B. V. Sivaiah
& Ors Vs. K. Addanki Babu & Ors [1998] INSC 337 (17 July 1998)
S.C.
Agrawal, S.P. Bharucha, B.N. Kirpal S. C. Agrawal, J.
ACT:
HEAD NOTE:
[WITH
CIVIL APPEAL NOS. 3809-3810 of 1996, 3799-3803 of 1996, 3811-3812 of 1996 and
3804-3808 of 1996 AND CIVIL APPEAL NO. 3297 OF 1998 {arising out of S.L.P.(C)
No. 7321 of 1997], CIVIL APPEAL NOS 3298-3299 OF 1998 {arising out of S.L.P.
(C) Nos. 17780-17781 of 1997} and CIVIL APPEAL NOS.... 3300-3301 OF 1998
{arising out of S.L.P. (C) No. 19965-19966 of 1997}]
Leave
granted in all Special Petitions.
What
is meant by "seniority - cum-merit", the criterion prescribed for
promotion the post of Area Manager/Senior Manager in the Regional Rural Banks
under the Regional Rural Banks (Appointment & Promotions of Officers and
Other Employees) Rules, 1988 [hereinafter referred to as 'the Rules'] ? This is
the common question which falls for consideration in these appeals.
The
regional Rural Banks have been established under the provisions of the Regional
Rural banks Act, 1976 [hereinafter referred to as 'the Act']. Section 17 of the
Act empowers a Regional Rural Bank to appoint such number of officers and other
officers as it may consider necessary or desirable, in such manner as may be
prescribe, for the efficient performance of is functions and to determine the
terms and conditions of their appointment and service Section 24 of the Act
lays down that in the discharge of its functions a Regional Rural Bank shall be
guided by such directions, in regard to matters of policy involving public
interest, as the Central Government may, after consultation with the national
Bank for Agricultural and Rural Development [hereinafter referred to as 'the
National Bank'], give. Under Section 29 of the Act the Central Government has been
empowered to make rules, after consultation with the National Bank and sponsor
Bank, for carrying out the provisions of the Act, By clause (ba) of sub-section
(2) of section 29, which was inserted by the Regional Rural Banks (Amendment)
Act, 1987, the Central Government was empowered to make Rules relating to
manner in which the officers and other employees of the Regional Rural Bank
shall be appointed. In exercise of the powers conferred under Section 29 read
with Section 17 of the Act the Central Government framed the Rules which were
published vide Notification dated September 28, 1988.
Rule 3
of the Rules provides that the Board of Directors of each Regional Rural Bank
may, in consultation with its sponsor Bank, create such number of posts as
specified in second schedule to the Rules from time to time.
Rule 4
prescribes that the Board of Directors may, in consultation with the sponsor
Bank, determine the number of vacancies in each post keeping in view the
guidelines issued by the Central Government from time to time. Rule 5 makes
provision for filling of vacancies and provides that all vacancies determined
under Rule 4 by the Board of Directors shall be filled by deputation, promotion
or direct recruitment in accordance with the provisions contained in the Second
Schedule to the Rules. With regard the post of Area/Senior Manager the
following provision is made in the Second Schedule to the Rules:- "7. Area
Managers or Senior Managers (a) source of Recruitment:
Hundred
per cent by promotion from amongst confirmed officers working in the bank.
Promotions will be on the basis of serniority-cum-merit. If suitable officers
are not available internally, these posts could be filled by taking temporarily
officers of the sponsor banks and other banks or organisations on deputation'
(b) Qualification & Eligibility :
( i) A
Graduate of recognized University or any equivalent qualifications recognized
as such by Government of India, preference being given to Agriculture or
Commerce or Economics graduates.
(ii)
Eight years service as an officer in the regional rural bank concerned. provided
that the Board may, with the prior approval of National Bank, relax the period
of service by a period not exceeding two years, if suitable candidates of
requisite experience are not available.
Note:
The post of Area Managers and Senior Managers will be equivalent in rank and
will be interchangeable.
