T.C. Raghavan, C.J.
1. The appellants in these writ appeals were upper division clerks in the office of the Accountant-General. Twenty per cent of the posts of upper division clerks were placed in the senior grade ; and promotion to those posts was regulated by paragraph 224 of the Manual of Standing Orders relating to that office. There was a Commission of Enquiry on Emoluments and Conditions of Service of the Central Government Employees; and the Commission made certain recommendations in 1959. Ultimately, paragraph 224 of the manual was reconstructed. Ext. P6 in one of the writ petitions giving rise to these appeals gives the original paragraph 224 and paragraphs 224A and 224B, while Ext. P7 gives the reconstructed paragraph 224. The Accountant-General, the head of the office, and two senior officers, the Deputy Accountant-General and the Deputy Controller of Accounts, were constituted a Departmental Selection Committee; and the committee made the selection to these up-graded posts, wherein the appellants were not selected, since the selection was based on merit and not on mere seniority : others junior to the appellants were selected. The appellants filed writ petitions before This Court questioning the selection ; and a learned Judge has dismissed the writ petitions.
2. The first respondent, the Accountant-General, has filed counter-affidavits in the writ petitions, wherein he has averred that these senior grade posts were selection grade posts and that the promotion thereto was by selection on the basis of merit, seniority being counted only for the purpose of ranking the persons selected. He has also averred that, in making the selection, factors like integrity, aptitude, etc. were also taken into account, in view of the fact that the selection grade clerks are to be entrusted with duties of a more responsible nature. It is further averred that the reconstruction of paragraph 224 of the manual has not effected any change in the position that existed previously.
3. The counsel of the appellants have concentrated on the meaning of the expression 'merit-cum-seniority' obtaining in the reconstructed paragraph 224. It is admitted by the counsel that these posts were selection grade posts under paragraph 224 as it originally stood, because paragraphs 224A and B indicate unequivocally that the selection should be by a Departmental Promotion Committee basing on merit. The entire argument, as already indicated, is that, under the reconstructed paragraph 224, these posts became non-selection grade posts, so that promotion to these posts should be on the basis of seniority and fitness of the personnel to hold theposts.
4. One of the counsel of the appellants has drawn our attention to paragraph 10 of Chapter X of the Pay Commission Report, which says that, with the object of providing incentive to the employees who have no outlets or very limited outlets for promotion to higher posts, a recommendation is made that a certain percentage of the posts in the grade should carry a somewhat higher scale of pay, even though there will be no change in the duties, and that, following the terminology in vogue, these posts will be described as selection grade posts. The argument is that the reconstruction of paragraph 224 was in consequence of this direction of the Pay Commission, so that these posts became non-selection grade posts, after the said reconstruction.
5. If the intention of the reconstruction of paragraph 224 was to make the posts, which were selection grade posts, non-selection grade posts, the language of the reconstructed paragraph would have been different: it would have been made clear that the purpose was to make the posts non-selection grade posts. The language, as will presently appear, is not so clear: on the other hand, it indicates that the posts still remained selection grade posts. The relevant portion of the reconstructed paragraph 224 reads:
The cadre of upper division clerks in each office has selection grade limited to 10 per cent of the strength of the cadre (now it is 20 per cent).... Promotions to the selection grade are to be made on the basis of merit-cum-seniority. Persons who have not completed 10 years of service in the upper division, should not ordinarily be considered for promotion to the selection grade.
Upper division clerks promoted to the selection grade are to be entrusted with duties of a more responsible nature than those attached to the other clerks in the upper division. The post of Assistant Superintendents should be filed as far as practicable by selection grade clerks.
What appears from the language of this paragraph, particularly the second paragraph, is that the posts still remained selection grade posts, as the duties entrusted to them are of a more responsible nature than those attached to the other clerks in the upper division, though the Commission said that, 'there will be no change in the duties'. Therefore, this argument has to be rejected.
6. If it is held that these posts are selection grade posts, then we do not think there will be any force in the next argument too. At any rate, we shall consider that argument as well, since there are some observations of the Supreme Court, which appear, at first blush, to favour this contention. The first decision of the Supreme Court relied upon by the appellants' counsel is State of Mysore v. M.H. : (1966)ILLJ50SC , where appears..to promotions, which are often on seniority-cum-merit basis. What is indicated here is precisely what is termed in official language the 'next below rule' under which an officer on deputation is given a paper-promotion and shown as holding a higher post in the parent department if the officer next below him there is being promoted.
