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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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”.

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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  

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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  

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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

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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.

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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  

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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  

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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  

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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  

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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.

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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  

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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.”

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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  

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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  

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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  

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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  

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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  

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“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  

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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  

34

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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