JUDGMENT In January 1995, after some 10 years, certain officers of the United Bank of India including the writ petitioner had a chance of promotion. 2. At that time they were all in the middle management group Grade II. If promoted they would go on to Grade III. 3. Interviews were held in that month and in the result it has been found by the authorities that respondents 6-10 should be the five successful promotees. The writ petitioner, although considered, was not promoted. 4. In this writ the above selection process is challenged. The points of challenge in regard to which, I called for a reply from the respondents are two in number. The first point was that there had been a breach of the declared policy of promotion even on the showing of the Bank itself. If the bank admittedly casts aside its own declared policy and proceeds to grant promotions in breach of such declared policy then the Court should interfere. Otherwise a declaration of a policy seriously made will have no meaning and a public authority will be entitled to act as it pleases, paving the way to arbitrariness and unfairness. . 5. The clause in the policy which was relied upon reads as follows:- "(a) For the purpose of assessing the performance of the individual officers on-the-job, a performance appraisal system as may be adopted by the bank from time to time will be followed. (b) Marks will be awarded for performance on the basis of overall rating for the last three years of service. (c) The overall assessment of performance would be done on a point scale as under on the basis of the performance appraisal reports for the last three years of service Outstanding 100 marks Very good 80 marks Good 60 marks Satisfactory 40 marks Inadequate 0 marks" 6. It is also mentioned in the promotion policy that the result of the job performance appraisal would form 50% of the marks which would be assessed against each prospective promotee candidate. 7. Thus the factor of on-the-job performance is an important one as it constitutes half the total marks which would determine the successful promotees. 8. From the affidavit of the bank and the bank officers it is the admitted position that on-the-job performance appraisal reports were considered for the years 1989-90. 1990-91 and 1991-92 only. 7. Thus the factor of on-the-job performance is an important one as it constitutes half the total marks which would determine the successful promotees. 8. From the affidavit of the bank and the bank officers it is the admitted position that on-the-job performance appraisal reports were considered for the years 1989-90. 1990-91 and 1991-92 only. On a first appearance it would therefore seem that between the last of the appraisal reports and the date of the interview there is practically a three years gap. 9. If we take a beneficial view in favour of the bank and construe the years of appraisal as coinciding with financial years then' also the appraisal reports for the years April 1992 to March 1993 and April 1993 to March 1994 remain unconsidered. 10. This to my mind is such a serious matter that the Court should upset promotions granted on this flawed basis even if it has the unfortunate result of reverting five successful promotees. 11. In the affidavit being the first supplementary affidavit of the bank it was submitted that the vacancies were notified in October 1993 and that those occurred in June 1993. Giving the statement its full value it would explain the absence of consideration of one year's appraisal report viz. that of 93-94 if I were to take the view that the appraisal reports and on the job performance should be considered for periods only up to the date of occurrence of the vacancies and not up to the date of the interview. 12. I cannot however take that view and I do not take it. I shall explain the reason for this a little later. 13. During arguments Mr. Basu appearing for the respondents had even one more year of non-consideration to explain. That year was the 1993-94 year. He sought to explain it with the aid of a second supplementary affidavit filed on behalf of the bank. He said that the bank considered the reports which were available to the bank. Since the available reports stopped at 1992 only those were considered. But, argued Mr. Basu, the consideration was of reports upto 1992 not only for the writ petitioner but for all prospective promotees. 14. This however does not help the bank at all. He said that the bank considered the reports which were available to the bank. Since the available reports stopped at 1992 only those were considered. But, argued Mr. Basu, the consideration was of reports upto 1992 not only for the writ petitioner but for all prospective promotees. 14. This however does not help the bank at all. If a policy is broken without the authority of law but is broken uniformly for all persons who are affected that does not save the breach of policy. The error amount to the breach of policy and that error cannot be rectified by uniformly applying the erroneous breach to all candidates concerned. I do not think any further discussion on this point is merited. 