Tejinder Singh Doabia, J.@mdashIn terms of Rule 3B of National Hydro Electric Power Corporation Promotion Policy, seniority subject to
suitability is the criteria for promotion upto and including the level of Deputy Managers. As to what is the scope of consideration by other
concerned authority when above is the phrase utilized in the service Rules is one of the questions which is required to be gone into in this petition.
2. Another question which as per the learned counsel for the petitioner is required to be gone into is as to whether the criteria which has been fixed
and which has been taken into consideration was fixed by the employer or by the Departmental Promotion Committee ? Still another issue which
has been raised is that even if seniority subject to suitability is to form the basis for promotion even then some benefit is to go to seniority. It is
urged that the seniority cannot be given a complete gobye.
3. The facts be noticed :
The petitioner is an Assistant Engineer (Mech). He is presently posted at Uri and looking after one of the projects of the Corporation at that place.
He seeks promotion as Engineer (Mech). His claims were considered by the respondentauthorities. He, however, has not been promoted. He has
accordingly approached this court through the medium of present writ petition. The basic submission remains the same i.e. in the matter of
promotion even if it is subject to suitability the seniority cannot be given a complete gobye and cannot be ignored.
4. The learned counsel for the respondent has filed objection. A preliminary objection has also been raised. This is to the maintainability of the
petition. On the basis of a decision given by the Supreme Court of India in the case of V.S.T. Industries Ltd. v. V.S.T. Industries Workers Union,
2000 AIR SC 4566, it is submitted that if the employer is not engaged in any public function and is not discharging any public duty, then a writ
petition would not be maintainable. In the above case cited by the learned counsel for respondents the employer was a Company engaged in the
manufacture and sale of scooters. The manufacture and sale of scooters was considered to be not to a public function. This is not the position in
this case. The respondent Corporation is engaged in the task of generating electric energy. In the performance of this function and the resultant
effort of the Corporation the public at large is concerned. Therefore to say that this Corporation which is owned by the Government of India is not
amenable to writ jurisdiction and is not an authority for the purposes of Article 12 of the Constitution is an argument which cannot be accepted.
5. The Supreme Court in the case of Ramana Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628 laid down some
of the tests with a view to decide whether a particular authority is an instrumentality of the State or not. In paragraph 19 some of the factors were
highlighted as under :
Whether there is any financial assistance given by the State and if so, what is the magnitude of such assistance, whether there is any other form of
assistance given by the State and if so whether it is of the usual kind or it is extraordinary, whether there is any control of the management and
policies of the corporation by the State and what is the nature and extent of such control, whether the functions carried out by the corporation are
public functions closely related to governmental functions. This particularisation of relevant factors is however not exhaustive and by its every
nature it cannot be because which increasing assumption of new tasks, growing complexities of management and administration and the necessity
of continuing adjustment in relations between the corporation and Government calling for flexibility, adaptability and innovative skills it is not
possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether
a Corporation is governmental instrumentality or agency.
It was further observed :
Moreover even amongst these factors which we have described no one single factor will yield a satisfactory answer to the question and the court
will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularised inquiry into the facts and
circumstances of each case. The dispositive question in any State action case as pointed out by Dougles J in Jackson v. Metropolitan Edison
C(1974) 419 US 345 is not whether any single factor or relationship presents a sufficient degree of State involvement but rather whether the
aggregate of all relevant factors compels a finding of State responsibility. It is not enough to examine seriatim each of the factors upon which a
Corporation is claimed to be an instrumentality or agency of Government and to dismiss each individually as being insufficient to support a finding
to that effect. It is the aggregate or cumulative effect of all the relevant factors that is controlling.
6. Again a Constitution Bench of the Supreme Court in the case of Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487 formulated certain
tests which may enable one to find out whether a particular body is an instrumentality of the State or not. The relevant tests were summarised as
under :
(1) One thing is clear that if the entire share capital of the corporation is held by the Government it would go a long way towards indicating that the
corporation is an instrumentality or agency of Government.
(2) Whether the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication
of the corporation being impregnated with governmental character.
(3) It may also be a relevant factor...... whether the corporation enjoys monopoly status which is the State conferred or State protected.
(4) Existence of deep and pervasive State Control may afford an indication that the Corporation is a State agency or instrumentality.
