JUDGMENT Mr. Ranjan Gogoi, C.J.: (Oral) - This appeal is directed against the order dated 08.09.2009 passed by a learned Single Judge of this Court in CWP No. 17853 of 2008 by which the writ petition was allowed and the promotion of the respondent No. 5 therein i.e. the present appellant to the post of District Ayurvedic-cum-Unani Officer was interfered with on the ground that the said promotion was not made in conformity with the provisions of the Rules which prescribe the criteria of seniority-cum-merit for filling up the post on promotion. 2. The facts lie within a very short compass and the legal issue that arises on the said facts can be best summed up by recording that the same pertains to a true and correct meaning of the expression ‘seniority-cum-merit’ as appearing in the Service Rules in question. 3. Both the appellant/respondent No. 5 and the respondent/writ petitioner were holding the posts of Ayurvedic Medical Officer. Both of them belonged to the reserved category and had come within the zone of consideration for the purpose of promotion to the higher post of District Ayurvedic-cum-Unani Officer which had to be made in conformity with the Rules. The appellant/respondent No. 5, though junior to the respondent/writ petitioner, was selected and promoted to the said higher post which gave rise to the grievance espoused in the writ petition. 4. The learned Single Judge took the view that the aforesaid promotion was not made in accordance with the principle of senioritycum- merit which is the criteria applicable to the promotion and hence the present was a fit case for invalidation of the promotion made in favour of the appellant/respondent No. 5. 5. Before proceeding any further, it will be necessary to take note of the provisions of the relevant Rules which would be required to be considered for the purpose of adjudication of the issues involved in the present proceeding. 6. The service of the contesting parties are governed by the provisions of the Punjab Ayurvedic (Group ‘A’) Service Rules, 2008. Rule 5 of the said Rules being relevant may be conveniently reproduced at this stage:- “5. Method of appointment, qualifications and experience (1) Appointment to the service shall be made in the manner specified in Appendix ‘B’. 6. The service of the contesting parties are governed by the provisions of the Punjab Ayurvedic (Group ‘A’) Service Rules, 2008. Rule 5 of the said Rules being relevant may be conveniently reproduced at this stage:- “5. Method of appointment, qualifications and experience (1) Appointment to the service shall be made in the manner specified in Appendix ‘B’. Provided that, if no suitable candidate is available for appointment by promotion and by direct appointment, then appointment to the service shall be made by transfer of a person holding a similar or an identical post under a State Government or Government of India. (2) No person shall be appointed to a post in the service unless he possesses the qualification and experience as specified against the post in Appendix ‘B’. (3) Appointment to the service by promotion shall be made on the basis of seniority-cummerit, but no person shall have any right to claim promotion on the basis of seniority alone.” 7. Specific notice must be had to the provision of Rule 5(3) extracted above which envisages that promotions shall be made on the basis of seniority-cum-merit, though no person shall have any right to claim promotion by virtue of his seniority alone. The Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 (hereinafter referred to as the Rules of 1994) take care of the matters not specifically provided by the Service Rules in question. Rule 8 and 18 of the Rules of 1994 being relevant may also be conveniently extracted here-in-below:- “8. Application of the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994(1) in respect of the matters, which are not specifically provided in the rules, the members of the service shall be governed by the Punjab Civil Services (General and Common Conditions of Services) Rules, 1994 as amended from time to time. (2) The Punjab Civil Service (General and Common Conditions of Service) Rules, 1994, at present in force are contained in Appendix C.” “18. Promotion to Group ‘A’ and Group ‘B’ Services (1) (a) for promotion to the post as Head of Department would be decided strictly on the basis of merit-cum-seniority as per the instructions issued by the government from time to time. The minimum benchmark for promotion for such post would be ‘Very Good’. The officer who is graded as ‘Outstanding’ would supersede the officer grade as ‘Very Good’. The minimum benchmark for promotion for such post would be ‘Very Good’. The officer who is graded as ‘Outstanding’ would supersede the officer grade as ‘Very Good’. (b) For promotion to post falling in Group ‘A’ other than Head of Department, the minimum benchmark will be ‘Very Good’ as per the instructions issued by the government from time to time. There shall be no supersession on the basis of merit. (c) For promotion to post falling in Group ‘B’ the minimum benchmark will be ‘Good’ and there shall be no supersession on the basis of merit.” 