LexHARYANA STATE ELECTRONICS DEVELOPMENT CORPORATION LTD. AND ORS. versus SEEMA SHARMA AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2009] 7 S.C.R. 662
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A
HARYANA STATE ELECTRONICS DEVELOPMENT
r
CORPORATION LTD. AND ORS.
V.
;
SEEMA SHARMA AND ORS.
Civil Appeal No. 3240 of 2009
B
MAY 05, 2009
[DR. ARIJIT PASAYAT AND ASOK KUMAR
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GANGULY, JJ.]
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Service Law: Promotion - Suit challenging promotion of
c iunior colleagues, decreed -
Plea of employer that its
promotion policy was based on principle of merit-cum-seniority
- Such plea was taken in written statement but no issue framed
on this question nor finding given by the Court- Said question
was also not considered by High Court - On appeal, held:
D Such question was vitally important to entire controversy -
....
Matter remitted to High Court for deciding said question and
baseq on that, the claim of the plaintiff.
The respondent no.1 was aggrieved with the decision
E of appellant-Corporation in promoting her two junior
colleagues. She filed suit for declaration, which was
decreed. The case of appellant-Corporation before the trial
Court was that in view of its promotion policy, such
promotion was based on the principle of Merit-cum-
...
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Seniority. Such plea was also taken in written statement.
However, no issue was framed on that question and no
finding on that was reached. This question was also not
considered by the High Court in second appeal. Hence
the present appeal.
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Disposing of the appeal, the Court
HELD: 1. The principle of Merit-cum-Seniority and
> v
that of Seniority-cum-Merit are two totally different
principles. The principle of Merit-cum-Seniority puts
H
662
HARYANA STATE ELECTRONICS DEV CORP. LTD. AND 663
ORS. V. SEEMA SHARMA AND ORS.
)
greater emphasis on merit and ability and where A
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. On the
other hand, insofar as the principle of seniority-cum-merit B
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 c
basis of seniority-cum-merit. [Para 8] [665-D-G]
2. The question as to whether promotion claim of
respondent no.1 only on the basis of seniority is
sustainable when as per the departmental promotion rules
the promotion was based on Merit-cum-Seniority was not D
dealt with by the courts below and even by the High Court.
This question was vitally important to the entire
controversy. Under Section 103 of the CPC, the High
Court in second appeal can decide this issue since it is .
necessary for disposal of the appeal and was not decided E
by the courts below. Relevant materials on this issue are
also on record. After deciding that question the High Court
\
would decide whether respondent claim for promotion
..
was wrongfully denied. [Paras 10, 11] [666-C-G]
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3240
F
of 2009
From the Judgement and Order dated 15.02.2005 of the
High Court of Punjab & Haryana at Chandigarh in R.S. A. No.
4858 of 2004
Alok Sangwan, Sushi! Balwada, for the Appellant(s).
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The Judgement of the Court was delivered by
ASOK KUMAR GANGULY, J.
1. Leave granted.
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664
SUPREME COURT REPORTS
[2009] 7 S.C.R.
A
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
B 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 the Respondent No.1
against the appellant-Haryana State Electronics Development
C 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
D colleagues and also praying for a declaration that the
promotional order dated 10.9.1991, by which the junior
colleaExcerpt shown. Read the full judgment & AI analysis in Lexace.