RAMA NEGIversusUNION OF INDIA & ORS.

                        [2022] 2 S.C.R. 487                             487


                           RAMA NEGI                                    A
                                 v.
                    UNION OF INDIA & ORS.
               (Civil Appeal Nos. 1713-1714 of 2022)
                          MARCH 2, 2022                                 B
        [K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
       Service Law – Promotion – Seniority-cum-merit – In the instant
case, the appellant was promoted to the post of Office
Superintendent (selection post) in the Cantonment Board – The
                                                                        C
promotion of respondent no.3 was declined on the ground that
respondent no. 3 was drawing lower pay scale than the appellant
in the post of Accountant (the post from which promotion was to be
made) and was also charge-sheeted under discplinary proceeding,
which charges were also accepted by respondent no.3 – Aggrieved
by the resolution favouring the appellant, respondent no.3 filed        D
appeals before the single judge of the High Court, claiming, amongst
other things, promotion to such post – Single Judge allowed the
writ petition on the basis of the finding that respondent no. 3 is
senior to the appellant and the appellant should not have been
considered senior to him by virtue of her higher pay scale in the
                                                                        E
post of Accountant and also that no decision, as such, was taken
by the authority over the charges – Aggrieved by the decision,
appellant approached Division Bench of the High Court – In the
meantime, disciplinary proceedings took place over the charges and
respondent no.3 was found guilty – The Division Bench of the High
Court dismissed the appeal holding that the disciplinary proceedings    F
intiated for the fault committed by the subordinate staff of the
delinquent officer – Hence instant appeal – Held: The Cantonment
Board in their deliberations made on 11.1.2012 not only considered
the appellant to be senior to the respondent no.3 but also considered
her to be more deserving for promotion as the best, suitable and fit
                                                                        G
candidate, for the responsible post – Respondent no.3 was penalized
pursuant to the disciplinary proceeding for dereliction of duty and
misconduct and he suffered the penalty of recovery of Rs.10,000/-
from his salary – Seen in this context, the appellant was more
deserving – That apart, the disciplinary action was not challenged
by respondent no.3 – He cannot, therefore, set up a better claim for    H
                                487
488            SUPREME COURT REPORTS                      [2022] 2 S.C.R.


A     promotion, to a selection category post – As far as the issue of
      higher pay scale being the basis for seniority in the feeder cadre,
      the same is clearly provided in the O.M. dated 12.12.1988 – The
      issue received due consideration by the Cantonment Board and was
      answered in favour of the appellant – Cantonment Fund Service
      Rules, 1937.
B
            Allowing the appeals, the Court
             HELD: 1. Rule 5-B (8) read with Annexure ‘E’ of the
      Cantonment Fund Service Rules, 1937 makes it clear that the
      post of Office Superintendent is a “selection post” and the
C     criterion for promotion is seniority-cum-merit. [Para 17][495-B]
            B.V. Sivaiah v. K. Addanki Babu (1998) 6 SCC 720 :
            [1998] 3 SCR 782; K. Samantaray v. National
            Insurance Co. Ltd. (2004) 9 SCC 286 : [2003] 3 Suppl.
            SCR 669; Jagathigowda C.N. v. Chairman, Cauvery
D           Gramina Bank & Ors. (1996) 9 SCC 677 : [1996] 4
            Suppl. SCR 190; Haryana State Electronics
            Development Corporation Limited & Ors. Vs. Seema
            Sharma & Ors. (2009) 7 SCC 311 : [2009] 7 SCR 662
            – relied on.

