Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO.843 OF 2012

U.V. MAHADKAR Appellant(s)

       Versus

SUBHASH ANAND CHAVAN AND OTHERS Respondent(s)

W I T H

CIVIL APPEAL NO.844 OF 2012

MAHARASHTRA COUNCIL OF AGRICULTURAL  EDUCATION AND RESEARCH, PUNE   Appellant(s)

Versus

DR. SUBHASH ANAND CHAVAN AND OTHERS  Respondent(s)

      JUDGMENT

We have heard learned counsel for the parties.

Civil Appeal No. 843 of 2012:  

2. Aggrieved  by  the  judgment  and  order  dated

24.11.2009 passed by the High Court of Judicature at

Bombay in Writ Petition No. 5231 of 2008 setting

aside the selection of the present appellant to the

post of Head of Department of Agronomy of Respondent

1

Page 2

No.2 - Maharashtra Council of Agricultural Education

and Research, the present appeal has been filed.

3. The facts are not much in dispute.

4. In the year 1986, the appellant was appointed as

Assistant Professor, College of Agriculture, Dapoli

under Dr. Balasaheb Sawant Konkan Krishi Vidyapeeth

Dapoli. He was selected and promoted as a Professor

of  Agronomy  in  Mahatma  Phule  Krishi  Vidyapeeth,

Rahuri on 17.8.2001.  For the purpose of appointing

a  Head  of  Department  of  Agronomy,  a  Selection

Committee was constituted in the year 2008.  The

Committee, considered Statute 41 of the Maharashtra

Agricultural  Universities  Statutes,  1990.   The

Committee  after  assessing  the  merit  and  other

criteria  of  the  appellant  vis-a-vis  contesting

respondent  selected the  appellant to  the post  of

Head of Department of Agronomy in the University.

5. Respondent No.1 challenged the said decision of

2

Page 3

the Committee by filing a writ petition being Writ

Petition No. 5231 of 2008.  Although the High Court

noticed the proviso of Statute 41 of the aforesaid

Statute,  set  aside  the  selection  on  the  grounds

noted in para 4 of the impugned order.  For better

appreciation, para 4 of the impugned order passed by

the High Court is quoted herein below :-

“4.  Further  it  is  to  be  seen  that after having found that on the basis of service record, both the petitioner and the respondent No.3 are equal and that  the  respondent  No.3  is  more meritorious  because  he  had  more experience in the post of Professor, the  second  aspect  which  requires consideration in view of the provision of sub-rule (5) of Statute 41 was the aspect of seniority.  In the seniority list,  the  petitioner  was  at  serial No.1 whereas the respondent No.3 was at  serial  No.2.   Perusal  of  the minutes  of  the  Selection  Committee shows that the Selection Committee has not at all allowed this consideration to  enter  in  their  mind.   In  our opinion, the submission of the learned counsel that seniority is not relevant when  the  criteria  for  promotion  is merit  cum  seniority  for  carving  out zone  of  consideration  is  not  well founded  especially  because  in  the present case so far as the aspect of merit  is concerned,  on the  basis of service  record,  both  the  candidates

3

Page 4

are  found  to  be  equal  and  the respondent  No.3  has  been  found  more meritorious  only  because  his experience in the post of Professor, therefore, the next consideration that should have entered in the mind of the Selection  Committee  was  their placement in the seniority list.  We do  not  want  to  suggest  that  the Selection  Committee  could  not  have selected  the  respondent  No.3  because he was junior to the petitioner.  The Selection  Committee  should  have applied its mind to that aspect of the matter  and  given  reasons  why  though the petitioner is senior according to them, selection of respondent No.3 is necessary.   We  thus  find  that  in selecting the respondent No.3 for the post  of  Head  of  Department  of Agronomy, the Selection Committee has ignored  or  has  not  taken  into consideration  relevant  aspects  which are  required  to  be  considered  in accordance with law and therefore, in our  opinion,  the  selection  and consequent  appointment  of  the respondent No.3 as Head of Department of Agronomy will have to be set aside. In our opinion, following order would meet the ends of justice.”

6. While  setting  aside  the  selection  of  the

appellant, a direction was issued to the Maharashtra

Council of Agricultural Education and Research to

hold  a  fresh  meeting  for  consideration  of  the

4

Page 5

candidates  for  selection  to  the  post  of  Head  of

Department of Agronomy.

7. It has been brought to our notice by the learned

counsel appearing for the parties that during the

pendency  of  this  appeal,  a  fresh  Committee  was

constituted  by  the  Maharashtra  Council  of

Agricultural  Education  and  Research  and  the

Committee reconsidered the candidature of all the

candidates  including  the  appellant  and  finally

selected him to the post of Head of Department.  The

said appointment has again been challenged by the

respondent in the High Court, which is pending.

8. At the very outset, we are of the view that in

the matter of selection and promotion to the higher

post, if a Committee of experts is constituted then

normally,  the Court  should not  interfere in  such

decision  unless  mala  fide  is  attributed  or

allegations of arbitrariness is proved.

5

Page 6

9. Statute 41 under which selections are made is

reproduced herein below:-

“Statute  41:-  The  post  of  Director (other  than  Director  of  Students Welfare), Dean of Faculties and other equivalent  posts  shall  be  filled  in the  nomination  or  transfer  by  the Pro-Chancellor.   The  posts  of Associate Deans, Head of Departments, Professors  and  other  equivalent  post shall  be filled  in by  promotion and nomination  in  the  ratio  of  50  :  50 percent of the vacant post as the Vice Chancellor  may,  from  time  to  time determine. Provided  that,  such  posts  shall  be filled  in  by  promotion  through  the recommendation  of  the  Selection Committee on the basis of merits and seniority in the discipline or group of disciplines, departments or sector and  minimum  academic  qualifications and experiences, as prescribed by the statutes.”  