15. Regarding the availability of reports, to my mind Mr. Sinha correctly submitted that it might well be that if up to date appraisal reports are taken into consideration the promoting authorities will find a different. set of successful promotees than would be found if out of date reports are considered and the. latest performance is kept out of consideration. It is impossible not to accept Mr. Sinha's submission and accept it. The latest performance is the most important in the matter of promotion. Thus keeping out of consideration the job performance for an appreciable current period was impermissible for the bank. 16. Reading the words of the policy and in particular the clause narrated above it cannot but be construed that the last three years will mean the last three years from the time when promotion is being considered. Any other construction would do violence to the language; and more importantly it would pave the way towards selection of candidates on the basis of out of date and less important merit-comparisons:- Mr. Basu also argued that if there has been any serious breach on the part of any candidate who has been recommended for promotion after the interview, it is not binding that the recommendation be accepted even in the case of such an unsuitable candidate by the competent authority. Thus Mr. Basu said that the second argument of Mr. Sinha that an officer, even if he has become a delinquent in the current years can be promoted. is adequately met. If the officer has become a delinquent, Mr. Basu argued, the compent authority will not accept the recommendation for the promotion of that officer. Thus Mr. Basu said that the second argument of Mr. Sinha that an officer, even if he has become a delinquent in the current years can be promoted. is adequately met. If the officer has become a delinquent, Mr. Basu argued, the compent authority will not accept the recommendation for the promotion of that officer. This is no reason for setting aside the entire selection process. 17. In my opinion Mr. Basu's argument, with respect, suffers from two flaws. The first flaw is that it might meet the argument of keeping out of section a flagrantly delinquent officer but it does not at all meet the argument of a possible different merit gradation being prepared on the basis of current reports than would be prepared on the basis of old reports. The second flaw is that though the competent authority is not bound to follow the recommendation of the selecting authorities yet that is no ground to permit the selecting authorities to travel outside the permitted frontiers of the Constitution and make any and every recommendation. 18. No particular instance could be given by Mr. Basu where a recommendation has been turned down by a competent authority. It must be an unusual process though the power to turn down was shown from Clause 2.9 of the promotion policy itself. If it is found that the recommending authorities drew up their list of recommendations in breach of policy of promotion as declared by the bank such a list and promotions consequent thereupon must all be quashed. Because it is if fundamental importance that the subordinates and officers of the bank do not go against the policy but follow the policy and gave effect to it. 19. Mr. Basu thereafter submitted that according to the law the proper date for cutting off the years of performance appraisal report is not the date of the interview but the date when the vacancies occurred. I had said that even on this view a gap of a year would remain but let me deal with the authority cited by Mr. Basu in this regard. 20. The case is of Harpal Kaur Chahal (Smt.) reported at 1995 (Suppl) 4 SCC page 706. This was a case of selection of a physical training instructor. The last date for applications was 20.4.68. The date for selection and appointment was some three years later, on 4.1.71. Basu in this regard. 20. The case is of Harpal Kaur Chahal (Smt.) reported at 1995 (Suppl) 4 SCC page 706. This was a case of selection of a physical training instructor. The last date for applications was 20.4.68. The date for selection and appointment was some three years later, on 4.1.71. Although the appellant was selected it appeared hereafter that she did not have the physical training instructor qualification in 1968 but had acquired it before the selection and appointment. 21. From 1971 to August 1994 when the judgment was pronounced she had been continuing in her appointment on the basis of interim orders but after 1971 when her disqualification had been detected her services were sought to be terminated and her ad hoc appointment cancelled. 22. The Supreme Court opined that in these facts and circumstances it was not open to the appellant to take advantage of the qualifications acquired by the appellant beyond the cut off date which was the last date of application i.e. in 1968. 