HARYANA STATE WAREHOUSING CORP. Vs JAGAT RAM
Bench: ALTAMAS KABIR,CYRIAC JOSEPH, , ,
Case number: SLP(C) No.-002659-002659 / 2011
Diary number: 1026 / 2011
Advocates: DEVASHISH BHARUKA Vs
KUSUM CHAUDHARY
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.2659 OF 2011 Haryana State Warehousing Corporation … Petitioner
Vs. Jagat Ram & Anr. … Respondents
WITH SPECIAL LEAVE PETITION (CIVIL) NO.451 OF 2011 Ram Kumar … Petitioner
Vs. Jagat Ram & Anr. … Respondents
J U D G M E N T
ALTAMAS KABIR, J.
1. Two Special Leave Petitions have been filed
against the judgment and order dated 11th October,
2010, passed by the Division Bench of the Punjab &
Haryana High Court in L.P.A. No.490 of 2010,
setting aside the promotion granted to the
Petitioner in Special Leave Petition (Civil) No.451
of 2011. While Special Leave Petition (Civil)
No.451 of 2011 has been filed by Ram Kumar, the
Respondent No.3 before the High Court, setting
aside his promotion to the post of Assistant
Manager (Administration) in the Haryana State
Warehousing Corporation, Special Leave Petition
(Civil) No.2659 of 2011 has been filed by the
Warehousing Corporation challenging the same order.
2. The facts briefly stated disclose that the
Haryana State Warehousing Corporation, hereinafter
referred to as “the Corporation”, framed its Rules
and Regulations known as the Haryana Warehousing
Corporation (Officers & Staff) Regulations, 1994,
hereinafter referred to as “the 1994 Regulations”
in exercise of the powers conferred by Section 42
2
of the Housing Corporation Act, 1962, with the
previous sanction of the State Government.
Regulation 8 of the 1994 Regulations deals with
promotions in the Corporation. Regulation 8(2) of
the 1994 Regulations provides as follows :-
“8(2). All promotions unless otherwise provided, shall be made on seniority-cum- merit basis and seniority alone shall not confer any right to such promotions.”
3. The Respondent No.3, Ram Kumar, was promoted to
the post of Assistant Manager (Administration) in
the Corporation on account of his excellent service
record in comparison to that of Jagat Ram, who is
Respondent No.1 in both the Special Leave
Petitions. Challenging the said decision, Jagat
Ram filed a Writ Petition before the Punjab &
Haryana High Court on 17.11.2009. The learned
Single Judge dismissed the Writ Petition filed by
Jagat Ram after taking into consideration the
service records of both Jagat Ram and Ram Kumar and
upon holding that the service record of Ram Kumar
3
was superior to that of Jagat Ram and that the
Corporation had not committed any error in granting
promotion to Ram Kumar.
4. Against the order of the learned Single Judge,
Jagat Ram filed a Letters Patent Appeal, being 490
of 2010, before the Division Bench of the Punjab &
Haryana High Court, which was allowed. The
Division Bench while allowing the Letters Patent
Appeal filed by Jagat Ram held that although
promotion to the post of Assistant Manager
(Administration) is to be effected on the basis of
seniority-cum-merit and not seniority alone, the
promotion given to Ram Kumar was based on his
gradings and on a comparative assessment of his
merit as against the merit of the Respondent No.1,
Jagat Ram. The Division Bench further held that
since the criterion for promotion to the post of
Assistant Manager (Administration) was seniority-
cum-merit and not merit-cum-seniority, the
4
promotion given to Ram Kumar was not sustainable
since such promotion had been made predominantly on
the principle of merit, in contravention of the
provisions of the Regulations. The Division Bench
directed the concerned Respondents to redo the
exercise for promotion to the post of Assistant
Manager in accordance with the provisions of the
Regulations in force.
5. Appearing for the Special Leave Petitioner in
Special Leave Petition (Civil) No.451 of 2011, Mr.
