Central Council for Research in Ayurveda & Siddha & Anr Vs. Dr. K. Santhakumari
 Insc 275 (4 May
Babu & K.G. Balakrishnan Balakrishnan, J.
respondent herein was the Assistant Research Officer (Ayurveda) in the Indian
Institute of Panchakarma, Cheruthuruthy, in Kerala. This Institute is
functioning under the Central Council for Research in Ayurveda and Siddha. The
Departmental Promotion Committee prepared a panel of eligible candidates for
being promoted as Research Officers. The respondent alleged that she was
included as Sl. No. 15 in the select list whereas her juniors were included as Sl.
Nos. 1,9,11,12,13 and 14. The respondent contended that the promotion had to be
effected on the principle of seniority-cum-fitness and therefore, the placing
of respondent at Sl. No. 15 for being promoted, as Research Officer was
illegal. The respondent filed a Writ Petition no. 1036/96 before the High Court
of Kerala. A counter affidavit was filed on behalf of the appellants herein and
they admitted that the method of filling up the said post of promotion from the
eligible Assistant Research Officers was seniority-cum-fitness. The learned
Single Judge held that as the promotion to the post of Research Officer was to
be effected on the basis of principle of seniority-cum-fitness and seniority
was the prime factor for promotion and since the respondent was found suitable
for promotion, she was entitled to get promotion in accordance with her
seniority and, thus, the writ petition was allowed and aggrieved by the same,
the appellants filed a writ appeal before the Division Bench of the High Court
which ended in dismissal. Judgment in that Writ Appeal is challenged before us.
heard the learned Counsel for the appellants, Mr. T.C. Sharma and the learned
senior counsel, Mr. T.L.V. Iyer, on behalf of the respondent. In the appeal
filed before this Court, it is stated that promotion to the post of Research
Officer was to be made in accordance with the prescribed recruitment rules and
the Departmental Promotion Committee was to select the candidate. It is
submitted by the Counsel on behalf of the appellants that the post of Research
Officer is a 'selection post' and as per the recruitment rules, 'selection
post' is to be filled up on the principle of merit-cum-seniority. The relevant
clause 5.9 of Recruitment Rules says as under:
posts shall be filled on the basis of merit-cum- seniority.
"Non-Selection" posts shall be filled in on the basis of seniority
subject to rejection of unfit persons. For this purpose the Council shall
circulate the duly compiled seniority lists of the candidates periodically. All
appointments by departmental promotion shall be on the recommendations of the
Departmental Promotion Committee.
respondent in the counter affidavit filed before us has alleged that the
promotion to the post of Research Officer is on the basis of
seniority-cum-fitness and the relevant consideration is fitness of the
candidate for appointment to the post. A comparative assessment of merit is
irrelevant and cannot be made for the appointment to the post in question.
in this case, the appellants herein contended before the High Court that the
promotion to the post of Research Officer was to be made on the principle of
"seniority-cum-fitness". The counter affidavit on behalf of the
appellants herein mistakenly admitted this position and the relief sought for
by the respondent was allowed by the learned Single Judge. Now, the appellants
have produced relevant amended recruitment rules which show that the post of
Research Officer (Ayurveda) carrying scale of pay of Rs.8000-13500 is a
'selection post' and promotion to a 'selection post' is to be done on the basis
of the principle of merit-cum- seniority.
principle of merit-cum-seniority is an approved State of Rajasthan and Others AIR 1967 SC 1910 held
that promotion to 'selection grade posts' is not automatic on the basis of
ranking in Gradation list and the promotion is primarily based on merit and not
on seniority alone. At page 1914 of the Judgment, it is stated as under:-
"The circumstance that these posts are classed as 'Selection Grade Posts'
itself suggests that promotion to these posts is not automatic being made only
on the basis of ranking in the Gradation List but the question of merit enters
in promotion to selection posts. In our opinion, the respondents are right in
their contention that the ranking or position in the Gradation List does not
confer any right on the petitioner to be promoted to selection post and that it
is a well- established rule that promotion to selection grades or selection
posts is to be based primarily on merit and not on seniority alone. The
principle is that when the claims of officers to selection posts is under
consideration, seniority should not be regarded except where the merit of the
officers is judged to be equal and no other criterion is, therefore,
available." The Court further held that such mode of selection is not violative
of Article 14 of the Constitution.
the Constitution Bench of this Court held that the promotion to a selection
post is not a matter of right which can be claimed merely by seniority.
it was held as under:
inclusion in the list, merit and suitability in all respects should be the
governing consideration and that seniority should play only a secondary role.
It is only when merit and suitability are roughly equal that seniority will be
a determining factor, or if it is not fairly possible to make an assessment
inter se of the merit and suitability of two eligible candidates and come to a
firm conclusion, seniority would tilt the scale." this Court held that the
principle of "merit-cum-seniority" lays greater emphasis on merit and
ability and seniority plays a less significant role. Seniority is to be given
weight only when merit and ability are approximately equal.
and another 2000 (6) SCC 698 in paragraph 12 at page 707, it was observed as
under:- "Wherever fitness is stipulated as the basis of selection, it is
regarded as a non-selection post to be filled on the basis of seniority subject
to rejection of the unfit. Fitness means fitness in all respects.
postulates the requirement of certain minimum merit or satisfying a benchmark
to fulfilling this requirement the promotion is based on seniority. There is no
requirement of assessment of comparative merit both in the case of
seniority-cum-fitness and seniority-cum-merit. Merit- cum-suitability with due
regard to seniority as prescribed in the case of promotion to All-India
Services necessarily involves assessment of comparative merit of all eligible
candidates, and selecting the best out of them." In the instant case, the
selection was made by Departmental Promotion Committee. The Committee must have
considered all relevant facts inlcuding the inter-se merit and ability of the
candidates and prepared the select list on that basis. The respondent though
senior in comparison to other candidates, secured a lower place in the select
list, evidently because the principle of "merit-cum-seniority" had
been applied by the Departmental Promotion Committee. The respondent has no
grievance that there was any malafides on the part of the Departmental
Promotion Committee. The only contention urged by the respondent is that the
Departmental Promotion Committee did not follow the principle of
"seniority-cum-fitness". In the High Court, the appellants herein
failed to point out that the promotion is in respect of a 'selection post' and
the principle to be applied is "merit-cum-seniority". Had the
appellants pointed out the true position, the learned Single Judge would not
have granted relief in favour of the respondent. If the learned Counsel has
made an admission or concession inadvertently or under a mistaken impression of
law, it is not binding on his client and the same cannot cannot enure to the
benefit of any party.
SC 1681 pointed out that a wrong concession on question of law made by counsel
is not binding on his client and such concession cannot constitute a just
ground for a binding precedent.
even if the appellants had mistakenly contended in the High Court that the
principle of seniority-cum-fitness was to be followed for promotion to the post
of Research Officer, the departmental rules clearly show that the promotion was
in respect of a 'selection post' and the promotion was to be made on the basis
of the inter-se merit of the eligible candidates. In that view of the matter,
the respondent was not entitled to get promotion to the post of Research
Officer on the strength of her seniority alone. The seniority list prepared by
the Departmental Promotion Committee was not challenged by the respondent on
other grounds and we also do not find any ground to assail that select list.
Thus, the Writ Petition is liable to be dismissed by setting aside the orders
made therein and in the writ appeal arising there from.
the appeal succeeds and is allowed, however, without costs.