(5) If the functions of the corporation of public importance and closely related to governmental functions it would be a relevant factor in classifying
the Corporation as an instrumentality or agency of Government.
(6) Specifically if a department of Govt. is transferred to a corporation it would be a strong factor supportive of this inference of the corporation
being an instrumetality or agency of Government.
As such respondentCorporation is held to be an authority amenable to writ jurisdiction.
7. The argument of the petitioner that the criteria having laid by the Departmental Promotion Committee cannot be looked into be examined at the
first stage. Reliance has been placed on a decision of the Supreme Court reported asDr. Krushna Chandra Sahu & ors. v. State of Orissa and
ors., 1995(4) SCT 560 (SC) : AIR 1996 SC 352.
8. There can be no dispute with the proposition that the members of the selection Board or for that matter any other selection committee do not
have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard. It is basically the function of the rule
making authority to provide the basis for selection. This has been so held in State of Andhra Pradesh v. Sadanandam, AIR 1989 SC 2060.
9. In Ramachandra Iyer v. Union of India, (1984)2 SCR 200 (AIR 1984 SC 541) it was observed :
By necessary inference there was no such power in the ASRB to add to the required qualifications. If such power is claimed it has to be explicit
and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible
harm.
10. Similarly in Umesh Chandra Shukla v. Union of India, AIR 1985 SC 1351 it was observed that the Selection Committee does not possess any
inherent power to lay down its own standard in addition to what is prescribed under the Rules. This decision was followed in Sh. Durgacharan
Misra v. State of Orissa, AIR 1987 SC 2267 and the limitations of the Selection Committee were pointed out. It was said that the Selection
Committee had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voice test.
11. There can be no dispute with the proposition of law as enunciated by the Supreme Court of India. The question is as to whether the criteria in
the present case has been formulated by the Corporation or by the Departmental Promotion Committee ?
12. At page 6 of the objections taken by the respondents it has been categorically mentioned that the criteria has been laid down by the competent
authority of National Hydro Electric Power Corporation Limited and this has been done in the exercise of powers, authority and jurisdiction vested
in it under the Rules. What is said in the reply is quoted below :
The promotion policy and Rules of National Hydro Electric Power Corporation Limited for promotions upto the level of Deputy Managers as it
stood before 1.1.1997 is governed by Rules 3B of National Hydro Electric Power Corporation Promotion Policy and Rules which reads thus :
The Promotion upto and including the level of Deputy Manager (Rs. 30005000) (CDA)/(Rs. 46006470) (IDA) scale shall be on the basis of
seniority, subject to suitability.
In order the adopt a uniform criteria for adjudging the suitability of a candidate, the competent authority of National Hydro Electric Power
Corporation Limited in exercise of the powers, authority and jurisdiction vested in it under the rules, issued directions to be followed by the
Departmental Promotion Committees while adjudging the suitability of a candidate. This criteria inter alia prescribes as follows :
CRITERIA OF DEPARTMENTAL PROMOTION COMMITTEE FOR CONSIDERATION OF PROMOTIONS UPTO DY.
MANAGERS.
Marks for Performance Appraisal Reports :
Maximum 15 marks
Marks for various rating in PARs is adopted by Committee as under :
Outstanding 5
Very good/Above Average 4
Good/High Average 3
Average/Satisfactory 2
Poor/Below Average/Low Average 0
The Committee takes into consideration the latest three performance Appraisal Reports for adjudging the suitability. Where two or more reports
have been written in any appraisal year by reason of an Executive being posted under different reporting/countersigning officers the report for the
longer period has to be considered by the Committee.
The Committee further consider that all the eligible candidates must obtain atleast 11 qualifying marks in the case of general candidates and 9
marks in the case of SC/ST candidates in the latest three Performance Appraisal Reports.
MARKS BY THE DPC 5 MARKS
The Committee takes into consideration the following factors before awarding marks out of the above 5 marks :
(a) The desirability of according special recognition to experience and performance in the field as reflected in Appraisal reports.
(b) The need for moderation of the Appraisal rating to ensure uniformity, consistency and equitability.
The candidates who have secured minimum 15 marks and above in the general and 12 marks in the case of SC/ST category and have been
marked as selected may be considered for promotion subject to actual requirement and availability of vacancies.
