HARYANA WAREHOUSING CORPORATIONversusJAGAT RAM & ANR.

                    [2011] 2 S.C.R. 1151


   HARYANA STATE WAREHOUSING CORPORATION                        A·.
                              v.
                  JAGAT RAM & ANR.
     (Special Leave Petition (Civil) No.2659 of 2011)
                   FEBRUARY 23, 2011
                                                                B
     [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

   HARYANA     WAREHOUSING      CORPORATION
(OFFICERS AND STAFF) REGULATIONS, 1994:
                                                                c
      Regulations 6 and 8(2) - Appendix B - Clause 19 -
Promotion to the post of Assistant Manager (Administration)
- Criterion being seniority-cum-merit - Promotion made on
the basis of comparative assessment of two officers and the
officer with better service record, though junior to the other, 0
promoted - Held: In applying the principle of granting
promotion on the basis of seniority-cum-merit, what is
important is that the inter se seniority of all candidates who
are eligible for consideration for promotion should be
identified on the basis of length of service or on the basis of
the seniority list as prepared, inasmuch as, it is such seniority E
which gives a candidate the right to be considered for
promotion on the basis of seniority-cum-merit - The
candidate has had to be fit to discharge the duties of the
higher post and if performance was assessed not to meet such
a requirement, he could be passed over and those junior to F
him could be promoted despite his seniority in the seniority
list - The concept of "seniority-cum-merit" postulates the
requirement of certain minimum merit or satisfying a
benchmark previously fixed and, subject to fulfilling the said
requirement, promotion is based on seniority - There is no G
further assessment of the comparative merits of those who
 fulfil such requirement of minimum merit or satisfy the
 benchmark previously fixed - In the instant case, there is
nothing on record to indicate that the respondent was not
                               1151                               H
    1152    SUPREME COURT REPORTS               [2011] 2 S.C.R.

A capable of discharging his functions in the promotional post
  of Assistant Manager (Administration) - Since both fulfilled
  the requirement of minimum merit and were found suitable
  for promotion and since the respondent was senior to the
  petitioner, former was entitled to be promoted on the basis of
B seniority-cum-merit - Consequently, the promotion of the
  petitioner was liable to be set aside as was rightly done by
  the Division Bench of the High Cowt.

        SERVICE LAW:

C      Promotion - Concepts of 'seniority-cum-merit' and merit-
    cum-seniority' - connotation of.

         Respondent no. 1 in both the special leave petitions,
    filed a writ petition before the High Court challenging the
0   promotion of the petitioner (in SLP No. 451 of 2011) to the
    post of Assistant Manager (Administration) in the State
    Warhousing Corporation. The Single Judge of the High
    Court dismissed the writ petition holding that the service
    record of the petitioner was superior to that of the
    respondent and the Corporation did not commit any error
E   in promoting the petitioner. However, the Division Bench
    allowed the Letters Patent Appeal of the respondent
    holding that since the criterion for promotion to the post
    of Assistant Manager (Administration) was seniority-cum-
    merit and not merit-cum-seniority, the promotion given to
F   the petitioner was not sustainable as it was made
    predominantly on the principle of merit in contravention
    of the provisions of the Haryana Warehousing
    Corporation (Officers and Staff) Regulations, 1994.
    Aggrieved, the State Warehousing Corporation and the
G   promoted employee filed the special leave petitions.

        Dismissing the petitions, the Court

        HELD:
H
 HARYANA STATE WAREHOUSING CORPORATION v. 1153
              JAGAT RAM & ANR.

PER ALTAMAS KABIR. J.                                        A
     1.1 In applying the principle of granting promotion on
the basis of seniority-cum-merit, what is important is that
the inter se seniority of all candidates who are eligible for
consideration for promotion should be identified on the
                                                              8
basis of length of service or on the basis of the seniority
list as prepared, inasmuch as, it is such seniority which
gives a candidate a right to be considered for promotion
on the basis of seniority-cum-merit. Where the promotion
is based on seniority-cum-merit, the officer cannot as a
matter of right claim promotion by virtue of his seniority C
alone, which principle is also reflected in Regulation 8(2)
of the Haryana Warehousing Corporation (Officers and
Staff) Regulations, 1994. Consequently, the candidate had
to be fit to discharge the duties of the higher post and if
performance was assessed not to meet such a D
requirement, he could be passed over and those junior
to him could be promoted despite his seniority in the
seniority list. [Para 11] [1163-C-E]

    State of Mysore vs. Syed Mahmood 1968 SCR 363 =          E
AIR 1968 SC 1113; B. V. Sivaiah & Ors. Vs. K. Addanki Babu
& Ors. 1998 (3) SCR 782 = (1998) 6 sec 720; K.
Samantaray vs. National Insurance Co. Ltd. (2004) 9 SCC
286; Sant Ram Sharma vs. State of Rajasthan 1968 SCR
111 =AIR 1967 SC 1910 and Harigovind Yadav vs. Rewa          F
Sidhi Gramin Bank 2006 (2) Suppl. SCR 116 = (2006) 6
sec 145 - relied on.
   Jagathigowda, C.N. & Others v. Chairman, Cauvery
Gramina Bank & Others 1996 (4) Suppl. SCR 190 = (1996)
9 sec 677-- cited.                                           G
    1.2 In the instant case, the only feature which
weighed with the Corporation in granting promotion to
the petitioner was a comparative assessment between his
performance and that of the respondent. While the            H
    1154   SUPREME COURT REPORTS            [2011) 2 S.C.R.