E           2. In the present case, the Cantonment Board in their
      deliberations made on 11.1.2012 not only considered the
      appellant to be senior to the respondent no.3 but also considered
      her to be more deserving for promotion as the best, suitable
      and fit candidate, for the responsible post. The respondent no.3
      was penalized pursuant to the disciplinary proceeding for
F     dereliction of duty and misconduct and he suffered the penalty
      of recovery of Rs.10,000/- from his salary. Seen in this context,
      the appellant was more deserving. That apart, the disciplinary
      action was not challenged by the respondent no.3. He cannot
      therefore set up a better claim for promotion, to a selection
G     category post. [Para 22][498-H; 499-A-B]
            3. As far as the issue of higher pay scale being the basis for
      seniority in the feeder cadre, the same is clearly provided in the
      O.M. dated 12.12.1988. The issue received due consideration

H
              RAMA NEGI v. UNION OF INDIA & ORS.                           489


by the Cantonment Board and was answered in favour of the                  A
appellant. But this aspect was held against both the appellant
and the Board, due to an inadvertent reference to the wrong Office
Memorandum dated 10.09.1985 by the High Court. Having regard
to the manner in which the issue was examined and decided by
the Board, it would be appropriate to endorse the Board’s
                                                                           B
declaration of seniority in favour of the appellant, based on the
reasoning contained in the Board’s Resolution dated 25.3.2013.
[Para 24][499-D-E]
                        Case Law Reference
[1998] 3 SCR 782                 relied on                Para 17          C
[2003] 3 Suppl. SCR 669         relied on                 Para 17
[1991] 3 SCR 790                 relied on                Para 19
[1996] 4 Suppl. SCR 190         relied on                 Para 20
[2009] 7 SCR 662                 relied on                Para 20          D
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1713-
1714 of 2022.
      From the Judgment and Order dated 22.09.2017 of the High Court
of Uttarakhand at Nainital in Special Appeal Nos.87 and 88 of 2014.
                                                                           E
      With
      Civil Appeal Nos. 1715-1716 of 2022.
      P. S. Patwalia, Jayant Bhushan, Sr. Advs., Rajat Singh, Ms. Aurica
Bhattacharya, Ms. Harshika Verma, Samarth Mohanty, Talha Abdul
Rahman, Amartya Bhushan, Harsh Vardhan Kediya, Mohd. Shaz Khan,            F
Tushar Bhushan, G. Natarajan, T. N. Durga Prasad, Siddharth Jain,
Akarsh Garg, Annop Kumar, Pawanshree Agrawal, Advs. for the
appearing parties.
      The Judgment of the Court was delivered by
                                                                           G
      HRISHIKESH ROY, J.
       1. Leave granted. The challenge in these two appeals is to the
judgment dated 22.9.2017 in the Special Appeal Nos.87 and 88 of 2014,
filed by Appellant Rama Negi and Special Appeal Nos. 96 of 2014 and
97 of 2014, filed by the Cantonment Board, Ranikhet. The Division Bench
                                                                           H
490            SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A     of the Uttarakhand High Court under the impugned judgment dismissed
      the Appeals and upheld the judgment of the learned Single Judge whereby
      the appellant Rama Negi’s promotion to the post of Office Superintendent
      in the Cantonment Board was quashed and the Writ Petitions of the
      respondent no.3, Gopal Ram Arya were allowed.
B           2. Heard Mr. P.S. Patwalia, learned senior counsel appearing for
      the appellant. The Cantonment Board, Ranikhet is represented by Mr.
      Jayant Bhushan, learned senior counsel. Also heard the learned counsel
      appearing for the Respondent no.3.
             3. As the contentions of the learned counsel are based on the
C     inter se seniority of the two contesting parties, their service details in
      the Cantonment Board, Ranikhet are reproduced, in the following chart.




D




E




F




             4. As can be seen from above, the appellant initially joined service
G     in the Cantonment Board, as a Steno Typist (equivalent to Senior
      Clerk), on 1.9.1995. The respondent no.3 after entering service initially
      as a Junior Clerk on 16.7.1990, was promoted to the Post of Steno
      Typist/Senior Clerk on 9.7.1997, around 22 months after the appellant
      directly joined service in the higher post. Thereafter, the respondent
H     no.3 though junior, was promoted to the post of Revenue Superintendent
             RAMA NEGI v. UNION OF INDIA & ORS.                           491
                   [HRISHIKESH ROY, J.]

