U.V. MAHADKARversusSUBHASH ANAND CHAVAN AND OTHERS

                    [2015] 10 S.C.R. 771


                     U.V. MAHADKAR                          A
                             v.
       SUBHASH ANAND CHAVAN AND OTHERS
            (Civil Appeal No.843 of2012 etc.)
                   SEPTEMBER 02, 2015                       B

         [M. '!· EQBAL AND C. NAGAPPAN, JJ.]
    Service Law:

     Selection - To the post of Head of Department of C
Agronomy - On merit-cum-seniority basis - By expert
committee - Challenged- Selection set aside by High Court
directing to hold fresh meeting for consideration of the
selection - On appeal, held: In view of proviso to statue 41
of the Universities Statutes, the recommendation of the D
Committee was to be on the basis of merit and seniority- In
such cases merit shall have to be given preference over the
seniority- In the matter of selection and promotion, normally
the courts should not interfere with the decision of Committee
of experts, unless mala fide is attributed or a/legations of E
arbitrarinet;s is proved- High Court was not right in entering
into the arena of experts and reassess the merit of the
candidates- Maharashtra Agricultural Universities Statutes,
1990- Statute 41 Proviso.
                                                            F
    Selection - On the basis of 'merit-cum-seniority' and
'seniority-cum-merit' - Distinction between - Discussed.

    Allowing the appeals, the Court
                                                            G
    HELD: 1. From bare perusal of the provision in statue
41 of Maharashtra Agricultural Universities Statutes,
1990, it is manifest that the proviso to Statute 41 make it
clear that recommendation of the Committee shall be on
the basis of "merit and seniority". There is a sharp H
                            771
772       SUPREME COURT REPORTS              [2015] 10S.C.R.


A  distinction between "merit-cum-seniority" and
   "seniority-cum-merit". In the former case, the merit shall
   have to be given preference over the seniority. It is only
   when the senior-most candidate has no merit and he is
   not suitable to be appointed on the selection post, merely
 B because of seniority, then the Committees have to select
   a meritorious candidate. [Paras 10 and 13] [776-.E; 777-
   C-D]

         Guman Singh vs. State of Rajasthan, (1971) 2
c        sec 452 - followed.
         B. V Sivaiah vs. Addanki Babu 1998 (3) SCR 782:
         (1998) 6 SCC 720; Ayurveda & Siddha vs. K.
         Santhakumari (Dr) 2001 (3) SCR 519: (2001) 5
D        SCC 60; K. Samantaray vs. National Insurance
         Co. Ltd., (2004) 9 SCC 286 - relied on.

       2. In the matter of selection and promotion to the
   higher post, if a Committee of experts is constituted, then
 E normally, the Court should not interfere in such decision
   unless. ma/a fide is attributed or allegations of
   arbitrariness is proved. The High Court should not have
   entered into the arena of the experts and to reassess
   the merit of the cahdidates when it is finally decided by
 F a duly constituted Committee of experts in the same field.
   [Paras 8 and 18] [775-G-H; 779-H; 780-A]

                      Case Law Reference

       1998 (3) SCR 782        relied on.         Para 14
 G
       (1971) 2 sec 452        followed.          Para 15

       2001 (3) SCR 519        relied on.          Para 16

       (2004) 9 sec 286        relied on.          Para 17
 H
    U.V. MAHADKAR v. SUBHASH ANAND CHAVAN                      773


    CIVILAPPELLATE JURISDICTION: Civil Appeal No. 843          A
of2012.

    From the Judgment and Order dated 24.11.2009 of the
High Court of Judicature at Bombay in Writ Petition No. 5231 of
2008.                                                           B

   Chinmoy Khaladkar, Ajay Choudhary, Pravin Satale, Rajiv
Shankar Dvivedi, Sushi! Karanjkar, (For K.N. Rai), K.V.
Sreekumarforthe appearing parties.

    The Judgment of the Court was delivered                    c
    We have heard learned counsel for the parties.

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

    3. The facts are not much in dispute.

     4. In the year 1986, the appellant was appointed as F
Assistant Professor, College of Agriculture, Dapoli under Dr.
Balasaheb Sawant Konkan Krishi Vidyapeeth Dapoli. He was
selected and promoted as a Professor of Agronomy in
Mahatma Phule Krishi Vidyapeeth, Rahuri on 17.8.2001. For
the purpose of appointing a Head of Department of Agronomy, G
a Selection Committee was constituted in the year 2008. The
Committee, considered Statute 41 of the Maharashtra
Agricultural Universities Statutes, 1990. The Committee after
assessing th~ merit and other criteria of the appellant vis-a. H
774         SUPREME COURT REPORTS                  [2015] 10 S.C.R.


