Kerala High Court

Dr.K.Mohankumar vs Harikuttan Unnithan.C on 1 July, 2011

Author:
P.R.Ramachandra Menon

Bench:
P.R.Ramachandra Menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

WEDNESDAY, THE 8TH DAY OF AUGUST 2012/17TH SRAVANA 1934

WA.No. 975 of 2011 ( )
----------------------
AGAINST THE ORDER/JUDGMENT IN WPC.NO.15405/09 DATED 01-07-2011
..........

APPELLANT(S)/RESPONDENTS 2 TO 4:
---------------------------------------------------------

1. DR.K.MOHANKUMAR, PRINCIPAL, D.B.COLLEGE,
SASTHAMCOTTA.

2. SRI.D.RAJAMOHAN, PRINCIPAL,
D.B.COLLEGE, PARUMALA.

3. DR.B.RADHAKRISHNAPILLA, PRINCIPAL,
D.B.COLLEGE, THALAYOLAPARAMBU.

BY ADVS.SRI.K.JAJU BABU
SMT.M.U.VIJAYALAKSHMI
SRI.BRIJESH MOHAN
SMT.DHANYA CHANDRAN
SRI.T.S.SHYAM PRASANTH

RESPONDENT(S)/PETITIONER, RESPONDENTS 1, 5 - 7 & 9 -10:
--------------------------------------------------------------------------------------------

1. HARIKUTTAN UNNITHAN.C., READER IN PHYSICS,
D.B.COLLEGE, SASTHAMCOTTA,KOLLAM - 690 521.

2. THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY
ITS SECRETARY, T.D.B. OFFICE, NANTHANCODE,
THIRUVANANTHAPURAM - 695 003.

3. THE UNIVERSITY GRANTS COMMISSION (UGC),
BAHADUR SHAH ZAFAR MARG, NEW DELHI- 110 002,
REPRESENTED BY ITS SECRETARY.
Kss ..2/-

..2....

WA.NO.975/2011

4. THE UNIVERSITY OF KERALA,
REPRESENTED BY ITS REGISTRAR, UNIVERSITY OFFICE,
THIRUVANANTHAPURAM - 695 001.

5. THE MAHATMA GANDHI UNIVERSITY,
REPRESENTED BY ITS REGISTRAR, UNIVERSITY OFFICE,
KOTTAYAM - 686 560.

6. SHRI.P.NARAYANAN, FORMER MEMBER,
TRAVANCORE DEVASWOM BOARD, T.D.B.OFFICE, NANTHANCODE,
THIRUVANANTHAPURAM - 695 003.

7. SMT.T.K.SUMATHIKUTTY AMMA,
FORMER MEMBER, TRAVANCORE DEVASWOM BOARD,
T.D.B.OFFICE, NANTHANCODE, THIRUVANANTHAPURAM - 695 003.

*ADDL.R8 TO R12 IMPLEADED:

R8. DR.S.SIVAKUMAR, SELECTION GRADE LECTURER
IN CHEMISTRY, DEVASWOM BOARD COLLEGE,
THALAYOLAPARAMBU P.O.

R9. DR. K.SUJATHA, SELECTION GRADE LECTURER IN ENGLISH,
DEVASWOM BOARD PAMPA COLLEGE, PARUMALA PO,
MANNAR, PATHANAMTHITTA - 689 626.

R10. R.JAYACHANDRAN, SELECTION GRADE LECTURER IN CHEMISTRY,
DEVASWOM BOARD COLLEGE, SASTHAMCOTTA - 690 521.

R11. K.G.SURESH, SELECTION GRADE LECTURER IN CHEMISTRY,
DEVASWOM BOARD PAMPA COLLEGE, PARUMALA PO,
MANNAR, PATHANAMTHITTA DISTRICT.

(*ADDL.R8 TO R11 ARE IMPLEADED AS PER ORDER DATED 9/08/2011 IN
I.A.NO.548/11)

Kss ..3/-

..3....

W.A.NO.975/2011

R12. K.P.BALACHANDRAN,
S/O.K.P. THAMPI,
RESIDING AT SOORYA,
MATHIL BHAGOM, THIRUVALLA,
NOW WORKING AS SELECTION GRADE LECTURER AT
DEVASWOM BOARD, PAMPA COLLEGE,
PARUMALA.