D.P. Mukherjee, learned Advocate, contended that
the Division Bench of the High Court had
misunderstood and consequently misapplied the
regulation governing appointments on the ground of
seniority-cum-merit, particularly, since it
provided that seniority alone could not confer
right to promotions on the basis of seniority-cum-
merit. Mr. Mukherjee submitted that if it was only
a question of seniority-cum-merit, then the
5
reasoning of the Division Bench may have been
acceptable. However, such not being the case and
a stipulation having been made that seniority alone
would not govern promotions on the basis of
seniority-cum-merit, the Division Bench of the High
Court had erred in giving emphasis to seniority
when the Petitioner, Ram Kumar, possesses far
superior qualifications than the Respondent No.1,
Jagat Ram.
6. Mr. Mukherjee urged that on account of the
addition of the expression “seniority alone would
not confer right to promotion”, it must be
understood that merit would also require
consideration for the purpose of granting
promotion, even on the basis of seniority-cum-
merit. Mr. Mukherjee urged that since Ram Kumar
had been assessed as “outstanding” over 10 years,
while Jagat Ram had been assessed “outstanding”
only for one year, it was in keeping with
6
Regulation 8 of the 1994 Regulations that Ram Kumar
had been preferred to Jagat Ram. In support of his
submissions, Mr. Mukherjee referred to the decision
of this Court in Jagathigowda C.N. & Ors. Vs.
Chairman, Cauvery Gramina Bank & Ors. [(1996) 9 SCC
677], in which this Court held that while granting
promotion on the basis of seniority-cum-merit, the
totality of the service record of the eligible
candidates had to be considered and consequently
since Ram Kumar had superior credentials in
comparison to Jagat Ram, he had been rightly
promoted to the post of Assistant Manager and the
judgment and order of the Division Bench was
erroneous and was liable to be set aside and that
of the learned Single Judge was liable to be
sustained.
7. The same stand was taken on behalf of the
Corporation in Special Leave Petition (Civil)
No.2659 of 2011 and it was urged by Mr. Alok
7
Sangwan, learned Advocate, appearing for the
Corporation, that the promotion of Ram Kumar had
been effected in accordance with Regulation 8(2) of
the 1994 Regulations and while considering the
seniority of the eligible candidates, the
Corporation had given effect to the second part of
the Regulation which categorically indicated that
seniority alone would not be the criteria for
promotion. Mr. Sangwan also urged that the order
of the Division Bench of the High Court was liable
to be set aside.
8. The submissions made by Mr. D.P. Mukherjee and
Mr. Alok Sangwan were opposed on behalf of the
Respondent No.1 in both the Special Leave
Petitions, Jagat Ram, and it was urged by Mrs.
Kanwaljit Kochar, learned Advocate, that the
Division Bench had rightly interpreted the
principle in relation to promotions made on the
basis of seniority-cum-merit. Mrs. Kochar submitted
8
that if merit was to play a larger role than
seniority in effecting such promotions, then the
procedure to be adopted would have been merit-cum-
seniority and not seniority-cum-merit. According
to her, the decision in Jagathigowda C.N.’s case
(supra) does not really help the case of the
Petitioners since this Court had merely indicated
in the facts of that case, based on the NABARD
Circular dated 7.4.1986, that the selection of the
eligible candidates should be based on performance
of the respective candidates in the Bank. It was
further observed that the instructions of NABARD
being in the nature of guidelines, the promotions
made by the Bank could not be set aside unless the
same were arbitrary and unfair.
9. The law relating to promotions to be granted on
the basis of seniority-cum-merit has been settled
by this Court in various decisions, including the
case of the State of Mysore vs. Syed Mahmood [AIR
9
1968 SC 1113], wherein it was observed that when
promotion is to be made by selection on the basis
of seniority-cum-merit i.e. seniority subject to
the fitness of the candidates to discharge the
duties of the post from amongst any person eligible
for promotion, the State Government had erred in
promoting juniors ranking below the candidates in
order of seniority and that such promotions were
irregular. Of course, the question posed in these
Special Leave Petitions gives rise to another
question regarding the latter part of Regulation
8(2) of the 1994 Regulations which indicates that
seniority alone would not confer any right to be
promoted. In that regard, this Court held in the
above-mentioned case that where the promotion is
based on seniority-cum-merit, the officer cannot
claim promotion as a matter of right by virtue of
his seniority alone. 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
10
promoted.
