the interview and/or personal/group discussions. This clause was introduced by way of an amendment by the Board on 24-1-1992.
Para 9: Promotion Committees:
For promotion to the post of Deputy Manager from Assistant Manager, the Promotion Committee consists of Chairman-cum-Managing of the Company, two General
Managers of the Company (of whom one should be in charge of Personal) and SC/ST representatives nominated by CMD of the Company.
Para 10: Selection.
10.1 The Promotion Committee will study the information contained in summary sheets and also suitable weightage either plus or minus for the inconsistencies and/or exaggerated remarks, as may be observed from the confidential reports/work records of the Officers concerned.
Para 10.2 The Advance Main List shall be to the extent of 90 per cent of the vacancies that are expected to be filled up during the year ending 31st March and the list shall be so prepared as to maintain the inter se seniority of the concerned Officers in the existing cadres. After this list is published the aggrieved Officers can make a representation within one month under Para 14 and thereafter the Committee has to review the list and public full Advance Main list to fill up 90% of vacancies and the list to fill up the remaining 10% vacancies along with contnigency list equal to 10% of total vacancies. On the basis of inter se seniority of the concerned Officers after disposal of the representations and reviewing the list already published. This list also has to be prepared in order of ranking.
Para 14 Review, After publication of Advance Main List, the aggrieved Officers can make representations within one month from the date of publication of the list to the Managing Director (Personnel) through proper channel.
10. From the above, it is seen that while 80% of the Deputy Manager posts have to be filled up on the basis of ‘seniority-cum-merit’ as per Para 1.2 of the Promotion policy, 20% of the vacancies are earmarked for promotion by process of selection under Paras 6(A) and 7(A).
11. The Promotion Committee consists of highest officials of the Company failed to take note of Para-10.1 where under the Committee has to suitable weightage either plus or minus for the inconsistencies and/or exaggerated remarks of the Reviewing Officers and the respondent-Company failed to produce the minutes of the Promotion Committee to find out whether any appraisal was made by the Committee on the inconsistent remarks made by the Officers in the CRs of the petitioner. They have also miss-directed themselves in preparing the list of eligible Officers on the basis of the marks awarded by them forgetting the fact that the post has to be filled upon the basis of ‘seniority-cum-merit and by giving miss interpretation to the words of ‘the list so prepared shall be in order of ranking’ and they have introduced a process of selection which was highly illegal.
12. Nextly, the General Insurance
Corporation of India gave certain confidential guidelines and instructions relating to Promotion policy for Officers. I need not refer all the instructions given except observing that the procedure for appraisal of the performance of the Officers is so cumbersome and the same do not convey any meaning. It is not known as to how the intellectual cream of the society can evolve such cumbersome procedures for promotion either by process of selection or seniority-cum-merit. In fact I have given number of opportunities to the Officers of the Corporation, who came all the way from Mumbai to assist their Counsel, to explain rationale behind this cumbersome policy and the objectives sought to be achieved by making the process of selection so complicated, but they have no answer. At any rate, they failed to produce the worksheets how the appraisals of the performance of the Officers were done by the Promotion Committee in this case. I am not adverting to the procedure, as the same is not required for deciding the case except
extracting the relevant provisions with regard to the promotions to be made to the post of Deputy Managers. In these guidelines I deals with marking system (A) deals with Seniority, (C) deals with Confidential Reports, which is divided into 3 categories (i) Traits (ii) Performance, and (iii) Growth Potential. Again ‘Traits’ is divided into four categories (a) Personal, (b) Managerial, (c) Job oriented, and (d) Behavioral and formulas were given for giving weightage for the said purpose. The Confidential Reports of an Officer for a period of 3 years will be taken into consideration. For Deputy Managers rating to be given depending upon the remarks as under.
A–Outstanding performance warrants immediate promotion-25 marks.
B–Above average performance justifies out of turn promotion-20 marks.
C–Average performance for promotion in his turn -15 marks.
D–Performance needs to improve in future for promotion. (Minus)3 marks.