8. There is a circular letter dated 06.09.2001 issued by the Department of Personnel and addressed to all the Financial Commissioners/Principal Secretaries and Administrative Secretaries of the Government of Punjab laying down the norms governing the promotions in question. Broadly speaking, under the aforesaid instructions for the purpose of promotions, ACRs of five years are required to be taken into account and specific marks are contemplated for being granted against each ACR grading. The aforesaid instructions also provide for the zone of consideration for the purposes of consideration for promotion. The following instructions being particularly relevant have to be specifically noticed and, therefore, are being extracted here-in-below:- “(1) The case pertaining to the promotions as Head of the Departments would be decided strictly on the basis of merit-cum-seniority. The minimum bench mark for promotion for such posts would be ‘very good’. The marking system adopted earlier in instructions dated the 29th December, 2000 would be followed and a minimum of 15 marks would be required to be considered as ‘very good’. The officer who is graded as outstanding would supersede the officer graded as ‘very good’. (2) For promotion to posts falling in Group ‘A’ other than Head of Departments, the minimum bench mark will be ‘very good’ with at least 12 marks. Amongst those meeting the criteria, there would be no supersession.” 9. The selections which were held pursuant to the aforesaid government instructions dated 06.09.2001 would require a mention but only to the extent that in the said selection while the appellant/respondent No. 5 secured 12 marks and thus fulfilled the requirement of the minimum benchmark prescribed, the respondent/writ petitioner had 11 marks. The selections which were held pursuant to the aforesaid government instructions dated 06.09.2001 would require a mention but only to the extent that in the said selection while the appellant/respondent No. 5 secured 12 marks and thus fulfilled the requirement of the minimum benchmark prescribed, the respondent/writ petitioner had 11 marks. Consequently, in accordance with the instructions contained in sub paragraph (2) extracted above, the appellant/respondent No. 5 was promoted and the respondent/writ petitioner was ignored giving rise to the grievances expressed in the writ petition. Shortly put the same were to the effect that the prescription of the benchmark ‘very good’ requiring a candidate to secure 12 marks is contrary to the principle of seniority-cum-merit and the same really pertains to the converse principle of merit-cumseniority. Hence, according to the respondent/writ petitioner, a totally inapplicable criteria was applied to the instant promotion thereby affecting its legal validity. 10. The learned Single Judge agreed with the contentions advanced by the respondent/writ petitioner by primarily relying on the fact that the service record of the writ petitioner did not disclose anything adverse, in the absence of which his case could not have been ignored or determined adversely on the basis of the marks secured as against the gradings in the ACR. The course of action adopted, according to the learned Single Judge, therefore, was closer in proximity to the principle of merit-cum-seniority which is against the prescription contained in the Rules. 11. Before us, Mr. Gurminder Singh, learned Counsel appearing for the appellant (respondent No. 5 in the writ petition) has contended that the learned Single Judge was not correct in taking the view as recorded in the impugned order. Citing a decision of the Hon’ble Supreme Court in The State of Mysore and another Vs. Syed Mahmood and others, AIR, 1968 (SC), 1113(1), learned Counsel has submitted that, though at one point of time, the principle of senioritycum- merit was understood to mean rejection of the senior only if he is unfit (the principle relied upon by the learned Single Judge), the said understanding has undergone some transformation in several subsequent judgements of the Hon’ble Supreme Court. In this regard, reference is made to three decisions of the Hon’ble Supreme Court in B.V. Sivaiah and others Vs. K. Addanki Babu and others, 1998 (6), SCC, 720; K. Samantaray Vs. National Insurance Co. In this regard, reference is made to three decisions of the Hon’ble Supreme Court in B.V. Sivaiah and others Vs. K. Addanki Babu and others, 1998 (6), SCC, 720; K. Samantaray Vs. National Insurance Co. Ltd., 2004(2), RSJ, 55 and Union of India and others Vs. Lt. Gen. Rajendra Singh Kadyan and another, 2000(6), SCC, 698. Lastly, reliance has been placed on a recent judgement of the Hon’ble Supreme Court in the case of Rajendra Kumar Srivastava and others Vs. Samyut Kshetriya Gramin Bank and others, [2009(6) Law Herald (SC) 3886] : 2010(1), SCC, 335. 12. The gist of the arguments advanced by the learned Counsel for the appellant/respondent No. 5 on the basis of the judgements cited above is that the criteria of seniority-cum-merit contemplates taking into account the minimum merit which is required to maintain the efficiency of administration and thereafter allow seniority to play its role. A senior, though less meritorious than a junior, would have priority for promotion only if he measures upto a prescribed benchmark, if any. Assessment of minimum merit, according to the learned Counsel, can be made on an appraisal of the performance recorded in the service book of the officers and by assessment of assigned marks against the gradings obtained by such officers. The aforesaid proposition, according to the learned Counsel, is contained in para 18 of the judgement of the Hon’ble Apex Court in B.V. Sivaiah and others Vs. K. Addanki Babu and others’ case (supra). Pointing to the judgement of Union of India and others Vs. Lt. Gen. Rajendra Singh Kadyan and another’s (supra), learned Counsel has argued that rejection of the senior only if he is unfit has been explained in para 12 of the aforesaid judgement to be more appropriate in a case where promotion is to be made by application of the principle of senioritycum- fitness. 