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
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
