[2009] 7 S.C.R. 662

• A

HARYANA STATE ELECTRONICS DEVELOPMENT r

CORPORATION LTD. AND ORS.

V. ;

SEEMA SHARMA AND ORS.

Civil Appeal No. 3240 of 2009 B

MAY 05, 2009

[DR. ARIJIT PASAYAT AND ASOK KUMAR •

GANGULY, JJ.] • Service Law: Promotion - Suit challenging promotion of c iunior colleagues, decreed - Plea of employer that its promotion policy was based on principle of merit-cum-seniority

- Such plea was taken in written statement but no issue framed on this question nor finding given by the Court- Said question was also not considered by High Court - On appeal, held: D Such question was vitally important to entire controversy - ....

Matter remitted to High Court for deciding said question and baseq on that, the claim of the plaintiff.

The respondent no.1 was aggrieved with the decision

E of appellant-Corporation in promoting her two junior

colleagues. She filed suit for declaration, which was decreed. The case of appellant-Corporation before the trial Court was that in view of its promotion policy, such promotion was based on the principle of Merit-cum- ...

F Seniority. Such plea was also taken in written statement.

However, no issue was framed on that question and no finding on that was reached. This question was also not considered by the High Court in second appeal. Hence the present appeal.

G Disposing of the appeal, the Court

HELD: 1. The principle of Merit-cum-Seniority and > v that of Seniority-cum-Merit are two totally different principles. The principle of Merit-cum-Seniority puts

H 662

HARYANA STATE ELECTRONICS DEV CORP. LTD. AND 663

ORS. V. SEEMA SHARMA AND ORS. )

greater emphasis on merit and ability and where A promotion is governed by this principle seniority plays a less significant role. However, seniority is to be 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 B 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 c basis of seniority-cum-merit. [Para 8] [665-D-G]

2. The question as to whether promotion claim of respondent no.1 only on the basis of seniority is sustainable when as per the departmental promotion rules the promotion was based on Merit-cum-Seniority was not D dealt with by the courts below and even by the High Court.

This question was vitally important to the entire controversy. Under Section 103 of the CPC, the High Court in second appeal can decide this issue since it is . necessary for disposal of the appeal and was not decided E by the courts below. Relevant materials on this issue are also on record. After deciding that question the High Court

\ would decide whether respondent claim for promotion .. was wrongfully denied. [Paras 10, 11] [666-C-G]

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3240 F of 2009

From the Judgement and Order dated 15.02.2005 of the High Court of Punjab & Haryana at Chandigarh in R.S. A. No. 4858 of 2004

Alok Sangwan, Sushi! Balwada, for the Appellant(s).

G r ·{ • .

The Judgement of the Court was delivered by

ASOK KUMAR 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 B 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 of admission.

3. A suit for declaration was filed by the Respondent No.1 against the appellant-Haryana State Electronics Development C Corporation Limited (hereinafter referred to as "the appellantcorporation") 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 D 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 Addi. Civil Judge (Sr. Divn.), Ambala Cantt. by E 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 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- F cum-PBX Operator is illegal and void.

5. The following issues were framed by the trial court:-

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. Receptionistcum-PBX Operator, are illegal, null and void, if so, its effect?

OPP

} ~I

. . -{

Ill.

Whether the suit is time barred?

OPD

IV.

Whether the suit is not maintainable in the present form?

OPD

Relief

6. The case which was sought to have been made out 8

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 appellantcorporation.

7. Unfortunately no issue was framed on th:1t 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 0 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 Meritcum-Seniority and that of Seniority-cum-Merit are two totally different principles. The principle of Merit-cum-Seniority puts . E 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 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 F 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 G of Seniority-cum-Merit (see AIR 1996 SC 273) .

9. Even though in the written statement of the appellantcorporation 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 H

A 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 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."

) c

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 D 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

E 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 ...

F 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 G 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

H request the High Court to dispose of the matter as early as

possible, preferably within a period of four months from the date A 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 deQision, preferably within the time B 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.

D.G.

Appeal dispossed of.