 A    vis contesting respondent selected the appellant to the post of
      Head of Department of Agronomy in the University.

         5. Respondent No.1 challenged the said decision of the
    Committee by filing a writ petition being Writ Petition No. 5231
. B of 2008. Although the High Court noticed the proviso of Statute
    41 of the aforesaid Statute, set aside the selection on the
    grounds noted in para 4 of the impugned order. For .better
    appreciation, para 4 of the impugned order passed by the High
    Court is quoted herein below:-
 c
           "4. Further it is to be seen that after having found that on
           the basis of service record, both·the petitioner and the
           respondent No.3 are equal and that the respondent No.3
           is more meritorious because he had more experience
 D         in the post of Professor, the second aspect which requires
           consideration in view of the provision of sub-rule (5) of
           Statute 41 was the aspect of seniority. In the seniority
           list, the petitioner was at serial No.1 whereas the
           respondent No.3 was at serial No.2. Perusal of the
 E         minutes of the Selection Committee shows that the
           Selection Committee has not at all allowed this
           consideration to enter in their mind. In our opinion, the
           submission of the learned counsel that seniority is not
           relevant when the criteria for promotion is merit cum
 F         seniority for carving out zone of consideration is not well
           founded especially because in the present case so far
           as the aspect of merit is concerned, on the basis of
           service record, both the candidates are found to be equal
           and the respondent No.3 has been found more
 G         meritorious only because his experience in the post of
           Professor, therefore, the next consideration that should
           have entered in the mind of the Selection Committee was
           their placement in the seniority list. We do not want to
           suggest that the Selection Committee could not have
 H •       selected the respondent No.3 because he was junior to
    U.V. MAHADKAR v. SUBHASH ANAND CHA'IAN                      775


     the petitioner. The Selection Committee should have A
     applied its mind ta that aspect of the matter and given
     reasons why though the petitioner is senior according to
     them, selection of respondent No.3 is necessary. We thus
     find that in selecting the respondent No.3 for the post of
     Head of Department of Agronomy, the Selection B
     Committee has ignored or has not taken into
     consideration relevant aspects which are required to be
     considered in accordance with law and therefore, in our
     opinion, the selection and consequent appointment of
     the respondent No.3 as Head of Department of C
     Agronomy will have to be set aside. In our opinion,
     following order would meet the ends of justice."

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

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

     8. At the very outset, we are of the view that in the matter G
of selection and promotion to the higher post, if a Committee
of experts is constituted then normally, the Court should not
interfere in such decision unless mala fide is attributed or
allegations of arbitrariness is proved.
                                                                  H
776            SUPREME COURT REPORTS                [2015] 10 S.C.R.


A         9. Statute 41 under which selections are made is
      reproduced herein below:-

            "Statute 41 :- The post of Director (other than Director of
            Students Welfare), Dean of Faculties and other equivalent
 B          posts shall be filled in the nomination or transfer by the
            Pro-Chancellor. The posts of Associate Deans, Head of
            Departments, Professors and other equivalent post shall
            be filled in by promotion and nomination in the ratio of
            50 : 50 percent of the vacant post as the Vice Chancellor
C           may, from time to time determine.

            Provided that, such posts shall be filled in by promotion
            through the recommendation of the Selection Committee
            on the basis of merits and seniority in the discipline or
 D          grouppf disciplines, departments or sector and minimum
            academic qualifications and experiences, as prescribed
            by the statutes."

       10. Fr.om bare perusal of the aforesaid provis.ion, it is
 E manifest that the proviso to Statute 41 make it clear that
   recommendation of the Committee shall be on the basis of
   "merit and seniority".

