BALBIR SINGH BEDIversusSTATE OF PUNJAB AND ORS.

                         [2013] 3 S.C.R. 376


A                       BALBIR SINGH BEDI
                                  v.
                  STATE OF PUNJAB AND ORS.
                  (Civil Appeal No. 1273 of 2004)
                        FEBRUARY 11, 2013
B
      [DR. B.S. CHAUHAN AND V. GOPALA GOWDA, JJ.]

          Service Law - Promotion - On the basis of seniority-cum-
    merit - Case of the appellant was considered a/ongwith other
C   eligible candidates for the post of Battalion Commander but
    a person junior to him (respondent no.5), was promoted to the
    said post after considering his past five years' ACR and other
    records - Writ petition filed by appellant - Dismissed by High
    Court - On appeal, held: Where a promotion is to be given
o   on the principle of "seniority-cum-merit", such promotion will
    not automatically be granted on the basis of seniority alone -
    A person lower in the seniority list, can be promoted, ignoring
    the claim of the senior person, who failed to achieve the
    benchmark i.e. minimum requisite merit - Fixing a criteria, or
E   providing for minimum necessary merit, falls within the
    exclusive domain of policy making and cannot be interfered
    with by courts in the exercise of their judicial powers, unless
    the same is found to be off the mark, unreasonable, or
    malafide - Even in the absence of the executive instructions,
F   the State/employer has the right to adopt any reasonable and
    bonafide criteria to assess the merit, for the purpose of
    promotion on the principle of "seniority-cum-merit" - The
    present case is not the one where, respondent no. 5 was found
    to be more meritorious, in fact, the same is admittedly a case,
    where the appellant was unable to achieve the benchmark set,
G   as it is evident from the record that his ACRs were average,
    and the benchmark fixed by the State was 'Good' -
    Furthermore, appellant did not approach the court with clean
    hands, clean mind and clean objective - He had faced

H                                376
   BALBIR SINGH BEDI v. STATE OF PUNJAB AND                  377
                     ORS.
criminal prosecution under ss. 7 & 13(ii) of the PC Act, 1988        A
and ss.467146814711120-8 /PC, but did not disclose this fact
either before the High Coult or before the Supreme Coult -
Claim of appellant for promotion therefore rightly rejected -
Punjab Home Guard, Class-I Rules, 1988 - r. 8.

     Service Law - Promotion - "seniority-cum~merit" and
                                                                     8
"merit-cum-seniority" - Distinction between - Held: The
principle of "seniority-cum-merit" and "merit-cum-seniority"
are conceptually different - In the case of the former, there is
greater emphasis upon seniority even though the same is not
the deciding factor, while in the case of the latter, merit is the   C
deciding factor.

    The appellant, a District Commander, claimed to have
become eligible for substantive promotion to the post of
Battalion Commander as per the rules applicable. The                 o
case of the appellant was considered alongwith other
eligible candidates, but a person junior to him
(respondent no.5), was promo.ted to the said post after
considering his past five years' Annual Confidential
Reports ('ACR') and other records. The appellant made                E
repeated representations in this regard, but the same
were not considered.

    Employees of another department governed by the
same rules, filed Writ Petition in the High Court
contending that their cases for promotion were not to be             F
considered in the light of executive instructions dated
29.12.2000, as the. vacancies on promotional posts had
occurred much before the issuance of said executive
instructions. The High Court, however, directed the
authorities to consider the promotion of the parties                 G
therein, ignoring the instructions dated 29.12.2000.

     The appellant retired on 31.12.2001 and filed Writ
Petition seeking promotion and quashing of executive
instructions issued on 29.12.2000 as well as on 6.9.2001.            H
    378      SUPREME COURT REPORTS             (2013] 3 S.C.R.

