Dr.K.Mohankumar vs Harikuttan Unnithan.C on 1 July, 2011

[Cites 21, Cited by 0]

Kerala High Court

Dr.K.Mohankumar vs Harikuttan Unnithan.C on 1 July, 2011

So far as W.A. No.975 of 2011 is concerned, it is against the judgment of the learned Single Judge dated 01.07.2011 in W.P.(C) No.15405 of 2009. The appellants were respondents 2 to 4 before the learned Single Judge. Aggrieved by the judgment of the learned Single Judge, they have approached the Division Bench in the above appeal.

2. CRP Nos.138 and 139 of 2011 are filed by Dr.S.Sivakumar and others challenging the order dated 11.11.2010 of the Mahatma Gandhi University(M.G. University), Appellate Tribunal. Before the University Appellate Tribunal one K.P.Balachandran was the appellant in appeal No.7 of 2009, Dr.P.P.Chandrasekhara Pillai was the appellant in appeal No.8 of 2009 and Dr.S.Sivakumar and four others were the appellants in appeal No.9 of 2009. These appeals were WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:2:- filed before M.G. University Appellate Tribunal. But the appellant in appeal No.9 of 2009 had filed another appeal, appeal No.2 of 2010 before the Kerala University Appellate Tribunal challenging the appointment of one Dr.K.Mohnakumar to the post of Principal of D.B. College, Sasthamcottah which is affiliated to Kerala University. The three appeals filed before the M.G. University, Appellate Tribunal pertain to the decision of the M.G. University in respect of the appointments of Dr.D.Radhakrishna Pillai and Mr.D.Rajmohan as Principals of Devaswom Board Colleges(DB Colleges) at different places. All the three matters are taken up together as the controversial issue is with regard to the appointment of Principals to Colleges affiliated to Kerala University and M.G. University coming under the management of Travancore Devaswom Board (for short TDB). The facts that lead to the filing of the appeal are as under.

3. Dr.K.Mohankumar the 2nd respondent before the learned Single Judge was appointed as Principal of D.B. College, Sasthamcotta and one Mr.D.Rajmohan was appointed as Principal of D.B. College, Parumala and Dr.D. Radhakrishna Pillai was WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:3:- appointed as Principal of D.B. College, Thalayolaparambu. A notification came to be issued on behalf of the Travancore Devaswom Board declaring the decision of the Board to draw a selection list in order to 'promote qualified teachers' to the post of Principal of the above said three Colleges after securing willingness and other details from various teachers and lecturers.

4. It is not in dispute that the 1st respondent herein who was the writ petitioner and various others, in all about 17 persons, forwarded their willingness along with the bio-data. Interviews were conducted between 21.04.2009 and 28.04.2009 by the so called selection committee presided over by the President and other members of the Board including the Principal of one Devaswom Board College and a principal of an unaided College. They were respondents before the learned Single Judge. Subsequently, the present appellant along with Mr.D.Rajmohan and Dr.D. Radhakrishna Pillai were appointed as principals of the above three Colleges of Travancore Devaswom Board. Aggrieved by the same, the writ petitioner/1st respondent approached the learned Single Judge on the following three grounds. 1) WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:4:- Constitution of selection committee was wrong, as the selection committee was required only in the case of appointment of Principal by 'direct recruitment'. 2) Mr.Rajmohan who was appointed as Principal is junior to the writ petitioner- Harikuttan Unnithan and 3) the writ petitioner- Harikuttan Unnithan was entitled for selection on the basis of seniority-cum-fitness. According to the writ petitioner, the approval of the selection and appointment of the principals was sought from Kerala University and M.G. University and the matters are still pending.

5. The learned Single Judge after referring to the arguments of both the parties proceeded to opine that the common selection process made in respect of different Colleges under different Universities by interlinking two Universities was in-correct and the fundamental flaw in the entire proceedings vitiates the whole proceedings. The impugned orders at Ext.P4, P5 and P13 were quashed directing the 1st respondent Board to appoint the Principals in terms of the provisions of respective University Acts so also in the light of the principle laid down by a Full Bench of this Court in Suresh v. Manager, S.N.M. WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:5:- College [2003 (3) KLT 839] wherein their lordships held; how seniority-cum-fitness criterion has to be decided. However, the respondents i.e. the present appellant and two other appointees as Principals were continued to work as Principals in-charge till the completion of the process of selection.

