JUDGMENT 1. - The controversy in the present writ petition is with regard to the promotion of the bank employees. A prayer is made that the revised promotion policy dated 11.12.1987 be declared as illegal and selection for promotion by which the junior management Grade I to Middle Management Gr. 11 as contained in the circular dated 8.9.1988 and circular dated 27.4.1990 be quashed. It is prayed that the petitioner be promoted as Officer Middle Management Gr. I in accordance with that policy and further be directed to award 35 marks in the head of seniority on the basis of completion of 7 years in junior management Gr. I on the date of eligibility 31.10.1987. The promotion policy dated 5.10.1990 has been prayed to be quashed. 2. The facts as have been stated in the writ petition of Suresh Kashyap are that he was initially appointed as Clerk cum Typist on 10.7.1973 and thereafter promoted to the post of Junior Manager on 1.7.1980 and thereafter on the post of Junior Manager Gr. I. The salaries were revised on 12.12.1985. 3. The bank issued a declaration of 680 vacancies of Scale II and its promotion policy on 8.10.1987 as reproduced. in the writ petition. The revised declaration of vacancies was issued on 11.12.1987 for filling up the vacancies of Scale I and the cut off date for determining the eligibility of promotion was shifted from 31.12.1986 to 31.8.1987. The marks for seniority, qualification and performance for promotion were to be determined as on 31.12.1986 and the panel for promotion of Scale II, III and IV was considered to be valid till 31.12.1988. This promotion policy was further revised and 775 vacancies were declared to be filled in by way of promotion from the officers of Scale II in the officers of Scale III. The policy of the bank was declared subject to the provisions of Regulation 17 of the UCO Bank (Officer's) Service Regulation 1979, according to which the promotion of all grades of officers in the Bank shall be made in accordance with the policy laid down by the Board from time to time in regard to the guidelines of the Government of India from time to time. Regulation 17 of the UCO Bank (Officer's) Service Regulation and Guidelines have also been reproduced in the writ petition. Regulation 17 of the UCO Bank (Officer's) Service Regulation and Guidelines have also been reproduced in the writ petition. A revised promotion policy circular dated 11.12.1987 was issued in which the cut off date for eligibility of promotion was shifted from 31.12.1986 to 31:10.1987 while the marks for seniority, qualification and performance for promotion has been taken as on 31.12.1986. According to the said scheme five marks for each year of service in Scale I towards seniority are to be considered. The grievance 'of the petitioner is that the marks towards seniority as on 31.12.1986 is not justified. The performance appraisal in the year 1987 were also alleged to be arbitrary The petitioner in interview has obtained 60 -marks out of which 30 marks were awarded in the head of seniority and he has not been promoted in Gr. II as the last promotee-was having 71 marks. The result was declared vide circular dated 8.9.1988. An appeal was preferred to the appellate authority which was not accepted. The grievance is that the junior persons were promoted on the post of officer Middle Management Gr. Scale II while they have secured 67 and 68 marks. 4. In Suresh Kashyap's writ petition, the question involved for promotion from Gr. Ito Gr. II and in respect of others the promotion is form Gr. II to Gr. 111. 5. The submission of the learned counsel for the petitioners is that when the cut off date for determining of eligibility has been shifted from 31.12.1986 to 31.10.1987, restricting the marks in respect of qualification and promotion on 31.12.1986 is arbitrary, Reliance has been placed on a decision of Madhav Anai Koparkar v. U.C.O. Bank, Writ Petition No. 98/91 decided-by the Madhya Pradesh High Court on 7.1.1991 where the dispute was with regard to the educational qualification acquired after 31.12.1986 but before 31.10.1987 and marks were not given. The Court observed as under : "In the present case, the arbitrariness is obvious. The petitioner who was eligible for being considered even prior to 31.12.1986 was made to suffer because of shifting of the cut off date for eligibility to fall within the zone of consideration to 31.10.1987 and keeping the cut off date for qualifications stationary at 31.12.1986. There is no rational basis on which this can be explained. The petitioner who was eligible for being considered even prior to 31.12.1986 was made to suffer because of shifting of the cut off date for eligibility to fall within the zone of consideration to 31.10.1987 and keeping the cut off date for qualifications stationary at 31.12.1986. There is no rational basis on which this can be explained. After all when qualifications for promotion are required, they are relevant at the date of the promotion and not prior to it. Persons holding similar qualifications on the is date of promotion fall in the one and the same class and their cases cannot be distinguished and put in different classes on the basis of date of acquisition of these qualifications. Treating persons who have acquired same qualifications differently on the basis of the date of acquisition of such qualifications is clearly arbitrary and discriminatory and cannot be supported on any count. The policy authorising practising of such discrimination cannot be upheld and has to he struck down. We, therefore, hold that when the cut off date for determining zone of consideration was shifted to 31.10.1987 the qualification had to be judged as on that very date and could not have been judged on the basis of an earlier cut off date. 6. The petitioner was declared to be entitled for marks for educational and academic qualification and the respondents were directed to calculate the marks so obtained by the petitioner and other candidates on the basis of single cut off date i.e. 31.10.1987 and publish.the result of the selection on that basis within a month. 