A The High Court dismissed the Writ Petition and therefore
  the instant appeal.
      The appellant inter alia submitted that that
  recruitment to the post of Battalion Commander is
  governed by Rule 8 of the Punjab Home Guard, Class-I
B Rules, 1988 which prescribes that selection to the post
  must be made on the principle of "seniority-cum-merit";
  and that the High Court committed an error by not giving
  weightage to seniority.
C         Dismissing the appeal, the Court ·
      HELD: 1.1. Efficiency of administration is of
  paramount importance, and therefore, whilst adequate
  weightage is given to seniority, merit must also be duly
  considered. Even if a promotion is to be made on the
D basis of "seniority-cum-merit", a person who is lower in
  the seniority list, can in fact be promoted, ignoring the
  claim of the senior person, who failed to achieve the
  benchmark i.e. minimum requisite merit. [Para 6 and 8)
  [384-H; 385-G-H]
E
       1.2. The principle of "seniority-cum-merit" and "merit-
  cum-seniority" are conceptually different, as in the case
  of the former, there is greater emphasis upon seniority
  even though the same is not the deciding factor, while
  the case of the latter, merit is the deciding factor. [Para
F 11] [386-F-G]
       1.3. Where a promotion is to be given on the principle
  of "seniority-cum-merit", such promotion will not
  automatically be granted on the basis of seniority alone.
G Efficiency of administration cannot be compromised with
  at any cost. Thus, in order to meet said requirements, all
  eligible candidates in the feeder cadre must be subject
  to a process of assessment to determine whether or not
  an individual in fact possesses the specified minimum
H necessary merit, and in the event that he does possess
  BALBIR SINGH BEDI v. STATE OF PUNJAB AND              379
                    ORS.
  the same, his case must be considered giving due A
  weightage to his seniority. Furthermore, the statutory
  authority must adopt a bonafide and reasonable method
  to determine the minimum necessary merit, as is required
  to be possessed by the eligible candidate. It must also
  take into account his period of service, educational B
  qualifications, his performance during his past service for
  a particular period, his written test, interview, etc. The
, authority must further be competent to allocate separate
  maximum marks on each of the aforesaid counts. Fixing
  such criteria, or -providing for minimum necessary merit, c
  falls within the exclusive domain of policy making. Thus,
  it cannot be interfered with by courts in the exercise of
  their judicial powers, unless the same is found to be off
  the mark, unreasonable, or malafide. [Para 15] [388-D-H;
  389~                                                        D
     1.4. Even in the absence of the executive
instructions, the State/employer has the right to adopt
any reasonable and bonafide criteria to assess the merit,
for the purpose of promotion on the principle of
"seniority-cum-merit". The executive instructions in E
question are nothing but codification of directions issued
by this Court in other cases. Therefore, a challenge made
to the executive instructions on the ground that they were
issued at a date subsequent to the date on which the
vacancy arose, is meaningless. The present case is not F
the one where, respondent No. 5 was found to be more
meritorious, in fact, the same is admittedly a case, where
the appellant was unable to achieve the benchmark set,
as it is evident from the record that his ACRs were
average, and the benchmark fixed by the State was G
'Good'. [Para 18] [390-C-E]
     1.5. It is eviqent from the material on record i.e. from
the counter-affidavit filed by the State that appellant faced
criminal prosecution as FIR No. 25 dated 12.4.1996 had          H
    380     SUPREME COURT REPORTS               [2013) 3 S.C.R.


A been lodged against him under Sections 7 & 13(ii) of the
  PC Act, 1988 and Sections 467/468/471/120-B IPC, at
  Police Station: Vigilance Bureau, Patiala, wherein the
  appellant faced trial though, acquitted as is evident from
  the judgment and order dated 2.5.2006 passed in
B Sessions Case No. 5of10.5.2001. His acquittal took place
  after five years to his retirement. Be that as it may, for the
  reason best known to the appellant, this fact was not
  disclosed by him either before the High Court or before
  this Court. It is another matter as what could have been
c the effect of pendency of the said criminal case so far as
  this case is concerned. Thus, the appellant did not
  approach the court with clean hands, clean mind and
  clean objective. [Para 19) [390-F-H;371-A]

      1.6. In the facts of this case, no fault can be found
D with the High Court's judgment. (Para 20)

        State of Kera/a & Anr. v. N.M. Thomas & Ors. AIR 1976
    SC 490: 1976 (1) SCR 906 - followed.