6. So far as the revision petitions, as already stated above, the challenge was with regard to the promotions and postings of three teachers working under the Colleges run by the Corporate management of Travancore Devaswom Board, where technical controversy was raised in the appeals by filing interlocutory applications challenging the maintainability of the appeals itself. The challenge was, the impugned order of TDB promoting and posting the aforesaid three persons as Principals of the respective Colleges was not being so far approved by the concerned University, i.e. the M.G. University as well as the Kerala University, therefore appeals were not maintainable.

7. According to the averments in the Interlocutory Application, till the approval of the appointment made by the Management is considered by respective Universities, no appeal WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:6:- under the respective Act could be filed. By referring to an earlier judgment of the High Court in Mother Anasthesia v. University Appellate Tribunal [1980 KLT 666] and Suresh v. Manager, S.N.M. College(supra) the Tribunal ultimately opined that the appeals deserve to be dismissed as not maintainable and liberty was reserved to the appellants to approach the Tribunal again, once the approval of University is granted. Aggrieved by the orders of the University Appellate Tribunals, these two revision petitions are filed.

8. The entire question revolves round the authority of the Devaswom Board to constitute a 'selection committee' so far as appointment of Principals to the three vacancies at three different Colleges as stated above by promotion and not by direct recruitment. Other relevant controversy before us is with regard to the criterion for selection and lack of qualification of respondents who were appointed as Principals. All the three respondents were teachers promoted as Principals and their appointment orders are set aside.

9. The learned counsel appearing for the appellants WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:7:- Mr.Jaju Babu contended that Colleges are situated within the jurisdiction of Kerala University as well as M.G. University. Therefore by referring to the definition of 'College' under the Kerala University Act contends that it would mean only an institution affiliated to the University and the appointments will be with reference to the Act. This argument was made so far as the appointment of one of the appellants who is working in a College under the M.G. University. According to the learned counsel for the appellants, seniority-cum-merit has to be the criterion and there cannot be segregation of the members in respect of different Colleges. According to them, common selection committee was necessary only for the purpose of appointment of a Principal by direct recruitment. According to them, seniority-cum-merit (seniority-cum-fitness) has been explained in the case of RajendraKumar Srivastava v. Samyut Kshetriya Gramin Bank [(2010) 1 SCC 335]. So also they rely on decision in Rupa Rani Rakshit v. Jharkhand Gramin Bank [(2010) 1 SCC 345] which governs the merits of the present case as the Apex Court in the above said two decisions had clearly WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:8:- stated how seniority-cum-merit or seniority-cum-fitness governs the process whereby eligible candidates in possession of minimum necessary merit in the feeder category could be first ascertained and for ascertaining the same, a written test or interview is permissible and according to him, the learned Judge was not justified in placing reliance in the case of Suresh v. Manager, S.N.M. College(supra).

10. The judgment of the learned Single Judge, according to the learned counsel for the appellants, cannot be sustained in view of the law laid down by the Apex Court in the above two decisions. According to them, in the absence of the writ petitioner not challenging the notification and having participated in the interview pursuant to Ext.P3, cannot turn around when it is learnt that he was not successful in the interview conducted by the selection committee. According to the appellants, the procedure followed for selection to the post of Principals was correct. The further contention of the appellants is that in view of the pendency of CRP Nos.138 and 139 of 2011, the learned Single Judge ought not to have interfered with the WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:9:- selection. With these averments, placing reliance on Suresh v. Manager, S.N.M. College [2003 (3) KLT 839], Haryana State Warehousing Corporation & others v. Jagat Ram and another [(2011) 3 SCC 422], Valsala Kumari Devi v. Director, Higher Secondary Education [2007(4) KLT 494 (SC)], Siraj v. High Court of Kerala [2006(2) KLT 923], Rupa Rani Rakshit v. Jharkhand Gramin Bank [(2010) 1 SCC 345] and Rajendra Kumar Srivastava v. Samyut Kshetriya Gramin Bank [(2010) 1 SCC 335] the learned counsel appearing for the appellants has sought for setting aside the judgment of the learned Single Judge by allowing the appeal and also the revision petitions.