(c)
Mode of Selection :
Interview
and assessment of performance reports for the preceding three years period as
officer for promotion." Prior to the making of the Rule appointment on the
post of Area/Senior Manager in Regional Rural Banks was governed by circulars
issued by the Central Government and the National Bank. By circular dated
October 10, 1987 addressed to the Deputy General manager of the National Bank,
the Central Government indicated the criterian that was required to be followed
in the matter of promotion of Branch Managers to the post of Area
Managers/Senior Managers in Regional Rural Banks in the following terms:-
"....... it is, therefore, requested that the Chairman of all the RRBs may
be apprised that since the posts of Area Managers/Senior Managers are
promotional posts to be filled up 100% by promotion from only one source, the
non-selection rule of seniority cum merit has to be applied. This rural
envisages promotion by seniority with due consideration to minimum
merit/fitness prescribed. Fitness implies that there is nothing against the
officer. No disciplinary action is pending against him and none is
contemplated. The officer has neither been reprimanded nor any adverse remarks
have been conveyed to him in the reasonably recent past. The promotions are
meant to be made on the above mentioned consideration." [emphasis supplied
] In accordance with the said circular the National Bank issued a circular
dated December 1, 1987 whereby all the Regional Rural Banks were apprised that
the matter relating to the promotion of Branch Mangers to the posts of
Area/Senior Managers had been examined by it consultation with the Government
of India and the Regional Rural Banks were advised as under: - " The posts
of Area Managers/Senior Managers are promotional posts to be filled up by 100%
promotion from only one source and non-selection rule of seniority-cum-merit
has to be applied. This rule envisages promotion by seniority with due
consideration to minimum merit/fitness prescribed. Fitness implies that there
is nothing against the officer; no disciplinary action is pending against him
and none is contemplated. The officer has neither been reprimanded nor any
adverse remarks have been conveyed to him in the reasonably recent past. The
promotions are meant to be made on the above mentioned consideration only. In
other words, if a manager satisfies the qualifications and eligibility criteria
and there is nothing adverse against him, his due promotion should not be
denied to him." These appeals can be categorised in two groups, viz., the
Andhra Pradesh group and the Madhya Pradesh group. The Andhra Pradesh group of
appeals are directed against the judgment of the Division Bench of the Andhra
Pradesh High Court dated September
23, 1994 in various
writ appeals. The Madhya Pradesh group of appeals have been filed against the
judgments of the Madhya Pradesh High Court. The main judgment, which has been
followed by the said High Court in other cases, is in L.P.A. No. 151 of 1993
and connected matters decided on October 9, 1996. In the impugned judgments, the High Courts of Andhra
Pradesh and Madhya Pradesh have taken the view that if "seniority -cum-merit
criterion is adopted for the purpose or promotion then first the senior most
eligible employee has to be tested to find out whether he possesses the minimum
required merit for holding the higher post and only if he is not found suitable
or fit, his immediate junior may be tested for the purpose of promotion. The
said view has been assailed by the various Regional Rural Banks as well as the
promoted officers whose promotions have been set aside by the impugned
judgments.
In the
matter of formulation of a policy for promotion to a higher post, the two
competing principles which are taken into account are inter se seniority and
comparative merit of employees who are eligible for promotion. In Sant Ram
Sharma v. State of Rajasthan & Ors., 1968 (1) SCR 111, this court has
pointed out that the principle of seniority ensures absolute objectivity by
requiring all promotion to be made entirely on grounds of seniority and that if
a post falls vacant it is filled by the person who had served longest in the post
immediately below. But the seniority system is so objective that it fails to
take any account of personal merit. It is fair to every official except the
best ones, an official has nothing to win or lose provided he does not actually
become so inefficient that disciplinary action has to be taken against him. The
criterion of merit, on the other hand, lays stress on meritorious performance
irrespective of seniority and even a person, though junior but much more
meritorious performance irrespective of seniority and even a person, though
junior but much more meritorious than his seniors, is selected for promotion.
The Court has expressed the view that there should be a correct balance between
seniority and merit in a proper promotion policy. the criteria of seniority
cum-merit' and 'merit-cum- seniority' which take into account seniority as well
as merit seek to achieve such a balance.
The
principle of 'merit-cum-seniority' lays greater emphasis on merit and ability
and seniority plays a less significant role. Seniority is to be given weight
only when merit and ability are approximately equal. In the context of Rule
5(2) of the Indian Administrative Service/Indian Police Service (Appointment by
promotion) Regulations, 1955 which prescribed that "selection for inclusion
in such list shall be based on merit and suitability in all respects with due
regard to seniority" Mathew. J. in Union of India v. Mohan Lal Capoor
& Ors., 1974 (1) SCR 797, has said :- " .... for inclusion in the
list, merit and suitability in all respects should be the governing
consideration and that seniority should play a secondary role. It is only when
merit and suitability are roughly equal that seniority will be a determining
factor, or if it is not fairly possible to make an assessment inter se of the
merit and suitability of two eligible candidates ad come to a firm conclusion,
seniority would tilt the scale." [p.801] Similarly, Beg J. (as the learned
Chief Justice then was) has said :- " Thus, we thin that the correct view,
in conformity with the plain meaning of words used in the relevant rules, is
that the "entrance" or "inclusion" test for a place on the
select list, is competitive ad comparative applied to all eligible candidates
and not minimal like pass marks at an examination. The Selection Committee has
an unrestricted choice of the best available talent, from amongst eligible
candidates, determined by reference to reasonable criteria applied in assessing
the facts revealed by service records of all eligible candidates so that merit
and not mere seniority is the governing factor." [p.817] On the other
hand, as between the two principles of seniority and merit, the criterion of
'seniority-cum-merit' lays greater emphasis on seniority. In state of Mysore
& Anr. v. Syed Mahmood & Ors., 1968 (3) SCR 363, while considering Rule
493)(b) f the Mysore State Civil Services General Recruitment Rules, 1957 which
required promotion to be made by selection on the basis of seniority-cum-merit,
this Court has observed that the rule required promotion to be made by
selection on the basis of "seniority subject to the fitness of the
candidate to discharge the duties of the post from among persons eligible for
promotion". It was pointed out that 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 and if he is found unfit to discharge the duties
of the higher post, he may be passed over and an officer junior to him maybe
promoted.