E      Sr. Jagathigowda C.N. & Ors. v. Chairman, Cauvery
  Gramin Bank & Ors. AIR 1996 SC 2733: 1996 (4) Suppl.
  SCR 190; Union of India & Ors. v. Lt. Gen Rajendra Singh
  Kadyan & Anr. AIR 2000 SC 2513: 2000 (1) Suppl. SCR 722;
  Syndicate Bank Scheduled Castes and Scheduled Tribes
F Employees Association (Regd.) & Ors. v. Union of India &
  Ors. 1990 Supp. SCC 350: 1990 SCR 713; Govind Ram
  Purohit & Anr. v. Jagjiwan Chandra & Ors. 1999 SCC (L&S)
  788; The Central Council for Research in Ayurveda & Siddha
  & Anr. v. Dr. K. Santhakumari (2001) 5 SCC 60: 2001 (3)
  SCR 519; Bibhudatta Mohanty v. Union of India & Ors. (2002)
G 4 SCC 16: 2002 (2) SCR 613; K. Samantaray v. National
  Insurance Co Ltd. AIR 2003 SC 4422: 2003 (3) Suppl. SCR
  669; State of U.P. v. Jalal Uddin & Ors. (2005) 1 SCC 169:
  2004 (5) Suppl. SCR 92; Bhagwandas Tiwari & Ors. v. Dewas
  Shajapur Kshetriya Gramin Bank & Ors. AIR 2007 SC 994:
H 2006 (8) Suppl. SCR 760; Harigovind Yadav v. Rewa Sidhi
  BALBIR SINGH BEDI v. STATE OF PUNJAB AND               381
                    ORS.
Gramin Bank & Ors. AIR 2006 SC 3596: 2006 (2) Suppl.             A
SCR 116; Rajendra Kumar Srivastava & Ors. v. Samyut
Kshetriya Gramin Bank & Ors. AIR 2010 SC 699:2009 (15)
SCR 936; Rupa Rani Rakshit & Ors. v. Jharkhand Gramin
Bank & Ors. AIR 2010 SC 787: 2009 (15) SCR 1133 and
Haryana State Warehousing Corporation & Ors. v. Jagat Ram        8
& Anr. (2011) 3 sec 422: 2011 (2) SCR 1151 - relied on.

                     Case Law Reference:
    1976 (1) SCR 906                followed       Para 6
    1996 (4) Suppl. SCR 190        ·relied on      Para 7
                                                                 c
    2000 (1) Suppl. SCR 722         relied on      Para 8 ·
    1990 SCR 713                    relied on      Para 8 ·
    1999 sec (L&S) 788              relied on      Para 8        D

    2001 (3) SCR 519                relied on      Para 8
    2002 (2) SCR 613                relied on      Para 8
    2003 (3) Suppl. SCR 669         relied on      Para 9        E
    2004 (5) Suppl. SCR 92 .        relied on      Para 9
    2006 (8) Suppl. SCR 760         relied on      Para 9
    2006 (2) Suppl. SCR 116         relied on      Para 10
                                                                 F
    2009 (15) SCR 936               relied on      Para 12
    2009 (15) SCR 1133              relied on      Para 13
    2011 (2) SCR 1151               relied on      Para 14
                                                                 G
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1273 of 2004.

    From the Judgment & Order dated 09.10.2003 of the High
Court of Punjab & Haryana at Chandigarh in Civil Writ Petition
No. 15672 of 2003.                                               H
    382        SUPREME COURT REPORTS                  (2013] 3 S.C.R.

A           P.S. Patwalia, Debasis Misra for the Appellant.

            Jagjit Singh Chhabra, Rr-Ex-Parte for the Respondents.

            The Judgment of the Court was delivered by

B        DR B.S. CHAUHAN, J. 1. This appeal has been preferred
    against the impugned judgment and order dated 9.10.2003
    passed by the High Court of Punjab and Haryana at Chandigarh
    in Civil Writ Petition No. 15672 of 2003 by way of which the
    claim of the appellant for promotion has been rejected.
c
            2. The facts and circumstances giving rise to this case are
    that:

       A. The appellant was appointed as Civil Defence Instructor
  in the year 1964, and was promoted as Company Commander
D in October 1968. He was later promoted to the post of District
  Commander in July 1989. He, then claimed to have become
  eligible for substantive promotion to the post of Battalion
  Commander as per the rules applicable.