(*ADDL.R12 IS IMPLEADED AS PER ORDER DATED 16/11/2011 IN
I.A.NO.844/2011)

R2 BY ADV. SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD
R3 BY ADV. SRI.S.KRISHNAMOORTHY, CGC
R4 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY.
BY ADV. SRI.GEORGE POONTHOTTAM,SC,KERALA UTY.
BY DR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE
BY ADV. SRI.M.CHANDRA BOSE
BY ADV. SRI.A.RAJASIMHAN
R5 BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY
R8 TO R11 BY ADV. SR
I.P.C
.SASIDHARAN
R12 BY ADV. SRI.K.B.PRADEEP

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/03/2012
ALONG WITH CRP. 138/2011 AND CRP. 139/2011, THE COURT ON
08/08/2012 DELIVERED THE FOLLOWING:

Kss

Manjula Chellur, Ag. C.J. & P.R.Ramachandra Menon, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
W.A. No. 975 OF 2011
and
C.R.P. Nos.138 & 139 of 2011
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 8th day of August, 2012

JUDGMENT

Manjula Chellur, Ag. C.J.

So far as W.A. No.975 of 2011 is concerned, it is

against the judgment of the learned Single Judge dated

01.07.2011 in W.P.(C) No.15405 of 2009. The appellants were

respondents 2 to 4 before the learned Single Judge. Aggrieved

by the judgment of the learned Single Judge, they have

approached the Division Bench in the above appeal.

2. CRP Nos.138 and 139 of 2011 are filed by

Dr.S.Sivakumar and others challenging the order dated

11.11.2010 of the Mahatma Gandhi University(M.G.

University), Appellate Tribunal. Before the University Appellate

Tribunal one K.P.Balachandran was the appellant in appeal

No.7 of 2009, Dr.P.P.Chandrasekhara Pillai was the appellant in

appeal No.8 of 2009 and Dr.S.Sivakumar and four others were

the appellants in appeal No.9 of 2009. These appeals were

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:2:-

filed before M.G. University Appellate Tribunal. But the appellant

in appeal No.9 of 2009 had filed another appeal, appeal No.2 of

2010 before the Kerala University Appellate Tribunal challenging

the appointment of one Dr.K.Mohnakumar to the post of Principal

of D.B. College, Sasthamcottah which is affiliated to Kerala

University. The three appeals filed before the M.G. University,

Appellate Tribunal pertain to the decision of the M.G. University

in respect of the appointments of Dr.D.Radhakrishna Pillai and

Mr.D.Rajmohan as Principals of Devaswom Board Colleges(DB

Colleges) at different places. All the three matters are taken up

together as the controversial issue is with regard to the

appointment of Principals to Colleges affiliated to Kerala

University and M.G. University coming under the management of

Travancore Devaswom Board (for short TDB). The facts that lead

to the filing of the appeal are as under.

3. Dr.K.Mohankumar the 2nd respondent before the

learned Single Judge was appointed as Principal of D.B. College,

Sasthamcotta and one Mr.D.Rajmohan was appointed as Principal

of D.B. College, Parumala and Dr.D. Radhakrishna Pillai was

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:3:-

appointed as Principal of D.B. College, Thalayolaparambu. A

notification came to be issued on behalf of the Travancore

Devaswom Board declaring the decision of the Board to draw a

selection list in order to 'promote qualified teachers' to the post

of Principal of the above said three Colleges after securing

willingness and other details from various teachers and lecturers.

4. It is not in dispute that the 1st respondent herein

who was the writ petitioner and various others, in all about 17

persons, forwarded their willingness along with the bio-data.

Interviews were conducted between 21.04.2009 and 28.04.2009

by the so called selection committee presided over by the

President and other members of the Board including the Principal

of one Devaswom Board College and a principal of an unaided

College. They were respondents before the learned Single Judge.

Subsequently, the present appellant along with Mr.D.Rajmohan

and Dr.D. Radhakrishna Pillai were appointed as principals of the

above three Colleges of Travancore Devaswom Board. Aggrieved

by the same, the writ petitioner/1st respondent approached the

learned Single Judge on the following three grounds. 1)

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:4:-

Constitution of selection committee was wrong, as the selection

committee was required only in the case of appointment of

Principal by 'direct recruitment'. 2) Mr.Rajmohan who was

appointed as Principal is junior to the writ petitioner- Harikuttan

Unnithan and 3) the writ petitioner- Harikuttan Unnithan was

entitled for selection on the basis of seniority-cum-fitness.

According to the writ petitioner, the approval of the selection and

appointment of the principals was sought from Kerala University

and M.G. University and the matters are still pending.