In
State of Kerala & Anr. v. N.M. Thomas &
Ors., 1976 (1) SCR 906, A.N. Ray CJ. 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." [p.930] The learned counsel for the Regional Rural Banks and
the promoted officers have, however, placed reliance on Para 7(c) of the Second
Schedule to the Rules which prescribes that the mode of selection for promotion
would be interview and assessment of performance reports for the preceding
three years periods and have submitted that under the criterion of
'seniority-cum-merit', as prescribed under the Rules, comparative merit has to
be assessed for the purpose of promotion. Reliance has been placed on the
following observations in State of Mysore v. C.R. Seshadri & Ors., 1974 (3)
SCR 87 : - "However, if the criterion for promotion is one of the
seniority- cum-merit, comparative merit has to be assessed if length of service
is equal or an outstanding junior is available for promotion." [p.89] The
learned counsel for the Regional Rural Banks and the promoted officers have
also placed reliance on the decision of this Court in Jagathigowda, C.N. &
Ors. v. Chairman, Cauvery Gramina Bank & Ors., 1996 (9) SCC 677.
Para
7(c) of the Second Schedule to the Rules does not, in our opinion, lend support
to the contention that the criterion of seniority-cum-merit envisaged by the
Rule making authority involves assessment of comparative merit for the purpose
of promotion. The word "selection" has been used in the sense of
selecting an officer for promotion on the basis of the criterion of seniority-cum-merit.
The requirement that such selection shall be made on the basis of interview and
assessment of performance reports for the preceding three years is consistent
with the criterion of seniority-cum-merit as explained in the state of Kerala
& Anr. v. N. M. Thomas & ors. (supra) that "given the necessary
merit requisite for efficiency of administration" the senior though the
less meritorious shall have priority.
The
said mode enables an assessment to be made about the minimum necessary merit
requisite fr efficiency of administration and it cannot be construed as
importing assessment of comparative merit of the officers eligible for
promotion.
In
C.R. Seshadri (supra) the Court was considering the question whether High Court
could have given a direction to the State to give to the respondent therein
notional promotion to the post of Deputy Secretary with effect from the date on
which his junior secured such promotion. This Court said that such a direction
could not be given by the High Court because promotion of a government servant
was basically in government's discretionary power and that in the absence of
positive proof of the relevant service rules it was hazardous to assume that by
efflux of time the respondent would have spiralled upto Deputy Secretaryship
and that the proper direction could only be that government would reconsider
the case of the respondent afresh for purpose of notional promotion. in that
context, this Court pointed out that if the rule of promotion is one of 'sheer
seniority' it may well be that promotion is a matter of course and that if
seniority-cum-merit is the rule, promotion is problematical. Since the relevant
rule governing promotion to the post of Deputy Secretary had not been placed
before it, the Court was not required to define the criterion of
'seniority-cum-merit' and to delineate the fine distinction between the
criterion of 'seniority-cum- merit' and the criterion of 'merit-cum-seniority'
in the matter of promotion. In the observations on which reliance has been placed
by the learned counsel for the Rural Banks and the promoted officers the
distinction between 'seniority-cum-merit' and 'merit-cum-seniority' has been
obliterated and both the criterion have been equated. Since comparative
assessment of merit is required to be made while applying the criterion of
'merit-cum-seniority' has been obliterated and both the criterion have been
equated. Since comparative assessment of merit is required to be made while
applying the criterion of 'merit-cum-seniority' ad for 'seniority-cum-merit' no
such comparative assessment is required, the aforementioned observations in the
case of C.R. Seshadri (supra) on which reliance has been placed cannot be
regarded as correctly reflecting as to what is meant by the criterion of
'seniority-cum-merit'.
In Jagathigowda
, C.N. (supra) this Court was dealing with promotion made to the post of senior
Manager in a rural bank which promotion was made prior to the Rules and was
governed by circulars of the National Bank dated December 31, 1984 and April
7, 1986. Circular
dated December 31,1984 provided that promotion to the post
of Area Manager/Senior Manager should be on the basis of seniority-cum-merit.