E–With such poor performance consideration for promotion does not arise. (Minus)8.
Note :–(1) In respect of all the three criteria on confidential reports, if there are differences in the remarks of the reporting officer and reviewing officers, the remarks of the last reviewing officer will prevail.
Note 2A :–In view of the switch over to promotion on financial year based performance appraisal, the CR for the transitional period 1-1-1992 to 31-3-1992 will be treated as CR for one full appraisal year.
13. From this it is seen that the Officers who secured rating from A to C are
eligible for promotion either on out of turn basis, immediate effect or in his turn respectively. As stated supra, even as per the faulty appraisal made by the Committee, the petitioner secured ‘B’ rating. Even if he secured rating ‘C’ he has to be promoted in his turn to the post of Deputy Manager. But the respondents placed no material as to why this poor man was superseded for no fault of him, even if the faulty procedure adopted by the Promotion Committee is held to be good.
14. Coming to the aspect of merit, the same has to be assessed on the basis of performance appraisal made by the Reporting Officer as well as the two Reviewing Officers in the Confidential Reports of an employee under para 1.2 of the Promotion policy. Under para 6 of the policy, the Confidential Reports of the Officer concerned for three years preceding to the year of selection will be taken into consideration. As per Para 1(c) of the guidelines, the performance appraisals were divided into three parts. (i) Traits, (ii) Performance, and (iii) Growth potential. An elaborate procedure was given for appraisal of the performances on the above aspects, in para 5, in the table given in appendix-II, the performance has to be appraised under four categories. They are, (1) Personal Traits, (2) Managerail Traits, (3) Job skills and (4) Behaviour skills. The prescribed format of the Confidential Report deals with information on various aspects of the employee and as the appraisals of these traits have to be made under various sub heads. As per the rules of respondent-Corporation, the Officer under whom the employee works has to appraise the performance in the first instance as a Reporting Officer and the same will be reviewed by his next superior Officer and by the Regional Manager. At Page 5 of the Confidential Report a note was appended in the following terms:
Reviewing Officers: Please state how far you agree with the comments of the
Reporting Officer above. Give your own comments where you do not agree. Please also comment on steps taken by you to appraise the Appraise of the defects and also the help guidance given by you.
15. From this it is evident that if any of the Reviewing Officers are not in agreement with the performance appraisals given by the Reporting Officers, he should not only give reasons for his disagreement, but also state the steps taken by him to correct the employee and to help and guide the employee concerned in overcoming the defects noticed by him.
16. As the year of Section being 1994-95, the Confidential Reports of the three preceding years have to be considered. In the year 1991, Sri Chaturvedi himself acted as Reporting Officer. While rating the petitioner under Managerial skills and Job skills as ‘A’, the rating on the Personal traits and behaviour skill of the petitioner is a mixed one i.e., for some sub-heading ‘A’ rating was given and for some ‘B’ rating was given. As far as Behaviour skills are concerned, the petitioner is given ‘B’ rating. Under the heading of Performance, he rated the performance of the petitioner at the commencement of the period as good and at the end very good. For the period from January, 1992 to March, 1992 one Sri G. Ram Murthy, Deputy Manager appraised the performance of the petitioner and he has given ‘A’ rating for Managerial and Job skills. For the other two traits, he gave ‘A’ rating under same sub heading and ‘B’ for other heads. But, one Sri V.S. Angadi, who acted as first Reviewing Officer practically degraded him to ‘C’ rating even for Managerial and Job skills and the Regional Manager Sri Chaturvedi agreed with the first Reviewing Officer. Under the heading of performance while the Reporting Officer gave ‘A’ rating-outstanding, the two Reviewing Officers brought down him to
average. Neither Sri V.S. Angadi nor Sri Chaturvedi, who acted as Reporting Officer in the year 1991 who rated the petitioner as ‘A’ for Managerial and Job skills have not given any reasons as required under law. Coming to the year 1992-93 i.e., 1-4-1992 to 31-3-1993, for a substantial period i.e., 1 -4- i 992 to 15-1 -1993, the petitioner worked under Mr. Rammurthy and he seemed to have been transferred on 15-1-1993. Thereafter, as per Branch Manager circular HRO/RM’s Sectt/93, dated 19-1-1993 Sri V.S. Angadi became the Reporting Officer for the petitioner for only three months during this period. Mr. Rammurthy while leaving the Officer issued a commendation letter to the petitioner. It is useful to extract the first para of that letter, which reads as follows:
“As informed already, I am being relieved of my work today for taking up fresh assignment as Senior Divisional Manager at Secunderabad D.O. While I am at Regional Officer for a period of three and half years in Technical Department as Assistant Manager and Deputy Manager, I am associated with you for different periods. During this period, I believe that we have done creditably well in supporting our operating offices, in cultivating sound underwriting practices and minimising the out-go in claims for which everyone of us can be reasonably proud of. If we have achieved all this, it is only because of your unstinted cooperation and enthusiasm”.