5. The learned Single Judge after referring to the

arguments of both the parties proceeded to opine that the

common selection process made in respect of different Colleges

under different Universities by interlinking two Universities was

in-correct and the fundamental flaw in the entire proceedings

vitiates the whole proceedings. The impugned orders at Ext.P4,

P5 and P13 were quashed directing the 1st respondent Board to

appoint the Principals in terms of the provisions of respective

University Acts so also in the light of the principle laid down by a

Full Bench of this Court in
Suresh v. Manager, S.N.M.

WA No.
975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:5:-

College [2003 (3) KLT 839] wherein their lordships held; how

seniority-cum-fitness criterion has to be decided. However, the

respondents i.e. the present appellant and two other appointees

as Principals were continued to work as Principals in-charge till

the completion of the process of selection.

6. So far as the revision petitions, as already stated

above, the challenge was with regard to the promotions and

postings of three teachers working under the Colleges run by the

Corporate management of Travancore Devaswom Board, where

technical controversy was raised in the appeals by filing

interlocutory applications challenging the maintainability of the

appeals itself. The challenge was, the impugned order of TDB

promoting and posting the aforesaid three persons as Principals

of the respective Colleges was not being so far approved by the

concerned University, i.e. the M.G. University as well as the

Kerala University, therefore appeals were not maintainable.

7. According to the averments in the Interlocutory

Application, till the approval of the appointment made by the

Management is considered by respective Universities, no appeal

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:6:-

under the respective Act could be filed. By referring to an earlier

judgment of the High Court in Mother Anasthesia v.

University Appellate Tribunal [1980 KLT 666] and Suresh v.

Manager, S.N.M. College(supra) the Tribunal ultimately opined

that the appeals deserve to be dismissed as not maintainable and

liberty was reserved to the appellants to approach the Tribunal

again, once the approval of University is granted. Aggrieved by

the orders of the University Appellate Tribunals, these two

revision petitions are filed.

8. The entire question revolves round the authority of

the Devaswom Board to constitute a 'selection committee' so far

as appointment of Principals to the three vacancies at three

different Colleges as stated above by promotion and not by direct

recruitment. Other relevant controversy before us is with regard

to the criterion for selection and lack of qualification of

respondents who were appointed as Principals. All the three

respondents were teachers promoted as Principals and their

appointment orders are set aside.

9. The learned counsel appearing for the appellants

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:7:-

Mr.Jaju Babu contended that Colleges are situated within the

jurisdiction of Kerala University as well as M.G. University.

Therefore by referring to the definition of 'College' under the

Kerala University Act
contends that it would mean only an

institution affiliated to the University and the appointments will

be with reference to the Act. This argument was made so far as

the appointment of one of the appellants who is working in a

College under the M.G. University. According to the learned

counsel for the appellants, seniority-cum-merit has to be the

criterion and there cannot be segregation of the members in

respect of different Colleges. According to them, common

selection committee was necessary only for the purpose of

appointment of a Principal by direct recruitment. According to

them, seniority-cum-merit (seniority-cum-fitness) has been

explained in the case of
RajendraKumar Srivastava v. Samyut

Kshetriya Gramin Bank
[(2010) 1 SCC 335].

So also they rely

on decision in
Rupa Rani Rakshit v. Jharkhand Gramin Bank

[(2010) 1 SCC 345] which governs the merits of the present case

as the Apex Court in the above said two decisions had clearly

WA No. 975 of 2011 and
C.R.P. Nos.

138 & 139 of 2011

-:8:-

stated how seniority-cum-merit or seniority-cum-fitness governs

the process whereby eligible candidates in possession of

minimum necessary merit in the feeder category could be first

ascertained and for ascertaining the same, a written test or

interview is permissible and according to him, the learned Judge

was not justified in placing reliance in the case of
Suresh v.

Manager, S.N.M. College
(supra).

10. The judgment of the learned Single Judge,

according to the learned counsel for the appellants, cannot be

sustained in view of the law
laid down by
the Apex Court in the

above two decisions. According to them, in the absence of the

writ petitioner not challenging the notification and having

participated in the interview pursuant to Ext.P3, cannot turn

around when it is learnt that he was not successful in the

interview conducted by the selection committee. According to

the appellants, the procedure followed for selection to the post of

Principals was correct. The further contention of the appellants is

that in view of the pendency of CRP Nos.138 and 139 of 2011,

the learned Single Judge ought not to have interfered with the

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:9:-

selection.

With these averments, placing reliance on
Suresh v.

Manager, S.N.M. College
[2003 (
3) KLT 839], Haryana State

Warehousing Corporation & others v. Jagat Ram and

another
[(
2011) 3 SCC 422], Valsala Kumari Devi v.