A respondent had got only one "outstanding" remark in 10
  years, the petitioner had obtained "outstanding" remark
  in all the 10 years. Accordingly, the petitioner was
  preferred to the respondent, whose qualifications were
  inferior to that of the petitioner by comparison. But, as
B has been rightly held by the Division Bench of the High
  Court, in cases of seniority-cum-merit, the comparative
  assessment is not contemplated and is not required to
  be made. [Para 12) [1163-F-H]

       1.3. There is nothing on record to indicate that the
C respondent was not capable of discharging his functions
  in the promoted post of Assistant Manager
  (Administration). He was denied promotion only on the
  ground of the superior assessment that had been made
  in favour of the petitioner, which, runs contrary to the
D concept of seniority-cum-merit. There is, therefore, no
  reason to differ with the views of the Division Bench of
  the High Court. [Para 13-14) [1164-A-C]

    PER CYRIAC JOSEPH, J. (CONCURRING)
E
        1.1. According to Regulation 6 of the Haryana
  Warehousing Corporation (Officers and Staff)
  Regulations, 1994, no person shall be appointed to any
  post in the service unless he is in possession of
  qualification and experience specified in Appendix-a to
F the Regulations. As per clause 19 of Appendix-B to the
  Regulations, for promotion to the post of Assistant
  Manager (Administration) 5 years' experience as
  Establishment Assistant is required. Thus, it is not in
  dispute that as per the Regulations the vacancy in the
G cadre of Assistant Managers (Administration) was to be
  filled by promotion on the basis of seniority-cum-merit
  from among Establishment Assistants having the
  required experience of 5 years. [Para 7) [1165-E-F; 1166-
  A-B]
H
HARYANA STATE WAREHOUSING CORPORATION v. 1155
            JAGAT RAM & ANR.
    1.2. In the instant case, the vacancy of Assistant=-A
Manager (Administration) arose on 1.8.2009. As on that -
date, the petitioner did not have 5 years' experience as
Establishment Assistant, as he was. promoted to the post
of Establishment Assistant only on 10.11.2004. However,
the respondent had more than 5 years' experience as he. B
was promoted to the post of Establishment Assistant on
16.5.1996 and was admittedly senior to the petitioner.
However, the Division Bench of the High Court did not
consider the question whether eligibility of the candidates
should have been considered with reference to the date c
of occurrence of the vacancy. [Para 8 and 11l[1166-C-E;
1168-B-C]
     2.1 As rightly held by the Division Bench of the High
Court, the words "seniority alone shall not confer any
right to such promotions" only clarify the ear~ier part of D
Regulation 8(2), which stipulates that "all promotions,
unless otherwise provided, shall be made on the
seniority-cum-merit basis". The clear mandate of
Regulation 8(2) is that promotions shall be made on
seniority-cum-merit basis and not on. the basis of E
seniority alone or merit alone. To emphasise that
promotion cannot be claimed as a matte~ of right on the
basis of seniority and that along with seniority, merit also
will be considered, it is clarified in the Regulation itself
that "seniority alone shall not confer any right to such F
promotions". The quoted words do not in any way dilute
or vary the principle that promotions shall be made on
seniority-cum-merit basis. They only clarify the meaning
or implication of the expression "seniority-cum-merit".
[Para 13) [1168-E-H; 1169-A]                                 G
    2.2 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 1oflJ,9ht by virtue of      .t(
    1156    SUPREME COURT REPORTS              [2011] 2 S.C.R.


A 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. The concept of
  "seniority-cum-merit" postulates the requirement of
  certain minimum merit or satisfying a benchmark
s previously fixed and, subject to fulfilling the said
  requirement, promotion is based on seniority. There is no
  further assessment of the comparative merits of those
  who fulfil such requirement of minimum merit or satisfy
  the benchmark previously fixed. On the other hand, the
c principle of "merit-cum-seniority" puts greater emphasis
  on merit and ability and seniority plays a less significant
  role. Seniority is given weightage only when merit and
  ability are more or less equal among the candidates
  considered for promotion. (Para 22] [1173-C-H; 1174-A-
D B]
        State of Mysore and another v. Syed Mahmood and
    others (AIR 1968 SC 1113; State of Kera/a and another v.
    N.M. Thomas and others ((1976) 2 SCC 310; B. V. S~aiah
    and others v. K. Addanki Babu and others (1998) 6 SCC 720;
E   Union of India and others v. Lt. Gen. Rajendra Singh Kadyan
    and another (2000) 6 SCC 698;, Harigovind Yadav v. Rewa
    Sidhi Gramin Bank and others (2006) 6 SCC 145; Rajendra
    Kumar Srivastava and others v. Samyut Kshetriya Gramin
    Bank and others (201 O) 1 sec 335; Rupa Rani Rakshit and
F   others v. Jharkhand Gramin Bank and others (2010) 1 SCC
    345 - relied on.
       Jagathigowda, C.N. & Others v. Chairman, Cauvery
    Gramina Bank & Others (1996) 9 SCC 677 - referred to.

G      2.3 In the instant case, it is clear that the impugned
  promotion of the petitioner was not on the basis of
  seniority-cum-merit but was on the basis of merit. The
  written statement filed by the Corporation in L.P.A. No.
  490 of 2010 reveals that while considering the candidates
H for promotion, both the respondent and the petitioner
 HARYANA STATE WAREHOUSING CORPORATION v. 1157
             JAGAT RAM & ANR.

were found suitable for promotion and that even though A
the respondent was 'senior to the petitioner, latter was
given promotion on the ground that he had better merits.
This was obvi9usly in violation of the principle of
seniority-cum-merit. Since both fulfilled the requirement
of minimum merit and were found suitable fol' promotion B
and since the respondent was senior to the petitioner,
former was entitled to be promoted on the basis of
seniority-cum-merit. Consequently, the promotion of the
petitioner was liable to be set aside as was rightly done
by the Division Bench of the High Court. [Para 23] [1174- c
B-D; 1175-A-C]
                     Case Law Reference:
 1996 ( 4 ) Suppl. SCR 190       cited       para 6
 1968 SCR 363                    Relied on   Para 9       D
                                             and 13
 1968 SCR 111                    relied on   para 10
 2006 (2 ) Suppl. SCR 116        Relied on   Para 10
                                             and 18       E