17. But Sri V.S. Angadi practically down rated the appraisal to ‘B’ in all aspects and the Regional Manager agreed with his comments. In fact, out of curiosity, I looked into the performance appraisal of the Officer-petitioner from his Confidential Reports beyond three years available in the file and he was always rated as a good Officer. From the commendation letter of Mr. Rammurthy also it is seen that the
petitioner seems to be turning out good work. But, Sri V.S. Angadi who watched his performance for only three months downgraded him and ‘B’ rating was given. Though Sri V.S. Angadi continued as Reporting Officer of the petitioner up to October, 1993 and in his place on Sri T.S.N. Reddy became the Reporting Officer as per reference HRO/RM’s Sectt/93, dated 21-10-1993, suprisingly Mr. Angadi acted as a Reporting Officer for the period ending i.e., April, 1993 to 31 March, 1994 and he has given ‘B’ rating to the petitioner on all traits, but the new Regional Manger, M.D. Grade, who seemed to have taken over as the Regional Manager during the midst of the year, gave rating at his own will. This Regional Manager practically brought the Officer to ‘C’ rating without giving any reasons for downgrading the petitioner to ‘C’ rating as required under the Rules. Firstly, I am of the opinion that Mr. V.S. Angadi cannot act as a Reporting Officer for the petitioner during this period as evidence from the appraisals for the year 1992-93 and the first Reviewing Officer, the Regional Manager gave ratings to the petitioner without any basis whatsoever. On the basis of the appraisal given by these Officers for these three years, the petitioner was overlooked as stated supra. Even on the basis of faulty appraisal made by Mr. V.S. Angadi and the Regional Manger in Officer, he secured 67.24 marks for the year 1994-95 and 69.36 for the year 1995-96. But at the same time, the rating given to the petitioner as per the guidelines extracted supra was not placed before this Court. From the marks obtained by the petitioner on the appraisal of the Confidential Reports, in my opinion he has to be rated as ‘B’ ‘or atlest ‘C’ but at any rate he cannot be rated as ‘D’ ‘E’ or even if he is rated as ‘C’ he cannot be overlooked for promotion, as he is entitled for promotion in his turn.
18. I have also seen the Confidential Reports of some of the Officers for who
Mr. Rammurthym acted as Reporting Officer and Mr. Angadi and Mr. Chaturvedi acted as Reviewing Officers. Both these Officers agreed with the rating given by Mr. Rammurthy in some cases. However, Mr. Rammurthy found certain deficiencies in case of Mr. Kama Rao. But these Officers gave ‘A’ rating to him. At the same time no reasons are forthcoming. In case of B.A. Ranga Rao while Mr. Rammurthy gave ‘C’ rating, both these Officers gave him ‘B’ rating. At the same time no reasons are forthcoming. In case of Mr. K. Nageswar Rao while the rating given by Mr. Rammurthy is a mixed one, both these Officers rated him as ‘A’. From the above it is seen that these two Officers either agreed with the rating given by Mr. Rammurthy as Reporting Officer or gave higher rating to those Officers than what the Reporting Officer has given. But, in the petitioner’s case they have down rated him. Either for giving higher ratings or downgrading the petitioner, no reasons are forthcoming.