on 1.9.2005 by giving him the benefit of reservation as a Scheduled       A
Caste person. The appellant was subsequently promoted to the
equivalent post of Accountant on 1.10.2009. Since promotion to the
respondent no.3 was by conferring reservation benefit, appellant being
subsequently promoted to the said cadre on 1.10.2009, she expected
restoration of her seniority.
                                                                          B
      5. The promotion for the next post of Office Superintendent is
governed by Rule 5-B (8) of the Cantonment Fund Servant Rules,
1937 (“the Rules” for short), and the same reads as under:
      “Rule 5-B(8) - Appointments to promotion posts shall be made
      [by the appointing authority] on the basis of seniority lists       C
      maintained for this purpose by the Board, subject to rejection of
      those considered unfit:
      Provided that promotion of selection posts shall be made on the
      basis of seniority-cum-merit.”
      6. Under Annexure E of the Rules, the post of Office                D
Superintendent together with other posts of Accountant, Toll
Superintendent and Revenue Superintendent in the Cantonment Board
of Ranikhet, is included in the category of “selection posts” and the
relevant portion reads as under:
                            “ANNEXURE ‘E’                                 E
      1.    Post declared as Selection posts under Cantonment Boards
            in Central Command.
            Authority: GOC-in-C, Central Command, Lucknow Letter
            No., 82562/Classification/LC6 dated 12.1.77 and [dated
                                                                          F
            25.4.1980]
            ****                ****             ****            ****
            ****                ****             ****            ****
      24.   Ranikhet Office Supdt. Accountant, Toll Supdt. Rev. Supdt.
            Forest Ranger, Jamadar (PWD) Sanitary Jamadar, Head           G
            Mali and Toll Moharrir (Non-Matric).”
      The Rules above specify, the post of Office Superintendent as a
“selection post” and under Rule 5B(8), promotion to the post is to be
considered on the criterion of seniority cum merit.
                                                                          H
492            SUPREME COURT REPORTS                          [2022] 2 S.C.R.


A            7. The Cantonment Board in its meeting held on 11.1.2012
      considered the candidature of the persons serving in the feeder cadre
      and it was resolved to recommend the appellant for promotion to the
      “selection post” of Office Superintendent, overlooking the respondent
      no.3. The appellant was held to be senior as per the rule. The decision
      was taken after due consideration of the relevant materials, including
B
      the fact that the respondent no.3 was drawing a lower pay scale than
      the appellant, in the feeder cadre. The Board also took into account
      that the Office Superintendent position required a service record without
      misconduct. Respondent no.3, it was noted, was a charge sheeted
      person, who had accepted the charges levelled against him. To
C     determine the appellant to be senior to the respondent no.3 in the feeder
      cadre, the Board relied upon the criterion that “Persons in the feeder
      grades given the same grading, those in higher scales of pay will rank
      senior to those in the lower scale of pay”. It was noted that the pay
      scale of the appellant Rama Negi was Rs.9300-34800 with grade pay
      of Rs.4200 whereas, the pay scale of respondent no.3 Gopal Ram
D
      Arya was Rs.5200-20200 with grade pay of Rs.2800 and accordingly
      the inter se seniority of the appellant was found above the respondent
      no.3, in the feeder cadre.
             8. Following the above Resolution on 11.1.2012 for appointment
      to the post of Office Superintendent, the Cantonment Board sought the
E
      advice of the Central Command, Lucknow furnishing the details of those
      under consideration. Since nothing happened thereafter for several
      months, the appellant filed the W.P (C) No.1465 of 2012 before the
      Uttarakhand High Court. Parallelly, the respondent no.3 filed the W.P
      (C) No.1645 of 2012 before the same High Court, challenging the
F     Cantonment Board’s Resolution No.28 dated 11.1.2012 in favour of the
      appellant. At that stage, the Central Command, Lucknow with its letter
      dated 23.11.2012 informed that the issue of promotion to the post of
      Office Superintendent falls entirely within the purview of the Cantonment
      Board, under Rule 7(1) of the Rules.
G           9. Prompted by the above clarification, the Cantonment Board in
      its meeting held on 25.3.2013 passed the Resolution No.8 where, after
      having examined the rule position, it was recorded that the appellant
      “Smt. Rama Negi is the best, suitable and fit candidate for the post
      of Office Superintendent. Hence she is promoted from the post of
      Accountant to Office Superintendent w.e.f. the date of her taking
H
              RAMA NEGI v. UNION OF INDIA & ORS.                               493
                    [HRISHIKESH ROY, J.]