10. That principle has been followed ever since and
was reiterated by a Three-Judge Bench of this Court
in the case of B.V. Sivaiah & Ors. Vs. K. Addanki
Babu & Ors. [(1998) 6 SCC 720], wherein the
criterion for promotion on the basis of seniority-
cum-merit fell for consideration with regard to the
same-day appointees. It was held that seniority-
cum-merit in the matter of promotion contemplates
that given the minimum necessary merit requisite
for efficiency of administration, a senior
candidate, even though less meritorious, would have
priority and a comparative assessment of merit is
not required to be made. The said view was again
repeated in the case of K. Samantaray vs. National
Insurance Co. Ltd. [(2004) 9 SCC 286]. While
considering the concepts relating to promotion on
the basis of seniority-cum-merit and merit-cum-
seniority, reference was made to an earlier
11
decision of this Court in Sant Ram Sharma vs. State
of Rajasthan [AIR 1967 SC 1910], in which it was
observed that the principles of seniority-cum-merit
and merit-cum-seniority are completely different.
For the former, greater emphasis is laid on
seniority though it is not the determinative factor
while in the latter merit is the determining
factor. A third mode described as “hybrid mode of
promotion” contemplates a third category of cases
where seniority is duly respected and at the same
time merit is also appropriately recognized. In
yet another decision in the case of Harigovind
Yadav vs. Rewa Sidhi Gramin Bank [(2006) 6 SCC
145], this Court reiterated the principles
explained in B.V. Sivaiah’s case (supra) holding
that where procedure adopted does not provide the
minimum standard for promotion, but only the
minimum standard for interview and does selection
with reference to comparative marks, it is contrary
to the rule of “seniority-cum-merit”.
12
11. In applying the principle of granting promotion
on the basis of seniority-cum-merit, what is
important is that the inter se seniority of all
candidates who are eligible for consideration for
promotion should be identified on the basis of
length of service or on the basis of the seniority
list as prepared, inasmuch as, it is such seniority
which gives a candidate a right to be considered
for promotion on the basis of seniority-cum-merit.
As was indicated in Syed Mahmood’s case (supra)
where the promotion is based on seniority-cum-
merit, the officer cannot as a matter of right
claim promotion by virtue of his seniority alone,
which principle is also reflected in Regulation
8(2) of the 1994 Regulations. Consequently, the
candidate had to be fit to discharge the duties of
the higher post and if his performance was assessed
not to meet such a requirement, he could be passed
13
over and those junior to him could be promoted
despite his seniority in the seniority list.
12. In the instant case, the only feature which
weighed with the Corporation in granting promotion
to Ram Kumar was a comparative assessment between
his performance and that of Jagat Ram. While Jagat
Ram had got only one “outstanding” remark in 10
years, Ram Kumar had obtained “outstanding” remark
in all the 10 years. Accordingly, he was preferred
to Jagat Ram, whose qualifications were inferior to
that of Ram Kumar by comparison. But, as has been
rightly held by the Division Bench of the High
Court, in cases of seniority-cum-merit, the
comparative assessment is not contemplated and is
not required to be made.
13. There is nothing on record to indicate that
Jagat Ram was not capable of discharging his
functions in the promoted post of Assistant Manager
(Administration). He was denied promotion only on
14
the ground of the superior assessment that had been
made in favour of Ram Kumar, which, in our view,
runs contrary to the concept of seniority-cum-
merit.
14. There is, therefore, no reason to differ with
the views of the Division Bench of the High Court
and both the Special Leave Petitions, filed by Ram
Kumar and the Corporation, are accordingly
dismissed.
