JUDGMENT
I.A. Ansari, J.
1. What seniority-cum-merit means in matters of promotional avenues and how to abide by this principle are the two important questions, which hove been raised in this writ petition.
2. In a nutshell, the case of the petitioners may, in brief, be stated as follows:
The North Eastern Hill University (hereinafter referred to as “NEHU”) was established under the NEHU Act, 1973, the provisions of this Act was, initially, extended to the States of Meghalaya, Nagaland, Arunachal Pradesh and Mizoram with the headquarter of the University being located at Shillong. In course of time, two more campuses of the University, one each at Kohima in Nagaland and other at Aizwal in Mizoram, were established. Following a due selection process, the petitioners were appointed as Section Officer, the appointment of the petitioner No. 1 being on the strength of the order, dated 20.12.1984 (Annexure 1 to the writ petition) issued by the Registrar, NEHU and the petitioner No. 2 having been appointed vide, order, dated 17.11.1984 (Annexure 3 to the writ petition) issued by the Assistant Registrar of NEHU. By order, dated 20.2.1991 (Annexure 2 to the writ petition), issued by the Assistant Registrar, NEHU, the petitioner was allowed to cross efficiency bar with effect from 1.11.1991 and the petitioner No. 2 was confirmed in the said post of Section Officer with effect from 1.3.1987 (Annexure 4 to the writ petition). By order, dated 27.1.1990 (Annexure 5 to the writ petition), issued through the Assistant Registrar, NEHU, final inter se Seniority List (Annexure 5 to the writ petition) of Section Officers serving under NEHU, as in March, 1989, was published. In this Seniority List, the name of the petitioner Nos. 1 and 2 figured at Serial Nos. 17 and 15 respectively, whereas the names of the respondents Nos. 5, 6 and 7 figured at Serial Nos. 21, 20 and 27 respectively, both the petitioners, thus, being senior to the respondents aforementioned. By a subsequent order, dated 28.6.1994 (Annexure 6 to the writ petition), issued by the Registrar, NEHU, the petitioners alongwith some others, on account of completion of 8 years of satisfactory services, were granted upward scale. In its 24th meeting held on 3rd and 4th of April, 1981, ‘NEHU’s Executive Council, which is the highest decision making authority of the University, resolved that 50% of the vacancies should be filled up by promotion from amongst the existing employees and remaining 50% be kept open for direct recruitment. By the same resolution, (Annexure 7 to the writ petition), the Council also resolved that for the purpose of promotion, posts up to the rank of Assistant Registrar be included. Thereafter, the Executive Council, in its 80th meeting held on 6.12.1998 resolved, inter alia, that the criterion for DPC for making recruitment of non-teaching staff should, be by seniority-cum-merit. After passing of the resolution, dated, 6.12.1993 (Annexure 8 to the writ petition) aforementioned, one post of Assistant Registrar fell vacant under NEHU, but the DPC gave promotion without adhering to the fixed criterion, namely, seniority-cum-merit and without giving due weightage to the question of seniority of Section Officers. The promotion so accorded was contrary to the resolution of the Executive Council, which is the highest decision making authority of the University. Thereafter, in the year 1996, when five posts of Assistant Registrar under the NEHU fell vacant, the DPC, constituted for the purpose recommended the names for promotion to the said posts without, again, adhering to the criterion fixed by the Council. This apart, on merit also, the petitioners were not inferior to any of the other persons serving in the University, who were eligible for such promotion. However, the recommendation so made by the DPC was accepted by the Executive Council and by Impugned orders, dated 17.5.1996, the private respondent Nos. 5, 6 and 7 were promoted to the post of Assistant Registrar, the impugned appointment orders being at Annexures 9, 10 and 11 respectively.
3. With the help of their present application made under Article 226 of the Constitution of India, the petitioners have approached this Court seeking issuance of appropriate writ(s) setting aside and quashing the impugned orders dated 17.5.1996, whereby the respondent Nos. 5, 6 and 7 were promoted to the post of Assistant Registrar, NEHU, and for giving appropriate necessary directions.
4. Before proceeding any further, it needs to be noted that during the pendency of this writ petition, the Mizoram University Act, 2000 (hereinafter referred to as the “Act”) came into force with effect from 20.4.2000, which was the date of publication of the Act aforementioned in the Official Gazette. Sections 6, 7 and 33 of the Act read as under :
“6. On and from the commencement of this Act, all properties of the North Eastern Hill University in the State of Mizoram shall stand transferred to, and vest in, the University and shall be applied to the objects for which the University is established.