charge as an Officiating Office Superintendent i.e. Feb 1 st, 2012             A
as per rules mentioned in the agenda side.” The Board relied upon
the legal advice tendered to it on the basis of the O.M. dated 12.12.1988
issued by the Ministry of Personnel, Public Grievances and Pensions,
which stated “thatamong the persons in the feeder grades given the
same grading, those in the higher scales of pay will rank senior to
                                                                               B
those in the lower scale of pay.”
      10. Aggrieved by the above Resolution No.8 favouring the
appellant, the respondent no.3 filed W.P (C) No.352 of 2013. In the
meantime, the W.P (C) No.1465 of 2012 filed by the appellant for
her promotion was dismissed as infructuous on 4.4.2013, by the High
Court.                                                                         C

       11. The two Writ Petitions filed by the respondent no.3 were
analogously considered and the learned Single Judge in his judgment
dated 25.2.2014 concluded that the respondent no.3/writ petitioner is
senior and rejected the contention that the appellant is to be considered
senior above the respondent no.3, by virtue of her higher pay scale in the     D
post of Accountant in the feeder cadre. Insofar as the disciplinary
proceeding pending against the respondent no.3, the learned Single Judge
observed that the charge sheet was deliberately issued on 28.11.2011 to
keep out the respondent no.3 from the zone of consideration. Such
inference was drawn since no decision was taken on the charges by the          E
authorities which according to the learned judge, demonstrate malice on
their part. The chargesheet itself was brushed aside by saying that it
was a minor irregularity not involving moral turpitude. Therefore, the
respondent no.3 by virtue of his accelerated earlier promotion in the
year 2005 in the feeder cadre and the 2009 promotion of the appellant,
the appellant’s promotion was found to be unmerited. On this basis, the        F
respondent no.3 was asked to officiate as the Office Superintendent,
replacing the appellant who hitherto was discharging such responsibility.
The Court also directed the Cantonment Board to expeditiously conclude
the departmental proceeding against the respondent no.3 within 3 months
and if the same is not concluded, the learned Judge declared that the          G
chargesheet shall be deemed to have been revoked, and thereafter
denovo exercise for promotion to the post of Office Superintendent
should be undertaken. With this, both writ petitions filed by the respondent
no.3 were allowed by the learned Judge, under his judgment dated
25.2.2014.
                                                                               H
494             SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A           12. Aggrieved by the judgment favouring the respondent no.3 in
      his two writ petitions, the appellant Rama Negi and the Cantonment
      Board filed their respective Special Appeal Nos.87 & 88 of 2014 and
      Special Appeal Nos.96 & 97 of 2014. While the Special Appeals were
      pending consideration before the Division Bench, the disciplinary
      proceeding was concluded with the report of the inquiry officer against
B
      the delinquent, and it was found that the Board incurred a loss of
      Rs.3,50,000/- on account of dereliction of duty by the respondent no.3
      and accordingly the penalty of recovery of Rs.10,000/- from the
      delinquent’s salary was ordered by the disciplinary authority, on 17.8.2016.
             13. The Division Bench considered the basis for declaring the
C     appellant to be senior to the respondent no.3 by virtue of her higher pay
      scale in the feeder cadre, and by adverting to the wrong O.M. dated
      10.09.1985 (Incorrectly mentioned as 1995) conclusion was reached
      that the said O.M. does not provide for declaration of seniority, on the
      basis of higher pay scale. It was further held that the date of appointment
D     in the feeder cadre should be the basis for considering inter se seniority
      for the purpose of promotion to the post of Office Superintendent. The
      disciplinary proceeding against the respondent no.3 was brushed aside
      in a summary manner by declaring that the same was initiated for the
      fault committed by the subordinate staff of the delinquent officer to deny
      him the benefit of promotion. With such finding the Special Appeals filed
E     by the appellant and the Cantonment Board were dismissed, and the
      judgment rendered by the learned Single Judge favouring the respondent
      no.3 was affirmed by the Division Bench by their judgment dated
      22.09.2017.
             14. Taking exception to the above judgment, the present appeals
F     are filed. We have heard the learned counsel for the parties and also
      read the relevant materials on record.
            15. On the issue of inter se seniority, it is necessary to bear in
      mind that the respondent no.3 entered service earlier on 16.7.1990 but in
      the lower grade and was promoted to the post of Senior Clerk, only on
G     9.7.1997. In contrast, the appellant entered service on 1.9.1995 in the
      higher grade as a Steno-Typist (equivalent to Senior Clerk). Thus, she
      was senior to the respondent no.3 in the post, just below the feeder
      cadre. Overlooking the inter-se seniority position of the two, the
      respondent no.3 as a Scheduled Caste person was granted accelerated
H     promotion on 1.9.2005, to the post of Revenue Superintendent.
                 RAMA NEGI v. UNION OF INDIA & ORS.                             495
                       [HRISHIKESH ROY, J.]