Director, Higher Secondary Education
[2007(4) KLT 494

(SC)], Siraj v. High Court of
Kerala [2006(2) KLT 923], Rupa

Rani Rakshit v. Jharkhand Gramin Bank
[(
2010) 1 SCC 345]

and Rajendra Kumar Srivastava v. Samyut Kshetriya

Gramin Bank
[(2010) 1 SCC 335] the learned counsel appearing

for the appellants has sought for setting aside the judgment of

the learned Single Judge by allowing the appeal and also the

revision petitions.

11. As against this, the learned Senior counsel

Dr.S.Gopakumaran Nair arguing for the writ petitioner/1st

respondent contends that having regard to
Section 57
of Kerala

University Act and also Section 59 of M.G. University Act, the

appointment of teachers in private Colleges as Principals, though

contemplates two methods of recruitment, i.e. direct recruitment

and by promotion, whenever it is made by promotion, the

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:10:-

authority concerned is required to consider the appointment on

the basis of seniority-cum-fitness. He further contends, when the

process of selection is by promotion, there was no necessity for

selection committee to be constituted to consider the candidates

for promotion to the post of Principals which were vacant in

Colleges of Devaswom Board affiliated to two different

Universities. Therefore, according to him, the learned Single

Judge was justified in quashing the appointment orders and in

the light of appointment orders being set aside, question of

considering Revision Petitions would not arise. Therefore the

Revision Petitions become infructuous.

12. We have gone through the various provisions of

Kerala University Act
as well as the M.G. University Act. So far

as the appointment of Mr.Dr.K.Mohankumar to the post of

Principal at Sasthamcotta, it comes under the Kerala University

and the procedure applicable is with reference to the Act

governing Kerala University. So far as other two appellants,

Dr.D.Rajmohan and Dr.D.Radhakrishna Pillai, they come under

M.G. University. It is not in dispute that all three Colleges are

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:11:-

run by the management of TDB.
Section 57(2)
of Kerala

University Act provides the procedure for appointment of

Principals made by educational agency by promotion from among

the teachers of the College or of all the Colleges as the case may

be are by direct recruitment which means appointments can be

made either by promotion or by direct recruitment.
Section 57

(3)
of the Kerala University Act provides, the criterion that

whenever recruitment is made by promotion, it should be on

seniority-cum-fitness. A selection committee is required only if

the post of teachers and Principals are filled up by direct

recruitment. This statement of writ petitioner was

uncontroverted in many ways before the learned Single Judge as

the affidavit filed on behalf of the appointed Principals

categorically indicates, whether it was under Kerala University or

under M.G. University, constitution of selection committee was

necessary only for the purpose of appointing a Principal by direct

recruitment. Therefore, there is no dispute that a selection

committee was not at all contemplated when the selection

process is by way of promotion. Similar to
Section 57
of Kerala

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:12:-

University Act, M.G. University Act also has relevant provision at

Section 59
. Sub-
section 2
and
of
Section 57
of Kerala

University Act are pari materia so far as Sub-
section 2
and
of

Section 59 of M.G.University Act. Therefore, the post of

Principal, if filed up by promotion either under
Kerala University

Act
or M.G. University Act, there is no mandate or requirement

for constitution of a selection committee.

13. In the present case, not only a common selection

committee was constituted for the purpose of promotion to the

post of Principal under different Colleges of two Universities but,

a common selection list was also prepared by the selection

committee. In that view of the matter, the learned Single Judge

was justified in saying that the process of selection adopted by

the management was not justified.

14. Lengthy arguments were addressed on the locus

standi of the writ petitioner and also what exactly 'seniority-cum-

fitness' would mean. The case in
Siraj v. High
Court of Kerala

[2006(2) KLT 923(SC)] before High Court was with regard to

prescription of minimum marks for the oral examination as a

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:13:-

condition of eligibility for selection as Munsiff Magistrate. It was

held by the Apex Court that the appellant/writ petitioner was not

entitled to any relief under
Article 226
of the Constitution of India

for more than one reason. First and foremost was, he has

participated in the written test and oral test without raising any

objection in spite of being aware of the prescription that

minimum marks has to be secured both in the written test and

also in the oral test. Apart from this, they were also aware of the

decision on the judicial side before the High Court. Therefore,

their Lordships held that having participated in the interview it

was not open for them to turn around thereafter when they failed

at the interview to contend that a provision of minimum mark for

the interview was not proper.