11. As against this, the learned Senior counsel Dr.S.Gopakumaran Nair arguing for the writ petitioner/1st respondent contends that having regard to Section 57 of Kerala University Act and also Section 59 of M.G. University Act, the appointment of teachers in private Colleges as Principals, though contemplates two methods of recruitment, i.e. direct recruitment and by promotion, whenever it is made by promotion, the WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:10:- authority concerned is required to consider the appointment on the basis of seniority-cum-fitness. He further contends, when the process of selection is by promotion, there was no necessity for selection committee to be constituted to consider the candidates for promotion to the post of Principals which were vacant in Colleges of Devaswom Board affiliated to two different Universities. Therefore, according to him, the learned Single Judge was justified in quashing the appointment orders and in the light of appointment orders being set aside, question of considering Revision Petitions would not arise. Therefore the Revision Petitions become infructuous.

12. We have gone through the various provisions of Kerala University Act as well as the M.G. University Act. So far as the appointment of Mr.Dr.K.Mohankumar to the post of Principal at Sasthamcotta, it comes under the Kerala University and the procedure applicable is with reference to the Act governing Kerala University. So far as other two appellants, Dr.D.Rajmohan and Dr.D.Radhakrishna Pillai, they come under M.G. University. It is not in dispute that all three Colleges are WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:11:- run by the management of TDB. Section 57(2) of Kerala University Act provides the procedure for appointment of Principals made by educational agency by promotion from among the teachers of the College or of all the Colleges as the case may be are by direct recruitment which means appointments can be made either by promotion or by direct recruitment. Section 57 (3) of the Kerala University Act provides, the criterion that whenever recruitment is made by promotion, it should be on seniority-cum-fitness. A selection committee is required only if the post of teachers and Principals are filled up by direct recruitment. This statement of writ petitioner was uncontroverted in many ways before the learned Single Judge as the affidavit filed on behalf of the appointed Principals categorically indicates, whether it was under Kerala University or under M.G. University, constitution of selection committee was necessary only for the purpose of appointing a Principal by direct recruitment. Therefore, there is no dispute that a selection committee was not at all contemplated when the selection process is by way of promotion. Similar to Section 57 of Kerala WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:12:- University Act, M.G. University Act also has relevant provision at Section 59. Sub-section 2 and 3 of Section 57 of Kerala University Act are pari materia so far as Sub-section 2 and 3 of Section 59 of M.G.University Act. Therefore, the post of Principal, if filed up by promotion either under Kerala University Act or M.G. University Act, there is no mandate or requirement for constitution of a selection committee.

13. In the present case, not only a common selection committee was constituted for the purpose of promotion to the post of Principal under different Colleges of two Universities but, a common selection list was also prepared by the selection committee. In that view of the matter, the learned Single Judge was justified in saying that the process of selection adopted by the management was not justified.

14. Lengthy arguments were addressed on the locus standi of the writ petitioner and also what exactly 'seniority-cum- fitness' would mean. The case in Siraj v. High Court of Kerala [2006(2) KLT 923(SC)] before High Court was with regard to prescription of minimum marks for the oral examination as a WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:13:- condition of eligibility for selection as Munsiff Magistrate. It was held by the Apex Court that the appellant/writ petitioner was not entitled to any relief under Article 226 of the Constitution of India for more than one reason. First and foremost was, he has participated in the written test and oral test without raising any objection in spite of being aware of the prescription that minimum marks has to be secured both in the written test and also in the oral test. Apart from this, they were also aware of the decision on the judicial side before the High Court. Therefore, their Lordships held that having participated in the interview it was not open for them to turn around thereafter when they failed at the interview to contend that a provision of minimum mark for the interview was not proper.