       16. Besides, the appellant by virtue of her higher pay scale in the      A
post of Accountant in the feeder cadre, also deserves seniority above
the respondent no.3 with his lower pay scale, on account of the provision
made in the O.M. dated 12.12.1988.
       17. The Rule 5-B (8) read with Annexure ‘E’ of the Rules makes
it clear that the post of Office Superintendent is a “selection post” and       B
the criterion for promotion is seniority-cum-merit. The parameters for
determining promotion based on such criterion are well established by
this Court. Justice S.C. Agrawal in B.V. Sivaiah v. K. Addanki Babu1,
speaking for a three Judges Bench, held that,
                                                                                C
         “10. On the other hand, as between the two principles of seniority
         and merit, the criterion of “seniority-cum-merit” lays greater
         emphasis on seniority. In State of Mysore v. Syed Mahmood
         [AIR 1968 SC 1113 : (1968) 3 SCR 363 : (1970) 1 LLJ 370]
         while considering Rule 4(3)(b) of the Mysore State Civil Services
         General Recruitment Rules, 1957 which required promotion to            D
         be made by selection on the basis of seniority-cum-merit, this
         Court has observed that the Rule required promotion to be made
         by selection on the basis of “seniority subject to the fitness of
         the candidate to discharge the duties of the post from among
         persons eligible for promotion”. It was pointed out that where
                                                                                E
         the promotion is based on seniority-cum-merit, the officer cannot
         claim promotion as a matter of right by virtue of his seniority
         alone and if he is found unfit to discharge the duties of the higher
         post, he may be passed over and an officer junior to him may be
         promoted.
                                                                                F
         11. In State of Kerala v. N.M. Thomas [(1976) 2 SCC 310 : 1976
         SCC (L&S) 227] A.N. Ray, C.J. has thus explained the criterion
         of “seniority-cum-merit”: (SCC p. 335, para 38)
         “With regard to promotion the normal principles are either merit-
         cum-seniority or seniority-cum-merit. Seniority-cum-merit means        G
         that given the minimum necessary merit requisite for efficiency
         of administration, the senior though the less meritorious shall have
         priority.