          11. In the instant case, we found that the Committee was
 F    constituted of the following members:-

         (i)      The Vice Chairman of the State Council

         (ii)     The Vice Chancellor of the University concerned

G        (ii_i)   One non-official to be nominated by the Pro-
                  Chancellor, from amongst the non-official members
                  of the Executive Councils of the agricultural
                  Universities in the State

         (iv)     Two' experts to be nominated by the Chancellor
H
     U.V. MAHADKAR v. SUBHASH ANAND CHAVAN                          777


    (v)   Two representatives of the Indian Council of A
          Agricultural Research to be appointed by the State
          Government, one of whom shall be a Specialist in
          the particular field for which the recruitment is to be
          made.
                                                                  B
     12. The members of the said Committee, in compliance
of the High Court's order, reconsidered the merit of the
appellant vis-a-vis Respondent No.1 and again selected the
appellant to the post of Head of Department.
                                                                    c
     13. It is well settled that there is a sharp distinction between
"merit-cum-seniority" and "seniority-cum-merit". In the former
case, the merit shall have to be given preference over the
sen.iority. It is only when the senior-most candidate has no merit
and he is not suitable to be appointed on the selection post, D
merely because of seniority, then the Committees have to select
a meritorious candidate. The question as to the distinction
between the two is no longer res integra.

     14. In the case of B. \I. Sivaiah vs. Addanki Babu, (1998)     E
6 sec 720, while considering the principle of promotion on
merit-cum-seniority and seniority-cum-merit, this Court held that
the principle of merit-cum-seniority lays greater emphasis on
merit and ability and seniority plays a less significant role.
Seniority is to be given weight only when merit and ability are     F
approximately equal.

    15. The Constitution Bench of this Court in the case of
Guman Singh vs. State ofRajasthan, (1971) 2 SCC 452,
was considering a question as to whether promotion based G
on merit, as embodied in the RajasthanAdministrative Service
Rules, 1954, is violative of Articles 14 and 16 of the
Constitution. This Court held that:

      "33. We are unable to accept this contention. The State
      Government has taken a decision in 1965 that selection        H
778         SUPREME COURT REPORTS                  [2015] 10 S.C.R.


A           to the service and promotion have to be on the basis of
            merit and seniority-cum-merit. There can be no
            controversy that the main object in such matters is to
            serve public interest and not the personal interest of the
            members of the official group concerned. As stated by
 B          Leonard D. White in his Introduction to the Study of Public
            Administration, 4th Edn., p. 380: "The Public interest is
            best secured when reasonable opportunities for
            promotion exist for all qualified employees, when really
            superior civil servants, are enabled to move as rapidly
 c          up the promotion ladder as their merits deserve and as
            vacancies occur, and when selection for promotion is
          . made on the sole basis of merit. For the merit system
            ought to apply as specifically in making promotions as
            in original recruitment''.
 D
           16. In the case of Ayurveda & Siddha vs. K.
      Santhakumari (Dr), (2001) 5 SCC 60, this Court, considering
      the similar question, held

 E         "6. The principle of merit-cum-seniority is an approved
           method of selection and this Court in Sant Ram Sharma
           v. State of Rajasthan, AIR 1967 SC 1910, held that
           promotion to "selection grade posts" is not automatic on
           the basis of ranking in the gradation list and the
 F         promotion is primarily based on merit and not on seniority
           alone. At p. 1914 of the judgment, it is stated as·under:
           (AIR para6)

           'The circumstance that these posts are classed as
 G         'selection grade posts' itself suggests that promotion to
           these posts is not automatic being made only on the basis
           of ranking in the gradation list but the question of merit
           enters in promotion to selection posts. In our opinion,
           the respondents are right in their contention that the
 H         ranking or position in the gradation fist does not confer
    U.V. MAHADKAR v. SUBHASH ANAND CHAVAN                       779


     any right on the petitioner to be promoted to selection A
     post and that it is a well-established rule that promotion
     to selection grades or selection posts is to be based
     primarily on merit and not on seniority alone. The principle
     is that when the claims of officers to selection posts is
     under consideration, seniority should not be regarded B
     except where the merit of the officers is judged to be
     equal and no other criterion is, therefore, available."

    17. Reference may also be made to a decision of this
Court in the case of K. Samantaray vs. National Insurance C
Co. Ltd., (2004) 9 SCC 286, observed as under:

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

    18. After giving our anxious consideration in the matter•.
we are of the definite opinion that the High Court should not H
780          SUPREME COURT REPORTS               [2015) 10 S.C.R.


A have entered into the arena of the experts and to reassess the
  merit of the candidates when it is finally decided by a duly
  constituted Committee of experts in the s~me field.
       19. In that view of the matter, the impugned order cannot
 B be sustained in law. Therefore, for the aforesaid reasons, this
   appeal is allowed and the impugned order passed by the High
   Court is set aside.
           Civil Appeal No. 844 of 2012:
c        20. In view of the order passed in Civil Appeal No. 843 of
      2012, this appeal is also allowed.

      Kalpana K. Tripathy                            Appeals allowed.




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