The recommendations of DPC in respect of such candidates against whom vigilance case is pending will be kept in a sealed cover.
13. Therefore to say that the criteria has been evolved by the Departmental Promotion Committee and not by the employer is factually incorrect.
Therefore the argument put across by the counsel for the petitioner in this regard is rejected.
14. As per the counsel for Corporation when seniority subject to suitability is the criteria then it is for the employer to determine the suitability. The
seniority according to the learned counsel would have a back seat. He is placing reliance on a decision of the Supreme Court reported as 1998(4)
S.C.T. 661 : (1998)8 SCC 133, National Airport Authority v. Nilu Sharma and others. In the above case selection was to be made on the basis
of senioritycumsuitability. It was observed that the post in question would be treated as selection post and that the concerned employee would not
be entitled to promotion on the basis of seniority alone. The expression which has been used in the present case is still stranger. As indicated in the
beginning it is the seniority subject to suitability which is to be taken into consideration while granting next promotion. Therefore, suitability has to
have place of primacy. If two persons are suitable then among those two seniority would have precedence. Therefore if the respondent authorities
have taken into consideration the suitability of a particular candidate and if another candidate has not been able to come upto that touch stone then
he cannot contend that his claims have been wrongly considered.
15. In this regard what was said by the Division Bench of this Court in Ali Asgar Choudhary and ors, v. State of J&K & Ors., LPA(S) 665/99
decided on 21.9.2000 is quoted below :
The merit has to be determined by the respondents. Selection based on merit tested impartially and objectively is the essential foundation of nay
useful and efficient public service. The object of any process of selection for entry and further promotion into a public service is to secure the best
and the most suitable person for the job avoiding patronage and favouritism. The term merit system finds elaborated in Corpus Juris Secondum
Volume 57 at page 1070. The origin of this system under the American Constitutional set up has been traced in the following words :
Merit system in American government are comparatively recent development. The federal government began about 1886 in a tentative way to
make certain appointments based at least upon an effort to ascertain the ability of the appointee to perform properly the services of his position
rather than his contributions to the success of the party which happened to be in power and this system has spread to a greater or less extent in all
parts of the country although it no means universal ""Taylor v. McSwain 95 P 2d 415, 421, 54 Ariz 295.
After tracing out the origin of the term, the term `merit system' has been elaborated as under :
The terms `merit system' has a well defined and well understood meaning. It is defined as the system of appointing employees to office in the civil
service and of promoting them for competency only a system whereby selection for appointments in certain branches of the public service may be
made on the basis of demonstrated relative fitness without regard to political consideration. Such a system would necessarily include a fair and
impartial selection and appointment of all personnel on the basis of open and competitive merit examinations specific reasons for removal and a
reasonable hearing. The purpose and effect of the merit system is to take from the appointing officer the right of arbitrary removal, either directly or
indirectly of an appointee which he otherwise would have. The system is sometime referred to as a `nonpartisan merit system'. In the United States
it is opposed to the spoiled system.
16. A person to be inducted in the administrative service has to display his ability to deal with pressing problems of economic and social
development. His initiativeness, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation,
effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead
intellectual and moral integrity are to be seen. This is function to be performed by the respondents. They have done so. In this exercise they have
gone by the record and the rules applicable to the service. This court is not to sit as a Court of Appeal in these matters. This has to be done by a
Committee.
17. Therefore it is held that when the rule provides that the promotion is to be made on the basis of senioritycumsuntability then suitability has to be
determined first. Among the candidates having same suitability/performance the seniority can have precedence and not otherwise.
18. The learned counsel for the petitioner at this stage submits that no evaluation was made for the purpose of seniority. As indicated above if
suitability is to have precedence then the seniority would have no relevance except in the cases pointed above.
19. Independently of the above, the criteria which has been noticed above does take note of the previous service also. The ratings in the
Performance Appraisal Reports are definitely not of one year but are for years more than one. If above be the situation then the service profile for
numbers of years is taken into consideration. Therefore, to say that length of service and performance during that period has been totally ignored is
an argument which cannot be accepted. It is accordingly on the basis of the criteria the petitioner was adjudged. He was found unsuitable and was
to promoted. In view of the above no case is made out for interference. This petition is found to be without merit and is dismissed.