 1998 ( 3) SCR 782               Relied on   Para 10
                                             and 16
 (2004) 9 sec 286                relied on   para 10
                                                          F
 (1976) 2 sec 310                Relied on   Para 15
 (2000) 6 sec 698                Relied on   Para 17
  (201Q) 1 ~cc 335               Relied on    Para 19
                                                          G
 (201 O) 1 sec 345               Relied on    Para 20
 (1996). 9 sec 677               Referred to Para 21
     CIVIL APPELLATE JURISDICTION: SLP (Civil) No. 2659
of 2011.
                                                          H
    1158    SUPREME COURT REPORTS                 [2011] 2 S.C.R.


A       From the Judgment & Order dated 11.10.2010 of the High
    Court of Punjab & Haryana at Cnahdigarh in Letters Patent
    Appeal No. 490 of 2010 (0 & M).

                                  WITH
B SLP (C) No. 451 of 2011.

       Alok Sangwan, Devashish Bharuka, O.P. Mukherjee,
    Nandini Sen for the Petitioners.

C        Kawaljit Kochar, Ashok K. Sharma, Kusum Chaudhary for
    the Respondents.

        The Judgment of the Court was delivered by

        ALTAMAS KABIR, J. 1. Two Special Leave Petitions
o have been filed against the judgment and order dated 11th
    October, 2010, passed by the Division Bench of the Punjab &
    Haryana High Court in LP .A. No.490 of 2010, setting aside the
    promotion granted to the Petitioner in Special Leave Petition
    (Civil) No.451 of 2011. While Special Leave Petition (Civil)
E No.451 of 2011 has been filed by Ram Kumar, the Respondent
    No.3 before the High Court, setting aside his promotion to the
    post of Assistant Manager (Administration) in the Haryana
    State Warehousing Corporation, Special Leave Petition (Civil)
    No.2659 of 2011 has been filed by the Warehousing
F . Cl'rporation challenging the same order.

       2. The facts briefly stated disclose that the Haryana State
  Warehousing Corporation, hereinafter referred to as "the
  Corporation", framed its Rules and Regulations known as the
  Haryana Warehousing Corporation (Officers & Staff)
G Regulations, 1994, hereinafter referred to as "the 1994
  Regulations" in exercise of the powers conferred by Section 42
  of the Housing Corporation Act, 1962, with the previous
  sanction of the State Government. Regulation 8 of the 1994
  Regulations deals with promotions in the Corporation.
H Regulation 8(2) of the 1994 Regulations provides as follows :-
HARYANA STATE WAREHOUSING CORPORATION v. 1159
    JAGAT RAM & ANR. [ALTAMAS KABIR, J.]

    "8(2). All promotions unless otherwise provided, shall be        A
    made on seniority-cum- merit basis and seniority alone
    shall not confer any right to such promotions."

     3. The Respondent No.3, Ram Kumar, was promoted to
the post of Assistant Manager (Administration) in the                B
Corporation on account of his excellent service record in
comparison to that of Jagat Ram, who is Respondent No.1 in
both the Special Leave Petitions. Challenging the said decision,
Jagat Ram filed a Writ Petition before the Punjab & Haryana
High Court on 17.11.2009. The learned Single Judge
dismissed the Writ Petition filed by Jagat Ram after taking into     C
consideration the service records of both Jagat Ram and Ram
Kumar and upon holding that the service record of Ram Kumar
was superior to that of Jagat Ram and that the Corporation had
not committed any error in granting promotion to Ram Kumar.
                                                                     D
     4. Against the order of the learned Single Judge, Jagat
Ram filed a Letters Patent Appeal, being 490 of 2010, before
the Division Bench of the Punjab & Haryana High Court, which
was allowed. The Division Bench while allowing the Letters
Patent Appeal filed by Jagat Ram held that although promotion        E
to the post of Assistant Manager (Administration) is to be
effected on the basis of seniority-cum-merit and not seniority
alone, the promotion given to Ram Kumar was based on his
gradings and on a comparative assessment of his merit as
against the merit of the Respondent No.1, Jagat Ram. The             F
Division Bench further held that since the criterion for promotion
to the post of Assistant Manager (Administration) was seniority-
cum-merit and not merit-cum-seniority, the promotion given to
Ram Kumar was not sustainable since such promotion had
been made predominantly on the principle of merit, in                G
contravention of the provisions of the Regulations. The Division
Bench directed the concerned Respondents to redo the
exercise for promotion to the post of Assistant Manager in
accordance with the provisions of the Regulations in force.

     5. Appearing for the Special Leave Petitioner in Special        H
    1160     SUPREME COURT REPORTS                  [2011] 2 S.C.R.

A Leave Petition (Civil) No.451 of 2011, Mr. D.P. Mukherjee,
  learned Advocate, contended that the Division Bench of the
  High Court had misunderstood and consequently misapplied
  the regulation governing appointments on the ground of
  seniority-cum-merit, particularly, since it provided that seniority
B alone could not confer right to promotions on the basis of
  seniority-cum-merit. Mr. Mukherjee submitted that if it was only
  a question of seniority-cum-merit, then the reasoning of the
  Division Bench may have been acceptable. However, such not
  being the case and a stipulation having been made that
c seniority alone would not govern promotions on the basis of
  seniority-cum-merit, the Division Bench of the High Court had
  erred in giving emphasis to seniority when the Petitioner, Ram
  Kumar, possesses far superior qualifications than the
  Respondent No.1, Jagat Ram.