By circular dated April
7, 1986 it was
prescribed that selection of the eligible candidates should be based on
performance of respective candidates in the bank to be assessed by a Staff
Selection Committee after interviewing the candidates. The selection was made
by the selection Committee after calling the eligible officers for interview in
accordance with their seniority and in the interview the marks were awarded
according to the performance appraisal forms. The officers who obtained 85
marks out of 150 were shortlisted for promotion. The performance appraisal
comprised of matters such as dimension of work, general intelligence, job
knowledge, initiative and resourcefulness etc. The service record of the
officers who assailed the promotion before the High Court was adverse. In the
judgment under appeal the High Court had set aside the promotion on the ground
that service record of the recent past should have been taken into
consideration and in case there was nothing adverse against an officer he could
not be denied promotion on the ground that some other junior to him was more
meritorious and that promotions were made on the basis of selection inasmuch as
marks were assigned on the basis of performance appraisal and interview. The
said judgment of the High Court was reversed by this Court. It was observed
that the circular dated April
7, 1986 issued by the
National Bank specifically provided that 'the selection of the eligible
candidates should be based on performance of respective candidates in the
bank'. It was held that the High Court was not justified in holding that the
performance appraisal could not be taken into consideration while considering
the officers for promotion to the higher rank.
It was
also observed that "while making promotion on the basis of
seniority-cum-merit the totality of the service record of the officer concerned
has to be taken into consideration". This judgment, in our opinion, does
not make a departure from the law laid down by this Court in the earlier
judgments explaining the criterion of 'seniority- cum-merit' because in this
case the selection had been made by taking into account the seniority as well
as performance and performance was appraised by assigning marks on the basis of
performance appraisal and interview. Those who secured 85 marks out of 150
marks were shortlisted for promotion which shows that securing 85 marks out of
150 marks was treated as the minimum standard of merit for purposes of
promotion and those who satisfied the said minimum standard were selected for
promotion on the basis of seniority.
On
behalf of the promoted officers it was urged that for the purpose of promotion
on the basis of seniority-cum- merit, seniority means the length of service and
that among officers who were appointed on the same date and have the same
length of service seniority can have no bearing and promotion has to be made on
a comparative assessment of merit of such officers. We are unable to agree. while
applying the principle of seniority-cum-merit for the purpose of promotion what
is required to be considered is inter se seniority of the employees who are
eligible for consideration. Such seniority is normally determined on the basis
of length of service, but as between employees appointed on the same date and
having the same length of service, but as between employees appointed on the
same date and having the same length of service, it is generally determined on
the basis of placement in the selected list for appointment. Such determination
of seniority confers certain rights and the principle of seniority-cum-merit
gives effect to the such rights flowing from seniority. It cannot, therefore,
be said that in the matter of promotion the basis of seniority-cum-merit
seniority has no role where the employees eligible for promotion were appointed
on the same date and have the same length of service.
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 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.
We may
now examine whether the aforesaid criterion has been correctly followed by the
concerned banks in making the impugned promotion. We will first take up the
Andhra Pradesh group of appeals which have been field against the judgment of
the Andhra Pradesh High Court dated September 23, 1994.
These
appeals relate to two banks, namely, the Rayalaseema Grameena Bank and the Pinakini
Grameena Bank. It Would be convenient to deal with the appeals relating to each
bank separately.
Rayalaseema
Grameena Bank :- In March 1988 the Rayalaseema Grameena Bank decided to create
four posts of senior Managers and four posts of Area managers. The Senior
Managers work in the office whereas the Area Managers work in the field. By
circular dated March 3, 1988 the Board of Directors of the Rayalaseema Grameena
Bank laid down the following promotion process:- "
A) ELIGIBILITY
:- The Officers who have put in 8 (Eight) years of service in the Bank in the
cadre of branch Manager as on 31-12-1987 are
eligible to be considered for the promotion process.
B)
MODALITIES :- ------------ a) Seniority - 45 marks (0.5 marks for each
completed month of service over and above the minimum qualifying service) b)Qualif-
ication - 5 marks (Minimum qualification applicable to the cadre shall not be
reckoned) Post Graduation - 1 Mark Diploma/s - 1 Mark CAIIB - Part I - 1 mark CAIIB
- Part II - 2 Marks (c) Leave - record - 5 marks (d) Interview - 30 marks (e)
Performance - 65 marks 0.2, These promotions will be effective from 1st May,
1988.
0.3.
The eligible candidates will be called for the interview directly ( Candidates
need not submit any application in this regard) " Following the said
promotion process eight Branch managers were promoted with effect from May 1,
1988 in proceedings dated May 3, 1988. The Branch Managers who wee promoted as
Area/Senior Managers on May
3, 1988 assumed office
and their promotions were not questioned by any employee at that time.
After
the Rules framed by the Central Government vide Notification dated September
28, 1988 came into force the Rayalaseema Grameena Bank, in September 1989,
decided to create five posts of Area/senior Managers and, by circular dated
September 27, 1989, formulated the following promotion process for filling up
of these five posts: -
"1.