15. In the case of Rupa Rani Rakshit [(2010) 1 SCC 345] apart from referring to what exactly merit-cum-seniority and seniority-cum-merit would mean their Lordships held length of service rendered by virtue of wrong appointment/promotion which was subsequently set aside cannot be added to the length of service for counting seniority. The main emphasis in this case WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:14:- is with regard to the criterion of seniority-cum-merit so also what would constitute merit-cum-seniority. In the present case the challenge is only with regard to the qualification of the candidates who were selected. But with regard to constitution of selection committee, no such provision is made in the enactment.

16. As already stated above, it is the contention of the appellants/respondents before the learned Single Judge that constitution of selection committee is mandatory for selection to the post of Principal by direct recruitment. A common selection list was prepared by clubbing the teachers working under different Colleges affiliated to different Universities. Therefore, if the very selection process is defective, the defence of the appellant that having participated in the interview, he cannot question the selection process falls to ground. If the selection process itself is defective, neither the appellant nor respondents can take benefit out of it. From such defective selection process, no legal or authoritatively selected candidate can come through. Therefore this argument of the learned counsel for the appellants cannot be accepted.

WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:15:-

17. Then coming to the argument addressed on what is seniority-cum-fitness, according to the learned counsel for the appellants, seniority-cum-fitness is nothing but seniority-cum- merit. He relies upon as already stated above, on various decisions. In the case of Suresh v. Manager, S.N.M. College (supra), it was a promotion to the post of Principal on the basis of seniority-cum-fitness. It was held in this case as under:

"Seniority-cum-fitness postulates promotion on the basis of seniority subject to rejection of the unfit. It does not permit selection. Such a rule is calculated to avoid heart burning. It avoids controversy. It limits discretion. It excludes arbitrariness. In the existing situation, it is reasonable. So far as the appointment by promotion is concerned, the provision has been made in S. 59(3). It has been specifically provided that "the educational agency shall make the appointment on the basis of seniority-cum-fitness". These words of the Act have to be given their plain and natural meaning. The provision is couched in a mandatory language. The use of the word `shall' makes it imperative for the management to follow the prescribed criteria. In the context, the word `shall' cannot be interpreted to mean `may', for, that would lead to an anomalous situation. The Legislature appears to have clearly intended that the discretion of the management should be restricted. The senior person should be promoted unless he is found to be unfit for the post of the Principal. It is true that the post of Principal of a College is WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:16:- pivotal. A bad teacher may not be able to administer an institution. However, the management has been given the discretion to supersede a senior person, if he is found unfit. This discretion can be exercised by the management on the basis of good reasons. Since the Act provides for the remedy of appeal before an Appellate Tribunal against an order of supersession, it would be incumbent on the management to give reasons for the supersession of a senior person. The reasons cannot be fanciful or imaginary. These must have a nexus with the fitness of the candidate for the post and should be founded on tangible material."

18. Another decision relied on by the counsel is Haryana State Warehousing Corporation and others v. Jagat Ram and another [(2011) 3 SCC 422]. In this case their Lordships held that in the case of seniority-cum-merit criterion what is required is a minimum necessary merit, but does not require comparative assessment of merit. Therefore, their Lordships held that the promotion given to a junior in preference to the senior is only on the ground that junior is more meritorious would violate seniority-cum-merit criterion. Their Lordships have held at paragraph 45 in detail what it would mean which reads as under:

WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:17:- "45. Thus it is the settled position that the criterion of seniority-cum-merit is different from the criterion of merit and also the criterion of merit-cum-seniority. Where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. Seniority-cum-

merit means that, given the minimum necessary merit required for efficiency of administration, the senior, though less meritorious, shall have priority in the matter of promotion and there is no question of further comparative assessment of the merit of those who were found to have the minimum necessary merit required for efficiency of administration. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employees. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be considered for promotion on the basis of seniority-cum-merit."

