Govindankutty v. South Malabar Gramin Bank — 1996 DIGILAW 416 (KER)

Judgment :- B.N. Patnaik, J. The main grievance of the petitioner is that the junior officers have been promoted to the higher post in supercession of his claim arbitrarily by adopting the method of selection contrary to the rules/ circulars. When this matter came up before a learned single ledge, it was contended that the respondents 1 and 2 ignored the law laid down by a Division Bench of this Court in W. A. No. 604/88 and denied the promotion to the petitioner illegally. Learned Judge therefore, referred the matter for a decision by a Division Bench. 2. The petitioner prays for issuance of a direction to respondents 1 and 2 who are respectively South Malabar Gramin Bank, represented by its Chairman and the National Bank for Agricultural and Rural Development (NABARD) represented by its General Manager to promote him to the post of Field Supervisor on the basis of his seniority and to quash the promotions given to the juniors as per Ext. P6. He was appointed as Junior Clerk on 6.5.1977 in the Gramin bank(r1). He was promoted as Senior Clerk in the year 1980. The next promotion post is that of Field Supervisor. The second respondent (NABARD) has got administrative control over the Gramin Bank (R1) and therefore, it is bound to act according to the guidelines issued with regard to the service matters including promotions. The Chairman of the first respondent bank issued Ext. P1 memo dated 18.6.1987 intimating the proposal to select eligible employees for the post of Field Supervisors. It is made clear that promotion vacancies of Field Supervisors will be filled from among eligible senior clerks/ stenographers who have completed four years of effective service as on 31.1.1996. The eligible candidates who come out successful in the written test by obtaining 50% marks will be called for the interview and the rank list will be prepared to the extent of declared vacancies duly awarding marks as detailed in Memo No. 67/81 and 86/81. The bank was making promotion to the post of Field Supervisor on the basis of a written test and interview and not strictly on the basis of seniority. The petitioner was rank No. 19 on the basis of seniority whereas the third respondent in this case was rank No. 50 in it. There were altogether 50 vacancies of Field Supervisor. The bank was making promotion to the post of Field Supervisor on the basis of a written test and interview and not strictly on the basis of seniority. The petitioner was rank No. 19 on the basis of seniority whereas the third respondent in this case was rank No. 50 in it. There were altogether 50 vacancies of Field Supervisor. The petitioner participated in the written test but could not come out successful in the same. By Ext. P4, the Bank issued a memo containing the list of persons who were eligible for the interview. Ext. P3 shows that there are 50 vacancies to the post of Field Supervisor and as per Ext. P4 only 50 persons were called for the interview. The result being that all the persons who come out successful in the written test were promoted to the post of Field Supervisor. The interview, it is contended, has thus been done as an empty formality. While the matters stood like this, the 2nd respondent issued guidelines to all the Regional Rural Banks on 1.12.1987 (Ext. P5) regarding the appointments to the post of Area Manager and Senior Manager. It was pointed out that promotional posts shall be filled up by 100% promotion from only one source and by seniority with due consideration of minimum merit/fitness prescribed. It was further clarified that fitness implies that there is nothing against the officer, no disciplinary action is pending against him and none is contemplated. It further laid down that similar procedure may be followed in the case of promotion from Junior Clerks to Senior Clerks and internal promotion to Field Supervisors and Managers. A direction was also given to review the promotions made so far to ensure that there are no supersession. It is contended that in view of Ext. P5, promotion is to be made on the basis of seniority and promotions made in supersession of seniors have to be reviewed. The petitioner having got 19th rank in the seniority list is legible to be promoted to one of the 50 vacancies. He satisfies the eligibility criteria. Since the method prescribed in Ext. P5 has not been followed, the Selection process has resulted in the denial of equal opportunity and Exts. P4 and P6 therefore infringe the rights of the petitioner. 3. He satisfies the eligibility criteria. Since the method prescribed in Ext. P5 has not been followed, the Selection process has resulted in the denial of equal opportunity and Exts. P4 and P6 therefore infringe the rights of the petitioner. 3. In the counter affidavit filed by the first respondent, it is stated that the 1 aw laid down in W. A. 604/88 has not been made applicable to the case of promotion to the rank of Field Supervisor, in as much as the decision therein was confined to selection and promotion to the post of Area Manager/Senior Manager of the bank. It was also been submitted that though at the time when the vacancies arose, there were no statutory rules governing the matter, a practice was prevalent to hold a written test and an interview for preparing the select list of promotees to the rank of Field Supervisor as per the memo No. 65/81 dated 1.10.1981. The minimum eligibility criteria thus fixed by the bank was that a candidate was required to secure 50% marks in the written test and only those who have secured 50% or above marks in the written test were legible to appear at the interview. On the basis of the assessment of performance in the interview as well as in the post which they were holding immediately prior to it, a merit that was prepared by the selection committee and promotion was given according to the merit list. It is further contended that in Ext. R1 (a) which is a circular issued by the Chairman of the NAB ARD relating to the promotions to the posts of Regional Rural Banks, it was clarified that the management of the Regional Rural Banks are not precluded from making comparative assessment of the officers/ employees potential for considering their suitability for promotion. It was also directed that the system of objective assessment of the performance of the staff should be evolved and the potential for shouldering higher responsibilities should specifically