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Haryana State Electronics Development Corporation Limited And Others v. Seema Sharma And Others
Factual and Procedural Background
Respondent 1 instituted a suit for declaration against Haryana State Electronics Development Corporation Ltd. (“the appellant Corporation”) contending that she was senior to two colleagues who had been promoted to the post of Senior Receptionist-cum-PBX Operator by order dated 10-9-1991. On 5-2-2002, the Additional Civil Judge (Senior Division), Ambala Cantt. held in her favour, declaring the promotion order illegal and void.
The appellant Corporation challenged that decree in first appeal, raising (inter alia) the ground that its promotion policy was based on merit-cum-seniority. The first appellate court dismissed the appeal; the record does not disclose any specific finding on that ground.
A second appeal (RSA No. 4858 of 2004) was then filed before the High Court of Punjab and Haryana. Although there was a one-day delay in filing, the High Court dismissed the appeal on the merits at the admission stage without passing any order on the delay application.
The appellant Corporation sought relief from the Supreme Court, culminating in the present judgment dated 15-2-2005 (A.K. Ganguly, J.).
Legal Issues Presented
- Whether, under the appellant Corporation’s promotion rules, vacancies are to be filled on the principle of merit-cum-seniority, and if so, whether Respondent 1 can claim promotion solely on the basis of seniority.
- Whether the High Court erred in dismissing the second appeal at the admission stage without addressing the above substantive question of law.
Arguments of the Parties
Appellant Corporation's Arguments
- Promotion within the Corporation is governed by the principle of merit-cum-seniority, not by seniority alone.
- Because Respondent 1 had been punished for acts of misconduct, she lacked the requisite merit to be promoted.
Respondent 1's Arguments
- She is senior to the two colleagues promoted on 10-9-1991 and is therefore entitled to promotion.
- The promotion order promoting her juniors is illegal and void.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jagathigowda, C.N. v. Cauvery Gramina Bank (1996) 9 SCC 677; AIR 1996 SC 2733 | Explains the distinction between the principles of merit-cum-seniority and seniority-cum-merit. | Cited to clarify that the two principles are “totally different,” thereby underscoring the necessity to determine which applies to the appellant Corporation’s promotion policy. |
Court's Reasoning and Analysis
The Supreme Court recognised that the trial court framed no issue on the Corporation’s pleaded policy of merit-cum-seniority, and neither the first appellate court nor the High Court addressed it. After delineating the conceptual difference between “merit-cum-seniority” (where merit predominates and seniority is a tiebreaker) and “seniority-cum-merit” (where seniority prevails unless the senior is demonstrably unfit), the Court concluded that the unresolved question of which principle governed promotions was “vitally important to the entire controversy.”
Because Section 103 of the Civil Procedure Code empowers the High Court in second appeal to decide any necessary issue not determined by the courts below when the record is sufficient, the Supreme Court held that the High Court ought to have considered the question. The omission constituted a material error warranting interference.
Holding and Implications
ORDER: The appeal is allowed to the extent of setting aside the High Court’s dismissal; the matter is remanded to the High Court for rehearing of the second appeal on the specific question whether the Corporation’s promotion policy is merit-cum-seniority and, consequently, whether Respondent 1’s claim for promotion was rightly rejected.
Implications: The High Court must now decide the second appeal on merits within four months of receiving the Supreme Court’s order, with liberty to the Chief Justice to assign it to an appropriate Bench. No opinion on the ultimate merits of either party was expressed, and no new precedent was set beyond clarifying the procedural course.
A.K Ganguly, J.— Leave granted. This appeal is directed against the judgment and order dated 15-2-2005 passed by the High Court of Punjab and Haryana in RSA No. 4858 of 2004, whereby the High Court has been pleased to dismiss the second appeal filed by the appellant at the stage of admission.
2. There was a delay of one day in filing of the appeal before the High Court. The High Court did not pass any order on the same since the appeal was dismissed on merit at the stage of admission.
3. A suit for declaration was filed by Respondent 1 against the appellant, Haryana State Electronics Development Corporation Limited (hereinafter referred to as “the appellant Corporation”) and two of her colleagues, who according to Respondent 1 were promoted by the appellant Corporation even though they were junior to her.