7. (1) The jurisdiction of the University shall extend to the whole of the State of Mizoram.
(2) On and from the commencement of this Act all Colleges, Institutions Schools and Departments affiliated to, or admitted to the privileges of, or maintained by, the North Eastern Hill University shall stand affiliated to, or admitted to the privileges of, maintained by, the University.
(3) On and from the date of commencement of this Act, the North Eastern Hill University shall cease to exercise its jurisdiction in the State of Mozoram”
“33. (1) Every person who, immediately before the commencement of this Act, is holding or discharging the duties of any post of office in connection with the affairs of the North Eastern Hill University in guy area which on that date falls within the State of Mizoram shall be deemed to have been transferred to the services of the Mizoram University on the same terms and conditions and to the same rights and privileges as to pension, gratuity, provident fund and other matters as he-would have been had under the North-Eastern Hill University Act, 1973…….”
(emphasis is added)
5. Upon coming into force of the Act, the Registrar, Mizoram University was impleaded in this writ petition as respondent No. 8 but this respondent has chosen not to contest this case. The private respondents, namely, the respondent Nos. 5, 6 and 7 have also not chosen to contest this writ petition. This writ petition has, however, been contested by the respondent Nos. 1 to 4, the case of the contesting respondents being, in brief, thus : As per Executive Council resolution, dated, 6.12.1993 (Annexure 8 to the writ petition) “seniority-cum-merit” is the adopted criterion for DPCs and this criterion has been consistently followed by the DPC. In terms of this resolution, the DPC examined Annual Confidential Reports (hereinafter referred to as “ACRs”) of the previous five years of 10 senior most Section Officers including that of the petitioner No. 2 and recommended the name of Sri R. C. Chyne for promotion to the post of Assistant Registrar and he was accordingly promoted. It was wrong to suggest that the DPC formulated its own criterion, which were not in conformity with the principle of seniority-cum-merit as laid down by the Executive Council. In its meeting held on 17.5.1996, the DPC, along with the ACRs of the petitioners examined ACRs of 12 more Section Officers, who were within the zone of consideration, and following the criterion of seniority-cum-merit, recommended the private respondent Nos. 5, 6 and 7 alongwith two others for promotion to the post of Assistant Registrar. The recommendations of the DPC were placed before the Executive Council in its meeting held on 18.7.1996 and on the same having been approved by the Council, the private respondents were accordingly promoted. Thus, the policy of pick and choose was not : resorted to by the official respondents. The writ petition, therefore, deserves to be dismissed.
6. I have carefully perused the materials on record, I have heard Mr. S. K. Sharma, learned counsel for the petitioners, and Mr. U. S. Thomas, learned counsel appearing on behalf of the respondents No. I to 4.
7. Presenting the case on behalf of the petitioners, Mr. Sharma has submitted that the very affidavit-in-opposition filed by the official respondents indicate that though they claim to have adhered to the principle of seniority-cum-merit in making the recommendations in respect of respondent Nos. 5, 6 and 7, what was really done by the DPC was to follow the criterion of merit-cum-seniority inasmuch as the criterion seniority-cum-merit will, if followed, mean, points out Mr. Sharma, that the person, who is senior most amongst the eligible candidates, will be considered on his own merit for promotion and if he is not round unsuitable for promotion, no one junior to him in the seniority list will considered for such promotion. If the relative merit of the senior and junior amongst the eligible candidates are considered, then the criterion followed will be submits Mr. Sharma, merit-cum-seniority and this is precisely was the DPC has done in the instant case inasmuch as it, admittedly considered the relative merits of the petitioners vis-a-vis the private respondents, which, in terms of the Executive Council’s resolution fixing the criteria for promotion could not have been done but even the Executive Council ignored their own resolution and arbitrarily denied promotion to the petitioners. Mr. Sharma, therefore, submits that it is a fit case in which this Court may interfere and set right the wrong done to the petitioners.
8. In support of his above submissions, Mr. Sharma has referred to Maharashtra State Road Transport Corporation v. Mangrulpir Joint Motor Service Co. (P.) Ltd. and Ors., AIR 1979 SC 1801 and Ajit Singh and Ors. (II) v. State of Punjab and Ors., reported in (1999) 7 SCC 209.
