JUDGMENT S.H.A. Raza, J. - The fate of this writ petition hinges upon the reply to the question as to whether, in the matter of promotion, the criterion of which is senioritycummerit, the promotion can be made on the comparative assessment of merit of various candidates or not. 2. The petitioners who are senior in comparison to those who have been selected by promotion to the post of Senior/Area Managers in Barabanki Gramin Bank, have raised a grievance against the mode of selection adopted by the Gramin Bank, by means of which they had been ignored and persons junior to them were selected in an arbitrary manner. 3. From the averments raised in the writ petition, it appears that seven posts were required to be filed up for purposes of promotion to the post of Area Managers or Senior Managers in Barabanki Gramin Bank, Barabanki. The Board of Directors of the Bank in its meeting dated 3101986 adopted the following procedure under which evaluation for merit of selection was to be done : A. Educational Qualifications : 10 marks (1) Graduation in Agriculture/economics/commerce 2 (2) CAIIB Part I 2 (3) CAIIB Part II 3 (4) Degree/Diploma in business Management/Public Administration. 3 B. Seniority : 20 marks 4 marks for every completed year of service in the Bank over and above 8 years of essential experience. C. Performance 40 marks The performance as evidenced from average of annual appraisal of past three years. D. Potential 30 marks An interview will be held to test the suitability of candidates in regard to their presence of mind to take day to day problems at the branches and the psychological attitude, 4. Interviews were held by the Selection Committee on 9th and 10th November, 1987. The result of the Selection made by the Selection Committee was placed before the Board of Directors of the Bank in its meeting dated 22nd and 23rd March, 1988 wherein it was resolved that appointments against reserved vacancies might be deferred and out of seven selected candidates appointment might be offered to the first five candidates subject to the concurrence of National Bank for Agriculture and Rural Development known as NABARD. As a result of the concurrence received from NABARD, the result was declared on 2431988. 5. As a result of the concurrence received from NABARD, the result was declared on 2431988. 5. The petitioners who are, admittedly, seniors to those who had been selected, had challenged the said selection mainly on the ground that the criteria of selection being senioritycummerit, the seniority ought to have been given paramount importance. The mode of selection adopted by the Bank was not in accordance with the relevant Rules as well as the guidelines of Reserve Bank of India and NABARD. It was also urged that the marking under the headings 'performance' and 'potential' carrying forty and thirty marks respectively out of one hundred marks were arbitrary. Their grievance rests on the point that seniority and objectivity ought to have been the basic criteria for purposes of selection for promotion and this having not been done, injustice was caused to them, inasmuch as they stood higher in seniority and the record of their service was also upto the mark. 6. On 311284, the NABARD has issued guidelines to the Chairman of all the Regional Rural Banks with regard to the appointment of General Managers, Lenior Managers as well as Area Managers according to wham 100/% of such posts were to be filed up by promotion only amongst the officers working in the Bank on the basis of senioritycummerit. On 1021987 the Chairman of the Barabanki Gramin Bank informed all the Branch Managers that the Board of Directors of the Gramin Bank in its meeting held on 22121986 adoted the said guidelines issued by the NABARD for recruitment/appointment and promotion of different categories of staff and the said guidelines would form part of the Gramin Bank Staff Service Regulations (Amended), 1983. 7. Lengthy arguments on behalf of the petitioners were advanced urging that the Barabanki Gramin Bank was bound by the directions and guidelines issued by the Government of India as well as NABARD in accordance with the provisions of section 24(1) of the Regional Rural Bank Act, 1976, while on the other side, the opposite parties have submitted that the Board of Directors cannot be compelled to accept the guidelines issued by either the Government of India or the NABARD and they were free to adopt their own mode of procedure in the matter of appointments or promotions. 8. 8. In view of the admitted position that the Board of Directors of the Barabanki Gramin Bank itself adopted in their meeting held on 22121986 the guidelines issued by the NABARD and the said guidelines form part of the Barabanki Gramin Bank Staff Service Regulations (Amended), 1893, this Court need not travel into a discussion as to whether either the Government of India or NABARD have any power to issue such guidelines or not, as to whether it is incumbent upon the Barabanki Gramin Bank to follow the said guidelines. After incorporating or adopting the aforesaid guidelines into the Regulations, the Barabanki Gramin Bank cannot follow any other mode or procedure in the matter of recruitment/promotion except to what has been incorporated and adopted in the Regulations. 