7. On the basis of the above decision of the Madhya Pradesh High Court, it is claimed that in respect of seniority 36 marks should have been given instead of 30 marks according to the guidelines issued by the Government from time to time under Regulation 17 of the Officers Service Regulation 1979/82. The relaxations have been permitted to the Board of Directors for one year and if the hank is empowered to relax the required Service limit for one year, then obviously in respect of promotion from Scale II to Scale 111 which requires the minimum service of five years, relaxation of one year could he given and thus, the candidate should have completed four years and only then the question of relaxation would arose. In respect of promotion from scale I to Scale 11, the minimum services required under the guidelines is 7 years and relaxation of one year is permitted. The guidelines and the instructions of the Government contemplates that the eligibility criteria may be to relax suitably in case where the number of eligible officer is less than 3 times the number of posts available in the next higher grade/scale by the Board of Directors subject to the following: S.No. Scale Minimum service required under the guidelines Relaxation limit permitted to the Board of Directors 1. I to II 7 years 1 year 2. II to III 5 years 1 year 3. III to IV 5 years 1 year 4. IV to V 3 years 1 year 5. V to VI 2 years 6 months 6. VI to VII 3 years 1 year The number of persons to be considered for promotion from one scale to another shall normally he restricted to 3 to 4 times the number of posts for which the promotion are being considered. The Board of Directors, may relax the criteria in exceptional circumstances after recording reasons. It is also provided that subject to the availability of vacancies and eligibility criteria or promotion where from one scale to another and from one grade to another shall be merit, it should take into consideration seniority, educational qualification/professional qualification. 8. The submission of the learned counsel for the respondents is that since the petitioners have accepted the revised policy and appeared in the examinations, therefore, they cannot challenge the said policy after having been declared un-successful. It was also submitted that the criteria is not seniority alone but seniority cum merit and since the number of posts was much more than for which relaxation was given in accordance with the resolution of the Board of Directors the cut off date for determining the date of eligibility for promotion which was earlier fixed for 31.12.1986 was shifted to 31.10.1987 as the number of candidates available were hot sufficient. But in respect of seniority qualification performance etc. But in respect of seniority qualification performance etc. marks are to be given on the basis of cut off date of 31.12.1986 because the extension of the cut-of date does not entitles the petitioners for any relief on account of the resolution of the Board of Directors which was passed in accordance with the Guidelines issued by the Government of India and also the said decision was taken on the basis of the discussions with the Union leaders and the representatives of the officers hence and was conscious decision and on that ground also if one settlement has been arrived at by the employee and the employer, the employee cannot be permitted to agitate the same. 9. It is submitted that the All India United Commercial Bank Officers Federation entered into an agreement with the management with regard to promotion policy of 19.8.1987 and UCO Bank Officer's Federation entered into such an agreement on 31.8.1987 and thereafter the promotion policy was adopted on 16.9.1987. 10. As per circular dated 8.10.1987, 600 vacancies were declared in Scale I and 200 vacancies in Scale II and 35 vacancies in Scale II. The number of candidates with the required length as on 31,12.1986 who were eligible to compete for the vacancies in MM Grand Scale I, MM Grade Scale II and MM Grade Scale III were 1510, 370 and 16 respectively and since the eligible candidates were available in any of the scales less than 3 to 4 times, the number of. vacancies, relaxation of one year was given without disturbing the cut off date. 11. I have considered over the matter. According to the promotion policy for officers which was prepared after taking into consideration the discussions between the management and the All India United Commercial Bank Officer's Federation, reached to an agreement with All India Federation of UCO Bank Officers regarding new Promotion Policy for officers with effect from 1987. As agreed to with these organisations of officers, the minutes on the Promotion Policy were placed before the Board of Directors and Board at its meeting held on 16.9.1987 passed the resolution. The power was exercised under Regulation 17 of the UCO Bank Officers Service Regulations, 1979 in supersession of the earlier promotion policy and the new promotion policy was effective from 16.9.1987. The power was exercised under Regulation 17 of the UCO Bank Officers Service Regulations, 