Haryana State Elect. Dev.
Corpn. Ltd. & Ors. Vs. Seema Sharma & Ors.  INSC 894 (5 May 2009)
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.
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
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.
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 2 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
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
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
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.
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 weight age 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).
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
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
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."
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?
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 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.
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 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.
do not express any opinion on the merits of this case of either of the parties.
The appeal is thus disposed of. No costs.
(Dr. ARIJIT PASAYAT)
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