E      8. The case of the appellant was considered alongwith
  other eligible candidates, and vide order dated 30.1.2001, a
  person junior to him (Respondent No. 5), was promoted to the
  said post after considering his past five years' Annual
  Confidential Reports (hereinafter referred to as 'ACR') and
F other records.

      · C. The appellant made repeated representations in-this
  regard, but the same were not considered. Employees of the
  other department governed by the same rules, filed Civil Writ
  Petition Nos. 4491 and 11011 of 2001 in the Punjab and
G Haryana High Court contending that their cases for promotion
  were not to be considered in the light of executive instructions .
  dated 29.12.2000, as the vacancies on promotional posts had
  occurred much before the issuance of said executive
  instructions. The said writ petitions were disposed of by the
H
  BALBIR SINGH BEDI v. STATE OF PUNJAB AND                  383
          ORS. [DR. B.S. CHAUHAN, J.]
High Court vide judgment and order dated 14.1.2003, by which        A
the High Court directed the authorities to consider the
promotion of the parties therein, ignoring the instructions dated
29.12.2000.

      D. The appellant retired on 31.12.2001 and filed Civil Writ   B
Petition No. 15672 of 2003, seeking promotion and quashing
of executive instructions issued on 29.12.2000 as well as on
6.9.2001. However, the High Court dismissed the said Civil
Writ Petition vide impugned judgment and order dated
9.10.2003.
                                                                    c
     Hence, this appeal.

      3. Shri P.S. Patwalia, learned senior counsel appearing
on behalf of the appellant, has submitted that if the criteria for
promotion is "seniority-cum-merit;', the question of ignoring the
                                                                   0
seniority does not arise. Additionally, recruitment to the post
of Battalion Commander is governed by Rule 8 of the Punjab
Home Guard, Class-I Rules, 1988 (hereinafter referred to as
the '1988 Rules'), which provides that 75 per cent posts of this
cadre would be filled up by promotion from the Battalion 2nd-
in-Command consisting of District Commanders, the Chief E
Instructor, and Junior Officers at the State Headquarters,
working under the control of the Commandant General, Punjab,
all having a minimum work experience of 8 years. However, it
prescribes that selection to the post must be made on the
principle of "seniority-cum-merit". The High Court committed F
an error by not giving weightage to seniority. Furthermore, as
the executive instructions followed therein were issued
subsequent to the date on which the vacancy occurred, the said
instructions must not be applied to the present case. Appellant
was given officiating charge of the post, and he performed the G ·
duties and functions on the said post, he could not be found
unfit for any reason whatsoever, at a later stage. Therefore, the
judgment and order impugned is liable to be set aside.

     4. On the other hand, Shri Jagjit Singh Chhabra, learned       H
    384       SUPREME COURT REPORTS                    [2013] 3 S.C.R.


A  counsel appearing on behalf of Respondent Nos. 1 to 4, has
   submitted that the aforementioned rule provides for promotion
   only on the basis of "seniority-cum-merit". Therefore, the State,
   even in the absence of any executive instructions, could fix the
  required benchmark. The same, however, must be fixed prior
B to considering a case for promotion, as once the process of
  promotion begins, it would not be fair to change the rules of
  the game. The fixing of such a benchmark is completely
  unrelated to the date on which the vacancy occurred. Appellant,
  vide order dated 13.5.1997, was authorised only to sign bills
C and vouchers relating to the office, which could not confer any
  right to the appellant. Moreover, at the relevant point of time,
  appellant was facing criminal prosecution under the provisions
  of the Prevention of Corruption Act, 1988 (hereinafter referred
  to as 'the PC Act') as well as for the offences under the Indian
  Penal Code, 1860 (hereinafter referred to as 'IPC'). In view
0
  thereof, no fault can be found with respect to the judgment of
  the High Court. The appeal lacks merit and is liable to be
  dismissed.