19. In the case of Valsala Kumari Devi v. Director, Higher Secondary Education [2007(4) KLT 494(SC)] the appointment to the post of Higher Secondary School teacher was with a condition 'subject to seniority and suitability'. Their Lordships held that such expression occurring in the Government Order does not mean the comparative assessment of suitability WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:18:- and it only means the suitability for the particular post and the suitability is related to the prescribed qualification and requisite experience. The relevant paragraphs are 12, 13 and 14 which read as under:

"12. Government Order dated 27.6.1990 makes it clear that the selection of teachers will be subject to seniority and suitability and G.O. dated 13.5.1998 specifically prescribes that the teachers appointed from General Education Subordinate Service will be treated as appointment by promotion. As stated earlier, the selection will be subject to seniority and suitability and there is no dispute that the appellant is senior to 5th respondent. She is eligible and qualified for appointment by promotion to HSST. It is not the case of the Management that she is unsuitable for promotion.

13. The expression "subject to seniority and suitability"

occurring in G.O. dated 27.6.1990 does not mean the comparative assessment of suitability and it only means the suitability for the particular post and the suitability is related to the prescribed qualification and requisite experience. In view of the distinction between the appointment by promotion from General Education Subordinate Service and an appointment to the 75% vacancies ear-marked for direct recruitment, we are of the view that the finding arrived at by the Director, Higher Secondary School, Thiruvananthapuram, Kerala that seniority is not the criterion for 'appointment by promotion to HSST' is erroneous and is not in terms of the Government Orders referred to above. Though in the order, it is stated that the 5th WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:19:- respondent is more suitable than the appellant, as rightly pointed out by learned counsel appearing for the appellant,it has not been shown or indicated the reasons or grounds for arriving at such decision that the 5th respondent was found more suitable than the appellant for the post. We are also in agreement with the contention that the Director has mechanically accepted the decision of the Selection Committee that the 5th respondent is more suitable than the appellant without reference to selection for appointment by promotion to HSST against 25% quota earmarked for qualified High School Assistants. We are of the view that the Director has committed an illegality in upholding the selection of the 5th respondent for appointment to the post of HSST. Further the 5th respondent has been preferred to the appellant for the reason that his main subject in B.A. is History which is totally irrelevant for promotion to HSST from among HSAs. In G.O. dated 27.6.1990 the qualification prescribed is a second class Master's Degree in the concerned subject with B.Ed. It is relevant to point out that the appellant and the 5th respondent have obtained M.A. Degree from Mysore University and the 5th respondent took B.Ed with Social Studies. The other reason given by the Selection Committee for preferring 5th respondent is that he has proficiency in English, Kannada and Malayalam whereas the appellant has proficiency in English and Malayalam. As rightly pointed out by learned counsel appearing for the appellant, once the requirement of the prescribed qualification is satisfied, the selection must be made on the basis of the seniority and suitability and there is no scope for making comparison of qualifications or comparative assessment of suitability. The expression 'suitability' means that a person to WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:20:- be appointed shall be legally eligible and 'eligible' should be taken to mean 'fit to be chosen'.

14. In such circumstances, we are of the view that it was improper on the part of the Selection Committee to make selection taking into account the qualifications which are not prescribed in the G.Os and by giving weightage to such qualifications. The Selection Committee has also taken note of the suggestion of the Parents Teachers Association that persons having proficiency in Kannada should be preferred when there is no such condition in the Government Order. In other words, preference is to be given for proficiency in Kannada which is not a requisite qualification. In our view, ignoring the appellant who has been working as HSA in the very same school and selecting the 5th respondent by giving weightage for proficiency in Kannada which is not a condition prescribed in the relevant Govt. orders by the Selection Committee can not be sustained. It is based on extraneous/irrelevant considerations."

