Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1340 OF 2009
(@ SPECIAL LEAVE PETITION (CIVIL) NO.13139 OF 2005)
Haryana State Electronics Development
Corporation Ltd. & Ors .....Appellant(s)
- Versus -
Seema Sharma & Ors. ....Respondent(s)
J U D G M E N T
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
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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
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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
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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
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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
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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
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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
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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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