15. There will, however, be no order as to costs.
…………………………………………J. (ALTAMAS KABIR)
New Delhi Dated:23.02.2011
15
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.2659 OF 2011
Haryana State Warehousing …Petitioners Corporation & Anr.
vs.
Jagat Ram & Anr. …Respondents
WITH
SPECIAL LEAVE PETITION (CIVIL) NO.451 OF 2011
Ram Kumar …Petitioner
vs.
Jagat Ram & Ors. …Respondents
J U D G M E N T
CYRIAC JOSEPH, J.
1. I had the benefit of reading the judgment of my
learned brother Altamas Kabir, J. I respectfully agree
with the decision to dismiss the Special Leave Petitions.
However, I wish to support and supplement the decision
through this separate but concurring judgment.
16
2. The dispute in these Special Leave Petitions relates
to the claim of Jagat Ram [Respondent No.1 in S.L.P. (C)
No. 2659 of 2011] for appointment to the post of Assistant
Manager (Administration) in Haryana State Warehousing
Corporation [Petitioner No.1 in S.L.P. (C) No.2659 of
2011].
3. Jagat Ram had filed Civil Writ Petition No.18891 of
2009 in the High Court of Punjab and Haryana, challenging
the appointment of Ram Kumar [Petitioner in S.L.P. (C)
No.451 of 2011 and respondent No.2 in S.L.P. (C) No.2659 of
2011] as Assistant Manager (Administration) and seeking a
direction to Haryana State Warehousing Corporation
(hereinafter referred to as “the Corporation”) to promote
Jagat Ram as Assistant Manager (Administration) w.e.f.
1.8.2009. The said Writ Petition was dismissed by a Single
Bench of the High Court on 9.12.2009. Thereupon, Jagat Ram
filed Letters Patent Appeal No.490 of 2010 before a
Division Bench of the High Court and vide judgment dated
11.10.2010, the Division Bench allowed the L.P.A. and set
aside the promotion of Ram Kumar, with a direction to the
Corporation to redo the exercise and complete the same as
expeditiously as possible. Aggrieved by the judgment of
17
the Division Bench, the Corporation and Ram Kumar have
filed these Special Leave Petitions.
4. Jagat Ram was first appointed as Godown Attendant-cum-
Watchman in the Corporation and he joined the service on
25.4.1979. He was promoted as Clerk-cum-Typist on
23.12.1981. He was further promoted as Establishment
Assistant on 16.5.1996.
5. Ram Kumar was first appointed in the Corporation as
Junior Scale Stenographer and he was promoted as
Establishment Assistant on 10.11.2004.
6. Thus, admittedly, Jagat Ram was senior to Ram Kumar in
the cadre of Establishment Assistant.
7. A vacancy of Assistant Manager (Administration) arose
on 1.8.2009 due to the retirement of one V.K. Chakarvarty,
Assistant Manager (Administration) on 31.7.2009.
Appointment to the post of Assistant Manager
(Administration) is governed by the provisions of Haryana
State Warehousing Corporation (Officers and Staff)
Regulations, 1994 (hereinafter referred to as “the
Regulations”). According to Regulation 8(1) of the
18
Regulations, the method of recruitment to the post of
Assistant Manager (Administration) is by promotion from
amongst Establishment Assistants. Regulation 8(2) of the
Regulations provides as follows :
“All promotions, unless otherwise provided, shall be made on seniority-cum- merit basis and seniority alone shall not confer any right to such promotions.”
According to Regulation 6 of the Regulations, no person
shall be appointed to any post in the service unless he is
in possession of qualification and experience specified in
Appendix-B to the Regulations. As per clause 19 of
Appendix-B to the Regulations, for promotion to the post of
Assistant Manager (Administration) 5 years’ experience as
Establishment Assistant is required. Thus, it is not in
dispute that as per the Regulations the vacancy in the
cadre of Assistant Managers (Administration) was to be
filled by promotion on the basis of seniority-cum-merit
from among Establishment Assistants having the required
experience of 5 years.