20. In the case of Rupa Rani Rakshit (supra) paragraphs 2, 7 and 8 are relevant. Their Lordships have in detail referred to merit-cum-seniority and seniority-cum-merit in the above said paragraphs. In the case of RajendraKumar Srivastava v. Samyut Kshetriya Gramin Bank(supra) paragraphs 2 to 4 and 8 to 12 are relevant which read as under:

"2. By Notification dated 28-9-1988, the Central WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:21:- Government in exercise of powers conferred under Section 17 read with Section 29 of the Regional Rural Banks Act, 1976 framed the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1988 ("the Rules", for short). Rule 5 of the Rules provided that all vacancies should be filled up by deputation, promotion or direct recruitment, in accordance with provisions contained in the Second Schedule to the Rules. Entry 7 in the Second Schedule related to recruitment to the posts of Area Manager or Senior Manager (in Scale II). It provided that all the posts of Area Manager and Senior Manager should be filled by promotion from among the confirmed officers (in Scale I) working in the Bank on the basis of seniority-cum-

merit. It prescribed the educational qualification (graduate) and minimum period of service in the feeder cadre (eight years as an officer in the Regional Rural Bank concerned). It also prescribed the mode of selection by promotion as "interview and assessment of performance reports for the preceding three years period as officers". Sub-rule (4) of Rule 10 provided that the Staff Selection Committee shall follow the procedure determined by the Board for selecting candidates for appointment or promotion, in accordance with the guidelines issued by the Central Government from time to time.

3. At the 131st meeting of the Board of Directors of the first respondent Bank held on 29-11-1996, the following procedure for promotion of officers from Scale I to Scale II was approved:

"After considering the guidelines contained in the Government of India's Letter dated 23-9-1988 and Letter No. 823 dated 7-10- 1996 of National Bank, the Board passed a resolution that sixty points be earmarked on the basis of work done during the WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:22:- previous three years in the selection procedure for promotion on the Scale II posts and forty points be given for interview and in this manner the promotion procedure should be completed. Also, an information in this behalf be given to National Bank."

In pursuance of the above, the eligible candidates (Scale I officers), including the appellants were considered and interviewed on 16-12-1996 and 17-12-1996 and a select list was published on 20-12-1996 promoting 64 officers (Respondents 4 to

67) from Scale I to Scale II with effect from 20-12-1996.

4. Appellants 1 to 7 were not selected. Many who were selected, were their juniors. The appellants allege that their service and conduct were good and there were no adverse entries against them and therefore, they ought to have been promoted from officer Scale I to Scale II. They therefore filed a writ petition before the Allahabad High Court (WP No. 3151 of 1997), for quashing the entire promotion process of the first respondent Bank from Scale I to Scale II culminating in the order dated 20-12-1996 and for a direction to the first respondent Bank to undertake the promotion process afresh. The appellants also sought quashing of the resolution of the Board of Directors dated 29-11-1996 prescribing the promotion procedure.

xx xx xx xx

8. On the contentions urged, the following two questions arise for our consideration:

(i) Whether minimum qualifying marks could be prescribed for assessment of past performance and interview, where the promotions are to be made on the principle of seniority-cum-

merit?

(ii) Whether the first respondent Bank was justified in fixing a high WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:23:- percentage (78%) as the minimum qualifying marks (minimum merit) for promotion?

Re: Question (i)

9. In State of Kerala v. N.M. Thomas3, a seven-Judge Bench of this Court defined the concept of "seniority-cum-merit". This Court held that: (SCC p. 335, para 38) "38. ... `Seniority-cum-merit' means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority."

10. In Union of India v. Lt. Gen. Rajendra Singh Kadyan4 this Court observed that "seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed, and subject to fulfilling the said requirement, the promotion is based on seniority. It was pointed out that requirement of assessment of comparative merit was absent in the case of "seniority-cum-merit".

11. It is also well settled that the principle of seniority-cum-merit, for promotion, is different from the principle of "seniority" and the principle of "merit-cum-seniority". Where promotion is on the basis of seniority alone, merit will not play any part at all. But where promotion is on the principle of seniority-cum-merit, promotion is not automatic with reference to seniority alone. Merit will also play a significant role. The standard method of seniority-cum-merit is to subject all the eligible candidates in the feeder grade (possessing the prescribed educational qualification and period of service) to a process of assessment of a specified minimum necessary merit and then promote the candidates who are found to possess the minimum necessary merit strictly in the order of seniority. The minimum merit necessary for the post may be WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:24:- assessed either by subjecting the candidates to a written examination or an interview or by assessment of their work performance during the previous years, or by a combination of either two or all the three of the aforesaid methods. There is no hard-and-fast rule as to how the minimum merit is to be ascertained. So long as the ultimate promotions are based on seniority, any process for ascertaining the minimum necessary merit, as a basic requirement, will not militate against the principle of seniority-cum-merit.

