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CASE NO.: Appeal (civil) 3595  of  2001

PETITIONER: THE CENTRAL COUNCIL FOR RESEARCH IN AYURVEDA & SIDDHA & ANR.

       Vs.

RESPONDENT: DR. K. SANTHAKUMARI

DATE OF JUDGMENT:       04/05/2001

BENCH: S. Rajendra Babu & K.G. Balakrishnan

JUDGMENT:

Balakrishnan, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   The respondent herein was the Assistant Research Officer (Ayurveda)   in  the  Indian   Institute   of   Panchakarma, Cheruthuruthy,  in  Kerala.  This Institute  is  functioning under  the  Central  Council for Research  in  Ayurveda  and Siddha.   The  Departmental Promotion Committee  prepared  a panel  of eligible candidates for being promoted as Research Officers.   The respondent alleged that she was included  as Sl.   No.   15 in the select list whereas her  juniors  were included  as Sl.  Nos.  1,9,11,12,13 and 14.  The respondent contended  that  the  promotion had to be  effected  on  the principle   of  seniority-cum-fitness   and  therefore,  the placing of respondent at Sl.  No.  15 for being promoted, as Research  Officer was illegal.  The respondent filed a  Writ Petition  no.   1036/96 before the High Court of Kerala.   A counter  affidavit  was  filed on behalf of  the  appellants herein  and they admitted that the method of filling up  the said  post of promotion from the eligible Assistant Research Officers  was  seniority-cum-fitness.   The  learned  Single Judge  held  that as the promotion to the post  of  Research Officer  was  to  be effected on the basis of  principle  of seniority-cum-fitness and seniority was the prime factor for promotion  and  since the respondent was found suitable  for promotion,  she was entitled to get promotion in  accordance with  her seniority and, thus, the writ petition was allowed and  aggrieved  by  the same, the appellants  filed  a  writ appeal  before  the Division Bench of the High  Court  which ended  in  dismissal.   Judgment  in  that  Writ  Appeal  is challenged before us.

   We  heard  the learned Counsel for the  appellants,  Mr. T.C.   Sharma  and the learned senior counsel,  Mr.   T.L.V. Iyer,  on  behalf  of the respondent.  In the  appeal  filed before  this Court, it is stated that promotion to the  post of  Research  Officer was to be made in accordance with  the prescribed  recruitment rules and the Departmental Promotion

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Committee  was to select the candidate.  It is submitted  by the  Counsel  on behalf of the appellants that the  post  of Research  Officer  is  a  ’selection post’ and  as  per  the recruitment  rules,  ’selection post’ is to be filled up  on the  principle of merit-cum-seniority.  The relevant  clause 5.9 of Recruitment Rules says as under:

   "Selection"  posts  shall  be  filled on  the  basis  of merit-cum- seniority.  "Non-Selection" posts shall be filled in  on the basis of seniority subject to rejection of  unfit persons.   For this purpose the Council shall circulate  the duly   compiled   seniority   lists    of   the   candidates periodically.   All  appointments by departmental  promotion shall   be  on  the   recommendations  of  the  Departmental Promotion Committee.

   The  respondent in the counter affidavit filed before us has  alleged  that  the promotion to the  post  of  Research Officer  is  on the basis of seniority-cum-fitness  and  the relevant  consideration  is  fitness of  the  candidate  for appointment  to the post.  A comparative assessment of merit is  irrelevant and cannot be made for the appointment to the post in question.

   Unfortunately,  in  this  case,  the  appellants  herein contended  before  the High Court that the promotion to  the post  of Research Officer was to be made on the principle of "seniority-cum-fitness".  The counter affidavit on behalf of the  appellants herein mistakenly admitted this position and the  relief sought for by the respondent was allowed by  the learned  Single  Judge.  Now, the appellants  have  produced relevant  amended recruitment rules which show that the post of  Research Officer (Ayurveda) carrying scale of pay of Rs. 8000-13500  is  a  ’selection  post’   and  promotion  to  a ’selection post’ is to be done on the basis of the principle of merit-cum- seniority.