8. As already indicated, a vacancy of Assistant Manager
(Administration) arose on 1.8.2009. As on that date Ram
Kumar did not have 5 years’ experience as Establishment
19
Assistant, as he was promoted to the post of Establishment
Assistant only on 10.11.2004. However, Jagat Ram had more
than 5 years’ experience as he was promoted to the post of
Establishment Assistant on 16.5.1996. The vacancy of
Assistant Manager (Administration) which arose on 1.8.2009
was filled up only on 17.11.2009 by promoting Ram Kumar as
Assistant Manager (Administration). By 17.11.2009, Ram
Kumar also had acquired experience of 5 years in the cadre
of Establishment Assistants. But Jagat Ram was admittedly
senior to Ram Kumar.
9. In the Writ Petition filed by Jagat Ram, he had
contended that the promotion of Ram Kumar to the cadre of
Assistant Managers (Administration) was illegal as he did
not possess the required experience of 5 years on the date
of occurrence of the vacancy i.e. 1.8.2009. It was alleged
that the vacancy which arose on 1.8.2009 was deliberately
kept vacant for more than 3 months and that the filling up
of the vacancy was purposefully delayed to enable Ram Kumar
to acquire the minimum required experience of 5 years as
Establishment Assistant. It was also alleged that since
Ram Kumar was working as Junior Scale Stenographer-cum-
Personal Assistant to the Managing Director of the
20
Corporation, the action of the respondents in delaying the
filling up of the vacancy of Assistant Manager
(Administration) was mala fide. Jagat Ram also claimed
that being the senior-most and meritorious amongst the
Establishment Assistants, he was the only eligible
candidate for promotion to the post of Assistant Manager
(Administration) when it fell vacant on 1.8.2009.
10. The Writ Petition filed by Jagat Ram was dismissed on
9.12.2009 by a Single Bench of the High Court apparently
even without issuing notice to the respondents. In the
judgment dated 9.12.2009, the learned Single Judge held
that Ram Kumar was eligible for promotion on the date when
the case for promotion was considered. It was also
observed that the service records placed on record by the
petitioner (Jagat Ram) clearly showed that the record of
Ram Kumar was much better than that of Jagat Ram. The
learned Single Judge rejected the contention that undue
favour was shown to Ram Kumar by the Managing Director.
Aggrieved by the judgment of the learned Single Judge,
Jagat Ram filed L.P.A. No. 490 of 2010 which was allowed by
the Division Bench of the High Court.
21
11. In the impugned judgment dated 11.10.2010 in L.P.A.
No.490 of 2010, the Division Bench of the High Court held
that as per the Regulations governing promotion to the post
of Assistant Manager (Administration), the criterion for
promotion is seniority-cum-merit, but Ram Kumar was wrongly
and illegally given promotion following the criterion of
merit or even merit-cum-seniority. Relying on the judgment
of this Court in State of Mysore and another v. Syed
Mahmood and others (AIR 1968 SC 1113), the Division Bench
pointed out that when promotion is to be made on the basis
of seniority-cum-merit, a senior can be overlooked only
when he is found unfit for the higher post. The Division
Bench rejected the contention of the Corporation that the
words “seniority alone shall not confer any right to such
promotions” appearing in Regulation 8(2) of the Regulations
indicated that a junior can be preferred to a senior on the
basis of merit. According to the Division Bench, the words
quoted above only clarify and fortify that promotion is
required to be made by applying the criterion of seniority-
cum-merit. The Division Bench found that the selection and
promotion of Ram Kumar was predominantly on the principle
of merit and hence it was in contravention of the
provisions contained in the Regulations. Accordingly, the
22
promotion of Ram Kumar was set aside and the Corporation
was directed to redo the exercise and complete the same as
expeditiously as possible but strictly in accordance with
the Regulation in force. It may be observed that the
Division Bench did not consider the question whether
eligibility of the candidates should have been considered
with reference to the date of occurrence of the vacancy.