12. In Sivaiah1, a three-Judge Bench of this Court held that while the principle of seniority-cum-merit laid greater emphasis on seniority, the principle of merit-cum-seniority laid greater emphasis on merit and ability, with seniority playing a less significant role. This Court held: (SCC p. 730, para 18) "18. We thus arrive at the conclusion that the criterion of `seniority-cum-merit' in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit."

21. The learned counsel appearing for the respondents relies upon B.V. Shivaiah & others v. K. Addanki Babu & WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:25:- others [JT 1998 5 SC 96] in which paragraph No.18 is relevant. In the case of Union of India & others v. Lt.Gen.Rajendra Singh Kadyan and another [(2000) 6 SCC 698] the Hon'ble three judges of the Apex Court have in fact considered the service law with regard to promotion and criteria of a selection which fall into three categories; 1. seniority-cum-fitness, 2. seniority-cum-merit and 3. merit-cum-suitability with due regard to seniority. Paragraph Nos.11 and 12 in detail refer to these aspects, which read as under:

"11. The hierarchy in the Army and the method of selection and promotion to various posts starting from the post of Lieutenant and going up to the post of the Chief of the Army Staff will clearly indicate that the posts of Lieutenant, Captain and Major are automatic promotion posts on passing the promotion examination irrespective of inter se merit, whereas the posts from Major to Lt. Colonel, Lt. Colonel to Colonel, Colonel to Brigadier, Brigadier to Major General and Major General to Lt. General are all selection posts filled up by promotion on the basis of relative merit assessed by the designated Selection Boards. From Lt. General (Corps Commander) to Army Commander is a non-selection post to which promotion is made subject to fitness. It is a promotion subject to fitness in all respects, although the rank remains the same. From the post of Army Commander to that of the Chief of the Army Staff, it is by promotion for which no specific criteria have been WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:26:- laid down. There have been precedents where the seniormost Army Commanders have not been appointed as the Chief of the Army Staff. Selection implies the right of rejection depending upon the criteria prescribed. Selection for promotion is based on different criteria depending upon the nature of the post and requirements of the service. Such criteria fall into three categories, namely,

1. seniority-cum-fitness,

2. seniority-cum-merit,

3. merit-cum-suitability with due regard to seniority.

12. 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."

22. On reading of the above paragraphs it is very clear that there is a marginal difference in the meaning between seniority-cum-fitness and seniority-cum-merit, but, there is no requirement of assessment of comparative merit both in the case WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:27:- of seniority-cum-fitness and seniority-cum-merit. So far as merit- cum-suitability, it necessarily requires assessment of comparative merit of all eligible candidates and selection shall be made best out of them. The word 'fitness' means fitness in all respects. But there is no requirement of assessment of comparative merit. In other words, merit is not the criterion in such cases. In view of the above discussion and reasoning, there was justification on the part of learned Single Judge to hold that the very selection process was incorrect and therefore he was justified in quashing Exts.P4, P5 and P13.

23. As we are dismissing the writ appeal on merits, Revision Petitions become infructuous as the whole selection process has to be re-scheduled in the light of the observations made as above. Accordingly, the Writ Appeal is dismissed. CRPs are dismissed as infructuous.

We direct the respondent Board to appoint Principals in terms of the provisions of the respective University Act and also in the light of the principle enunciated in the judgments of the WA No. 975 of 2011 and C.R.P. Nos. 138 & 139 of 2011 -:28:- Apex Court and in the Full Bench decision of this Court in Suresh v. Manager, S.N.M. College(supra).

Manjula Chellur, Ag. Chief Justice.

P.R.Ramachandra Menon, Judge.

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