D      6. Mr. Mukherjee urged that on account of the addition of
  the expression "seniority alone would not confer right to
  promotion", it must be understood that merit would also require
  consideration for the purpose of granting promotion, even on
  the basis of seniority-cum-merit. Mr. Mukherjee urged that since
E Ram Kumar had been assessed as "outstanding" over 10
  years, while Jagat Ram had been assessed "outstanding" only
  for one year, it was in keeping with Regulation 8 of the 1994
  Regulations that Ram Kumar had been preferred to Jagat Ram.
  In support of his submissions, Mr. Mukherjee referred to the
F decision of this Court in Jagathigowda C.N. & Ors. Vs.
  Chairman, Cauvery Gramina Bank & Ors. [(1996) 9 SCC
  677], in which this Court held that while granting promotion on
  the basis of seniority-cum-merit, the totality of the service record
  of the eligible candidates had to be considered and
G consequently since Ram Kumar had superior credentials in
  comparison to Jagat Ram, he had been rightly promoted to the
  post of Assistant Manager and the judgment and order of the
  Division Bench was erroneous and was liable to be set aside
  and that of the learned Single Judge was liable to be sustained.
H
 HARYANA STATE WAREHOUSING CORPORATION v. 1161
     JAGAT RAM & ANR. [ALTAMAS KABIR, J.]

     7. The same stand was taken on behalf of the Corporation      A
in Special Leave Petition (Civil) No.2659 of 2011 and it was
urged by Mr. Alok Sangwan, learned Advocate, appearing for
the Corporation, that the promotion of Ram Kumar had been
effected in accordance with Regulation 8(2) of the 1994
Regulations and while considering the seniority of the eligible    B
candidates, the Corporation had given effect to the second part
of the Regulation which categorically indicated that seniority
alone would not be the criteria for promotion. Mr. Sangwan also
urgect that the order of the Division Bench of the High Court
was liable to be set aside.                                        c
     8. The submissions made by Mr. D.P. Mukherjee and Mr.
Alok Sangwan were opposed on behalf of the Respondent No.1
in both the Special Leave Petitions, Jagat Ram, and it was
urged by Mrs. Kanwaljit Kochar, learned Advocate, that the
Division Bench had rightly interpreted the principle in relation   D
to promotions made on the basis of seniority-cum-merit. Mrs.
Kochar submitted that if merit was to play a larger role than
seniority in effecting such promotions, then the procedure to be
adopted would have been merit-cum-seniority and not seniority-
cum-merit. According to her, the decision in Jagathigowda          E
C.N. 's case (supra) does not really help the case of the
Petitioners since this Court had merely indicated in the facts
of that case, based on the NABARD Circular dated 7.4.1986,
that the selection of the eligible candidates should be based
on performance of the respective candidates in the Bank. It was    F
further observed that the instructions of NABARD being in the
nature of guidelines, the promotions made by the Bank could
not be set aside unless the same were arbitrary and unfair.

     9. The law relating to promotions to be granted on the        G
basis of seniority-cum-merit has been settled by this Court in
various decisions, including the case of the State of Mysore
vs. Syed Mahmood [AIR 1968 SC 1113], wherein it was
observed that when promotion is to be made by selection on
the basis of seniority-cum-merit i.e. seniority s1,1bject to the   H
     1162    SUPREME COURT REPORTS                  [2011] 2 S.C.R.


A fitness of the candidates to discharge the duties of the post
  from amongst any person eligible for promotion, the State
  Government had erred in promoting juniors ranking below the
  candidates in order of seniority and that such promotions were
  irregular. Of course, the question posed in these Special Leave
B Petitions gives rise to anothe( question regarding the latter part
  of Regulation 8(2) of the 1994 Regulatibns which indicates that
  seniority alone would not confer any right to be promoted. In
  that regard, this Court held in the above-mentioned case that
  where the promotion is based on seniority-cum-merit, the
C 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.

          10. That principle has been followed ever since and was
D   reiterated by a Three-Judge Bench of this Court in the case of
    B. V. Sivaiah & Ors. Vs. K. Addanki Babu & Ors. [(1998) 6
    sec 720), wherein the criterion for promotion on the basis of
    seniority-cum-merit fell for consideration with regard to the
    same-day appointees. It was held that seniority-cum-merit in the
E   matter of promotion contemplates that given the minimum
    necessary merit requisite for efficiency of administration, a
    senior candidate, even though less meritorious, would have
    priority and a comparative assessment of merit is not required
    to be made. The said view was again repeated in the case of
F   K. Samantaray vs. National Insurance Co. Ltd. [(2004) 9 SCC
    286]. While considering the concepts relating to promotion on
    the basis of seniority-cum-merit and merit-cum-seniority,
    reference was made to an earlier decision of this Court in Sant
    Ram Sharma vs. State of Rajasthan [AIR 1967 SC 1910), in
G   which it was observed that the principles of seniority-cum-merit
    and merit-cum-seniority are completely different. For the former,
    greater emphasis is laid on seniority though it is not the
    determinative factor while in the latter merit is the determining
    factor. A third mode described as "hybrid mode of promotion"
H   contemplates a third category of cases where seniority is duly
  HARYANA STATE WAREHOUSING CORPORATION v. 1163
      JAGAT RAM & ANR. [ALTAMAS KABIR, J.]

