IMPORTANT POINT
In cases of seniority-cum-merit, comparative assessment is not contemplated and is not required to be made.

Headnote:As per ALTAMAS KABIR, J.
        Service Law-Haryana Warehousing Corporation (Officers & Staff) Regulations, 1994-Two Special Leave Petitions filed against judgment and order passed by High Court setting aside promotion granted to Petitioner - 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 higher post and if his performance was assessed not to meet such a requirement, he could be passed over and those junior to him could be promoted despite his seniority in the seniority list- In the instant case, the only feature which weighed with the Corporation in granting promotion to R was a comparative assessment between his performance and that of J -. While J had got only one “outstanding” remark in 10 years, R had obtained “outstanding” remark in all the 10 years- Accordingly, he was preferred to J, whose qualifications were inferior to that of R by comparison- But, as had been rightly held by High Court, in cases of seniority-cum-merit, comparative assessment is not contemplated and is not required to be made-Nothing on record to indicate that J was not capable of discharging his functions in the promoted post of Assistant Manager (Administration)- He was denied promotion only on ground of the superior assessment that had been made in favour of R, which, ran contrary to concept of seniority-cum-merit-No reason to differ with views of High Court - Special Leave Petitions dismissed. (Paras 11 to 15)
       As per CYRIAC JOSEPH,J.
        Service Law-Haryana Warehousing Corporation (Officers & Staff) Regulations, 1994- Regulation 8(2) -Two Special Leave Petitions filed against judgment and order passed by High Court setting aside promotion granted to Petitioner- - In the light of principle of “seniority-cum-merit”, it was clear that impugned promotion of R was not on the basis of seniority-cum-merit but was on the basis of merit- While considering the candidates for promotion, both J and R were found suitable for promotion and that even though J was senior to R, R was given promotion on the ground that he had better merits-Even according to the Corporation, both J and R fulfilled the requirement of minimum merit and were suitable for promotion but R, 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 both J and R fulfilled the requirement of minimum merit and were found suitable for promotion and since J was senior to R, J was entitled to be promoted on the basis of seniority-cum-merit- Consequently, the promotion of R was liable to be set aside as was rightly done by High Court- Special Leave Petitions dismissed. (Paras 22 to 25)
       Facts of the Case :
        Present Two Special Leave Petitions have been filed against judgment and order passed by High Court setting aside promotion granted to Petitioner.
       Findings of the Court :
        As per Altamas Kabir J. 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.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 higher post and if his performance was assessed not to meet such a requirement, he could be passed over and those junior to him could be promoted despite his seniority in the seniority list. In the instant case, the only feature which weighed with the Corporation in granting promotion to R was a comparative assessment between his performance and that of J . While J had got only one “outstanding” remark in 10 years, R had obtained “outstanding” remark in all the 10 years. Accordingly, he was preferred to J, whose qualifications were inferior to that of R by comparison. But, as had been rightly held by High Court, in cases of seniority-cum-merit, comparative assessment is not contemplated and is not required to be made. There was Nothing on record to indicate that J was not capable of discharging his functions in the promoted post of Assistant Manager (Administration). He was denied promotion only on ground of the superior assessment that had been made in favour of R, which, ran contrary to concept of seniority-cum-merit. There was no reason to differ with views of High Court . Special Leave Petitions dismissed. Separate but concurring judgment given by CYRIAC JOSEPH,J.

JUDGMENT

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 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 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 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 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-c

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2011 Supreme(SC) 217

IMPORTANT POINT In cases of seniority-cum-merit, comparative assessment is not contemplated and is not required to be made.

Cases Referred (10)

IMPORTANT POINT
In cases of seniority-cum-merit, comparative assessment is not contemplated and is not required to be made.