19. As far as Managerial skills and Job skills are concerned, from the information furnished by the respondent-Corporation, the petitioner was appointed as Divisional Manager at Rajahmundry branch opened during the year 1993-94, and he was there during 1994-95 and 1995-96. He has shown more than 25 per cent acceleration every year in the collection of premium but he was ignored for promotion. While TIED Division headed by Mr. A.V.G. Kumar at Hyderabad has shown minus 35.891% in premium collection for 1992-93. Though he has shown increase to and 21.55% during 1993-94, in 1994-95 it has fallen down to 6.17%. Like wise, in Cuddapah Divisional Officer headed by S.Yugandhar Rao, the increase in 4.74% during 1992-93, 13.12% during 1993-94 and for 1994-95 it is only 20.40% . From the above it is seen that the petitioner has collected much higher premium than the other two. However, the
petitioner was ignored for promotion while the other two were promoted. From this it is evident that arbitrariness is writ large, while undertaking performance appraisals of the subordinate Officers by the Superior Officers and the entire process of performance appraisal is vitiated by illegalities and not in accordance with the Promotion policy or the guidelines issued for that purpose. I have taken so much pain to go through the records and rendering the judgment, so that the General Insurance Corporation of India, which is formulating the Promotion Policy and issuing guidelines, shall undertake review of the policy and minimise the procedure of performance appraisals so as to save the subordinate Officers from the vagaries of the superior Officers who are undertaking performance appraisal in the Confidential Reports of the Officers concerned. This is high time to point out that the superior Officers in the Government as well as instrumentalities of the State to come out of their misnomer that they can do and undo things at their whims and fancies. As the State being a welfare State and the actions of the higher hierarchy are subjected to Judicial review and their actions will be invalidated, if they do not adhere to the standards professed by them. These Officers should realise that they can confer undue favour and condemn some at their whims and fancies are bygone days and their actions should not be arbitrary or irrational. Had these two officers have not retired from services, I would have given notice to these Officers to show-cause why I should not recommend disciplinary proceedings against them so that it will be an eye opener to other Officers who indulge in this sort of things very often.
20. During the course of hearing, it also came to light that after Sri V.S. Angadi is out of the picture the performance appraisals in the Confidential Reports of the petitioner have taken round about turn and ultimately the petitioner was promoted
to the post of Deputy Manager in the year 1998.
21. In the result, I hold that the action of the respondent-Corporation in introducing selection process while making appointments on the basis of ‘Seniority-cum-merit’ and promoting the juniors ignoring the claims of the seniors on the ground that the juniors secured more number of marks in the process of performance appraisal though the seniors are also equally found suitable for appointment even as per their own norms and the very basis i.e., appraisal performance of the Officers of the petitioner by Mr. Angadi and Mr. Chaturvedi is not only arbitrary but smacks colourable exercise of power without following the procedure is ab initio void. Hence, on both the gounds the petitioner has to succeed in establishing his claim for promotion as Deputy Manager for the year 1994-95 i.e., 1-4-1994 to 31-3-1995. As I have taken the view that the very denial of the promotion of the petitioner during this year is vitiated by illegalities, the denial of the promotion to the petitioner in the subsequent years also cannot be sustained in law and the action of the respondent-Corporation is declared as illegal.
22. In the light of the foregoing discussion, Rule nisi issued is made absolute and the respondents are directed to promote the petitioner as Deputy Manager duly protecting his seniority during the year 1994-95 with all consequential benefits. Since the petitioner retired form service during the pendency of writ petition, the respondents shall give notional promotion and consider his case for further promotions till he attained the age of superannuation if he is otherwise eligible and after fixing pay in the time scale of pay attached to the post of Deputy Manager or any other promotional post, the difference of pay i.e., arrears in salary shall be paid to the petitioner within eight weeks from the date of receipt of a
copy of this orders and also revise the pension payable if any and other terminal benefits to which the petitioner is entitled to within the stipulated period.