         5. We have considered the rival submissions made by the
E   learned counsel for the parties and perused the record.

        6. A Seven Judge Bench of this Court in State of Kera/a
    & Anr. v. N.M. Thomas & Ors., AIR 1976 SC 490, held:

          "Seniority cum merit' means that given the minimum
F         necessary merit requisite for efficiency of administration,
          the senior, though less meritorious, shall have priority. This
          will not violate Articles 14, 16 (1) and 16 (2) of the
          Constitution of India."
G      Thus, it is apparent that this Court has provided for giving
  weightage to seniority, without any compromise being made
  with respect to merit, as the candidate must possess minimum
  requisite merit. Efficiency of administration is of paramount
  importance, and therefore, whilst adequate weightage is given
H to seniority, merit must also be duly considered.
  BALBIR SINGH BEDI v. STATE OF PUNJAB AND                  385
          ORS. [DR. B.S. CHAUHAN, J.]

    7. In Sr. Jagathigowda C.N. & Ors. v. Chairman, Cauvery         A
Gramin Bank & Ors., AIR 1996 SC 2733, this Court has
observed as under:-

    "It is settled proposition of law even while ,r;ryaking
    promotion on the basis of seniority cum merit, the totality     8
    of the service record of the officer concerned has to be
    taken into consideration. The Performance Appraisal
    Forms are maintained primarily for the purpose that the
    same are taken into consideration when the person
    concerned is considered for promotion to the higher rank."      C

    8. In Union of India & Ors. v. Lt. Gen Rajendra Singh
Kadyan & Anr., AIR 2000 SC 2513, it was observed as under:-

    "Seniority-cum-merit" postulates the requirement of certain
    minimum merit or satisfying a benchmark previously fixed.       D
    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-merit."

     The said principle has also been approved, reiterated and
followed by this Court in Syndicate Bank Scheduled Castes           E
and Scheduled Tribes Employees Association (Regd.) & Ors.
v. Union of India & Ors., 1990 Supp. SCC 350; Govind Ram
Purohit & Anr. v. Jagjiwan Chandra & Ors., 1999 SCC (L&S)
788; The Central Council for Research in Ayurveda & Siddha
& Anr. v. Dr. K. Santhakumari, (2001) 5 SCC 60; and                 F
Bibhudatta Mohanty v. Union of India & Ors., (2002) 4 SCC
16.

     In view of the aforesaid judgments of this Court, it is
evident that even if a promotion is to be made on the basis of .G
"seniority-cum-merit", a person who is lower in the seniority list,
can in fact be promoted, ignoring the claim of the senior person,
who failed to achieve the benchmark i.e. minimum requisite
merit.
                                                                    H
    386      SUPREME COURT REPORTS                   [2013} 3 S.C.R.

A       9. In K. Samantaray v. National Insurance Co Ltd., AIR
  2003 SC 4422, this Court explained the difference between the
  principles of "merit-cum-seniority", and "seniority-cum-merit",
  while placing reliance upon its earlier judgments, and held that
  for the purpose of promotion, even on a "seniority-cum-merit"
B basis, weightage in terms of numerical marks for various
  categories is given, and the authority is permitted to work out
  the marks for individual as occurring under each head,
  otherwise the word 'merit' would loose its sanctity. (See also:
  State of U.P. v. Jalal Uddin & Ors., (2005) 1 SCC 169; and
c Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya
  Gramin Bank & Ors., AIR 2007 SC 994).
        10. This Court in Harigovind Yadav v. Rewa Sidhi Gramin
  Bank & Ors., AIR 2006 SC 3596, held that promotion, if to be
  made on the criterion of "seniority-cum-merit", must not be
D made exclusively on the basis of merit. The Court negatived
  the idea of selecting the more meritorious where Rules provided
  for the criterion of "seniority-cum-merit", but did not rule out the
  laying down of criteria for fixing a minimum benchmark. In
  paragraph 17 of the said judgment, the Court has observed as
E under:-