1
    (1998) 6 SCC 720                                                            H
496                SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A              17. ... While applying the principle of seniority-cum-merit for
               the purpose of promotion, what is required to be considered is
               the inter se seniority of the employees who are eligible for
               consideration. Such seniority is normally determined on the basis
               of length of service, but as between employees appointed on the
               same date and having the same length of service, it is generally
B
               determined on the basis of placement in the select list for
               appointment. ...
               18. We thus arrive at the conclusion that the criterion of “seniority-
               cum-merit” in the matter of promotion postulates that given the
C              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
D              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. “
E            Justice Arijit Pasayat, speaking for a Division Bench in K.
      Samantaray v. National Insurance Co. Ltd. 2, noted the following
      distinction,
               “7. The principles of seniority-cum-merit and merit-cum-seniority
               are conceptually different. For the former, greater emphasis is
F              laid on seniority, though it is not the determinative factor, while in
               the latter, merit is the determinative factor.”
             18. The appraisal of the facts before us reveals that the respondent
      no.3 faced a disciplinary proceeding following the chargesheet issued
      against him on 28.11.2011. But the High Court questioned the timing of
G     the disciplinary action and observed that the same was issued to deny
      promotion to the respondent no.3. On this, the inquiry report finding
      (17.8.2016) is important, which indicates that the Cantonment Board
      suffered a pecuniary loss of Rs.3,50,000/- due to dereliction of duty by

      2
H         (2004) 9 SCC 286
                 RAMA NEGI v. UNION OF INDIA & ORS.                            497
                       [HRISHIKESH ROY, J.]

the delinquent. Significantly, the respondent no.3 accepted the charge         A
and the disciplinary authority imposed the penalty of Rs.10,000/-
recoverable from his salary.
      19. It was a “selection post” and the appellant contrastingly had
an unblemished service record all throughout her career. Moreover, she
was found to be senior by the Board on 11.1.2012 and for this reason           B
was recommended for promotion, in preference to the respondent no. 3.
Adverting to the role of promotion committees, Justice P.B. Sawant,
speaking for a three Judges bench in Union of India & Ors. vs. K.V.
Jankiraman & Ors.3 has emphasized the necessity to consider the entire
service record of the candidates in line for promotion,                        C
         “29. …In fact, while considering an employee for promotion his
         whole record has to be taken into consideration and if a promotion
         committee takes the penalties imposed upon the employee into
         consideration and denies him the promotion, such denial is not
         illegal and unjustified. If, further, the promoting authority can     D
         take into consideration the penalty or penalties awarded to an
         employee in the past while considering his promotion and deny
         him promotion on that ground, it will be irrational to hold that it
         cannot take the penalty into consideration when it is imposed at
         a later date because of the pendency of the proceedings, although
         it is for conduct prior to the date the authority considers the       E
         promotion. …”
      20. On the same aspect, Justice Kuldip Singh, also held for a
Division Bench in Jagathigowda C.N. v. Chairman, Cauvery Gramina
Bank & Ors.4, that the totality of the circumstances factor as a pivotal
consideration with respect to seniority cum merit,                             F

         “8. ... It is settled proposition of law that even while making
         promotions on the basis of seniority-cum-merit the totality
         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     G
         consideration when the person concerned is considered for
         promotion to the higher rank. ...” (emphasis added)

3
    (1991) 4 SCC 109
4
    (1996) 9 SCC 677                                                           H
498                SUPREME COURT REPORTS                         [2022] 2 S.C.R.


