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Tuesday, September 15, 2015

It is well settled that there is a sharp distinction between “merit- cum-seniority” and “seniority-cum-merit”. In the former case, the merit shall have to be given preference over the seniority. It is only when the senior-most candidate has no merit and he is not suitable to be appointed on the selection post, merely because of seniority, then the Committees have to select a meritorious candidate. The question as to the distinction between the two is no longer res integra. 14. In the case of B.V. Sivaiah vs. Addanki Babu, (1998) 6 SCC 720, while considering the principle of promotion on merit-cum-seniority and seniority- cum-merit, 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. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the latter, merit is the determinative factor. In State of Mysore v. Syed Mahmood it was observed that in the background of Rule 4(3)(b) of the Mysore State Civil Services (General Recruitment) Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit; that the rule required promotion to be made by selection on the basis of “seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion”. It was pointed out that where the promotion is based on seniority-cum-merit the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. But these are not the only modes for deciding whether promotion is to be granted or not.”=After giving our anxious consideration in the matter, we are of the definite opinion that the High Court should not have entered into the arena of the experts and to reassess the merit of the candidates when it is finally decided by a duly constituted Committee of experts in the same field. 19. In that view of the matter, the impugned order cannot be sustained in law. Therefore, for the aforesaid reasons, this appeal is allowed and the impugned order passed by the High Court is set aside

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                          CIVIL APPEAL NO.843 OF 2012

|U.V. MAHADKAR                                            |Appellant(s)         |


                    Versus

|SUBHASH ANAND CHAVAN AND OTHERS                          |Respondent(s)        |



                                   W I T H

                 CIVIL APPEAL NO.844 OF 2012

MAHARASHTRA COUNCIL OF AGRICULTURAL
EDUCATION AND RESEARCH, PUNE                   Appellant(s)

                       Versus

DR. SUBHASH ANAND CHAVAN AND OTHERS     Respondent(s)


                        JUDGMENT

      We have heard learned counsel for the parties.
Civil Appeal No. 843 of 2012:
2.    Aggrieved by the judgment and order dated  24.11.2009  passed  by  the
High Court of Judicature at  Bombay  in  Writ  Petition  No.  5231  of  2008
setting aside the selection of the present appellant to the post of Head  of
Department  of  Agronomy  of  Respondent  No.2  -  Maharashtra  Council   of
Agricultural Education
and Research, the present appeal has been filed.

3.    The facts are not much in dispute.

4.    In the year 1986, the appellant was appointed as Assistant  Professor,
College of Agriculture, Dapoli under  Dr.  Balasaheb  Sawant  Konkan  Krishi
Vidyapeeth Dapoli. He was selected and promoted as a Professor  of  Agronomy
in Mahatma Phule Krishi Vidyapeeth, Rahuri on 17.8.2001.   For  the  purpose
of appointing a Head of Department of Agronomy, a  Selection  Committee  was
constituted in the year 2008.  The Committee, considered Statute 41  of  the
Maharashtra Agricultural Universities Statutes, 1990.  The  Committee  after
assessing  the  merit  and  other  criteria  of  the   appellant   vis-a-vis
contesting respondent  selected  the  appellant  to  the  post  of  Head  of
Department of Agronomy in the University.