        "Interviews can be held and assessment of performance
        can be made by the Bank in connection with promotions.
        But that can be only to assess the minimum necessary
F       merit."
       11. The principle of "seniority-cum-merit" and "merit-cum-
  seniority" are conceptually different, as in the case of the former,
  there is greater emphasis upon seniority even though the same
  is not the deciding factor, while the case of the latter, merit is
G the deciding factor.
       12. In Rajendra Kumar Srivastava & Ors. v. Samyut
  Kshetriya Gramin Bank & Ors., AIR 2010 SC 699, while
  donsidering the aforementioned issue, this Court held that when
H a promotion is to be made on the principle of "seniority-cum-
  BALBIR SINGH BEDI v. STATE OF PUNJAB AND                   387
          ORS. [DR. B.S. CHAUHAN, J.]
merit", then the said promotion must be made only after              A
assessing the minimum necessary merit for such promotion.
This must be done on the basis of seniority among the
candidates possessing such minimum necessary merit,
additionally, it must be ensured that the benchmark fixed is
bonafide and reasonable. Fixing the benchmark cannot be              B
challenged as being opposed to the principle of "seniority-cum-
merit" and further, cannot be held to be violative of the concept
of promotion by "seniority-cum-merit" considering the nature of
duties and functions to be performed on the promotional post.
The criteria for selection is not subject to challenge generally     c
as it falls within the area of policy making. Therefore, the
criteria for adjudging claims on the basis of the principle of
"seniority-cum-merit", depends upon various factors which the
employer may determine depending upon the class, category
and nature of posts in the hierarchy of administration, and the
                                                                     0
requirements of efficiency for the posts.

     13. In Rupa Rani Rakshit & Ors. v. Jharkhand Gramin
Bank & Ors., AIR 2010 SC 787, this Court while considering
the earlier judgments of this Court, held that where promotion
is made on the principle of "seniority-cum-merit", such              E
promotion cannot be made on the basis of seniority alone.
Merit also plays some role. The standard method adopted by
the principle of "seniority-cum-merit", is to subject all eligible
candidates in the feeder cadre to a process of assessment of
a specified level of minimum necessary merit, and then to            F
promote candidates, who are found to possess the minimum
necessary merit, strictly in order of seniority. The minimum merit
necessary for promotion to the said post may be assessed
either by subjecting candidates to a written examination, or an
interview, or by assessment of their work performance during         G
the previous years, or by a combination of either of the above,
or of all the aforesaid methods. There cannot be any hard and
fast rule with respect to how minimum merit should be
ascertained. For the purpose of assessing the merit of
employees, the employer may proceed with reference to four           H
    388      SUPREME COURT REPORTS                 [2013] 3 S.C.R.


A   criteria (Period of service, educational qualifications,
    performance during last three years and interview) allocating
    separate maximum marks as regards each of the aforesaid
    counts.

        14. In Haryana State Warehousing Corporation & Ors. v.
8
    Jagat Ram & Anr., (2011) 3 SCC 422, this Court considered
  a similar issue and reiterated a similar view. The Court also
  observed that, for the purpose of according promotion on the
  principle of "seniority-cum-merit", a comparative assessment
  of all eligible candidates is not permissible. Once a person has
C secured minimum marks with respect to merit, his seniority
  would play a significant role. Thus, in the event that an employee
  is found to possess minimum requisite merit, he is entitled to
  be considered for promotion on the basis of his seniority.

D       15. In view of the above, the law as regards this point can
  be summarised to the effect that, where a promotion is to be
  given on the principle of "seniority-cum-merit", such promotion
  will not automatically be granted on the basis of seniority alone.
  Efficiency of administration cannot be compromised with at any
E cost. Thus, in order to meet said requirements, all eligible
  candidates in the feeder cadre must be subject to a process
  of assessment to determine whether or not an individual in fact
  possesses the specified minimum necessary merit, and in the
  event that he does possess the same, his case must be
F considered giving due weightage to his seniority. Furthermore,
  the statutory authority must adopt a bonafide and reasonable
  method to determine the minimum necessary merit, as is
  required to be possessed by the eligible candidate. It must also
  take into account his period of service, educational
G qualifications, his performance during his past service for a
  particular period, his written test, interview, etc. The authority
  must further be competent to allocate separate maximum
  marks on each of the aforesaid counts. Fixing such criteria,
  or providing for minimum necessary merit, falls within the
  exclusive domain of policy making. Thus, it cannot be interfered
H
  BALBIR SINGH BEDI v. STATE OF PUNJAB AND                   389
          ORS. [DR. B.S. CHAUHAN, J.]
with by courts in the exercise of their judicial powers, unless     A
the same is found to be off the mark, unreasonable, or malafide.