ELIGIBILITY :- ----------- All the Officer (Branch Managers) who have joined
the service of the Bank on or before 1-4-1981 are eligible to be considered for
the promotion process.
2.
MODALITIES :- ----------- a) Seniority - 34 marks ( 0.75 mark for each
completed month of service over and above the minimum qualifying service) b)Qualif-
ications - 10 marks (Minimum qualification applicable to the cadre shall not be
reckoned) Post Graduation - 3 marks Double Graduation - 1 mark (like BL, LLB,
B.ED.) Any Diploma/s. - 2 marks CAIIB - Part I - 2 marks CAIIB - Part II - 2
marks (c) Interview - 20 marks (d) Performance - 56 marks All the eligible
candidates will be called for the interview directly. (Candidates need not
submit any applications in this regard)." Following that process, five
Branch managers were promoted - two as Area Managers and three as Senior
managers - in the proceedings dated December 1, 1989.
Promotions
made in the proceedings dated December 1, 1989
were challenged before the Andhra pradesh high court by one K.V.T. Prasanna
Kumar (by filing Writ Petition No. 17263 of 1989 on December 11, 1989), G. Anantha Raju, P. Sainath Reddy and C. Vijayakumar
Reddy (by filing Writ Petition No.3546 of 1990 on February 16, 1990). During the pendency of the said writ petitions P.V.
Krishna Murthy filed another Writ Petition (writ Petition No. 9692 of 1993) on
July 13, 1993 in the High Court where he assailed the promotions made on May 3,
1988 but none of the candidates promoted during the year 1988 to the posts of
Area/Senior Manager was impleaded as party respondent. All the four Writ
Petitions were heard together by a learned single judge of the High Court who,
by his judgment dated September 7, 1993, allowed Writ Petitions Nos. 17263 and
17279 of 1989 and 3546 of 1990 and declared that the promotions made on
December 1, 1989 to the post of Area/Senior managers form the post of Branch
Manager in the Rayalaseema Grameena Bank were illegal and improper. Writ
petition No. 9692 of 1993 filed by P.V. Krishna Murthy, in which the promotions
made on May 3, 1988 the 1988 were assailed, was,
however, dismissed on the ground of laches. Against the said judgement of the
learned single judge Writ Appeals Nos. 1242 of 1993, 1232 of 1993 and 1238 of
1993 were filed by the Chairman, Rayalaseema Grameena Bank, and Writ Appeals
Nos. 1233 of 1993 and 1234 of 1993 were filed by the five Branch Managers whose
promotions as Area/Senior managers made on December 1, 1989 had been quashed by
the learned single Judge. Writ Appeals Nos. 1142 of 1993 and 1224 of 1993 were
filed by P.V. Krishnamurthy, the petitioner in Writ Petition No. 3546 of 1990
and Writ Petition No. 9692 of 1993 and Writ Appeal No. 1210 of 1993 was filed
by two of the petitioners in Writ Petition No. 17279 of 1989. These appeals
related to the promotions made on May 3, 1988.
In
Writ Appeal No. 1142 of 1993 a contention was raised that the promotions made
on May 3, 1988 had been questioned in Writ
Petition No. 17263 of 1989. The said contention was rejected by the Division
Bench of the High Court and it was observed that the prayer in the said writ
petition was clear and categorical and no relief was sought for in respect of
the promotions made on May
3, 1988. In Writ
Appeal No. 1210 of 1993 an application was made seeking amendment of the prayer
in Writ Petition No. 17279 of 1989 to challenge the promotions made on May 3,
1988 but the said application was rejected by the learned judges on the
Division Bench of the High Court. As regards challenge to the validity of
promotions made on May 3, 1988 the learned judges held that Writ petition No.
9692 of 1993 had been filed after a lapse of about four years after the
promotions were effected in the year 1988 and the conduct of the writ
petitioners in keeping quiet and submitting themselves to the promotions
process undertaken by the Bank for filling up the posts in the 1989 disentitled
them to seek relief in respect of promotions made in the year 1988 inasmuch as
some rights and accrued in favour of the employees promoted on May 3, 1988 and
if their promotions were to be set aside subsequent to the promotions made on
December 1, 1989 it would cause them irreparable loss. The learned judges on
the Division bench of the High Court, therefore, dismissed Writ Appeal Nos.1142
of 1993, 1224 of 1993 and 1210 of 1993. Civil Appeals Nos. 3804-3808 of 1996 have
been filed against that part of the judgment of the High Court relating to the
promotions made on May
3, 1988.