5.    Respondent No.1 challenged the  said  decision  of  the  Committee  by
filing a writ petition being Writ Petition No. 5231 of 2008.   Although  the
High Court noticed the proviso of Statute 41 of the aforesaid  Statute,  set
aside the selection on the grounds noted in para 4 of  the  impugned  order.
For better appreciation, para 4 of the impugned order  passed  by  the  High
Court is quoted herein below :-
“4. Further it is to be seen that after having found that on  the  basis  of
service record, both the petitioner and the respondent No.3  are  equal  and
that the respondent No.3 is more meritorious because he had more  experience
in the post of Professor, the second aspect which requires consideration  in
view of the provision of sub-rule (5)  of  Statute  41  was  the  aspect  of
seniority.  In the  seniority  list,  the  petitioner  was  at  serial  No.1
whereas the respondent No.3 was at serial No.2.  Perusal of the  minutes  of
the Selection Committee shows that the Selection Committee has  not  at  all
allowed this consideration to enter in their  mind.   In  our  opinion,  the
submission of the learned counsel that seniority is not  relevant  when  the
criteria for promotion is merit  cum  seniority  for  carving  out  zone  of
consideration is not well founded especially because in the present case  so
far as the aspect of merit is concerned, on the  basis  of  service  record,
both the candidates are found to be equal and the respondent No.3  has  been
found  more  meritorious  only  because  his  experience  in  the  post   of
Professor, therefore, the next consideration that  should  have  entered  in
the mind of the Selection Committee was their  placement  in  the  seniority
list.  We do not want to suggest that  the  Selection  Committee  could  not
have selected the respondent No.3 because he was junior to  the  petitioner.
The Selection Committee should have applied its mind to that aspect  of  the
matter and given reasons why though the petitioner is  senior  according  to
them, selection of respondent No.3 is  necessary.   We  thus  find  that  in
selecting the respondent  No.3  for  the  post  of  Head  of  Department  of
Agronomy, the  Selection  Committee  has  ignored  or  has  not  taken  into
consideration relevant aspects  which  are  required  to  be  considered  in
accordance with law  and  therefore,  in  our  opinion,  the  selection  and
consequent appointment of the respondent  No.3  as  Head  of  Department  of
Agronomy will have to be set aside.  In our opinion, following  order  would
meet the ends of justice.”

6.    While setting aside the selection of the appellant,  a  direction  was
issued to the Maharashtra Council of Agricultural Education and Research  to
hold a fresh meeting for consideration of the candidates  for  selection  to
the post of Head of Department of Agronomy.

7.    It has been brought to our notice by  the  learned  counsel  appearing
for the parties that during the pendency of this appeal, a  fresh  Committee
was constituted by the Maharashtra Council  of  Agricultural  Education  and
Research  and  the  Committee  reconsidered  the  candidature  of  all   the
candidates including the appellant and finally selected him to the  post  of
Head of Department.  The said appointment has again been challenged  by  the
respondent in the High Court, which is pending.

8.    At the very outset,  we  are  of  the  view  that  in  the  matter  of
selection and promotion to the higher post, if a  Committee  of  experts  is
constituted then normally, the Court should not interfere in  such  decision
unless mala fide is attributed or allegations of arbitrariness is proved.

9.    Statute 41 under  which  selections  are  made  is  reproduced  herein
below:-
“Statute 41:-  The  post  of  Director  (other  than  Director  of  Students
Welfare), Dean of Faculties and other equivalent posts shall  be  filled  in
the nomination or transfer by the Pro-Chancellor.  The  posts  of  Associate
Deans, Head of Departments, Professors and other equivalent  post  shall  be
filled in by promotion and nomination in the ratio of 50  :  50  percent  of
the vacant post as the Vice Chancellor may, from time to time determine.
Provided that, such posts shall  be  filled  in  by  promotion  through  the
recommendation of the  Selection  Committee  on  the  basis  of  merits  and
seniority in the discipline or group of disciplines, departments  or  sector
and minimum academic qualifications and experiences, as  prescribed  by  the
statutes.”

10.   From bare perusal of the aforesaid provision, it is manifest that  the
proviso to Statute 41 make it clear that  recommendation  of  the  Committee
shall be on the basis of “merit and seniority”.

11.   In the instant case, we found that the Committee  was  constituted  of
the following members:-
(i)         The Vice Chairman of the State Council
(ii)        The Vice Chancellor of the University concerned
(iii) One non-official to be nominated by the Pro-Chancellor,  from  amongst
the non-official members of  the  Executive  Councils  of  the  agricultural
Universities in the State
(iv)        Two experts to be nominated by the Chancellor
(v)         Two  representatives  of  the  Indian  Council  of  Agricultural
Research to be appointed by the State Government, one of  whom  shall  be  a
Specialist in the particular field for which the recruitment is to be made.

12.   The members of the said Committee, in compliance of the  High  Court's
order, reconsidered the merit of the  appellant  vis-a-vis  Respondent  No.1
and again selected the appellant to the post of Head of Department.