9. As far as Mr. Thomas is concerned, he has not contended before me that the submissions made on behalf of the petitioners before this Court, at the time of hearing, are incorrect. What he has submitted is that with the coming into force of the 2000 Act, the petitioners have become employees of the Mizoram University and if they are found fit for being giving reliefs, then, the same may be done without adversely affecting the promotion of the private respondents.
10. Upon hearing the learned counsel for the parties and on perusal of the materials on record, what appears to be admitted case of the parties is thus the present two writ petitioners were senior as Section Officers to the 3 private respondents. The Executive Council, which is the highest decision-making authority, resolved, on 6.12.1993, that the criterion for DPCs for making recruitment of non-teaching staff should be on seniority-cum-merit. This criterion, according to the very affidavit-in-opposition of the official respondents were adhered to by the DPC, while promoting Mr. R. C. Chyne aforementioned and also while giving promotion to the present three private respondents.
11. However, while so considering the Question of promotion in the present case, the DPC, on 17.5.1996, examined not only the ACRs of the two petitioners, but also of 12 more Section Officers, who were included within the zone of consideration, and, upon such consideration, recommended the names of the private respondents ignoring thereby seniority of the petitioners.
12. Can in the face of the above facts, the DPC, in question, be held to have followed the criterion of seniority-cum-merit the answer to this question has to be in the negative; As has been correctly pointed out by Mr. Sharma, while considering promotion, if the criterion is seniority-cum-merit then, the person who is the senior-most amongst the eligible candidates, has to be, first, considered for promotion and unless he is found unfit for such promotion, his junior cannot be considered at all. In other words, if the criterion for promotion Is seniority-cum-merit, then, the comparative merit of the junior and senior amongst the eligible candidates cannot be judged. Thus, when the promotion is granted on the basis of comparison of merit between the senior and junior, amongst the eligible candidates, then, the criterion followed will be merit-cum-seniority. The reference made by Mr. Sharma to the Apex Court’s decision in Maharashtra State Road Transport Corporation (supra) and Ajit Singh (II) (supra) are, therefore, not misplaced.
13. In view of the fact that the Executive Council of NEHU is the highest decision making authority of the University, the criterion fixed by it for the purpose of giving promotion to the non-teaching staff has to be followed by the DPC. In fact, the respondents too claim that the DPC, followed the criterion of seniority-cum-merit as had been fixed by the Council, but as a matter of fact, the DPC erroneously ignored and reversed the required criterion inasmuch as it, admittedly, considered the ACRs of 14 Section Officers including those of the petitioners together and on a comparative study or the merit of the candidates, whose ACRs were so considered, the private respondents were recommended for promotion, which the Executive Council also in its meeting held on 18.7.1996 approved. Thus, the DPC arbitrarily and most reasonably ignored the criterion for promotion that had been fixed by the Executive Council. Similarly, the Executive Council also ignored its own resolution and arbitrarily chose to follow the contrary policy of merit-cum-seniority and resolved to give promotion to the private respondents.
14. What logically follows from the above discussion is that the recommendations of the DPC for promotion of the private respondents, approval hereof by the Executive Council and consequential promotion given to the private respondents were highly arbitrary, wholly illegal, most unreasonable and discriminatory.
15. The question, however, which, now, arises is as to what relief(s) the petitioners can be granted in the face of the facts of the case at hand. In this regard it is important to bear in mind that by operation of law, Mizoram University has become an independent autonomous identity, which is wholly different and distinct from NEHU, Shillong. Hence, even if the promotions granted to the private respondents are, now, struck down by this Court the petitioners will not, as a corollary, receive promotion to the post of Assistant Registrars in Mizoram University. Thus, no fruitful purpose will be served by setting aside the promotions granted to the private respondents.
16. In view of the above, this writ petition is disposed of with the following directions :
“As and when next vacancy/vacancies in the grade of Assistant Registrar of Mizoram University arises/arise, the case of the petitioners shall be considered for promotion on the basis of seniority-cum-merit and the authorities concerned shall, upon such consideration, act in accordance with law keeping in view the observations made in the preceding paragraphs of this judgment.”
17. This writ petition shall stand disposed of in terms of the above direction.
18. No order as to costs.