23. In my opinion, by applying the principles of this case it is not possible to come to the conclusion that in the facts of our case also the cut off date for performance appraisal is when the vacancies fall for filling up. If these conclusions were reached, the further interview and selection is delayed from the date of occurrence of the vacancy, the further is the result of promotion outdated. In Harpal's case allowing the persons to be selected who do not have the qualifications on the date of the application would have the effect of extending the date of application. No such parallel flaw can be found in our case. Thus on the basis of this case do not come to any different conclusion as regards this point. 24. The second point of Mr. Sinha was in regard to an allotment of excessive marks on the head of interview. For the normal track promotions for persons in the same category as the writ petitioner the allotment of marks was as follows : 10 marks for educational professional qualification, 50 marks for last three years' job performance and 40 marks for interview. 25. None of the prospective promotees had any professional qualification on the basis of which they can secure anything out of the first 10%. This can be kept out of consideration. 26. 25. None of the prospective promotees had any professional qualification on the basis of which they can secure anything out of the first 10%. This can be kept out of consideration. 26. The interview percentage was therefore very large. The manner in which a candidate scored in the interview part would obviously materially affect the chance of his promotion. It is impossible to hold otherwise in any reasonable view of the matter. 27. Basing on these facts Mr. Sinha cited a large number of authorities of the highest Court of the land and of large Benches too wherein it has been held that deserving the large percentage for interview paves the way to possible arbitrariness and discrimination. An interview is over without a record. A performance appraisal is not without records and documents. Professional qualifications are all well documented but the result of an interview is nothing other than a noting of marks secured by the candidate at the interview. That sheet of paper is an end in itself and further enquiry is not possible. 28. On this line of reasoning, in case after case the Supreme Court has frowned upon an excessive allocation of marks in interview. In the case of Miss Nishi Maghu reported at AIR 1980 SC 1975 it was held that in regard to admissions to M.B.B.S. College an interview lasting for four minutes with 275 marks out of 530 was the supportable. 15% marks for the interview would not be unreasonable. 29. Then came the five member bench decision in the case of Ajay Hasia reported at (1981) 1 SCC 722 . Here there was a written test and an interview. The case concerned admission to a Regional Engineering College. But the Court referred to public employment in general in the judgment also. The Court found no difficulty in opining that 33/1/3% marks reserved for oral interview was plainly arbitrary and unreasonable. The Court even went so far as to consider police selection and laid down that in line therewith some 12/13% marks for interview should be considered to be reasonable. 30. It should be noted that this is a five judge decision and the ratio of this case cannot be altered either in whole or in part unless by a Bench of equal or higher strength. 31. 30. It should be noted that this is a five judge decision and the ratio of this case cannot be altered either in whole or in part unless by a Bench of equal or higher strength. 31. In other four member Bench of Ashok Kumar Yadav reported at (1985) 4 SCC 417 , alternatively, AIR 1987 SC 85, 33.3% marks for oral interview was again held to be undoubtedly high. 12.2% was again said to be reasonable. 32. In the case of Mohinder Sain Garg reported at (1991) 1 SCC 662 , 25% was held to be too much and it was opined that 15% would be reasonable. In the case of Munindra Kumar reported at (1991) 3 SCC 368 , 20% interview marks was held to be a reasonable percentage. 33. In the case of Ashok Gowda reported at (1992) 1 SCC 28 , 50 marks out of 150 for an oral interview which worded out to 33.3% was again held to be too much. 34. It the authorities had stood there and only there the reservation of 40% for interview in the process of promotion as embodied in the policy itself could not be maintained or supported. 35. Mr. Basu cited other authorities and later on in his attempt to salvage this part of the case. According to Mr. Basu the later and the more recent pronouncements of the Supreme court have laid down certain guidelines whereby the percentage of marks reserved for interview might go higher than 33.3% even and in some circumstances there might be no limit whatsoever. 36. This recent trend of authorities is started by the case of Anzar Ahmad reported at (1994) 1 SCC 150 . 