 respected and at the same time merit is also appropriately A
 recognized: In yet another decision in the case of Harigovind
 Yadav vs. Rewa Sidhi Gramin Bank [(2006) 6 SCC 145], this
 Court reiterated the principles explained in 8. V. Sivaiah's case
 (supra) holding that where procedure adopted does not provide
 the minimum standard for promotion, but only the minimum B
 standard for interview and does selection with reference fo
 comparative marks, it is contrary to the rule of "seniority-cum-
 merit".
      · 11. In applying the principle of granting promotion on the
  basis of seniority-cum-merit, what is important is that' the inter C
  se seniority of all candidates who are eligible for consideration
  for promotion should be identified on the basis of length of
  service or on the basis of the seniority list as prepared,
  inasmuch as, it is such seniority which gives a candidate a right
  to be considered for promotion on the basis of seniority-cum- D
  merit. As was indicated in Syed Mahmood's case (supra)
  where the promotion is based on seniority-cum-merit, the officer
· cannot as a matter of right claim promotion by virtue of his
  seniority alone, which principle is also reflected in Regulation
  8(2) of the 1994 Regulations. Consequently, the candidate had E
  to be fit to discharge the duties of the higher post and if his
  performance was assessed not to meet such a requirement,
   he could be passed over and those junior to him could be
   promoted despite his seniority in the seniority list.
                                                                       F
        12. lljl the instant case, the only feature which weighed with
  the Corporation in granting promotion to Ram Kumar was a
   comparative assessment between his performance and that of
   Jagat Ram. While Jagat Ram had got only one "outstanding"
   remark in 10 years, Ram Kumar had obtained "outstanding" G
   remark in all the 10 years. Accordingly, he was preferred to
   Jagat Ram, whose qualifications were inferior to that of Ram
   Kumar by comparison. But, as has been rightly held by the
   Division Bench of the High Court, in cases of seniority-cum-
   merit, the comparative assessment is not contemplated and is H
   not required to be made.
    1164    SUPREME COURT REPORTS                 [2011] 2 S.C.R.

A      13. There is nothing on record to indicate that Jagat Ram
  was not capable of discharging his functions in the promoted
  post of Assistant Manager (Administration). He was denied
  promotion only on the ground of the superior assessment that
  had been made in favour of Ram Kumar, which, in our view,
B runs contrary to the concept of seniority-cum-merit.

       14. There is, therefore, no reason to differ with the views
  of the Division Bench of the High Court and both the Special
  Leave Petitions, filed by Ram Kumar and the Corporation, are
C accordingly dismissed.
        15. There will, however, be no order as to costs.
       CYRIAC JOSEPH, J. 1. I had the benefit of reading the
  judgment of my learned brother Altamas Kabir, J. I respectfully
D agree with the decision to dismiss the Special Leave Petitions.
  However, I wish to support and supplement the decision through
  this separate but concurring judgment.
       2. The dispute in these Special Leave Petitions relates to
  the claim of Jagat Ram [Respondent No.1 in S.L.P. (C) No.
E 2659 of 2011] for appointment to the post of Assistant Manager
  (Administration) in Haryana State Warehousing Corporation
  [Petitioner No.1 in S.L.P. (C) No.2659 of 2011].

        3. Jagat Ram had filed Civil Writ Petition No.18891 of
F 2009 in the High Court of Punjab and Haryana, challenging the
  appointment of Ram Kumar [Petitioner in S.L.P. (C) No.451 of
  2011 and respondent No.2 in S.L.P. (C) No.2659 of 2011] as
  Assistant Manager (Administration) and seeking a direction to
  Haryana State Warehousing Corporation (hereinafter referred
G to as "the Corporation") to promote Jagat Ram as Assistant
  Manager (Administration) w.e.f. 1.8.2009. The said Writ
  Petition was dismissed by a Single Bench of the High Court
  on 9.12.2009. Thereupon, Jagat Ram filed Letters Patent
  Appeal No.490 of 2010 before a Division Bench of the High
H Court and vide judgment dated 11.10.2010, the Division Bench
 HARYANA STATE WAREHOUSING CORPORATION v. 1165
     JAGAT RAM & ANR. [ALTAMAS KABIR, J.]
allowed the LP.A. and set aside the promotion of Ram Kumar,       A
with a direction to the Corporation to redo the exercise and
complete the same as expeditiously as possible. Aggrieved by
the judgment of the Division Bench, the Corporation and Ram
Kumar have filed these Special Leave Petitions.
                                                                  B
    4. Jagat Ram was first appointed as Godown Attendant-
cum-Watchman in the Corporation and he joined the service
on 25.4.1979. He was promoted as Clerk-cum-Typist on
23.12.1981. He was further promoted as Establishment
Assistant on 16.5.1996.
                                                                  c
    5. Ram Kumar was first appointed in the Corporation as
Junior Scale Stenographer and he was promoted as
Establishment Assistant on 10.11.2004.

     6. Thus, admittedly, Jagat Ram was senior to Ram Kumar       0
in the cadre of Establishment Assistant. ·
     7. A vacancy of Assistant Manager (Administration) arose
on 1.8.2009 due to the retirement of one V.K. Chakarvarty,
Assistant Manager (Administration) on 31.7.2009. Appointment
to the post of Assistant Manager (Administration) is governed     E
by the provisions of Haryana State Warehousing Corporation
(Officers and Staff) Regulations, 1994 (hereinafter referred to
as "the Regulations"). According to Regulation 8(1) of the
Regulations, the method of recruitment to the post of Assistant
Manager (Administration) is by promotion from amongst             F
Establishment Assistants. Regulation 8(2) of the Regulations
provides as follows :
     "All promotions, unless otherwise provided, shall be made
     on seniority-cum-merit basis and seniority alone shall not   G
     confer any right to such promotions.•
According to Regulation 6 of the Regulations, no person shall
be· appointed to any post in the service unless he is in
possession of qualification and experience specified in
                                                                  H
    1166     SUPREME COURT REPORTS                 [2011] 2 S.C.R.


A Appendix-B to the Regulations. As per clause 19 of Appendix-
  B to the Regulations, for promotion to the post of Assistant
  Manager (Administration) 5 years' experience as
  Establishment Assistant is required. Thus, it is not in dispute
  that as per the Regulations the vacancy in the cadre of
B Assistant Managers (Administration) was to be filled by
  promotion on the basis of seniority-cum-merit from among
  Establishment Assistants having the required experience of 5
  years.