9. Now it has to be seen as to whether the Barabanki Gramin Bank while making selection/promotion to the post of Area Manager/Senior Managers have acted in accordance with the Regulations or not. In the case of State of Kerala and another v. N. M. Thomas and others AIR 1976 SC 490 ) it was indicated in paragraph 38 of the judgment as under : ".........With regard to promotion the normal principles are either meritcumseniority or senioritycummerit Senioritycure merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority. This will not violate Articles 14, 16(1) and 16(2). A rule which provides that given the necessary requisite merit, a member of the backward class shall get priority to ensure adequate representation will not similarly violate Article 14 or Article 16(1) and (2)............. 10. It is evident that the posts were non selection posts and the process of promotion involved was senioritycummerit. This process contemplates that the adverse and negative factors may not be over looked, but seniority deserves to be given due weightage If there existed any negative or adverse material against a person even if he was within the field of eligibility on the basis of seniority that would render him unsuitable for a higher post & he could be superseded by the next person in the seniority who had not been found to be unsuitable, but that process would not give any scope for assessing the comparative merits of the candidates called for interview. 11. 11. Learned counsel for the respondents relying upon the case of State of Mysore v. C.R. Seshadri and others AIR 1974 SC 460 ) submitted that if the criteria for promotion is senioritycummerit, even then the comparative merit has to be assessed. 12. In the aforesaid case Hon'ble Mr. Justice Krishna Iyer, as he then was, speaking on behalf of the Bench indicated that if senioritycummerit is the rule, promotion is problematical. In the absence of positive proof of the relevant service rules, it is hazarduous to assume that by efflux of time the petitioner would have spiralled up to Deputy Secretary ship. It was further indicated : "However, if the criterion for promotion is one of senioritycummerit, comparative merit may have to be assessed if length of service is equal or an outstanding junior is available for promotion." 13. Incase of C. R. Seshadri (supra) the High Court had issued a mandamus commanding the State of Mysore to promote the petitioner to the post of Deputy Secretary. In the circumstances of that case Hon'ble Supreme Court took the view that the power to promote an officer belongs to the Executive and the judicial power may control or review Government action but cannot extend to acting as if it were the Executive. The Court may issue directions but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad order of Government or order reconsideration on correct principles. 14. In the aforesaid case the criteria for promotion that is senioritycummerit or meritcumseniority etc. was not directly involved. At any rate, the later view of Hon'ble Supreme Court prevails over the earlier. 15. In the case of R.S. Raghunath v. State of Karnataka and another (1991 IV SVLR1) the principal question involved was whether SubRule 2 of Rule 3 of Karnataka Civil Service (General Recruitment) Rules, 1977 (General Rules, for short) had the overriding effect over the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976. While Hon'ble Mr. Justice Kuldeep Singh and Hon'ble Mr. Justice K. Jayachandra Reddy concurred that the General Rules do not supersede the special Rules and there was no escape whatsoever to infer or see by implication, Hon'ble Mr. Justice Yogeshwar Dayal in his dissenting judgment held that there was clear indication in the said Rule to supersede the Special Rules. 16. Justice Kuldeep Singh and Hon'ble Mr. Justice K. Jayachandra Reddy concurred that the General Rules do not supersede the special Rules and there was no escape whatsoever to infer or see by implication, Hon'ble Mr. Justice Yogeshwar Dayal in his dissenting judgment held that there was clear indication in the said Rule to supersede the Special Rules. 16. In the majority judgment of the aforesaid case, this Court could not find any discussion with regard to process of selection by senioritycummerit, but Hon'ble Mr. Justice Yogeshwar Dayal, J. in minority judgment held as under : "We have to construe the meaning of Clause 3(2) for ascertaining the object and purpose which the Legislature had in view in enacting the said provision and the context thereof. It appears to me that the special Rules for recruitment to some of the services had been in force providing a particular method of either selection or promotion. It appears that because of the experience the Government had of its working it was thought proper to change this policy, namely, instead of providing selection on the basis of merit to every post in certain post it thought it fit to give due weightage to seniority and merit instead having the 'best' The selection of 'best' very often has an element of chance which may not be very conducive to proper climate and harmony in service. It appears that because of that experience the rule making authority thought it fit that the process of promotion by selection should be confined only to top posts and for rest of the posts the method should be promotion by the principle of senioritycummerit. A similar question cropped up in the case of P.N. Ramanatka Iyer and others v. North Malabar Gramin Bank & others. In Writ application no. 679 of 1988 decided on 7th March, 1990, a Division Bench of the Kerala High Court sitting in appeal over the judgment of single Judge which consisted of Mr. Justice K. S. Paripoornan and Mr. Justice D.J. Jagannadha Raju framed the following points for consideration : (1) Whether the Gramin Bank is bound to follow the guidelines issued by the NABARD. (2) Whether the