1979 in supersession of the earlier promotion policy and the new promotion policy was effective from 16.9.1987. It was provided that to facilitate the interviewing panel, the eligible candidates are expected to bring along with them a Performance Appraisal regarding their achievements made during the year 1987. There were 600 posts in Scale II and 200 posts in Scale III. The seniority of the officers in all categories was determined on All India basis in accordance with Regulation 18 of the Officers' Service Regulations. The eligibility for promotion process was to be initiated in 1987 to be determined as on 31.12.1986 and the promotions were to be released by 1.12.1987. The controversy relates whether the promotion policy of 8.10.1987 is valid or not. In this regard it may be observed that the power to frame the regulations is given Under section 19 of the Banking Companies (Acquisition and transfer of undertakings) Act, 1990. The Board has to frame the regulations in consultation with the Reserve Bank of India. The regulations were framed which are known as United Commercial Bank Officers Service Regulations, 1979. According to the Government guidelines, the bank has to consider the candidature of the officers of not less than 3 to 4 times to fill up the vacancies. It was found that the eligible candidates with the requisite length of service upto 31.12.1986 are less than three times and accordingly it was decided for giving relaxation for one year. The cut off date was fixed as 31.10.1987, but the marks for completed year of service were calculated as on 31.12.1986. In this manner, so far as the Junior Officers are concerned, they are not effected, but if the marks are given for one year more than the senior officer's rights can be effected. The petitioners have not made those persons as party whose rights are effected. It may also be observed that the policy and the revised policy was in consultation with the union and the officers and, therefor, if a decision has been taken in consultation with the union, the individual cannot be permitted to raise that ground. The petitioners have not made those persons as party whose rights are effected. It may also be observed that the policy and the revised policy was in consultation with the union and the officers and, therefor, if a decision has been taken in consultation with the union, the individual cannot be permitted to raise that ground. Under Regulation 17 of the Regulations of 1979 it is provided that the promotions to all grades of officers in the bank shall he made in accordance with the policy laid down by the Board from time to time having regard to the guidelines of the government. The guidelines of the Government have also been issued where it has been provided that the eligibility criteria can be relaxed where the number of officers is less than three times of the number of posts available in the next higher grade. It has also been provided in the guidelines of the Government that the promotions from one scale to another or from one grade to another shall be on the basis of merit with weight age, if any for service record, educational/professional qualifications, etc. as may oe prescribed by the Board from time to time, except that the Board shall not provide any weight age for seniority. The promotion policy for officers contemplates in Para 3.5 that it is primarily based on Merit as well as seniority- cum-merit and merit can be said to consist of three components; viz performance, knowledge and potentiality. For the purpose of promotion five factors have been identified as relevant namely; seniority and stagnation in Scale I, Professional/Special qualification, Performance, Job Knowledge; and potential. In the seniority, the weight age of 1(1 marks for promotion upto middle Management Scale III has been provided. It is also provided in para 5.2 that the management may in its discretion relax the minimum length of service if at any time the number of officers becoming eligible for promotion is less than 3 times the number of posts available in the next higher scale/grade. In the light of the guidelines of the Government and the regulations of the bank and the approval of the Board of Directors, it is considered that the petitioners are not justified in attacking the formula of fixing the marks for seniority as on 31.12.1986 and considering the eligibility as on 31.10.1987. 12. In the light of the guidelines of the Government and the regulations of the bank and the approval of the Board of Directors, it is considered that the petitioners are not justified in attacking the formula of fixing the marks for seniority as on 31.12.1986 and considering the eligibility as on 31.10.1987. 12. It may also be observed that the Apex Court in the case of D.E Shukla v. V.E Shukla, 1986(2) LLN 38 has observed that where the petitioner has appeared in the competitive examination without protest, no relief should be given to him under Art. 226 when the validity of examination is challenged thereafter he was declared un-successful. Similar observations have been made in the case of Madan Lal v. State of Jammu & Kashmir, 1995(3) SCC 486 , where the challenge of interview process or defect in the constitution of the selection committee was not allowed to be challenged by the un-successful candidate by the Apex Court. In the light of this judgment, it is also evident that the petitioner who has already appeared in the test on the basis of agreed formula, cannot be permitted to raise the dispute. 13. The writ petitions having no force are dismissed.Writ petition dismissed. *******