The principle of equality is applicable to employment at all stages and in all respects, namely, initial recruitment, promotion, retirement, payment of pension and gratuity.

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The seniority­-cum-­merit principle is well established in service jurisprudence and does not need much discussion. Three-Judge Bench in B.V. Sivaiah v. K. Addanki Babu, (1998) 6 SCC 720 observed:

“In State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 A.N. Ray, C.J. has thus explained the criterion of ‘seniority­-cum-­merit’:

“With regard to promotion the normal principles are either merit­-cum-­seniority or seniority-­cum­-merit… seniority­-cum­-merit means that given the minimum necessary merit requisite for efficiency of administration, the Senior though the less meritorious shall have priority.”

We thus arrive at the conclusion, the criterion of ‘seniority­-cum­-merit’ in the matter of promotion postulates, 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.”

The Bhakra Beas Management Board Class­ III and Class­ IV Employees (Recruitment and Conditions of Service) Regulations, 1994 provide, appointment by promotion is to be made by selection based on seniority­-cum­-merit and no employee is entitled to appointment as a matter of right. Other things being equal between competing candidates, seniority is to be given due weightage. But it does not mean, even if a Junior is more meritorious by way of possessing an ‘appreciable initiative certificate’ which the Senior does not, irrespective of the same, the Senior shall march ahead on the seniority-­cum-­merit principle.

– Hon’ble Justice Navin Sinha, Tek Chand v. Bhakra Beas Management Board, [Civil Appeal No. 4482 of 2021].

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Court, time and again, has laid emphasis, promotion to be a fundamental right [Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty, (1991) 2 SCC 295; Ajit Singh v. State of Punjab, (1999) 7 SCC 209; Major General H.M. Singh, VSM v. UOI, (2014) 3 SCC 670].

– Hon’ble Justice Vikram Nath, Ajay Kumar Shukla v. Arvind Rai, [Civil Appeal No. 5966 of 2021] decided on 08.12.2021.

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See, Union of India v. K.V. Jankiraman, (1991) 4 SCC 109; Jagathigowda C.N. v. Chairman, Cauvery Gramina Bank, (1996) 9 SCC 677; B.V. Sivaiah v. K. Addanki Babu, (1998) 6 SCC 720; K. Samantaray v. National Insurance Co. Ltd., (2004) 9 SCC 286; Haryana State Electronics Development Corporation Limited v. Seema Sharma, (2009) 7 SCC 311.

– Hon’ble Justice Hrishikesh Roy, Rama Negi v. Union of India, [Civil Appeal Nos. 1713-1714 of 2022] decided on 02.03.2022.

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Words used in a Judgment are not to be read as words of a statute, but should be understood in context of facts of a case [Ambica Quarry Works v. State of Gujarat, (1987) 1 SCC 213; Bharat Petroleum Corporation Ltd. v. NR Vairamani, (2004) 8 SCC 579; Municipal Corporation Delhi v. Mohd Yasin, (1983) 3 SCC 229].

State of Mysore v. Syed Mahmood, (1968) 3 S.C.R. 363; State of Kerala v. N.M. Thomas, (1976) 2 SCC 310; Jagathigowda, C.N. v. Chairman, Cauvery Gramina Bank, (1996) 9 SCC 677; B.V. Sivaiah v. K. Addanki Babu, (1998) 6 SCC 720; Union of India v. Lt. Gen. Rajendra Singh Kadyan, (2000) 6 SCC 698; All India Judges’ Association (3) v. Union of India, (2002) 4 SCC 247; Samantaray v. National Insurance Co. Ltd., (2004) 9 SCC 286; State of U.P. v. Jalal Uddin, (2005) 1 SCC 169; Bhagwandas Tiwari v. Dewas Shajapur Kshetriya Gramin Bank, (2006) 12 SCC 574; Haryana State Electronics Development Ltd. v. Seema Sharma, (2009) 7 SCC 311; Rajendra Kumar Srivastava v. Samyut Kshetriya Gramin Bank, (2010) 1 SCC 335; Palure Bhaskar Rao v. P. Ramaseshaiah, (2017) 5 SCC 783; Shriram Tomar v. Praveen Kumar Jaggi, (2019) 5 SCC 736; Sujata Kohli v. Registrar General, High Court of Delhi, (2020) 14 SCC 58; Dr. Kavita Kamboj v. High Court of Punjab and Haryana, 2024 SCC OnLine SC 254.

One must be mindful, ‘Merit-cum-Seniority’ or ‘Seniority-cum-Merit’ are not statutorily defined by Legislature. B.V. Sivaiah, Rajendra Kumar Srivastava, Shriram Tomar, Sujata Kohli and a catena of other decisions have held, ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ are conceptually different. ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ are flexible and fluid.

– Hon’ble Justice J.B. Pardiwala, Ravikumar Dhansukhlal Maheta v. High Court of Gujarat, [Writ Petition (Civil) No. 432 of 2023] decided on 17.05.2024.

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A failure to consider an employee for promotion even after she satisfies the eligibility criteria would violate her fundamental right. However, a clear distinction has been drawn between the stage of considering an employee for being promoted and the next step of recognizing the said right as a vested right for promotion. The line has to be drawn there.

– Hon’ble Justice Hima Kohli, Bihar State Electricity Board v. Dharamdeo Das, [Civil Appeal No. 6977 of 2015] decided on 23.07.2024.

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Also see, Dharmendra Kumar Singh v. Hon’ble High Court of Jharkhand, [Civil Appeal No. 299 of 2025] decided on 15.01.2025.