15. In the case of Rupa Rani Rakshit [(2010) 1 SCC

345] apart from referring to what exactly merit-cum-seniority

and seniority-cum-merit would mean their Lordships held length

of service rendered by virtue of wrong appointment/promotion

which was subsequently set aside cannot be added to the length

of service for counting seniority. The main emphasis in this case

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:14:-

is with regard to the criterion of seniority-cum-merit so also what

would constitute merit-cum-seniority. In the present case the

challenge is only with regard to the qualification of the candidates

who were selected. But with regard to constitution of selection

committee, no such provision is made in the enactment.

16. As already stated above, it is the contention of

the appellants/respondents before the learned Single Judge that

constitution of selection committee is mandatory for selection to

the post of Principal by direct recruitment. A common selection

list was prepared by clubbing the teachers working under

different Colleges affiliated to different Universities. Therefore, if

the very selection process is defective, the defence of the

appellant that having participated in the interview, he cannot

question the selection process falls to ground. If the selection

process itself is defective, neither the appellant nor respondents

can take benefit out of it. From such defective selection process,

no legal or authoritatively selected candidate can come through.

Therefore this argument of the learned counsel for the appellants

cannot be accepted.

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:15:-

17. Then coming to the argument addressed on what

is seniority-cum-fitness, according to the learned counsel for the

appellants, seniority-cum-fitness is nothing but seniority-cum-

merit. He relies upon as already stated above, on various

decisions.
In the case of
Suresh v. Manager, S.N.M. College

(supra), it was a promotion to the post of Principal on the basis

of seniority-cum-fitness. It was held in this case as under:

"Seniority-cum-fitness postulates promotion on the basis of

seniority subject to rejection of the unfit. It does not permit

selection. Such a rule is calculated to avoid heart burning. It

avoids controversy. It limits discretion. It excludes arbitrariness.

In the existing situation, it is reasonable. So far as the

appointment by promotion is concerned, the provision has been

made in
S. 59(3)
. It has been specifically provided that "the

educational agency shall make the appointment on the basis of

seniority-cum-fitness". These words of the Act have to be given

their plain and natural meaning. The provision is couched in a

mandatory language. The use of the word `shall' makes it

imperative for the management to follow the prescribed criteria.

In the context, the word `shall' cannot be interpreted to mean

`may', for, that would lead to an anomalous situation. The

Legislature appears to have clearly intended that the discretion of

the management should be restricted. The senior person should

be promoted unless he is found to be unfit for the post of the

Principal. It is true that the post of Principal of a College is

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:16:-

pivotal. A bad teacher may not be able to administer an

institution. However, the management has been given the

discretion to supersede a senior person, if he is found unfit. This

discretion can be exercised by the management on the basis of

good reasons. Since the Act provides for the remedy of appeal

before an Appellate Tribunal against an order of supersession, it

would be incumbent on the management to give reasons for the

supersession of a senior person. The reasons cannot be fanciful

or imaginary. These must have a nexus with the fitness of the

candidate for the post and should be founded on tangible

material."

18. Another decision relied on by the counsel is

Haryana State Warehousing Corporation and others v.

Jagat Ram and another
[(2011) 3 SCC 422]. In this case their

Lordships held that in the case of seniority-cum-merit criterion

what is required is a minimum necessary merit, but does not

require comparative assessment of merit. Therefore, their

Lordships held that the promotion given to a junior in preference

to the senior is only on the ground that junior is more meritorious

would violate seniority-cum-merit criterion. Their Lordships have

held at paragraph 45 in detail what it would mean which reads as

under:

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:17:-

"45. Thus it is the settled position that the criterion of

seniority-cum-merit is different from the criterion of merit and also

the criterion of merit-cum-seniority. 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. 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. Seniority-cum-

merit means that, given the minimum necessary merit required for

efficiency of administration, the senior, though less meritorious,

shall have priority in the matter of promotion and there is no

question of further comparative assessment of the merit of those

who were found to have the minimum necessary merit required

for efficiency of administration. For assessing the minimum

necessary merit, the competent authority can lay down the

minimum standard that is required and also prescribe the mode of

assessment of merit of the employees. Such assessment can be

made by assigning marks on the basis of appraisal of

performance on the basis of service record and interview and

prescribing the minimum marks which would entitle a person to be

considered for promotion on the basis of seniority-cum-merit."

