IMPORTANT POINT
Principle of Merit-cum-Seniority and that of Seniority-cum-Merit are two totally different principles.

Judgment :-

Ganguly, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 15.2.2005 passed by the High Court of Punjab and Haryana in R.S.A. No. 4858 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 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 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 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 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 effect has been taken before the First

Appellate Court as ground no.4. The said ground is a