The
learned counsel for the appellants in these appeals has submitted that now the
appellants do not challenge the promotions that were made on May 3, 1988 since
they have also been promoted as Area/Senior managers and they are only raising
the question regrading restoration of the inter se seniority of the appellants
and the promoted officers on the post of Area/Senior Manager. We do not find
any merit in this contention. since there was no challenge to the promotions
made on May 3, 1988 till 1993, the promoted officers
had been working for nearly five years by then and had acquired right to
seniority on the basis of such promotion and they cannot be deprived of the
said right. The High court, in our opinion, has rightly held that the belated
challenge to the promotions made on May 3, 1988 raised by the appellants in these
appeals cannot be entertained. Civil Appeals Nos. 3804-3808 of 1996 are,
therefore, liable to be dismissed.
Writ
Appeals Nos. 1242 of 1993, 1232 of 1993 and 1238 of 1993 filed filed by the Rayalaseema
Grameena Bank and Writ appeals Nos. 1233 of 1993 and 1234 of 1993 filed by the
five Branch managers who were promoted as Area/Senior Managers on the basis of
proceedings dated December 1, 1989 were dismissed by the Division bench of the
High Court on the view that the Bank had considered the cases of all the
eligible officers for promotion to the posts of Area/Senior Managers and only
those who secured highest number of marks amongst them were ultimately promoted
and that this method of selection is contrary to the principle of
'seniority-cum- merit'. Civil Appeals No. 3799-3803 of 1996 have been filed by
the Rayalaseema Grameena Bank, while Civil appeals Nos.3811-3812 of 1996 have
been filed by five Branch managers who have been promoted as Area/Senior
managers in the proceeding on December 1, 1989 against this part of the
judgment of the High Court.
Having
heard the learned counsel for the Rayalaseema Grameena bank as well as five
branch Managers who had been promoted as Area/Senior Managers in the
proceedings on December 1, 1989, we find that no case is made out for
interference with the said view of the High Court. The promotion process laid
down by the Rayalaseema Grameena Bank in its circular dated September 27, 1989,
on the basis of which the selection for promotion had been made on December 1,
1989, sets apart 34 marks for seniority, 10 marks for qualifications, 20 marks
for interview and 56 marks for performance which shows that out of a total
number of 120 marks the maximum number of marks that could be awarded for
seniority is 34 and that 0.75 mark was to be given for each completed moth of
service over and above the minimum qualifying service. In other words, if two person
are appointed on the same day, the same number of marks had to be awarded for
seniority. Moreover out of a total number of 120 marks more than 50% marks were
set apart for interview and performance. The High Court has found that only
those officers who had secured the highest number of marks were ultimately
promoted. It is not a case where minimum qualifying marks are prescribed for
assessment of performance and merit and those who secure the prescribed minimum
qualifying marks are selected for promotion on the basis of seniority. In the
circumstances, it must be held that the High Court has rightly come to the
conclusion that the mode of selection that was in fact employed was contrary to
the principle of 'seniority-cum-merit' laid down in the Rules. Civil Appeals
No. 3799-3803 of 1996 filed by the Rayalaseema Grameena Bank as well as Civil
Appeals Nos.3799-3803 of 1996 filed by the Rayalaseema Grameena Bank as well as
Civil Appeals Nos 3811-2812 of 1996 filed by the promoted officers are,
therefore , liable to be dismissed.
PINAKINI
GRAMEENA BANK:- On February 19, 1992 the Board of Directors of the Pinakini
Grameena Bank decided to create two posts of Area Managers and four posts of
senior Managers. The Board formulated the promotion policy and communicated it
to all the branches through its circular No.37/PSD/13/92 dated March 16, 1992
which laid down the following promotion process :- " ELIGIBILITY : The
officers (managers) who have completed 8 years of service as on 31.03.1992 are
eligible for considering the promotion to Area/Senior Manager posts.
WEIGHTAGE
OF MARKS:
(a) Seniority
: 55 marks Officers (Mana- gers) who have completed 8 ye- ars of service as per
SSR of the Bank.
(b)
For passing CAIIB Part- I : 2 marks CAIIB Part -II 3 marks
(c) performance
: 25 marks
(d) Interview
: 15 marks Total 100 marks Further, we observe that many of the Officers
(Managers) have not submitted the performance appraisals for the years 1989,
1990 and 1991 to assess their performance. Such officers are advised to submit
the performance appraisals so as to reach HO : PSD on or before 31.03.1992.
Otherwise, we will be constrained to assess their performance based on he
information available with us.
A
Committee is constituted for the purpose of conduction interview as per
Government of India guidelines.