37. In that case the division of marks was 50 for academic qualifications and 50 for interview. The selection was to be made by the State of Bihar for Unani Medical Officers. 38. A two Member Bench of the Supreme Court opined in that case that if the selection is to be made on the basis of interview only, then no limit can be put to the marks to be reserved for oral interview. 39. Their Lordships in that case referred to the earlier case of Lila Dhar, a Three Member decision of the Supreme Court reported at (1981) 4 SCC 159 . That case allowed 25% marks for viva voce to remain. 39. Their Lordships in that case referred to the earlier case of Lila Dhar, a Three Member decision of the Supreme Court reported at (1981) 4 SCC 159 . That case allowed 25% marks for viva voce to remain. There are observations in that case to the effect that there is no magic formula for fixing a particular percentage which can be allowed for interview. In that case the petitioner had obtained 159+30 for interview and, the last successful candidate had obtained 135+55 for interview. But the petitioner did not succeed. 40. It is important to note how the Bench dealt with the cases of Ajay Hasia and Ashok Kumar Yadav in the case of Anzar Ahmad. They were much larger Bench decisions. 41. In paragraph 9 of Anzar Ahmad, the reference made in the case of Ajay Hasia to public employment is described as "a passing observation". 42. The case of Ashok Kumar Yadav is referred to in paragrant 13. It is again referred to in paragraph 19 and about that decision it is said as follows:- "The said decision appears to have been given in the particular facts of that case and it cannot be said to have laid down a law different from that laid down in the earlier decisions of this Court referred to above." 43. It is not said that the decision in Ashok Kumar Yadav is given in any peculiar facts. I do not know why a Member Bench of the Supreme Court could not lay down a law different from the other earlier decisions is referred to in Anzar Ahmad because no such earlier decision a Four Member decision or a decision of larger Bench. The case of Lila Dhar is a Three Member decision. 44. In Anzar Ahmad it has been said that if there is no written test and the test is on the basis of interview only then there is no limit to the marks which can be placed in the cell of interview. This, with the greatest respect to Hon'ble Judges concerned sitting and retired is directly contrary to the ratio in the cases of Ajay Hasia and Ashok Kumar Yadav. 45. If there is a written test and 98% interview then according to Anzar Ahmad it is bad. However, if it is 100% interview according to Anzar Ahmad it is good. This, with the greatest respect to Hon'ble Judges concerned sitting and retired is directly contrary to the ratio in the cases of Ajay Hasia and Ashok Kumar Yadav. 45. If there is a written test and 98% interview then according to Anzar Ahmad it is bad. However, if it is 100% interview according to Anzar Ahmad it is good. To the best of my understanding large percentage of marks reserved for interview is as likely to pave the way of arbitrariness if it is coupled with a written test or if it is not. 46. Applying the ratio of Ajay Hasia and Ashok Kumar Yadav, decisions of Large Benches which cannot be altered or modified either in the whole or in part except by Benches equally strong in the whole or in part except by Benches equally strong or stronger, I conclude that the reservation of 40% marks in the promotion policy was bad and in violation of Art. 14 of the Constitution because it could easily give rise to arbitrary or partial selection. The case of Anazar Ahmad has been followed in the later case of Subhash Chandra Verma reported at AIR 1995 SC 904 . There 50% was reserved for interview and presumably the other 50% for 50 questions to be answered in a written test, the paper in which had allegedly looked before the examination (see paragraphs 3 to 14). The Court quoted a passage from Anzar Ahmad (see paragraph 47) and concluded that as the dicta permit limitless marks for interview, selections could not be touched. Again with the greatest of respect I have not followed how Anzar Ahmad could be applied because in this case the interview was connected with• a written test. Be that as it may the Large Bench decisions would prevail in respect of this case also. 47. The last case cited in this line was the case of Andhra Pradesh State Financial Corporation reported at (1994)5 SCC 359 . It is again a Two Member decision. Again Anzar Ahmed is followed. It is again noted that where the selection is on interview only no limit can be put on interview marks percentage. The selections in this case were for posts of Manager and higher posts for the Financial Corporation. In the allotment of marks performance appraisal was 50% and interview 25%. Again Anzar Ahmed is followed. It is again noted that where the selection is on interview only no limit can be put on interview marks percentage. The selections in this case were for posts of Manager and higher posts for the Financial Corporation. In the allotment of marks performance appraisal was 50% and interview 25%. If the ratio of this case is to be applied then in our case also 40% for interview must be pronounced as saved and I cannot, as Mr. Sinha would have me, draw, a distinction between our case and this case because the interview percentage for the one is 40 and it is 25 in the other. 