criteria and procedures evolved by the Gramin Bank for selecting and promoting Managers as Area Managers/Senior Managers are arbitrary and in deviation of the guidelines issued by the NABARD. Justice D.J. Jagannadha Raju framed the following points for consideration : (1) Whether the Gramin Bank is bound to follow the guidelines issued by the NABARD. (2) Whether the criteria and procedures evolved by the Gramin Bank for selecting and promoting Managers as Area Managers/Senior Managers are arbitrary and in deviation of the guidelines issued by the NABARD. (3) Whether the principle of senioritycummerit indicated in the guidelines issued by the NABARD and subsequently clarified by it only contemplates selection on the basis of senioritycumsuitability or whether it gives scope for selection by process of assessment of comparative merit. (4) What is the appropriate relief that has to be granted in case the Writ Appeals are allowed." 17. On point No. 1 the Division Bench sitting in appeal against the judgment of Hon'ble Single Judge opined that in view of the statutory provisions under sections 38 and 39 of the NABARD Act, 1981 the Regional Rural Banks are bound to follow the guidelines issued by the NABARD. I have not travelled into that discussion only for the reason that the Barabanki Gramin Bank adopted the guidelines of NABARD into their Service Regulations and they are bound to follow the same, although Hon'ble Supreme Court affirmed the view of the Kerala High Court. 18. On points 2 and 3 the Division Bench concluded that no senior can be superseded unless there existed some adverse material against him. It was stated that process of selection by senioritycumsuitability clearly indicated that the screening was to be made to weed out people who were not suitable for the post. It is not meant to give a chance for junior people with more merit to supersede the seniors. 19. Feeling aggrieved against the said judgment petitions for special leave to appeal bearing Nos. 606668/90, 608587/90 and SLP (C) No. 5941/90 were filed on 2590, before Hon'ble Supreme Court. A Division Bench of Hon'ble Supreme Court consisting of Hon'ble Justice T. K. Thomman and Hon'ble Mr Justice V. Ramaswamy dismissed the S.L.P. nos. 606668/90 and 608587/90 and in S.L.P. no. Feeling aggrieved against the said judgment petitions for special leave to appeal bearing Nos. 606668/90, 608587/90 and SLP (C) No. 5941/90 were filed on 2590, before Hon'ble Supreme Court. A Division Bench of Hon'ble Supreme Court consisting of Hon'ble Justice T. K. Thomman and Hon'ble Mr Justice V. Ramaswamy dismissed the S.L.P. nos. 606668/90 and 608587/90 and in S.L.P. no. 5941 of 1991 while dismissing the said special leave petition the following observations were made : "We make it clear that in making the appointment on the basis of senioritycummerit, the merit of the petitioner shall be assessed objectively and with reference to his records and without regard to a certain observation made by the High Court in paragraph 28 of the impugned judgment." 20. Paragraph 28 of the Kerala Judgment refers to certain adverse material against the petitioners of writ appeal No. 679 of 1988 against which an S.L.P. was also filed before the Hon'ble Supreme Court and in the circumstances of that case Hon'ble Supreme Court directed that while making the appointment on the basis of senioritycummerit, the merit of the petitioner shall be assessed objectively and with reference to his records and without regard to a certain observation made by the High Court in paragraph 28 of the impugned judgment. 21. Thus it is evident that the judgment of the Division Bench of the Kerala High Court to the effect that under senioritycumfitness Rule, no senior can be superseded unless there existed some adverse material against him and the said Rule was not made to give a chance for junior people with more merit to supersede the seniors, was upheld by the Hon'ble Supreme Court. 22. There is another aspect which requires consideration. The Board of Directors of the Gramin Bank, Barabanki in its meeting dated 30101986 adopted certain procedure under which evaluation of merit of selection was to be done. In this regard 10 marks for educational qualifications, twenty marks for seniority, 40 marks for performance as evidenced from average of annual appraisal of past three years and thirty marks for potential, were earmarked for judging the suitability of a candidate in interview. Marks on potential were to be given at the time of interview to test the suitability of candidates in regard to their presence of mind to do daytoday problems at the branches and the psychological attitude. Marks on potential were to be given at the time of interview to test the suitability of candidates in regard to their presence of mind to do daytoday problems at the branches and the psychological attitude. The question which cropped up during arguments was as to whether award of thirty marks on judging the potentiality of the candidates at the time of interview was proper or not. In the case of Sri Ashok alias Somanna Gowda and another v. State of Karnataka and others (1992 AIR SC 80 Hon'ble Mr. Justice N.M. Kasliwal speaking on behalf of the Bench indicated as. under: "It is not necessary to examine the matter in detail inasmuch as 50 marks for interview out of 150 are clearly in violation of the judgment of this Court in Ashok Kumar Yadav v. State of Haryana (1985) Supp (1) SCR 657 : ( AIR 1987 SC 454 ) and Mohinder Sen Garg v. State of Punjab (1990) 4 JT (SC)704." It was further indicated as under : "However, the Rules