       8. As already indicated, a vacancy of Assistant Manager
C (Administration) arose on 1.8.2009. As on that date Ram
  Kumar did not have 5 years' experience as Establishment
  Assistant, as he was promoted to the post of Establishment
  Assistant only on 10.11.2004. However, Jagat Ram had more
  than 5 years' experience as he was promoted to the post of
D Establishment Assistant on 16.5.1996. The vacancy of
  Assistant Manager (Administration) which arose on 1.8.2009
  was filled up only on 17.11.2009 by promoting Ram Kumar as
  Assistant Manager (Administration). By 17.11.2009, Ram
  Kumar also had acquired experience of 5 years in the cadre
E of Establishment Assistants. But Jagat Ram was admittedly
  senior to Ram Kumar.

       9. In the Writ Petition filed by Jagat Ram, he had contended
  that the promotion of Ram Kumar to the cadre of Assistant
F Managers (Administration) was illegal as he did not possess
  the required experience of 5 years on the date of occurrence
  of the vacancy i.e. 1.8.2009. It was alleged that the vacancy
  which arose on 1.8.2009 was deliberately kept vacant for more
  than 3 months and that the filling up of the vacancy was
  purposefully delayed to enable Ram Kumar to acquire the
G minimum required experience of 5 years as Establishment
  Assistant. It was also alleged that since Ram Kumar was
  working as Junior Scale Stenographer-cum-Personal Assistant
  to the Managing Director of the Corporation, the action of the
  respondents in delaying the filling up of the vacancy of Assistant
H
HARYANA STATE WAREHOUSING CORPORATION v. 1167
    JAGAT RAM & ANR. [ALTAMAS KABIR, J.]

Manager (Administration) was mala fide. Jagat Ram also               A
claimed that being the senior-most and meritorious amongst
the Establishment Assistants, he was the only eligible
candidate for promotion to the post of Assistant Manager
(Administration} when it fell vacant on 1.8.2009.
                                                                     B
     10. The Writ Petition filed by Jagat Ram was dismissed
on 9.12.2009 by a Single Bench of the High Court apparently
even without issuing notice to the respondents. In the judgment
dated 9.12.2009, the learned Single Judge held that Ram
Kumar was eligible for promotion on the date when the case           C
for promotion was considered. It was also observed that the
service records placed on record by the petitioner (Jagat Ram)
clearly showed that the record of Ram Kumar was much better
than that of JagatRam. The learned Single Judge rejected the
contention that undue favour was shown to Ram Kumar by the
Managing Director. Aggrieved by the judgment of the learned          D
Single Judge, Jagat Ram filed LP.A. No. 490 of 2010 which
was allowed by the Division Bench of the High Court.

      11. In the impugned judgment dated 11.10.2010 in LP.A.
No.490 of 2010, the Division Bench of the High Court held that       E
as per the Regulations governing promotion to the post of
Assistant Manager (Administration), the criterion for promotion
is seniority-cum-merit, but Ram Kumar was wrongly and illegally
given promotion following the criterion of merit or even merit-
cum-seniority. Relying on the judgment of this Court in State of     F
Mysore and anotherv. Syed Mahmood and others (AIR 1968
SC 1113), the Division Bench pointed out that when promotion
is to be made on the basis of seniority-cum-merit, a senior can
be overlooked only when he is found unfit for the higher post.
The Division Bench rejected the contention of the Corporation        G
that the words "seniority alone shall not confer any right to such
promotions" appearing in Regulation 8(2) of the Regulations
indicated that a junior can be preferred to a senior on the basis
of merit. According to the Division Bench, the words quoted
above only clarify and fortify that promotion is required to be
                                                                     H
    1168     SUPREME COURT REPORTS                  [2011) 2 S.C.R.

A made by applying the criterion of seniority-cum-merit. The
  Division Bench found that the selection and promotion of Ram
  Kumar was predominantly on the principle of merit and hence
  it was in contravention of the provisions contained in the
  Regulations. Accordingly, the promotion of Ram Kumar was set
B aside and the Corporation was direc.ted to redo the exercise
  and complete the same as expeditiously as possible but strictly
  in accordance with the Regulation in force. It may be observed
  that the Division Bench did not consider the question whether
  eligibility of the candidates should have been considered with
c reference to the date of occurrence of the vacancy.
         12. The first issue that arises for consideration in these
    Special Leave Petitions is the effect of the words "seniority
    alone shall not confer any right to such promotions" appearing
    in Regulation 8(2) of the Regulations.
D
       13. The learned counsel for the petitioners in the Special
  Leave Petitions contended that those words gave freedom or
  right to the Corporation to prefer a junior to his senior on the
  basis of better merit. It was contended that in view of those
E words, quoted above, seniority should yield to merit. The
  contention of the learned counsel for the petitioners is devoid
  of merit. As rightly held by the Division Bench of the High Court,
  the words "seniority alone shall not confer any right to such
  promotions" only clarify the earlier part of Regulation 8(2), which
F stipulates that "all promotions, unless otherwise provided, shall
  be made on the seniority-cum-merit basis". The clear mandate
  of Regulation 8(2) is that promotions shall be made on seniority-
  cum-merit basis and not on the basis of seniority alone or merit
  alone. To emphasise that promotion cannot be claimed as a
  matter of right on the basis of seniority and that along with
G seniority, merit also will be considered, it is clarified in the
  Regulation itself that "seniority alone shall not confer any right
  to such promotions". The above quoted words do not in any
  way dilute or vary the principle that promotions shall be made
  on seniority-cum-merit basis. They only clarify the meaning or
H
 HARYANA STATE WAREHOUSING CORPORATION v. 1169
     JAGAT RAM & ANR. [ALTAMAS KABIR, J.]

implication of the expression "seniority-cum-merit". In this          A
context, it may be pointed out that in State of Mysore and
another v. Syed Mahmood and others (AIR 1968 SC 1113),
this Court has held as follows:

    "(4) ..... Where the promotion is based on seniority-cum-         B
    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."