48. I would however respectfully come to the opinion that this case also goes against the ratio of the Larger Bench decisions in Ajoy Hasia and Ashok Kumar Yadav and therefore those Larger Bench decisions must prevail. 49. The last submission of Mr. Basu was that having appeared in the selection interview the writ petitioner is now estopped from challenging that. Mr. Basu relied on the case of Madan Lal in this regard reported at 1995 (3) SCC 486 . He placed inter alia paragraph 9. It was opined in that case that a challenge could not be later thrown as to the constitution of a Committee or that the process of interview was unfair when the person challenging it himself appears at the interview and takes a chance of being selected. 50. Such an estoppel might arise if the petitioner complained against the presence of which he fully knew and which appeared to him to be unfair but this type of estoppel cannot be used where the challege is of an Art. 14 arbitrariness against which there is no estoppel. 51. Mr. Basu also sought to distinguish the several cases 'On excessive interview marks cited by Mr. Sinha on the ground that these were all cases of admission. According to him the Court mostly pronounced dicta in these cases and did not grant substantive relief, not at least to the extent that were asked for in those cases. There is however a positive order in the case of Ashoke Gowda. Also in the case of Munindra Kumar fresh recruitments were ordered even though sections were not set aside. This type of order the Supreme Court has passed in several cases. There is however a positive order in the case of Ashoke Gowda. Also in the case of Munindra Kumar fresh recruitments were ordered even though sections were not set aside. This type of order the Supreme Court has passed in several cases. However, it is not possible to distinguish the Supreme Court case saying that the dicta are obiter and what binds the High Court is not what the Supreme Court says but what the Supreme Court does. The law is exactly the reverse. 52. I have not dealt with the point of bias raised by Mr. Sinha. I did not call for a reply on that account. He said that the five promotees selected were working under respondent who was the only legal person present at the interview and the petitioner was not. Thus a bias is disclosed by selection of all five respondents working under him. 53. In my opinion the allegations in the writ petition are not sufficient to establish such a prima facie case of bias as to the entitle the Court even to call for all the records in this regard. The point of bias need not be elaborated any more. 54. Mr. Sinha however succeeds on the two constitutional points which I have dealt with earlier at length. I am not minded to take the course of retaining the promotion granted and also directing the promotion of Mr. Sinha's client. If I find the selection process to be incurably vitiated, as I do, the process must be repeated, this time hopefully with the appropriate guidelines as set down here. 55. There will be thus an order in terms of prayer (a) of the writ petitioner limited however to the interview marks set at 40% for the normal track from scale II to scale III as appearing at page 21 of the annexures to the writ petition. Such marks should, in the subsequent interview to be held, be not more than 15%. There will also be writs absolute in terms of 'prayers (b), (c) and (d) and the interview for promotion is to be held, expectedly within six months from date hereof. The appraisal reports of the upto date past three financial years should be considered. Such marks should, in the subsequent interview to be held, be not more than 15%. There will also be writs absolute in terms of 'prayers (b), (c) and (d) and the interview for promotion is to be held, expectedly within six months from date hereof. The appraisal reports of the upto date past three financial years should be considered. I do not find that the annexures to the second supplementary affidavit of the bank at all explained why the appraisal reports should have fallen so out of date at the time of the interview. Expectedly the appraisal reports have now been obtained in the new format as desired by the Government and this, on an upto date basis should form a part of the promotion process in future. 56. There will be no order as' to costs. 57. Mr. Chatterjee prays for stay of operation of the order but it is refused. 58. All parties and others concerned are to act on a xerox singed copy of this dictated order on the usual undertakings up to the date' prior to the drawing up and perfection of rule. Application disposed of.