12. The first issue that arises for consideration in these
Special Leave Petitions is the effect of the words
“seniority alone shall not confer any right to such
promotions” appearing in Regulation 8(2) of the
Regulations.
13. The learned counsel for the petitioners in the Special
Leave Petitions contended that those words gave freedom or
right to the Corporation to prefer a junior to his senior
on the basis of better merit. It was contended that in
view of those words, quoted above, seniority should yield
to merit. The contention of the learned counsel for the
petitioners is devoid of merit. As rightly held by the
Division Bench of the High Court, the words “seniority
alone shall not confer any right to such promotions” only
clarify the earlier part of Regulation 8(2), which
23
stipulates that “all promotions, unless otherwise provided,
shall be made on the seniority-cum-merit basis”. The clear
mandate of Regulation 8(2) is that promotions shall be made
on seniority-cum-merit basis and not on the basis of
seniority alone or merit alone. To emphasise that
promotion cannot be claimed as a matter of right on the
basis of seniority and that along with seniority, merit
also will be considered, it is clarified in the Regulation
itself that “seniority alone shall not confer any right to
such promotions”. The above quoted words do not in any way
dilute or vary the principle that promotions shall be made
on seniority-cum-merit basis. They only clarify the
meaning or implication of the expression “seniority-cum-
merit”. In this context, it may be pointed out that in
State of Mysore and another v. Syed Mahmood and others (AIR
1968 SC 1113), this Court has held as follows:
“(4) ….. Where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. 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.”
24
14. The next issue that arises for consideration is
whether the impugned promotion of Ram Kumar was on the
basis of seniority-cum-merit as required by Regulation 8(2)
of the Regulations. For deciding the said issue, it is
necessary to understand the meaning of the expression
“seniority-cum-merit”.
15. In State of Kerala and another v. N.M. Thomas and
others [(1976) 2 SCC 310], this Court held that seniority-
cum-merit means that given the minimum necessary merit
requisite for efficiency of administration, the senior
though less meritorious shall have priority.
16. In B.V. Sivaiah and others v. K. Addanki Babu and
others [(1998) 6 SCC 720], a three Judges’ Bench of this
Court considered the question “what is meant by seniority-
cum-merit?” and held as follows :
“18. We thus arrive at the conclusion that the criterion of “seniority-cum- merit” in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum
25
standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum- merit.”
17. In Union of India and others v. Lt. Gen. Rajendra
Singh Kadyan and another [(2000) 6 SCC 698], this Court
held that “seniority-cum-merit” postulates the requirement
of certain minimum merit or satisfying a benchmark
previously fixed, and subject to fulfilling the said
requirement, the promotion is based on seniority. It was
also held that the requirement of assessment of comparative
merit was absent in the case of “seniority-cum-merit”.
18. Following the decision in B.V. Sivaiah (supra), this
Court in Harigovind Yadav v. Rewa Sidhi Gramin Bank and
others [(2006) 6 SCC 145] held that where the procedure
adopted did not provide the minimum standard for promotion,
but only the minimum standard for interview, and did the
selection with reference to comparative marks, it was
contrary to the rule of “seniority-cum-merit”. This Court
in that case found that the procedure was not one of
26
ascertaining the minimum necessary merit and then promoting
the candidates with the minimum merit in accordance with
seniority, but assessing the comparative merit by drawing
up a merit list, the assessment being with reference to
marks secured for seniority, performance, postings at
rural/difficult places and interview.