4. The suit was filed claiming a declaration that Respondent 1 is senior to two of her colleagues and also praying for a declaration that the promotional order dated 10-9-1991, by which the junior colleagues of Respondent 1 were promoted, was illegal and invalid. The Additional Civil Judge (Senior Division), Ambala Cantt. by judgment and order dated 5-2-2002 inter alia held that Respondent 1 is senior to her colleagues, Defendants 4 and 5 in the suit and that the order of promotion dated 10-9-1991 passed by the respondent Corporation purporting to promote the said defendants on the post of Senior Receptionist-cum-PBX Operator is illegal and void.
5. The following issues were framed by the trial court:
I. Whether the plaintiff is senior to Defendants 4 and 5? OPP
II. Whether the impugned order dated 10-9-1991, passed by Defendants 1 and 2 promoting Defendants 4 and 5 to the post of Senior Receptionist-cum-PBX Operator, are illegal, null and void, if so, its effect? OPP
III. Whether the suit is time-barred? OPD
IV. Whether the suit is not maintainable in the present form? OPD
V. Relief
6. The case which was sought to have been made out before the trial court by the appellant Corporation is that in view of its promotion policy such promotion is based on the principle of merit-cum-seniority. This appears from para 4 of the judgment of the trial court as the stand taken by the appellant Corporation. Unfortunately no issue was framed on that question and obviously no finding on that was reached. However, in the written statement which was filed by the appellant Corporation before the trial court, it appears that the said plea was taken that the promotion in the appellant Corporation was based on merit-cum-seniority and not on the basis of seniority alone.
7. The Court is of the opinion that the principle of merit-cum-seniority and that of seniority-cum-merit are two totally different principles.
8. The principle of merit-cum-seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted.
9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority and promotion to a senior person cannot be denied unless the person concerned is found totally unfit on merit to discharge the duties of the higher post. The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum-merit (see Jagathigowda, C.N v. Cauvery Gramina Bank (1996) 9 SCC 677, AIR 1996 SC 2733).
10. Even though in the written statement of the appellant Corporation the point is specifically taken that promotion has to be given on the basis of merit-cum-seniority, on that aspect no issue has been framed by the trial court. This question does not appear to have been considered by the High Court also.
11. The grounds of appeal filed before the High Court are not before us. But a ground to that effect has been taken before the first appellate court as Ground 4. The said ground is as follows:
“4. That the learned lower court has totally ignored the fact that the promotion is based on merit-cum-seniority and on account of the punishment imposed and various acts of misconduct of Respondent 1, she had no merit to claim promotion.”
But on that ground also no finding has been reached by the first appellate court.
12. Before us one of the questions of law raised by the appellant Corporation is as follows:
“Whether the promotion claim of Respondent 1 only on the basis of seniority is sustainable, whereas as per the departmental promotion rules the promotion is based on merit-cum-seniority?”
The aforesaid question has not been dealt with by the courts below and even by the High Court.
13. Since the said question is vitally important to the entire controversy in this case, this Court remands the matter to the High Court and directs the High Court to rehear the second appeal and decide the aforesaid question, namely, whether in the matters of granting promotion to Respondent 1, the appellant Corporation has to follow the principle of merit-cum-seniority, as contended by them.
14. The fate of Respondent 1's claim for promotion depends on an answer to this question. Under Section 103 of the Civil Procedure Code, the High Court in second appeal can decide this issue since it is necessary for disposal of the appeal and has not been decided by the courts below. Relevant materials on this issue are also on record. After deciding that question the High Court will decide whether the respondent(s) claim for promotion has been wrongfully denied.
15. As this matter is pending in courts for a long time, we request the High Court to dispose of the matter as early as possible, preferably within a period of four months from the date of production of this order before the Hon'ble High Court. We give liberty to the parties to mention before the Hon'ble the Chief Justice of the High Court and the Hon'ble Chief Justice may explore the possibilities of assigning this matter to any appropriate Bench for decision, preferably within the time mentioned above.
16. We do not express any opinion on the merits of this case of either of the parties. The appeal is thus disposed of. No costs.
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