19.
In the case of
Valsala Kumari Devi v. Director,

Higher Secondary Education
[2007(4) KLT 494(SC)] the

appointment to the post of Higher Secondary School teacher was

with a condition 'subject to seniority and suitability'. Their

Lordships held that such expression occurring in the Government

Order does not mean the comparative assessment of suitability

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:18:-

and it only means the suitability for the particular post and the

suitability is related to the prescribed qualification and requisite

experience. The relevant paragraphs are 12, 13 and 14 which

read as under:

"12. Government Order dated 27.6.1990 makes it clear

that the selection of teachers will be subject to seniority and

suitability and G.O. dated 13.5.1998 specifically prescribes that

the teachers appointed from General Education Subordinate

Service will be treated as appointment by promotion. As stated

earlier, the selection will be subject to seniority and suitability

and there is no dispute that the appellant is senior to 5th

respondent. She is eligible and qualified for appointment by

promotion to HSST. It is not the case of the Management that

she is unsuitable for promotion.

13. The expression "subject to seniority and suitability"

occurring in G.O. dated 27.6.1990 does not mean the

comparative assessment of suitability and it only means the

suitability for the particular post and the suitability is related to

the prescribed qualification and requisite experience.
In view of

the distinction between the appointment by promotion from

General Education Subordinate Service and an appointment to

the 75% vacancies ear-marked for direct recruitment, we are of

the view that the finding arrived at by the Director, Higher

Secondary School, Thiruvananthapuram, Kerala that seniority is

not the criterion for 'appointment by promotion to HSST' is

erroneous and is not in terms of the Government Orders
referred

to above
. Though in the order, it is stated that the 5th

WA No. 975 of 2011 and
C.R.P. Nos. 138 & 139 of 2011

-:19:-

respondent is more suitable than the appellant, as rightly pointed

out by learned counsel appearing for the appellant,it has not

been shown or indicated the reasons or grounds for arriving at

such decision that the 5th respondent was found more suitable

than the appellant for the post. We are also in agreement with

the contention that the Director has mechanically accepted the

decision of the Selection Committee that the 5th respondent is

more suitable than the appellant without reference to selection

for appointment by promotion to HSST against 25% quota

earmarked for qualified High School Assistants. We are of the

view that the Director has committed an illegality in upholding the

selection of the 5th respondent for appointment to the post of

HSST. Further the 5th respondent has been preferred to the

appellant for the reason that his main subject in B.A. is History

which is totally irrelevant for promotion to HSST from among

HSAs. In G.O. dated 27.6.1990 the qualification prescribed is a

second class Master's Degree in the concerned subject with

B.Ed. It is relevant to point out that the appellant and the 5th

respondent have obtained M.A. Degree from Mysore University

and the 5th respondent took B.Ed with Social Studies. The other

reason given by the Selection Committee for preferring 5th

respondent is that he has proficiency in English, Kannada and

Malayalam whereas the appellant has proficiency in English and

Malayalam. As rightly pointed out by learned counsel appearing

for the appellant, once the requirement of the prescribed

qualification is satisfied, the selection must be made on the

basis of the seniority and suitability and there is no scope for

making comparison of qualifications or comparative assessment

of suitability. The expression 'suitability' means that a person to

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be appointed shall be legally eligible and 'eligible' should be

taken to mean 'fit to be chosen'.

14. In such circumstances, we are of the view that

it was improper on the part of the Selection Committee to make

selection taking into account the qualifications which are not

prescribed in the G.Os and by giving weightage to such

qualifications. The Selection Committee has also taken note of

the suggestion of the Parents Teachers Association that persons

having proficiency in Kannada should be preferred when there is

no such condition in the Government Order. In other words,

preference is to be given for proficiency in Kannada which is not

a requisite qualification. In our view, ignoring the appellant who

has been working as HSA in the very same school and selecting

the 5th respondent by giving weightage for proficiency in

Kannada which is not a condition prescribed in the relevant

Govt. orders by the Selection Committee can not be sustained. It

is based on extraneous/irrelevant considerations."

20.
In the case of
Rupa Rani Rakshit
(supra)

paragraphs 2, 7 and 8 are relevant. Their Lordships have in

detail referred to merit-cum-seniority and seniority-cum-merit in

the above said paragraphs.