13.   It is well settled that there is a sharp distinction  between  “merit-
cum-seniority” and “seniority-cum-merit”.  In the  former  case,  the  merit
shall have to be given preference over the seniority.  It is only  when  the
senior-most candidate has no merit and he is not suitable  to  be  appointed
on the selection post, merely because  of  seniority,  then  the  Committees
have to select a meritorious candidate.  The question as to the  distinction
between the two is no longer res integra.

14.   In the case of B.V. Sivaiah vs. Addanki Babu, (1998) 6 SCC 720,  while
considering the principle of promotion on merit-cum-seniority and seniority-
cum-merit, 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.

15.   The Constitution Bench of this Court in the case of  Guman  Singh  vs.
State of Rajasthan, (1971) 2 SCC 452,  was  considering  a  question  as  to
whether  promotion  based  on  merit,   as   embodied   in   the   Rajasthan
Administrative Service Rules, 1954, is violative of Articles 14  and  16  of
the Constitution.  This Court held that:
“33. We are unable to accept  this  contention.  The  State  Government  has
taken a decision in 1965 that selection to the service  and  promotion  have
to be on the basis  of  merit  and  seniority-cum-merit.  There  can  be  no
controversy that the  main  object  in  such  matters  is  to  serve  public
interest and not the personal interest of the members of the official  group
concerned. As stated by Leonard D. White in his Introduction  to  the  Study
of Public Administration, 4th Edn., p. 380: “The  Public  interest  is  best
secured when reasonable opportunities for promotion exist for all  qualified
employees, when really superior civil  servants,  are  enabled  to  move  as
rapidly up the promotion ladder as their merits  deserve  and  as  vacancies
occur, and when selection for promotion is made on the sole basis of  merit.
For the merit system ought to apply as specifically in making promotions  as
in original recruitment”.


16.   In the case of Ayurveda & Siddha vs. K. Santhakumari  (Dr),  (2001)  5
SCC 60, this Court, considering the similar question, held

“6. The principle of merit-cum-seniority is an approved method of  selection
and this Court in Sant Ram Sharma v. State of Rajasthan, AIR 1967  SC  1910,
held that promotion to “selection grade  posts”  is  not  automatic  on  the
basis of ranking in the gradation list and the promotion is primarily  based
on merit and not on seniority alone. At p.  1914  of  the  judgment,  it  is
stated as under: (AIR para 6)
“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.”


17.   Reference may also be made to a decision of this Court in the case  of
K. Samantaray vs. National Insurance Co. Ltd., (2004) 9  SCC  286,  observed
as under:
“7.  The  principles  of  seniority-cum-merit  and  merit-cum-seniority  are
conceptually  different.  For  the  former,  greater  emphasis  is  laid  on
seniority, though it is not the determinative factor, while in  the  latter,
merit is the determinative factor. In State of Mysore  v.  Syed  Mahmood  it
was observed that in the background of Rule  4(3)(b)  of  the  Mysore  State
Civil Services (General Recruitment) Rules, 1957  which  required  promotion
to be made by selection on the basis of seniority-cum-merit; that  the  rule
required promotion to be made  by  selection  on  the  basis  of  “seniority
subject to the fitness of the candidate to discharge the duties of the  post
from among persons eligible for promotion”. It was pointed  out  that  where
the promotion is based  on  seniority-cum-merit  the  officer  cannot  claim
promotion as a matter of right by virtue of his seniority alone  and  if  he
is found unfit to discharge the duties of the higher post, he may be  passed
over and an officer junior to him may be promoted. But  these  are  not  the
only modes for deciding whether promotion is to be granted or not.”


18.   After giving our anxious consideration in the matter, we  are  of  the
definite opinion that the High Court should not have entered into the  arena
of the experts and to reassess the  merit  of  the  candidates  when  it  is
finally decided by a duly constituted  Committee  of  experts  in  the  same
field.

19.   In that view of the matter, the impugned order cannot be sustained  in
law.  Therefore, for the aforesaid reasons, this appeal is allowed  and  the
impugned order passed by the High Court is set aside.

Civil Appeal No. 844 of 2012:
20.   In view of the order passed in Civil Appeal  No.  843  of  2012,  this
appeal is also allowed.



                                                  ........................J.
                                                                (M.Y. EQBAL)



                                                 .........................J.
                                                               (C. NAGAPPAN)
New Delhi,
September 02, 2015

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