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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1273 OF 2004

Balbir Singh Bedi                                                           …Appellant  

Versus

State of Punjab & Ors.                                                   …Respondents

J U D G M E N T   

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.

2. The facts and circumstances giving rise to this case are that:

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A. The appellant was appointed as Civil Defence Instructor in the  

year 1964, and was promoted as Company Commander 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.  

B. 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 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 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  

High Court vide judgment and order dated 14.1.2003, by which the  

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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  

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.

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 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  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  

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prescribes that selection to the post must be made on the principle of  

“seniority-cum-merit”.   The High Court committed 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 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 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  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  

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bills 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 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 learned  

counsel for the parties and perused the record.   

6.    A Seven Judge Bench of this Court in State of Kerala & Anr. v.  

N.M. Thomas & Ors., AIR 1976 SC 490, held:  

“Seniority  cum  merit’  means  that  given  the   minimum  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.”

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  

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merit. Efficiency of administration is of paramount importance, and  

therefore, whilst adequate weightage is given to seniority, merit must  

also be duly considered.  

7. In  Sr.  Jagathigowda  C.N.  & Ors.  v.  Chairman,  Cauvery  

Gramin Bank & Ors., AIR 1996 SC 2733, this Court has observed  

as under:–

“It  is  settled  proposition  of  law  even  while   making promotion 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   consideration  when  the  person  concerned  is   considered for promotion to the higher rank.”  

   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.   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 and  

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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 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 “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.

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” 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  

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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  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 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 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 the deciding  

factor.   

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12. In Rajendra Kumar Srivastava & Ors. v. Samyut Kshetriya  

Gramin Bank & Ors., AIR  2010  SC 699,  while  considering  the  

aforementioned issue, this Court held that when a promotion is to be  

made  on  the  principle  of  “seniority-cum-merit”,  then  the  said  

promotion must  be made only after 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 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  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 requirements of efficiency for the posts.   

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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 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  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 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 criteria  

(Period of service, educational qualifications, performance during last  

three  years  and  interview)  allocating  separate  maximum  marks  as  

regards each of the aforesaid counts.  

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14. In Haryana State Warehousing Corporation & Ors. v. 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 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.   

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 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  

considered giving due weightage to his seniority.  Furthermore, the  

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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 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 with by courts  

in the exercise of their judicial powers, unless the same is found to be  

off the mark, unreasonable, or malafide.  

16. The  relevant  portions  of  the  executive  instructions  dated  

29.12.2000 read as under:  

“(iii) In the case of promotion to posts with pay scales  less  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’.   

(iv) Henceforth each Annual Confidential Report will  be evaluated as under:-

Outstanding : +A ……………..4 Marks

Very Good : A    ………………3 Marks

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Good : +B          ……………….2 Marks

Average : B        ……………….1 Mark

ACRs  for  5  years  are  taken  into  consideration  for  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 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 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’  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  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 the right to adopt any  

reasonable and bonafide criteria to assess the merit, for the purpose of  

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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 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 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 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 2.5.2006 passed in Sessions Case No. 5  

of  10.5.2001.   His  acquittal  took  place  after  five  years  to  his  

retirement.  

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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 the  

effect  of  pendency of  the  said  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 facts of  

this case, we have no hesitation in holding that no fault can be found  

with the High Court’s judgment impugned before us. The appeal lacks  

merit and is, accordingly, dismissed.  

………………………J. (Dr. B.S. CHAUHAN)  

………………………J.          (V. GOPALA GOWDA)

New Delhi,                                                                                   February 11, 2013

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