are clearly in violation of the dictum .. down by this Court in the above referred cases and in case the marks for viva voce would have been kept say at 15% of the total marks, the appellants before us were bound to be selected on the basis of marks secured by them in interview, calculated on the basis of converting the same to 15% of the total marks." Although in the present case no effort was made by the petitioners to show that some of the persons were selected only for the reason that they secured high percentage of marks in interview while their potentiality was adjudged. It was also not the case of the petitioners that any injustice was done to them for that reason : but it was submitted that the earmarking of thirty marks in interview to adjudge the potentionality of a candidate was arbitrary. It was also not the case of the petitioners that any injustice was done to them for that reason : but it was submitted that the earmarking of thirty marks in interview to adjudge the potentionality of a candidate was arbitrary. In absence of any averment that any benefit accrued to the selected candidates due to the award of thirty marks in interview or any prejudice was caused to the petitioners due to the award of 30% marks in interview, this Court is not inclined to quash the selection due to this reason, but it is made clear that whenever any future selection is held the opposite parties would earmark not more than 15% marks in interview, pertaining to potentiality of candidates. 23. It was urged by the counsel for the respondents that as petitioners themselves appeared in the interview, they are estopped from challenging the said interview. In the matter of services, a public servant has little option. He has to follow certain canditions and modalities imposed upon him. If he would have not appeared in the interview, then it could be argued that he himself had opted out from the interview or had forgone his promotion and hence he bad no right to challenge the selection. From the record it is evident that the Staff Association of the Gramin Bank had been raising its grievance against the mode and method of promotion, and even the authorities of the Bank were not certain about the correctness of their stand and had been writing letters to NABARD for clarification. The Government of India and the NABARD clarified that the post of Area Managers/Senior Managers are promotional posts to be filled up by 100% promotion from only one source and nonselection Rule of senioritycummerit had to be applied which envisaged promotion by seniority with due consideration to minimum merit/fitness prescribed. It was further clarified that fitness implied that there was nothing against an officer; no disciplinary action was pending against him and none was contemplated. The officer had neither been reprimanded nor any adverse remarks had been conveyed in the recent past. 24. It was further clarified that fitness implied that there was nothing against an officer; no disciplinary action was pending against him and none was contemplated. The officer had neither been reprimanded nor any adverse remarks had been conveyed in the recent past. 24. The petitioners could have never imagined that the principle of senioritycummerit would be given a good bye and on that nonselection post, procedure for selection on merit would be adopted and followed, hence only by the reason of the fact that they appeared into the interview, it cannot be said that they had lost the right to agitate the matter before this Court. If for arguments sake, it is accepted that the guidelines issued by the Government of India or NABARD are not binding upon the Bank, even then the opposite parties cannot say good bye to the aforesaid guidelines as the Board of Directors itself adopted those guidelines, as a Regulation, that is, Gramin Bank Staff Service Regulations (Amended), 1993. The Barabanki Gramin Bank acted contrary to the aforesaid Regulation by assessing the comparative merit of the candidates, while the Regulation prohibited it and provided that in the matter of promotion, the Rule of senioritycummerit was to be followed. 25. In view of what has been indicated hereinabove, the aforesaid writ petitions succeed. A writ in the nature of certiorari is issued quashing the promotion of Sarvshri A. Z. Khan, I.P.Singh, B.N.Gupta, J. K. Jindal, Anwar Husain, B. J. Mukherjee and B. P. Singh to the posts of Senior/Area Managers in Barabanki Gramin Bank. In view of the fact that after their selection they were allowed to work and paid salary on the posts of Senior/Area Managers in Barabanki Gramin Bank, the salary paid to them, would not be deducted and they would also be considered for promotion alongwith the petitioners., A writ in the nature of mandamus commanding the opposite parties to hold the selection for the promotion of the officers of the Bank including the petitioner to the posts of Area/Senior Managers by following the criteria of senioritycummerit, as explained by this Court in the body of the judgment, within one month from the date of furnishing a copy of this order by the petitioners on the opposite parties, is issued. The opposite parties are further commanded to allow only those candidates to appear in the interview for promotion who had been within the field of eligibility at the time of issuance of notice for holding the previous selection for promotion. Record of services of the petitioners as well as respondents, which existed on the cut of date that is 30th June, 198* would only be relevant for the next selection. No order is made as to costs.