In the case of
RajendraKumar

Srivastava v. Samyut Kshetriya Gramin Bank
(supra) paragraphs

2 to 4 and 8 to 12 are relevant which read as under:

"2. By Notification dated 28-9-1988, the Central

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Government in exercise of powers conferred under
Section 17

read with
Section 29
of the Regional Rural Banks Act, 1976

framed the Regional Rural Banks (Appointment and Promotion of

Officers and Other Employees) Rules, 1988 ("the Rules", for

short). Rule 5 of the Rules provided that all vacancies should be

filled up by deputation, promotion or direct recruitment, in

accordance with provisions contained in the Second Schedule to

the Rules. Entry 7 in the Second Schedule related to recruitment

to the posts of Area Manager or Senior Manager (in Scale II). It

provided that all the posts of Area Manager and Senior Manager

should be filled by promotion from among the confirmed officers

(in Scale I) working in the Bank on the basis of seniority-cum-

merit. It prescribed the educational qualification (graduate) and

minimum period of service in the feeder cadre (eight years as an

officer in the Regional Rural Bank concerned). It also prescribed

the mode of selection by promotion as "interview and assessment

of performance reports for the preceding three years period as

officers". Sub-rule (4) of Rule 10 provided that the Staff Selection

Committee shall follow the procedure determined by the Board for

selecting candidates for appointment or promotion, in accordance

with the guidelines issued by the Central Government from time to

time.

3. At the 131st meeting of the Board of Directors of the first

respondent Bank held on 29-11-1996, the following procedure for

promotion of officers from Scale I to Scale II was approved:

"After considering the guidelines contained in the Government of

India's Letter dated 23-9-1988 and Letter No. 823 dated 7-10-

1996 of National Bank, the Board passed a resolution that sixty

points be earmarked on the basis of work done during the

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previous three years in the selection procedure for promotion on

the Scale II posts and forty points be given for interview and in

this manner the promotion procedure should be completed. Also,

an information in this behalf be given to National Bank."

In pursuance of the above, the eligible candidates (Scale I

officers), including the appellants were considered and

interviewed on 16-12-1996 and 17-12-1996 and a select list was

published on 20-12-1996 promoting 64 officers (Respondents 4 to

67) from Scale I to Scale II with effect from 20-12-1996.

4. Appellants 1 to 7 were not selected. Many who were selected,

were their juniors. The appellants allege that their service and

conduct were good and there were no adverse entries against

them and therefore, they ought to have been promoted from

officer Scale I to Scale II. They therefore filed a writ petition before

the Allahabad High Court (WP No. 3151 of 1997), for quashing

the entire promotion process of the first respondent Bank from

Scale I to Scale II culminating in the order dated 20-12-1996 and

for a direction to the first respondent Bank to undertake the

promotion process afresh. The appellants also sought quashing of

the resolution of the Board of Directors dated 29-11-1996

prescribing the promotion procedure.

xx xx xx xx

8. On the contentions urged, the following two questions

arise for our consideration:

(i) Whether minimum qualifying marks could be prescribed for

assessment of past performance and interview, where the

promotions are to be made on the principle of seniority-cum-

merit?

(ii) Whether the first respondent Bank was justified in fixing a high

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percentage (78%) as the minimum qualifying marks (minimum

merit) for promotion?

Re: Question (i)

9.
In
State of Kerala v. N.M. Thomas3
, a seven-Judge Bench of

this Court defined the concept of "seniority-cum-merit". This Court

held that: (SCC p. 335, para 38)

"38. ... `Seniority-cum-merit' means that given the minimum

necessary merit requisite for efficiency of administration, the

senior though the less meritorious shall have priority."

10.
In
Union of India v. Lt. Gen. Rajendra Singh Kadyan4
this

Court observed that "seniority-cum-merit" postulates the

requirement of certain minimum merit or satisfying a benchmark

previously fixed, and subject to fulfilling the said requirement, the

promotion is based on seniority. It was pointed out that

requirement of assessment of comparative merit was absent in

the case of "seniority-cum-merit".

11. It is also well settled that the principle of seniority-cum-merit,

for promotion, is different from the principle of "seniority" and the

principle of "merit-cum-seniority". Where promotion is on the basis

of seniority alone, merit will not play any part at all. But where

promotion is on the principle of seniority-cum-merit, promotion is

not automatic with reference to seniority alone. Merit will also play

a significant role. The standard method of seniority-cum-merit is to

subject all the eligible candidates in the feeder grade

(possessing the prescribed educational qualification and period of

service) to a process of assessment of a specified minimum

necessary merit and then promote the candidates who are found

to possess the minimum necessary merit strictly in the order of

seniority. The minimum merit necessary for the post may be

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assessed either by subjecting the candidates to a written

examination or an interview or by assessment of their work

performance during the previous years, or by a combination of

either two or all the three of the aforesaid methods. There is no

hard-and-fast rule as to how the minimum merit is to be

ascertained. So long as the ultimate promotions are based on

seniority, any process for ascertaining the minimum necessary

merit, as a basic requirement, will not militate against the principle

of seniority-cum-merit.