19. In Rajendra Kumar Srivastava and others v. Samyut
Kshetriya Gramin Bank and others [(2010) 1 SCC 335], while
considering the question “whether minimum qualifying marks
could be prescribed for assessment of past performance and
interview, where the promotions are to be made on the
principle of seniority-cum-merit?”, this Court observed as
follows :
“11. It is also well settled that the principle of seniority-cum-merit, for promotion, is different from the principle of “seniority” and the principle of “merit- cum-seniority”. Where promotion is on the basis of seniority alone, merit will not play any part at all. But where promotion is on the principle of seniority-cum-merit, promotion is not automatic with reference to seniority alone. Merit will also play a significant role. The standard method of seniority-cum-merit is to subject all the eligible candidates in the feeder grade (possessing the prescribed educational qualification and period of service) to a process of assessment of a specified minimum necessary merit and then promote
27
the candidates who are found to possess the minimum necessary merit strictly in the order of seniority. The minimum merit necessary for the post may be assessed either by subjecting the 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 two or all the three of the aforesaid methods. There is no hard-and- fast rule as to how the minimum merit is to be ascertained. So long as the ultimate promotions are based on seniority, any process for ascertaining the minimum necessary merit, as a basic requirement, will not militate against the principle of seniority-cum-merit.
12. xxx xxx xxx
13. Thus it is clear that a process whereby eligible candidates possessing the minimum necessary merit in the feeder posts is first ascertained and thereafter, promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary merit is recognised and accepted as complying with the principle of “seniority-cum-merit”. What would offend the rule of seniority- cum-merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority-cum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the
28
functions of the higher post, is not violative of the concept of promotion by seniority-cum-merit.”
20. In Rupa Rani Rakshit and others v. Jharkhand Gramin
Bank and others [(2010) 1 SCC 345], the Bank did not
subject eligible candidates to any process of assessment to
ascertain any specified minimum merit, for the purpose of
promoting candidates who possessed the minimum merit, on
the basis of seniority. On the other hand, the Bank
proceeded to assess their inter se merit with reference to
four criteria (period of service, educational
qualification, performance during three years and
interview) by allocating respectively maximum marks of 40,
6, 24 and 30 and thus proceeded to promote those who had
secured higher marks in the order of merit. This Court
held that such promotions were not on seniority-cum-merit
basis.
21. Though learned counsel for the petitioners relied on
the decision of this Court in Jagathigowda, C.N. & Others
v. Chairman, Cauvery Gramina Bank & Others [(1996) 9 SCC
677], the said decision cannot support the case of the
petitioners, because, in the said case the guidelines
applicable to the promotions had specifically provided that
29
“the selection of the eligible candidates should be based
on performance of the respective candidates in the Bank”.
However, learned counsel invited our attention to the
following observation in paragraph 8 of the judgment:
“… 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 above observation only means that, for the purpose of
considering whether the officer fulfils the requirement of
minimum merit or satisfies the benchmark previously fixed,
the totality of his service record has to be taken into
consideration. It does not mean that a further assessment
of comparative merit on the basis of the service record is
warranted even after the officers are found to fulfil the
requirement of minimum merit and satisfy the benchmark
previously fixed.
22. Thus it is the settled position that the criterion of
seniority-cum-merit is different from the criterion of
merit and also the criterion of merit-cum-seniority. Where
the promotion is based on seniority-cum-merit, the officer
cannot claim promotion as a matter of right by virtue of
his seniority alone. If he is found unfit to discharge the
30
duties of the higher post, he may be passed over and an
officer junior to him may be promoted. Seniority-cum-merit
means that, given the minimum necessary merit required for
efficiency of administration, the senior, though less
meritorious, shall have priority in the matter of promotion
and there is no question of a further comparative
assessment of the merit of those who were found to have the
minimum necessary merit required for efficiency of
administration. 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 employees. 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
considered for promotion on the basis of seniority-cum-
merit. The concept of “seniority-cum-merit” postulates the
requirement of certain minimum merit or satisfying a
benchmark previously fixed and, subject to fulfilling the
said requirement, promotion is based on seniority. There
is no further assessment of the comparative merits of those
who fulfil such requirement of minimum merit or satisfy the
benchmark previously fixed. On the other hand, the
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principle of “merit-cum-seniority” puts greater emphasis on
merit and ability and seniority plays a less significant
role. Seniority is given weightage only when merit and
ability are more or less equal among the candidates
considered for promotion.