The Supreme Court was considering in that case the position of an officer on deputation who obtained paper-promotions in his parent department. The next decision is again of the Supreme Court in The State of Mvsore v. Syed Mahmood : (1970)ILLJ370SC In this decision appears:.requires such promotions to be made by selection on the basis of seniority-cum-merit, that is seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion.
These two decisions and the relevant observations therein were brought to the notice of the single Judge himself and he has considered them too. In addition to these decisions, another decision of the Supreme Court in Mohd. Usmam v. The Slate of Andhra Pradesh : (1971)ILLJ534SC , has also been brought to our notice, wherein the Supreme Court has observed:
In other words, the selection was made on the basis of seniority-cum-merit; the seniors among the clerks were selected subject to suitability.
It is these observations from the three decisions of the Supreme Court on which the counsel of the appellants have placed strong reliance to show that seniority-cum-merit (or merit-cum-seniority) means only seniority plus suitability to hold the post.
7. On the other hand, in the Full Bench decision of This Court in Very Rev. Mother Provincial v. State of Kerala (1969) K.L.T. 749, Raman Nayar, C.J., who spoke for the Full Bench, has observed:
At the same time, we would like to make it clear that the test of seniority-cum-fitness prescribed in the sub-section docs not mean that promotion is to be on the principle of seniority subject to fitness which is the test adopted for 'non-selection' posts in the several service rules of the State. Seniority-cum-fitness means that due and equal regard should be paid both to seniority and to fitness, and, since fitness is a matter of degree, it would appear that a senior person can be overlooked in favour of a junior who is demonstrably more fit for the appointment than he is.
This decision was taken in appeal before the Supreme Court; and the Supreme Court confirmed the same, though this question has not been pointedly considered by the Supreme Court in State of Kerala v. Very Rev. Mother Provincial (1970) K.L.T. 630. And another Division Bench of This Court, to which one of us was a party, following the said Full Bench decision and the decision of the Supreme Court has observed in The Rt. Rev. Dr. M.M. John v. Government of Kerala (O.P. No. 208 of 1971) : (1971) K.L.T. 875, in elaborating the observation of Raman Nayar, C.J.:
This meant two or three things: that an unfit person was not entitled to promotion merely because he possessed the necessary qualifications ; that, even among fit persons, one might be demonstrably more fit than another, though the former was junior to the latter; and that merit did not mean mere fitness, but fitness of one in comparison with fitness of another, i.e., one being more fit than another.
The learned single Judge himself has observed in one of the judgments under appeal:
In a selection made on the basis of merit-cum-seniority merit must be given its proper or, if I may say so, the dominant place.
From these latter decisions, it is apparent that, in the case of promotion to selection grade posts, merit-cum-seniority (or seniority-cum-merit) means not seniority-cum-fitness: in other words, promotion is based on comparative merit and seniority is only to be considered in ranking the selected persons on the basis of comparative merit: putting the idea still differently, merit and fitness, are different. We may point out here that, in the three decisions of the Supreme Court, the Supreme Court has indicated that the expression seniority-cum-merit meant seniority-cum-fitness, because, in those cases, the Supreme Court was considering promotions to non-selection grade posts. Therefore, to apply those observations of the Supreme Court to cases like these where the posts are selection grade posts will not be correct.
8. In addition to these, two other decisions of the Supreme Court have also been brought to our notice. The first decision is Sant Ram Sharma v. State of Rajasthanb : (1968)IILLJ830SC , where the Supreme Court has made it clear that, if the selection is to a selection grade post, the criterion is merit and not mere seniority. (This was a case where the contending officers were senior officers of the Indian Police Service.) The next decision is Union of India v. Vasant Jay aram Karnik : 78ITR243(SC) . Therein, the Supreme Court has held that a public servant, placed in the list of seniority in a cadre or grade where selection for promotion is on the basis of seniority-cum-merit, is entitled, on the plea that the list is contrary to the rules governing seniority, to claim relief that he is denied equality of opportunity. And in paragraph 6 of the judgment, the Supreme Court has made the position clear that, in a case of selection on merit, the selection for promotion 'giving greatest weightage to outstanding qualifications, record of work and ability rather than to mere seniority' was justified. These two decisions indicate clearly (this is not controverted either) that, in the case of promotion to selection posts, merit-cum-seniority means comparative merit as we have already indicated.
9. The decisions of the single Judge in these cases are, therefore, correct; they are confirmed; and the appeals are dismissed. However, we pass no order regarding costs.