REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   1340   OF 2009  (@ SPECIAL LEAVE PETITION (CIVIL) NO.13139 OF 2005)

Haryana State Electronics Development Corporation Ltd. & Ors .....Appellant(s)

- Versus -

Seema Sharma & Ors. ....Respondent(s)

J U D G M E N T GANGULY, J.

1. Leave granted.

2. This appeal is directed against the judgment  

and order dated 15.2.2005 passed by the High  

Court of Punjab and Haryana in R.S.A. 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.  

There is a delay of one day in filing of the  

appeal before the High Court.  The High Court  

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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  the  

Respondent No.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 No.1  

were  promoted  by  the  appellant-corporation  

even though they were junior to her.   The  

suit  was  filed  claiming  a  declaration  that  

Respondent  No.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 the Respondent  

No.1 were promoted, was illegal and invalid.   

4. The  Addl.  Civil  Judge  (Sr.  Divn.),  Ambala  

Cantt. by judgment and order dated 5.2.2002  

inter alia held that Respondent No.1 is senior  

to her colleagues, the defendant nos. 4 and 5  2

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  defendant Nos. 4 and 5? OPP

II. Whether  the  impugned  orders  dated  10.9.1991, passed by defendant Nos. 1 and 2  promoting the defendant nos.4 and 5 to the  post of Sr. 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  

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appears from paragraph 4 of the judgment of  

the  trial  court  as  the  stand  taken  by  the  

appellant-corporation.    

7. 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.   

8. The Court is of the opinion that the principle  

of Merit-cum-Seniority and that of Seniority-

cum-Merit  are  two  totally  different  

principles.   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  

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given weightage when merit and ability more or  

less are equal among the candidates who are to  

be promoted.  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 AIR 1996 SC 273).   

9. 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.  

The grounds of appeal filed before the High  

Court is not before us.  But a ground to that  

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effect  has  been  taken  before  the  First  

Appellate  Court  as  ground  no.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  the  respondent no.1, she had no merit to claim  promotion.”

10. But on that ground also no finding has been  

reached by the First Appellate Court.  Before  

us one of the questions of law raised by the  

appellant-corporation is as follows:-

“Whether  the  promotion  claim  of  respondent  no.1  only  on  the  basis  of  seniority is sustainable, whereas as per  the  departmental  promotion  rules  the  promotion is based on Merit-cum-Seniority?  

11. The aforesaid question has not been dealt with  

by  the  courts  below  and  even  by  the  High  

Court.   Since  the  said  question  is  vitally  

important to the entire controversy in this  

case,  this  Court  remands  the  matter  to  the  

High Court and direct the High Court to re-

hear  the  second  appeal  and  decide  the  

aforesaid  question,  namely,  whether  in  the  6

matters  of  granting  promotion  to  Respondent  

No.1, the appellant-corporation has to follow  

the  principle  of  Merit-cum-Seniority,  as  

contended  by  them.   The  fate  of  Respondent  

No.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 respondent(s) claim  

for promotion has been wrongfully denied.   

12. 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  

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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.   

13. 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.   

.......................J. (Dr. ARIJIT PASAYAT)

.......................J. New Delhi (ASOK KUMAR GANGULY) May 05, 2009

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