23. In the light of the above legal position with regard
to the principle of “seniority-cum-merit”, it is clear that
the impugned promotion of Ram Kumar was not on the basis of
seniority-cum-merit but was on the basis of merit. The
written statement filed by the Corporation in L.P.A. No.
490 of 2010 reveals that while considering the candidates
for promotion, both Jagat Ram and Ram Kumar were found
suitable for promotion and that even though Jagat Ram was
senior to Ram Kumar, Ram Kumar was given promotion on the
ground that he had better merits. Justifying the promotion
of Ram Kumar in preference to the appellant Jagat Ram, it
was stated in the written statement as follows :
“2. xxx xxx xxx
As is evident from a perusal of Annexure P-4, all the Assistants who were eligible for promotion to the rank of Assistant Manager (Administration) having completed 5 years of service as Assistant were considered on the basis of seniority-
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cum-merit by the competent authority. The senior most candidate i.e. Shri R.K. Nayyar had bad service record in as much as there were three charge-sheets pending under Rule-7 against him besides penalty imposed upon him. The second candidate in seniority was the petitioner Shri Jagat Ram, whose ACR dossier for the last 10 years contained one grading as Very Good and 9 were good. The third candidate, Smt. Pushpa Devi again has 8 very good, ½ outstanding, one good and ½ average grading in her ACR resume. Penalty of stoppage of one increment without cumulative effect was imposed upon her on 18.12.2008. She was also issued a warning on 04.12.2008. The respondent No.3, Shri Ram Kumar, had all the 10 Annual Confidential Reports as Outstanding and there were no departmental proceedings pending or concluded against him and thus on the basis of seniority-cum- merit as provided in the Regulations, the candidature of respondent No.3 was found to be most suitable and accordingly the competent authority, vide detailed and reasoned orders, promoted the respondent No.3 to the rank of Assistant Manager (Administration). …”
In reply to Jagat Ram’s contention that selection had to be
made from a panel of three suitable officials and that Ram
Kumar could not have been considered as he was at serial
No.4, the Corporation stated in the written statement as
follows :
“3. …The contention is totally devoid of merits. The Chief Secretary Punjab vide Notification dated 28.06.1961, copy of
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which is attached as Annexure R-1/1 had clarified the issue and has ordered that in the first instance, list of eligible officers/officials, who fulfil the prescribed experience etc. for promotion is to be drawn up and then out of this list, such officers/officials as are considered unsuitable for promotion are to be weeded out and a list of only those who are suitable for promotion has to be drawn up. Selection thereafter is to be confined to three suitable officers/officials of the list. … Selection for every vacancy has, therefore, to be made from the slab of three officers/officials, who are considered fit for promotion and unless a junior among them happens to be of exceptional merit and suitability, the senior-most will be selected.
In the present case, in the Corporation there were only four Establishment Assistants who were eligible and the candidature of all the four was considered. Out of four, two were found unsuitable and out of the remaining two suitable officials, the respondent No.3 being most suitable and meritorious was selected and promoted to the post of Assistant Manager (Administration).”
Therefore, it is clear that even according to the
Corporation, both Jagat Ram and Ram Kumar fulfilled the
requirement of minimum merit and were suitable for
promotion but Ram Kumar, though junior, was preferred as he
was found to be more meritorious. This was obviously in
violation of the principle of seniority-cum-merit. Since
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both Jagat Ram and Ram Kumar fulfilled the requirement of
minimum merit and were found suitable for promotion and
since Jagat Ram was senior to Ram Kumar, Jagat Ram was
entitled to be promoted on the basis of seniority-cum-
merit. Consequently, the promotion of Ram Kumar was liable
to be set aside as was rightly done by the Division Bench
of the High Court.
24. In the light of the discussion above, the Special
Leave Petitions are devoid of merit and hence they are
dismissed.
25. There will, however, be no order as to costs.
………………………....J. CYRIAC JOSEPH
New Delhi; February 23, 2011.
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