The
dates of interview will be intimated to the candidates individually, in due
course." In the proceeding held on April 20, 1992 five Branch Managers
were promoted as Area/Senior Managers. Three Branch Managers, namely, K. Addanki
Babu, P. Raghava Rao and V.C. Krishna Prasad filed writ Petition No. 5204 of
1992 in Andhra Pradesh High Court wherein they challenged the order dated April 20, 1992 regarding the promotion of the said
five branch Managers as Area/Senior Managers. The said writ Petition was
allowed by the learned single judge by his judgment dated December 17, 1993
wherein he followed the earlier judgement of the learned single judge dated
September 7, 1993 given in the Writ Petitions relating to the Rayala Seema Grameena
Bank . Writ Appeal No. 417 of 1994 was filed by the Pinakini Grameena Bank,
while Writ Appeal No. 422 of 1994 was filed by the promoted officers whose
promotion were set aside by the judgment of the learned single judge. Both
these appeals have been dismissed by the Division Bench of the High Court. The
learned Judges have pointed out that the cases of all officers eligible for
promotions to the posts of Area/Senior Managers were considered and only those
who secured highest number of marks amongst them were ultimately promoted and
that this method of selection is contrary to the principle of
'seniority-cum-merit'. Civil Appeal Nos. 3809-3810 of 1996 have been filed by
the Chairman, the Pinakini Grameena Bank, while Civil Appeal No. 3798 of 1996
has been filed by he promoted officers against that part of the judgment of the
High Court.
Form
the circular dated March 16,1992 laying down the promotion process it is
evident that selection was to be made on the basis of marks to be awarded by
selection committee and that out of total number of 100 marks, 55 marks were to
be awarded for seniority while 25 marks were assigned for performance and 15
marks for interview. There was no indication in the said circular as to how 55
marks for seniority were to be given to the Branch Managers who were eligible
for consideration for promotion on March 31, 1992. The said circular did not
prescribe minimum qualifying marks for assessment of performance and merit on
the basis of which an officer would be considered for being selected and, as
pointed out by the High Court, the selection was made of only those officers
who secured highest number of marks amongst the eligible officers. In the
circumstances, the High Court, in our view, has rightly held that this method
of selection was contrary to the principle of 'seniority-cum-merit' and it
virtually amounts to the application of the principle of 'seniority-cum-merit'
and it virtually amounts to the application of the principle of 'merit-cum-seniority'.
We, therefore, do not find any merit in Civil Appeal Nos. 3809-3810 of 1996 and
3798 of 1996 and the same are also liable to be dismissed.
We
would now take up the Madhya Pradesh group of appeals of appeals which relate
to three banks, namely, Baster Kshetriya Gramin Bank, Rewa Sidhi Gramin Bank
and chhindwara-Seoni Kshetriya Gramin Bank. The appeals relating to these banks
are also being dealt with separately.
Baster
Kshetriya Gramin Bank: - Selection process for the purpose of promotion to the
post of Area Manager/Senior Manager in the Baster Kshetriya Gramin Bank was
contained in the circular dated February 16, 1993 . The said selection was made
on the basis of interview of all the eligible officers by the Staff Selection
Committee as per the Rules and a select list of five persons was prepared and
on the basis of the said select list promotions were made. The said promotions
were challenged by three officers who, though senior, were no promoted, by
filing Writ Petition Nos. 43 and 45 of 1993 in the Madhya Pradesh High court.
The said Writ Petitions were allowed by the learned single judge by judgment
dated July 24, 1996 on the view that where Rules prescribed promotion on the
basis of 'seniority-cum-merit' the seniority has to be give due place and
merely because a person has a better merit, he cannot be promoted over and
above the person senior to him unless he lacks in qualification or is other
wise found to be unfit, i.e., there is nothing against him, and that this was
not the position in the instant case and that the concept of seniority had been
given no weightage in this case Letters patent Appeals (L.P.A. Nos. 150 and 152
of 1996) filed against the said judgment of the learned single judge were
dismissed by the Division bench of the High Court by the impugned judgment
dated October 9, 1996. The learned judges on the Divisions Bench have found
that the Bank has given weightage to merit first and second place has been
given to seniority and that this shows that the Selection committee has acted contrary
to the principles prescribed under the Rules and that the selections be made by
way of merit-cum- seniority and not by way of seniority-cum-merit as required
by the Rules. Civil Appeals arising out of Special Leave Petition (C) No.
17780-81 of 1997 have been filed against the said judgment of the High Court by
the promoted officers whose promotion has been quashed by the High Court.
We
have heard the learned counsel for the appellants.
It is
not disputed that the selection was mad eon the basis of marks assigned on the
basis of interview by the Selection Committee and those who secured the highest
marks were selected. The selection process adopted for the purpose of promotion
to the post of Area Manager/Senior managers was thus not in consonance with the
principle of 'Seniority-cum -merit' and the promotions were not made in
accordance with the Rules. Civil Appeals arising out of Special Leave Petition
(C) No. 17780-81 of 1997 are, therefore liable to be dismissed.