     14. The next issue that arises for consideration is whether C
the impugned promotion of Ram Kumar was on the basis of
seniority-cum-merit as required by Regulation 8(2) of the
Regulations. For deciding the said issue, it is necessary to
understand the meaning of the expression "seniority-cum-merit".
                                                                      D
     15. In State of Kera/a and another v. N.M. Thomas and
others [(1976) 2 SCC 310], this Court held that seniority-cum-
merit means that given the minimum necessary merit requisite
for efficiency of administration, the senior though less
meritorious shall have priority.
                                                                      E
     16. In B. V. Sivaiah and others v. K. Addanki Babu and
others [(1998) 6 SCC 720], a three Judges' Bench of this Court
considered the question "what is meant by seniority-cum-merit?"
and held as follows :
                                                                F
    "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 G
    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 H
    1170     SUPREME COURT REPORTS                    [2011] 2 S.C.R.


A        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."
B
       17. In Union of India and others v. Lt. Gen. Rajendra Singh
  Kadyan and another [(2000) 6 SCC 698), this Court held 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
C on seniority. It was also held that the requirement of assessment
  of comparative merit was absent in the case of "seniority-cum-
  merit".

        18. Following the decision in B. V. Sivaiah (supra), this
D Court in Harigovind Yadav v. Rewa Sidhi Gramin Bank and
  others [(2006) 6 sec 145] held that where the procedure
  adopted did not provide the minimum standard for promotion,
  but only the minimum standard for interview, and did the
  selection with reference to comparative marks, it was contrary
E to the rule of "seniority-cum-merit". This Court in that case found
  that the procedure was not one -of ascertaining the minimum
  necessary merit and then promoting the candidates with the
  minimum merit in accordance with seniority, but assessing the
  comparative merit by drawing up a merit list, the assessment
F being with reference to marks secured for seniority,
  performance, postings at rural/difficult places and interview.
        19. In Rajendra Kumar Srivastava and others v. Samyut
  Kshetriya Gramin Bank and others [(2010) 1 SCC 335), while
  considering the question "whether minimum qualifying marks
G could be prescribed for assessment of past performance and
  interview, where the promotions are to be made on the principle
  of seniority-cum-merit?", this Court observed as follows :
        "11. It is also well settled that the principle of seniority-cum-
H       merit, for promotion, is different from the principle of
HARYANA STATE WAREHOUSING CORPORATION v. 1171
    JAGAT RAM & ANR. [ALTAMAS KABIR, J.]

  "seniority" and the principle of "merit-cum-seniority". Where A
  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- B
  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         c
  the minimum ne_     cessary merit strictly in the order of
  seniority. The minimum merit necessary for the post may
  be 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 o.
  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 E
   seniority-cum-merit.

  12. xxx                     xxx              xxx
  13. Thus it is clear that a protess whereby eligible         F
  candidates possessing the minimum necessary merit in
  the feeder posts is first ascertained and thereafter,
  promotions are made strictly in accordance with seniority,
  from among those who possess the minimum necessary
  merit is recognised and accepted as complying with the
  principle of "seniority-cum-merit". What would offend the    G·
  rule of seniority-cum-merit is a process where after
  assessing.the minimum necessary merit, promotions are
  made on the basis of merit (instead of seniority) from
  among the candidates possessing the minimumfilecessary
                                                               H
    1172    SUPREME COURT REPORTS                  [2011] 2 S.C.R.

A       merit. If the criteria adopted for assessment of minimum
        necessary merit is bona fide and not unreasonable, it is
        not open to challenge, as being opposed to the principle
        of seniority-cum-merit. We accordingly hold that prescribing
        minimum qualifying marks to ascertain the minimum merit
8       necessary for discharging the functions of the higher post,
        is not violative of the concept of promotion by seniority-
                   11
        cum-merit.

        20. In Rupa Rani Rakshit and others v. Jharkhand Gramin
  Bank and others [(2010) 1 SCC 345), the Bank did not subject
C eligible candidates to any process of assessment to ascertain
  any spedfied minimum merit, for the purpose of promoting
  candidates who possessed the minimum merit, on the basis
  of seniority. On the other hand, the Bank proceeded to assess
  their inter se merit with reference to four criteria (period of
D service, educational qualification, performance during three
  years and interview) by allocating respectively maximum marks
  of 40, 6, 24 and 30 and thus proceeded to promote those who
  had secured higher marks in the order of merit. This Court held
  that such promotions were not on seniority-cum-merit basis.
E
        21. Though learned counsel for the petitioners relied on the
  decision of this Court in Jagathigowda, C. N. & Others v.
  Chairman, Cauvery Gramina Bank & Others [(1996) 9 SCC
  677], the said decision cannot support the case of the
F petitioners, because, in the said case the guidelines applicable
  to the promotions had specifically provided that "the selection
  of the eligible candidates should be based on performance of
  the respective candidates in the Bank". However, learned
  counsel invited our attention to the following observation in
G paragraph 8 of the judgment:
        "... It is settled proposition of law that even while making
        promotions on the basis of seniority-cum-merit, the totality
        of the service record of the officer concerned has to be
                                     11
        taken into consideration ....
H
 HARYANA STATE WAREHOUSING CORPORATION v. 1173
    . JAGAT RAM & ANR. [ALTAMAS KABIR, J.}

The above observation only means that, for the purpose of            A
considering whether the officer fulfils the requirement of
minimum merit or satisfies the benchmark previously fixed, the
totality of his service record has to be taken into consideration.
It does not mean that a further assessment of comparative
merit on.the basis of the service record is warranted even after     B
the officers are found to fulfil the requirement of minimum merit
and satisfy the benchmark previously fixed.