    16. The r.elevant portions of the executive instructions
dated 29 .12.2000 read as under:

    "(iii) In the case of promotion to posts with pay scales less   B
    than Rs.12000-16350, the benchmark will be 'Good'. This
    benchmark will determine the fitness of the officer and
    person graded 'Very Good' or 'Outstanding' will not
    supersede persons graded 'Good'.
                                                                    c
    (iv) Henceforth each Annual Confidential Report will be
    evaluated as under:-

           Outstanding : +A ................. .4 Marks

          Very Good : A        .................. 3 Marks           D

           Good: +B            ................... 2 Marks

          Average: B           ................... 1 Mark

    ACRs for 5 years are taken into consideration for               E
    promotion. Out of a total of 20 marks, officers earning 0
    to 14 marks will be graded overall 'Good' and those
    earning 15 to 17 marks will be graded overall 'Very Good'.
    Those earning 18 to 20 marks will be graded as
    'Outstanding'. Departmental which are 'Outstanding' must        F
    have been out of the ordinary and reasons for giving
    grading must be cogent and well spelt out, to be accepted
    and outstanding. If the ACR does not fulfill the above
    criteria, the entry of the 'Outstanding' should be read as
    'Very Good' only. An officer will not be fit for promotion if   G
    he is rated 'below average' in any of the 5 years."

     17. Similarly, the executive instructions dated 6.9.2001 so
far as applicable in the instant case, read as under:

    "3. In the case of promotion to posts falling in Group 'B'      H
    390      SUPREME COURT REPORTS                  [2013] 3 S.C.R.


A         the minimum benchmark will be 'Good' and there would be
          no supercession i.e. promotions would be made strictly on
          seniority-cum-merit.

          4. For making promotion in all the categories there should
          not be any adverse remarks in the ACRs under
B
          consideration."

        18. If, the instant case is examined in light of the aforesaid
  settled legal propositions, it becomes evident that even in the
  absence of the executive instructions, the State/employer has
C the right to adopt any reasonable and bonafide criteria to
  assess the merit, for the purpose of promotion on the principle
  of "seniority-cum-merit''. The aforesaid executive instructions
  are nothing but codification of directions issued by this Court
  in the cases referred to hereinabove. Therefore, a challenge
D made to the executive instructions on the ground that they were
  issued at a date subsequent to the date on which the vacancy
  arose, is meaningless. The present case is not the one where,
  Respondent No. 5 was found to be more meritorious, in fact,
  the same is admittedly a case, where the appellant was unable
E to achieve the benchmark set, as it is evident from the record
  that his ACRs were average, and the benchmark fixed by the
  State was ·Good'.

       19. It is evident from the material on record i.e. from the
F counter-affidavit filed by the State that appellant faced criminal
  prosecution as FIR No. 25 dated 12.4.1996 had been lodged
  against him under Sections 7 & 13(ii) of the PC Act, 1988 and
  Sections 467/468/471/120-B IPC, at Police Station: Vigilance
  Bureau, Patiala, wherein the appellant faced trial though,
  acquitted as is evident from the judgment and order dated
G 2.5.2006 passed in Sessions Case No. 5 of 10.5.2001. His
  acquittal took place after five years to his retirement.

          Be that as it may, for the reason best known to the
          appellant, this fact was not disclosed by him either before
H         the High Court or before this Court. It is another matter as
  BALBIR SINGH BEDI v. STATE OF PUNJAB AND                    391
          ORS. [DR. B.S. CHAUHAN, J.]
    what could have been the effect of pendency of the said           A
    criminal case so far as this case is concerned. Thus, we
    are of the view that the appellant did not approach the court
    with clean hands, clean mind and clean objective.

     20. In view of the aforesaid settled legal proposition, in the
                                                                      8
facts of this case, we have no hesitation in holding that no fault
can be found with the High Court's judgment impugned befor~
us; The appeal lacks merit and is, accordingly, dismissed.

B.B.B.                                        Appeal dismissed.