Rewa Sidhi
Gramin Bank : - On February 2, 1989 the Chairman of the Rewa Sidhi Gramin Bank
issued the promotion policy for promotion of Field Supervisors and Officers of
the bank to the higher posts. In paragraph 2.3 of the said policy it was
prescribed that promotion from 'officer to Area/Senior Manager, subject to
satisfaction of minimum period of service, shall be, at present, on the basis
of assessment of his overall performance based on appraisal reports on hm and
his potentiality to shoulder higher responsibilities assessed in the interview,
duly supplemented by weightages for seniority, job responsibility,
placement/posting/mobility". With regard to promotion from Officer to
Area/Senior Manager the following promotion criteria were laid down:
"-----------------------------------------------------------
Promotion percentage Wightage ---------------------------------------------
Seniority Job resp Placement/ Perfor- Inter onsibility posting/ mance view
mobility ------------------------------------------------------------ Officer
Area/Senior 15 12 8 40 25 Manager
------------------------------------------------------------ As regards weightage
for seniority it was provided in Paragraph 2.4 that one mark for each completed
year of service in the respective cadre/post, subject to a maximum of 15 marks
in respect of promotion from Officer to Area/Senior Manager would be give. It
was further:- " 2.9. Candidates who have secured less than 40% marks in
interview will not be considered for promotion and their names will not be
included in the final merit list.
2.10 .
This list of successful candidates in the order of total marks obtained will be
placed by the Staff selection committee before the Board, duly recommended for
consideration for appointment or promotion." (emphasis supplied) On bench
of the High Court has followed its earlier judgment dated July 4, 1994 in
L.P.A. No. 120 of 1997 which judgment was based on the earlier judgment dated
October 9, 1996 passed in L.P.A. No. 151 of 1996 and other connected matters.
Civil Appeals arising out of Special Leave Petition (C) Nos. 17780-81 of 1997
filed against the judgment dated October 9, 1996 have been dismissed. For the
same reasons, Civil Appeals arising out of Special Leave Petition (C)
Nos.19965-19966 of 1997 are also liable to be dismissed inasmuch as according
to the promotion policy dated February 2, 1989
selection was made on the basis of total number of marks obtained by the
eligible candidates. The Criterion of the promotion policy cannot be regarded
as being in consonance with the principle of 'seniority-cum-merit' as
prescribed under the Rules. Civil Appeal arising out of Special Leave Petition
(C) Nos. 19965-19966 of 1997 are, therefore, dismissed.
Chhindwara
- Seoni Kshetriy Gramin Bank : By order dated April 8, 1993 promotions were
made to the post of Area/Senior Manager in the Chhindwara - Seoni Kshetriya Gramin
Bank on the basis of the recommendations made by a selection Committee. The
said recommendations were made on the basis of marks awarded after interview
and assessment of the performance of the candidates eligible for promotion.
The
said promotions were challenged before the Madhya Pradesh High court by filing
a Writ Petition (M.P. No. 1931 of 1993) which has been allowed by the learned
single judge by his judgment dated February 7, 1997 in view of the earlier
judgment dated July 24, 1996 passed in M.P. No. 943 of 1993. The said judgment
was based on the judgment of the Division Bench of the High Court in L.P.A. No.
151 of 1996.
Civil
Appeal arising out of Special Leave Petition (C) No.7321 of 1997 has been filed
by one of the promoted officers against the said judgment of the learned single
judge of the High Court.
During
the course of hearing of the appeal the learned counsel for the respondent -
Bank has placed before us the relevant documents relating to the impugned
selection and promotion. On a perusal of the said documents we find that 50
marks out of the total of 100 marks were prescribed as the minimum qualifying
marks for interview and only those who had obtained the qualifying marks in
interview were selected for promotion on the basis of seniority. it was,
therefore, a case where a minimum standard was prescribed for assessing the
merit of the candidates and those who fulfilled the said minimum standard were
selected for promotion on the basis of seniority. In the circumstances, it
cannot be said that the selection has not been made in accordance with the
principle of 'seniority-cum-merit'. We are, therefore, unable to uphold the
impugned judgment of the High Court. The appeal has to be allowed and the
impugned judgment of the High Court dated February 7, 1997 passed by the
learned single Judge of the High Court has to be set aside and the promotion of
the appellant on the post of Area/Senior Manager under order dated April 8,
1993 has to be affirmed.
In the
result, Civil Appeal Nos. 3798 of 1996, 3809- 3810 of 1996, 3799-3803 of 1996,
3811-3812 of 1996, 3804- 3808 of 1996 and Civil Appeals arising out of Special
Leave Petition (C) Nos. 177/0-17781 of 1997 and 19965-19966 of 1997 are
dismissed.
Civil
Appeal arising out of Special Leave Petition (C) No.7321 of 1997 is allowed and
the judgment of the Madhya Pradesh High Court dated February 7, 1997 in M.P.
No. 1931 of 1993 is set aside and the said writ petition is dismissed. No order
as to costs.
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