10. From bare perusal of the aforesaid provision, it

is manifest that the proviso to Statute 41 make it

clear that recommendation of the Committee shall be

on the basis of “merit and seniority”.

11. In the instant case, we found that the Committee

was constituted of the following members:-

6

Page 7

(i) The  Vice  Chairman  of  the  State Council

(ii)The Vice Chancellor of the University concerned

(iii) One non-official to be nominated by the Pro-Chancellor, from amongst the non-official members of the Executive Councils  of  the  agricultural Universities in the State

(iv)Two experts to be nominated by the Chancellor

(v) Two  representatives  of  the  Indian Council of Agricultural Research to be appointed by the State Government, one of whom shall be a Specialist in the  particular  field  for  which  the recruitment is to be made.

12. The members of the said Committee, in compliance

of the High Court's order, reconsidered the merit of

the appellant vis-a-vis Respondent No.1 and again

selected  the  appellant  to  the  post  of  Head  of

Department.

13. It  is  well  settled  that  there  is  a  sharp

distinction  between  “merit-cum-seniority”  and

“seniority-cum-merit”.   In  the  former  case,  the

merit shall have to be given preference over the

seniority.   It  is  only  when  the  senior-most

7

Page 8

candidate has no merit and he is not suitable to be

appointed on the selection post, merely because of

seniority,  then  the  Committees  have  to  select  a

meritorious  candidate.   The  question  as  to  the

distinction  between  the  two  is  no  longer  res

integra.

14. In the case of  B.V. Sivaiah vs. Addanki Babu,

(1998) 6 SCC 720, while considering the principle of

promotion  on  merit-cum-seniority  and

seniority-cum-merit,  this  Court  held  that  the

principle  of  merit-cum-seniority  lays  greater

emphasis on merit and ability and seniority plays a

less significant role.  Seniority is to be given

weight only when merit and ability are approximately

equal.

15. The Constitution Bench of this Court in the case

of Guman Singh vs. State of Rajasthan, (1971) 2 SCC

452,  was  considering  a  question  as  to  whether

promotion  based  on  merit,  as  embodied  in  the

8

Page 9

Rajasthan  Administrative  Service  Rules,  1954,  is

violative of Articles 14 and 16 of the Constitution.

This Court held that:

“33. We are unable to accept this contention. The State Government has taken a decision in 1965 that selection to the service and promo- tion have to be on the basis of merit and se- niority-cum-merit.  There  can  be  no  contro- versy that the main object in such matters is to serve public interest and not the personal interest of the members of the official group concerned. As stated by Leonard D. White in his Introduction to the Study of Public Ad- ministration, 4th Edn., p. 380: “The Public interest is best secured when reasonable op- portunities for promotion exist for all qual- ified employees, when really superior civil servants, are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in orig- inal recruitment”.

16. In the case of Ayurveda & Siddha vs. K. Santhakumari

(Dr), (2001) 5 SCC 60, this Court, considering the simi-

lar question, held

 “6. The principle of merit-cum-seniority is an  approved  method  of  selection  and  this Court  in  Sant  Ram  Sharma v.  State  of  Ra- jasthan, AIR 1967 SC 1910, held that promo- tion to “selection grade posts” is not auto- matic on the basis of ranking in the grada- tion  list  and  the  promotion  is  primarily based on merit and not on seniority alone. At

9

Page 10

p. 1914 of the judgment, it is stated as un- der: (AIR para 6)

“The  circumstance  that  these  posts  are classed as ‘selection grade posts’ itself suggests that promotion to these posts is not automatic being made only on the basis of ranking in the gradation list but the question of merit enters in promotion to selection posts. In our opinion, the re- spondents  are  right  in  their  contention that the ranking or position in the grada- tion list does not confer any right on the petitioner  to  be  promoted  to  selection post  and  that  it  is  a  well-established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of offi- cers to selection posts is under consider- ation,  seniority  should  not  be  regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, available.”

17. Reference may also be made to a decision of this

Court in the case of  K. Samantaray vs. National Insur-

ance Co. Ltd., (2004) 9 SCC 286, observed as under:  

“7. The principles of seniority-cum-merit and merit-cum-seniority are conceptually differ- ent. For the former, greater emphasis is laid on seniority, though it is not the determina- tive factor, while in the latter, merit is the determinative factor. In State of Mysore v. Syed Mahmood it was observed that in the background  of  Rule  4(3)(b)  of  the  Mysore State  Civil  Services  (General  Recruitment) Rules, 1957 which required promotion to be made by selection on the basis of seniority- cum-merit; that the rule required promotion to be made by selection on the basis of “se- niority subject to the fitness of the candi-

10

Page 11

date to discharge the duties of the post from among persons eligible for promotion”. It was pointed out 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 and if he is found unfit to discharge the duties of the higher post, he may be passed over and an of- ficer  junior  to  him  may  be  promoted.  But these are not the only modes for deciding whether promotion is to be granted or not.”

18. After giving our anxious consideration in the

matter, we are of the definite opinion that the High

Court should not have entered into the arena of the

experts and to reassess the merit of the candidates

when it is finally decided by a duly constituted

Committee of experts in the same field.

19. In that view of the matter, the impugned order

cannot  be  sustained  in  law.   Therefore,  for  the

aforesaid reasons, this appeal is allowed and the

impugned  order  passed  by  the  High  Court  is  set

aside.     

Civil Appeal No. 844 of 2012:   

11

Page 12

20. In view of the order passed in Civil Appeal No.

843 of 2012, this appeal is also allowed.

            ........................J.                          (M.Y. EQBAL)

                .........................J.                             (C. NAGAPPAN)  

New Delhi, September 02, 2015

12