   The  principle  of  merit-cum-seniority is  an  approved method  of  selection and this Court in Sant Ram Sharma  Vs. State  of  Rajasthan and Others AIR 1967 SC 1910  held  that promotion to ’selection grade posts’ is not automatic on the basis  of  ranking  in Gradation list and the  promotion  is primarily  based  on merit and not on seniority  alone.   At page 1914 of the Judgment, it is stated as under:-

   "The  circumstance  that  these  posts  are  classed  as ’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  ranking or  position in the Gradation List does not confer any right on  the petitioner to be promoted to selection 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 except where the merit of the officers is judged to be equal and no other criterion is, therefore, available."

   The  Court  further held that such mode of selection  is not violative of Article 14 of the Constitution.

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   In  State  of Orissa Vs.  Durga Charan Das, AIR 1966  SC 1547,  the  Constitution Bench of this Court held  that  the promotion to a selection post is not a matter of right which can be claimed merely by seniority.

In Union of India Vs. Mohan Lal Kapoor 1973 (6) SCC836 at p. 856, it was held as under:

   "For inclusion in the list, merit and suitability in all respects  should  be  the governing consideration  and  that seniority  should  play only a secondary role.  It  is  only when  merit and suitability are roughly equal that seniority will  be  a  determining  factor, or if  it  is  not  fairly possible  to  make an assessment inter se of the  merit  and suitability  of  two eligible candidates and come to a  firm conclusion, seniority would tilt the scale."

   In  B.V.  Sivaiah Vs.  K.  Addanki Babu 1998(6) SCC 720, 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 approximately equal.

   In  Union  of India and Others Vs.  Lt.  Gen.   Rajendra Singh Kadyan and another 2000 (6) SCC 698 in paragraph 12 at page 707, it was observed as under:-

   "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."

   In  the  instant  case,  the   selection  was  made   by Departmental  Promotion Committee.  The Committee must  have considered  all relevant facts inlcuding the inter-se  merit and  ability of the candidates and prepared the select  list on  that basis.  The respondent though senior in  comparison to  other  candidates, secured a lower place in  the  select list,     evidently    because       the    principle     of "merit-cum-seniority"  had been applied by the  Departmental Promotion  Committee.  The respondent has no grievance  that there  was  any  malafides on the part of  the  Departmental Promotion  Committee.   The  only contention  urged  by  the respondent  is that the Departmental Promotion Committee did not follow the principle of "seniority-cum-fitness".  In the High  Court, the appellants herein failed to point out  that the  promotion  is in respect of a ’selection post’ and  the principle  to be applied is "merit-cum-seniority".  Had  the appellants pointed out the true position, the learned Single Judge  would  not  have  granted relief  in  favour  of  the respondent.  If the learned Counsel has made an admission or concession  inadvertently or under a mistaken impression  of law,  it  is not binding on his client and the  same  cannot cannot enure to the benefit of any party.

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   This  Court  in Uptron India Ltd.  Vs.  Shammi Bhan  AIR 1998 SC 1681 pointed out that a wrong concession on question of law made by counsel is not binding on his client and such concession  cannot  constitute a just ground for  a  binding precedent.

   Therefore,  even  if  the   appellants  had   mistakenly contended   in  the  High  Court   that  the  principle   of seniority-cum-fitness  was  to be followed for promotion  to the post of Research Officer, the departmental rules clearly show that the promotion was in respect of a ’selection post’ and  the  promotion  was  to be made on  the  basis  of  the inter-se  merit of the eligible candidates.  In that view of the matter, the respondent was not entitled to get promotion to  the  post  of Research Officer on the  strength  of  her seniority  alone.   The  seniority   list  prepared  by  the Departmental  Promotion Committee was not challenged by  the respondent  on  other  grounds and we also do not  find  any ground  to assail that select list.  Thus, the Writ Petition is  liable to be dismissed by setting aside the orders  made therein   and   in  the   writ  appeal  arising   therefrom. Therefore,  the  appeal  succeeds and is  allowed,  however, without costs.