13. Opposing the arguments advanced on behalf of the appellant/respondent No. 5, Mr. Shashi Kumar Rattan, learned Counsel for the respondent/writ petitioner has submitted that the criteria of promotion being seniority-cum-merit and there being nothing adverse against the respondent/writ petitioner, his seniority should have received due recognition at the time of consideration of his case for promotion. 13. Opposing the arguments advanced on behalf of the appellant/respondent No. 5, Mr. Shashi Kumar Rattan, learned Counsel for the respondent/writ petitioner has submitted that the criteria of promotion being seniority-cum-merit and there being nothing adverse against the respondent/writ petitioner, his seniority should have received due recognition at the time of consideration of his case for promotion. This did not happen in the present case in as much as though there is nothing adverse against the respondent/writ petitioner in his service record, he has been overlooked merely because in the tabulation of marks he had secured one mark less than the appellant/respondent No. 5. The criteria of seniority-cum-merit has not at all been applied to the present selection for promotion, contends the learned Counsel, who has relied on a judgement of this Court in Haryana State Electronic Development Corporation Ltd. Vs. Rameshwar Dass, 2001(4), SCT, 328 wherein a learned Single Judge of this Court has taken the view that in the absence of any adverse entry in the service record of an officer, his case cannot be ignored while considering him for promotion on the principle of seniority-cum-merit. Reliance has also been placed on a judgement of the Hon’ble Supreme Court in Union of India Vs. Madras Telephone S.C. and S.T. Social Welfare Association Etc., 2000(9), SCC, 71 to contend that if the criteria of promotion is seniority-cum-fitness, promotion has to be made as per seniority. A judgement of the Jammu and Kashmir High Court in Maj. General B.K. Kulshreshta Vs. Union of India, 2000(3), SCT, 139 has also been relied upon to contend that if an ACR had been downgraded such downgrading must be communicated to the officer before the same can be acted upon. 14. We have considered the submissions advanced on behalf of the learned Counsels for the parties. We have also perused the judgement and order of the learned Single Judge under challenge. 15. It is correct that the judicial formulation of the principle of seniority-cum-merit has undergone some change in terms of conceptual interpretation and the criteria and the principle of rejection of the senior only if he is unfit as laid down in The State of Mysore and another Vs. Syed Mahmood and others’ case (supra) has undergone some transformation in B.V. Sivaiah and others Vs. K. Addanki Babu and others’; Union of India and others Vs. Lt. Gen. Syed Mahmood and others’ case (supra) has undergone some transformation in B.V. Sivaiah and others Vs. K. Addanki Babu and others’; Union of India and others Vs. Lt. Gen. Rajendra Singh Kadyan and another’s and Rajendra Kumar Srivastava and others Vs. Samyut Kshetriya Gramin Bank and others’ cases (supra). In terms of the law laid down by the Hon’ble Apex Court in the latter judgements, particularly, in paragraph 18 of the judgement in B.V. Sivaiah and others Vs. K. Addanki Babu and others’ (supra), a benchmark of minimum merit can be prescribed even in cases of promotion on the principle of seniority-cum-merit. If such minimum merit is attained by a senior, juniors who are more meritorious, cannot steal a march over him and seniority will have to play its assigned role. This has been understood to be a true and correct meaning of the expression ‘seniority-cum-merit’. 16. In the aforesaid latter judgements, it has also been held that such minimum merit can be determined by working out the marks that an officer would be entitled to be awarded against his ACR gradings. If this is the view of the Apex Court in the latter judgements, as noticed above, the provisions of the Rules including the 1994 Rules (Rule 8 and 18) read with the executive instructions dated 06.09.2001 can be said to be in full conformity with the law laid down by the Apex Court. 17. A minimum merit of 12 marks having been laid down as the benchmark and the respondent/writ petitioner not having achieved that minimum merit on application of the principle of seniority-cummerit, as interpreted by the Supreme Court, the promotion of the appellant/respondent No. 5 cannot be faulted with on the ground urged before us. 18. We, therefore, for the reasons stated, take the view that the learned Single Judge was not justified in taking the view as recorded in the impugned judgement and we hold that in the present case the promotion made was in conformity with the principle of seniority-cummerit which has been prescribed by the Rules. 19. We have also taken note of the fact that in a subsequent judgement passed by the same learned Judge in Santosh Kumari Vs. 19. We have also taken note of the fact that in a subsequent judgement passed by the same learned Judge in Santosh Kumari Vs. State of Punjab and others, 2011(4), SCT, 387, the learned Judge in paragraph 18, himself, had doubted the efficacy of the judgement rendered in the writ petition out of which this appeal has arisen. 20. In view of the foregoing discussions and for the reasons recorded above, we allow this appeal; set aside the order of the learned Single Judge dated 08.09.2009 passed in CWP No. 17853 of 2008 and direct for all consequential benefits to be accorded to the appellant as expeditiously as possible. -------------------