Haryana State Electronics Development Corpn. Ltd. vs Seema Sharma

of 2004, whereby the High Court has been

pleased to dismiss the second appeal filed by

the appellant at the stage of admission.

There is a delay of one day in filing of the

appeal before the High Court. The High Court

1 did not pass any order on the same since the

appeal was dismissed on merit at the stage of

admission.

3. A suit for declaration was filed by the

Respondent No.1 against the appellant-Haryana

State Electronics Development Corporation

Limited (hereinafter referred to as "the

appellant-corporation") and two of her

colleagues, who according to Respondent No.1

were promoted by the appellant-corporation

even though they were junior to her. The

suit was filed claiming a declaration that

Respondent No.1 is senior to two of her

colleagues and also praying for a declaration

that the promotional order dated 10.9.1991, by

which the junior colleagues of the Respondent

No.1 were promoted, was illegal and invalid.

4. The Addl. Civil Judge (Sr. Divn.), Ambala

Cantt. by judgment and order dated 5.2.2002

inter alia held that Respondent No.1 is senior

to her colleagues, the defendant nos. 4 and 5

2 in the suit and that the order of promotion

dated 10.9.1991 passed by the respondent-

corporation purporting to promote the said

defendants on the post of Senior Receptionist-

cum-PBX Operator is illegal and void.

5. The following issues were framed by the trial

court:-

I. Whether the plaintiff is senior to defendant Nos. 4 and 5? OPP

II. Whether the impugned orders dated 10.9.1991, passed by defendant Nos. 1 and 2 promoting the defendant nos.4 and 5 to the post of Sr. Receptionist-cum-PBX Operator, are illegal, null and void, if so, its effect? OPP

III. Whether the suit is time barred? OPD

IV. Whether the suit is not maintainable in the present form? OPD

V. Relief

6. The case which was sought to have been made

out before the trial court by the appellant-

corporation is that in view of its promotion

policy such promotion is based on the

principle of Merit-cum-Seniority. This

3 appears from paragraph 4 of the judgment of

the trial court as the stand taken by the

appellant-corporation.

7. Unfortunately no issue was framed on that

question and obviously no finding on that was

reached. However, in the written statement

which was filed by the appellant-corporation

before the trial court, it appears that the

said plea was taken that the promotion in the

appellant-corporation was based on Merit-cum-

Seniority and not on the basis of seniority

alone.

8. The Court is of the opinion that the principle

of Merit-cum-Seniority and that of Seniority-

cum-Merit are two totally different

principles. The principle of Merit-cum-

Seniority puts greater emphasis on merit and

ability and where promotion is governed by

this principle seniority plays a less

significant role. However, seniority is to be

4 given weightage when merit and ability more or

less are equal among the candidates who are to

be promoted. On the other hand, insofar as

the principle of seniority-cum-merit is

concerned it gives greater importance to

seniority and promotion to a senior person

cannot be denied unless the person concerned

is found totally unfit on merit to discharge

the duties of the higher post. The totality

of the service of the employee has to be

considered for promotion on the basis of

Seniority-cum-Merit (see AIR 1996 SC 273).

9. Even though in the written statement of the

appellant-corporation the point is

specifically taken that promotion has to be

given on the basis of Merit-cum-Seniority, on

that aspect no issue has been framed by the

trial court. This question does not appear to

have been considered by the High Court also.

The grounds of appeal filed before the High

Court is not before us. But a ground to that

5 effect has been taken before the First

Appellate Court as ground no.4. The said

ground is as follows:-

"4. That the learned lower court has totally ignored the fact that the promotion is based on merit-cum-seniority and on account of the punishment imposed and various acts of misconduct of the respondent no.1, she had no merit to claim promotion."

10. But on that ground also no finding has been

reached by the First Appellate Court. Before

us one of the questions of law raised by the

appellant-corporation is as follows:-

"Whether the promotion claim of respondent no.1 only on the basis of seniority is sustainable, whereas as per the departmental promotion rules the promotion is based on Merit-cum-Seniority?

11. The aforesaid question has not been dealt with

by the courts below and even by the High

Court. Since the said question is vitally

important to the entire controversy in this

case, this Court remands the matter to the

High Court and direct the High Court to re-

hear the second appeal and decide the

aforesaid question, namely, whether in the 6 matters of granting promotion to Respondent

No.1, the appellant-corporation has to follow

the principle of Merit-cum-Seniority, as

contended by them. The fate of Respondent

No.1's claim for promotion depends on an

answer to this question. Under Section 103 of

the Civil Procedure Code, the High Court in

second appeal can decide this issue since it

is necessary for disposal of the appeal and

has not been decided by the courts below.

Relevant materials on this issue are also on

record. After deciding that question the High

Court will decide whether respondent(s) claim

for promotion has been wrongfully denied.

12. As this matter is pending in courts for a long

time, we request the High Court to dispose of

the matter as early as possible, preferably

within a period of four months from the date

of production of this order before the Hon'ble

High Court. We give liberty to the parties to

mention before the Hon'ble the Chief Justice

7 of the High Court and the Hon'ble Chief

Justice may explore the possibilities of

assigning this matter to any appropriate bench

for decision, preferably within the time

mentioned above.

13. We do not express any opinion on the merits of

this case of either of the parties. The

appeal is thus disposed of. No costs.

.......................J. (Dr. ARIJIT PASAYAT)

.......................J. New Delhi (ASOK KUMAR GANGULY) May 05, 2009

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