12. In Sivaiah1, a three-Judge Bench of this Court held that while

the principle of seniority-cum-merit laid greater emphasis on

seniority, the principle of merit-cum-seniority laid greater

emphasis on merit and ability, with seniority playing a less

significant role. This Court held: (SCC p. 730, para 18)

"18. We thus arrive at the conclusion that the criterion of
`seniority-cum-merit' in the matter of promotion postulates that
given the minimum necessary merit requisite for efficiency of
administration, the senior, even though less meritorious, shall
have priority and a comparative assessment of merit is not
required to be made. For assessing the minimum necessary
merit, the competent authority can lay down the minimum
standard that is required and also prescribe the mode of
assessment of merit of the employee who is eligible for
consideration for promotion. Such assessment can be made by
assigning marks on the basis of appraisal of performance on the
basis of service record and interview and prescribing the minimum
marks which would entitle a person to be promoted on the basis
of seniority-cum-merit."

21. The learned counsel appearing for the respondents

relies upon
B.V. Shivaiah & others v. K. Addanki Babu &

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others [JT 1998 5 SC 96] in which paragraph No.18 is relevant.

In the case of
Union of India & others v. Lt.Gen.Rajendra

Singh Kadyan and another
[(2000) 6 SCC 698] the Hon'ble

three judges of the Apex Court have in fact considered the

service law with regard to promotion and criteria of a selection

which fall into three categories; 1. seniority-cum-fitness, 2.

seniority-cum-merit and 3. merit-cum-suitability with due regard

to seniority. Paragraph Nos.11 and 12 in detail refer to these

aspects, which read as under:

"11. The hierarchy in the Army and the method of selection

and promotion to various posts starting from the post of Lieutenant

and going up to the post of the Chief of the Army Staff will clearly

indicate that the posts of Lieutenant, Captain and Major are

automatic promotion posts on passing the promotion examination

irrespective of inter se merit, whereas the posts from Major to Lt.

Colonel, Lt. Colonel to Colonel, Colonel to Brigadier, Brigadier to

Major General and Major General to Lt. General are all selection

posts filled up by promotion on the basis of relative merit assessed

by the designated Selection Boards. From Lt. General (Corps

Commander) to Army Commander is a non-selection post to which

promotion is made subject to fitness. It is a promotion subject to

fitness in all respects, although the rank remains the same. From

the post of Army Commander to that of the Chief of the Army

Staff, it is by promotion for which no specific criteria have been

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laid down. There have been precedents where the seniormost

Army Commanders have not been appointed as the Chief of the

Army Staff. Selection implies the right of rejection depending upon

the criteria prescribed. Selection for promotion is based on

different criteria depending upon the nature of the post and

requirements of the service. Such criteria fall into three categories,

namely,

1. seniority-cum-fitness,

2. seniority-cum-merit,

3. merit-cum-suitability with due regard to seniority.

12. 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. "Seniority-cum-merit" postulates the requirement of

certain minimum merit or satisfying a benchmark previously fixed.

Subject 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."

22. On reading of the above paragraphs it is very

clear that there is a marginal difference in the meaning between

seniority-cum-fitness and seniority-cum-merit, but, there is no

requirement of assessment of comparative merit both in the case

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of seniority-cum-fitness and seniority-cum-merit. So far as merit-

cum-suitability, it necessarily requires assessment of comparative

merit of all eligible candidates and selection shall be made best

out of them. The word 'fitness' means fitness in all respects. But

there is no requirement of assessment of comparative merit. In

other words, merit is not the criterion in such cases. In view of

the above discussion and reasoning, there was justification on the

part of learned Single Judge to hold that the very selection

process was incorrect and therefore he was justified in quashing

Exts.P4, P5 and P13.

23. As we are dismissing the writ appeal on merits,

Revision Petitions become infructuous as the whole selection

process has to be re-scheduled in the light of the observations

made as above. Accordingly, the Writ Appeal is dismissed. CRPs

are dismissed as infructuous.

We direct the respondent Board to appoint Principals in

terms of the provisions of the respective University Act and also

in the light of the principle enunciated in the judgments of the

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Apex Court and in the Full Bench decision of this Court in
Suresh

v. Manager, S.N.M. College
(supra).

Manjula Chellur,
Ag. Chief Justice.

P.R.Ramachandra Menon,
Judge.

ttb