Haryana State Warehousing Corp.& Ors vs Jagat Ram & Anr

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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".

13 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

14

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

15

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

16

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.

17 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

18

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

19

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

20

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

21

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.

22 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

23

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

24

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."

25 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

26

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

27

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

28

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

29

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

30

"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

31

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

32

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-

33 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, = outstanding, one good and = 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

34

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

35

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.