     22. Thus it is the settled position that the criterion of
se'1iority-cum-merit is different from the criterion of merit and C
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 D
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 a further comparative
assessment of the merit ofthose who were found to have the
minimum necessary merit required for efficiency of E
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 F
of service record and interview and prescribing the minimum
marks which would entitle a person to be considered for
promotion on the basis of s~niority-cum-merit.' The concept of
"seniority-cum-merit" postulates the requirement of certain
minimum merit or satisfying a benchmark previously fixed and, G
subject to fulfilling the said requirement, promotion is based on
seniority. There is no further assessment of the comparative
merits of those who fulfil such requirement of minimum merit
or satisfy the benchmark previously fixed. On the other hand,
the principle of "merit-cum-seniority" puts greater emphasis on H
    1174 SUPREME COURT REPORTS                    [2011) 2 S.C.R.

A merit and ability and seniority plays a less significant role.
  Seniority is given weightage only when merit and ability are
  more or less equal among the candidates considered for
  promotion.

        23. In the light of the above legal position with regard to
8
  the principle of "seniority-cum-merit", it is clear that the
  impugned promotion of Ram Kumar was not on the basis of
  seniority-cum-merit but was on the basis of merit. The written
  statement filed by the Corporation in LP.A. No. 490 of 2010
C reveals that while considering the candidates for promotion,
  both Jagat Ram and Ram Kumar were found suitable for
  promotion and that even though Jagat Ram was senior to Ram
  Kumar, Ram Kumar was given promotion on the ground that
  he had better merits. Justifying the promotion of Ram Kumar
  in preference to the appellant Jagat Ram, it was stated in the
D written statement as follows :
        "2.xxx .                    xxx              xxx
        As is evident from a perusal of Annexure P-4, all the
        Assistants who were eligible for promotion to the rank of
E
        Assistant Manager (Administration) having completed 5
        years of service as Assistant were considered on the basis
        of seniority-cum-merit by the competent authority. The
        senior most candidate i.e. Shri R.K. Nayyar had bad
        service record in as much as there were three charge-
F       sheets pending under Rule-7 against him besides penalty
        imposed upon him. The second candidate in seniority was
        the petitioner Shri Jagat Ram, whose ACR dossier for the
        last 10 years contained one grading as Very Good and 9
        were good. The third candidate, Smt. Pushpa Devi again
G       has 8 very good, % outstanding, one good and % average
        grading in her ACR resume. Penalty of stoppage of one
        increment without cumulative effect was imposed upon her
        on 18.12.2008. She was also issued a warning on
        04.12.2008. The respondent No.3, Shri Ram Kumar, had
H
. HARYANA STATE WAREHOUSING CORPORATION v. 1175 '
      JAGAT RAM &.ANR. [ALTAMAS KABIR, J.]

    all the 10 Annual Confidential Reports as.Outstanding and A
    there were no departmental proceedings pending or
    concluded against him and thus on the basis of seniority-
    curri-merit as provided in the Regulations, the candidature
    of respondent No.3 was found to be most suitable and
    accordingly the competent authority, vide detailed and · B
    reasoned orders, promoted the respondent No.3 to the
    rank of Assistant Manager (Administration) ...."

In reply to Jagat Ram's contention that selection had to be made
frcn1 a panel of three suitable officials and that Ram Kumar        C
could not have been considered as he was at seriai No.4, the
Corporation stated in the written statement as follows :

    "3 .... The contention is totally devoid of merits. The Chief
    Secretary Punjab vide Notification dated 28.06.1961 , copy
    of which is attached as Annexure R-1/1 had clarified the D
    issue and has ordered that in the first instance, list of
    eligible officers/officials, who fulfil the prescribed
    experience etc. for promotion is to be drawn up and then
    out of this list, such officers/officials as are considered
    un.suitable for promotion are to be weeded out and a list E
    of only those who are suitable for promotion has to be
    drawn up. Selection thereafter is to be confined to three
    suitable officers/officials of the list. . . . Selection for every
     vacancy has, therefore,· to be made from the slab of three
     officers/officials, who are considered fit for promotion and   F
     unless a junior among them happens to be of exceptional
     merit and suitability, the senior-most will be selected.
          · In the present case, in the Corporation there were ·
     only four Establishment Assistants who were eligible and
     the candidature of all the four was considered. Out of four, G
     two were found unsuitable and out of the remaining two
     suitabie officials, the respondent No. 3 . being most
     suitable and meritorious was selected and promoted to ·
     the post of Assistant Manager (Administration)."
                                                                  H
     1176      SUPREME COURT REPORTS                 [2011] 2 S.C.R.

A Therefore, it is clear that even according to the Corporation,
  both Jagat Ram and Ram Kumar fulfilled the requirement of
  minimum merit and were suitable for promotion but Ram
  Kumar, though junior, was preferred as he was found to be
  more meritorious. This was obviously in violation of the
B principle of seniority-cum-merit. Since both Jagat Ram and
  Ram Kumar fulfilled the requirement of minimum merit and were
  found suitable for promotion and since Jagat Ram was senior
  to Ram Kumar, Jagat Ram was entitled to be promoted on the
  basis of seniority-cum-merit. Consequently, the promotion of
C Ram Kumar was liable to be set aside as was rightly done by
  the Division Bench of the High Court.

          24. In the light of the discussion above, the Special Leave
     Petitions are devoid of merit and hence they are dismissed.

o           25. There will, however, be no order as to costs.
     R.P.                        Special Leave Petitions dismissed.




-.