A           For a Division Bench in Haryana State Electronics Development
      Corporation Limited & Ors. Vs. Seema Sharma & Ors. 5, Justice A.K.
      Ganguly also reiterated the distinguishable features for the criterion of
      seniority cum merit, and the requirement to consider the entirety of the
      candidate’s service record,
B              “8. The principle of merit-cum-seniority puts greater emphasis on
               merit and ability and where promotion is governed by this principle
               seniority plays a less significant role. However, seniority is to be
               given weightage when merit and ability more or less are equal
               among the candidates who are to be promoted.
C              9. On the other hand, insofar as the principle of seniority-cum-
               merit is concerned it gives greater importance to seniority and
               promotion to a senior person cannot be denied unless the person
               concerned is found totally unfit on merit to discharge the duties of
               the higher post. The totality of the service of the employee
               has to be considered for promotion on the basis of seniority-
D              cum-merit (see Jagathigowda, C.N. v. Cauvery Gramina
               Bank [(1996) 9 SCC 677: 1996 SCC (L&S) 1310: AIR 1996
               SC 2733] ).” (emphasis added)
             21. While rejecting the appellant’s seniority claim in the feeder
      cadre by virtue of her higher salary vis-à-vis the respondent no.3, the
E     Division Bench, unfortunately, referred to the incorrect O.M. (dated
      10.9.1985), overlooking the applicable O.M. (dated 12.12.1988) of the
      Ministry of Personnel. In this O.M., as noted earlier, it was clearly
      stated that the persons in the feeder cadre drawing higher scale will
      rank senior to those drawing lesser pay scale. Admittedly, the pay
F     scale drawn by the appellant as an Accountant in the feeder cadre
      was higher than the respondent no.3 and therefore the benefit of O.M.
      (dated 12.12.1988) would surely accrue to the appellant, in the
      determination of her inter se seniority. However, the learned Division
      Bench by adverting to the incorrect O.M., wrongly rejected the
      contention that the higher pay scale can be the basis for claiming the
G     seniority in the feeder cadre in the circumstances referred to in the
      O.M. dated 12.12.1988.
           22. In the present case, the Cantonment Board in their deliberations
      made on 11.1.2012 not only considered the appellant to be senior to the
      5
H         (2009) 7 SCC 311
               RAMA NEGI v. UNION OF INDIA & ORS.                                499
                     [HRISHIKESH ROY, J.]

respondent no.3 but also considered her to be more deserving for                 A
promotion as the best, suitable and fit candidate, for the responsible post.
The respondent no.3 was penalized pursuant to the disciplinary proceeding
for dereliction of duty and misconduct and he suffered the penalty of
recovery of Rs.10,000/- from his salary. Seen in this context, the appellant
was more deserving. That apart, the disciplinary action was not challenged
                                                                                 B
by the respondent no.3. He cannot therefore set up a better claim for
promotion, to a selection category post.
       23. Insofar as the contention of the respondent no.3 that the issue
of selection category post was not argued before the High Court, it is
necessary to bear in mind that arguments based on the Rules were
advanced by all the contesting parties before the High Court. Therefore,         C
the status of the promotion post and the criterion for promotion specified
in the Rules, must in our opinion, receive due consideration.
       24. As far as the issue of higher pay scale being the basis for
seniority in the feeder cadre, the same is clearly provided in the O.M.
dated 12.12.1988. The issue received due consideration by the                    D
Cantonment Board and was answered in favour of the appellant. But
this aspect was held against both the appellant and the Board, due to an
inadvertent reference to the wrong Office Memorandum dated
10.09.1985 by the High Court. Having regard to the manner in which
the issue was examined and decided by the Board, we deem it appropriate          E
to endorse the Board’s declaration of seniority in favour of the appellant,
based on the reasoning contained in the Board’s Resolution dated 25.3.2013.
       25. This Court must also be mindful of the fact that the Cantonment
Board applied the criterion of seniority-cum-merit and treated the post
to be of the “selection category”. Moreover, the unblemished service             F
record of the appellant vis-à-vis the pending disciplinary proceedings
against the respondent no.3, (eventually resulting in penalty), were taken
into account. All these circumstances in our opinion, weigh in favour of
the appellant Rama Negi. Her Suitability for the selection post was
attributable to two factors i.e. merit of the candidate and the inter-se
seniority. Despite the difficulty in encapsulating the parameters for ‘merit’,   G
a significant marker can be found in the unblemished record of the
employee. A marred service record, though not an insurmountable bar,
must carry some consequences, and it could be a comparative disadvantage
in promotion for a selection post. The employer’s preference for a person
with a clean service record can be well appreciated.                             H
500              SUPREME COURT REPORTS                        [2022] 2 S.C.R.


A           26. Moreover, the higher pay in the same grade as per the applicable
      O.M., is a reliable indicator for determining inter-se seniority. In this
      Court’s perception, the decision to prefer the appellant over the
      respondent no.3 for promotion is in tune with the applicable parameters.
      As such the contrary opinion by the High Court does not merit our
      approval. Accordingly, the Appeals stand allowed by setting aside the
B
      impugned judgment. The parties to bear their own cost.


      Devika Gujral                                              Appeals allowed.


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