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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.

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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.