be recorded in every performance appraised so as to ensure that only efficient staff was eligible for promotion. In the light of this clarification it is evident that promotion is not automatic. The real question is whether he is fit or suitable or has enough merit to justify his being entrusted with the duties of a higher post in the bank. In the light of this clarification it is evident that promotion is not automatic. The real question is whether he is fit or suitable or has enough merit to justify his being entrusted with the duties of a higher post in the bank. Suitability for promotion after an objective assessment of the employees potential for discharging the duties of the higher office was absolutely necessary. The only method that could be adopted was to conduct a written test and viva voice test prescribing a minimum number of marks in the written test which should be obtained before a candidate is considered eligible for appearing at the viva voce test. This is what the bank has done and there is no arbitrary promotion of any candidate who is not found fit to be promoted. 4. In W.A. No. 604/88, Division Bench of this Court interpreted the expression "seniority-cum-merit" as follows: "The process of selection should be to eliminate the unsuitable candidate in the strict order of seniority and should not be one of assessing comparative merit and preparing a select list giving ranking on the basis of merit." Learned Judges have referred to a few decisions of this Court and the Supreme Court and relied on them while interpreting the aforesaid expression. A Full Bench of this Court in Mother Provincial & Ors. v. State of Kerala & Ors. (1969 KLT 749) while considering that expression "seniority-cum-fitness" in sub-s.7 of University Act, (1969, Kerala) laid down that it means that due and equal regard should be paid both to seniority and to fitness, and since fitness is a matter of degree, it would appear that a senior person can be overlooked in favour of a junior who is demonstrably more fit for the appointment than he is. An unfit person is not entitled to promotion merely because he possesses the necessary qualification, In Benedict Mar Gregarious v. State of Kerala (1976 KLT 458) a Full Bench of this Court followed the decision in Mother Provincial's case (1969 KLT 749) and reiterated the same proposition. In State of Kerala v. N.M. Thomas (AIR 1976 SC 490) the Supreme Court explained the expression "seniority-cum-merit" as follows "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. In State of Kerala v. N.M. Thomas (AIR 1976 SC 490) the Supreme Court explained the expression "seniority-cum-merit" as follows "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. This will not violate Arts.14,16(1) and 16(2)...." Where the selection for promotion is to be made on the basis of seniority-cum-merit, the aforesaid principle should be applied and seniority cannot be ignored altogether. This concept, no doubt, is applicable to a case where the selection process is contemplated by no other method. It is pertinent to note that when Ext. P2 dated 9.9.1987 was issued for selection and promotion of senior clerks to the post of Field Supervisor, Ext. P5, dated 1.12.1987 was not in existence. 5. The method of promotion to the rank of Field Supervisor cadre was being followed according to the pattern agreed upon by the joint conference between South Malabar Gramin Bank and South Malabar Gramin Bank Employees Union held on 16th, . 24th and 28th September, 1981 at Malappuram. The minutes of the conference was communicated to all concerned by memo No. 65/81 dated 1.10.1981. It was agreed by all concerned that the following norms inter alia for selection of Senior Clerks/Field Supervisors shall be adopted. It is as follows: "Promotion of Senior Clerks to Field Supervisor. It has been mutually agreed to adopt the following norms for promotion of Senior Clerks to Field Supervisors. Eligibility: All Senior Clerks who have completed one year confirmed service in that grade as on the date of declaration of vacancy. Marks awarded: Written test - 50 marks for eligibility for promotion the employee should secure a minimum of 50% of marks in written test." The respondent bank followed the aforesaid guidelines, in our opinion, rightly for selection of candidates for promotion to the post of Field Supervisor. We called upon the learned counsel for the respondent to produce the relevant records showing the marks obtained by the petitioner and others in the written test. We found on scrutiny of the records that he has secured only 91/2 marks out of 50 which is less than 50% marks in the written test and as such he'was not found eligible to be called for interview. We found on scrutiny of the records that he has secured only 91/2 marks out of 50 which is less than 50% marks in the written test and as such he'was not found eligible to be called for interview. Only 50 candidates secured 50% or more marks in the written test. 6. So far as the contention that there should not have been any written test for selection to the higher post is concerned, the same is not tenable. Similar such question came up before the Supreme Court in S.P. Biswas v. State Bank of India (AIR 1991 SC 2039). The question that arose for consideration was whether consideration of marks obtained in written test alone was counted for the interview. It has been laid down as follows: "In view of the laudable object of attracting academically brilliant candidates in to the Bank's service as officers by direct recruitment by giving incentive of accelerated promotion to the post of meritorious amongst them who maintain a highest and and of achievement is conducive to public interest and cannot be faulted. Of the several heads under which the marks are divided for promotion to Merit Channel, written test and interview are the only ones which depend on the current performance. The marks under the remaining three heads of seniority, performance appraisal and CA11B (Passing of examination held by Bank's Institute) relate to past performance of the candidate which are matters of record. It is, therefore, the appraisal of the current performance by written test and interview which alone is the real part for a proper appraisal of the current performance of the candidate for the purpose of assessing his merit for promotion through the Merit Channel. In this situation, if the marks obtained in the written test alone are taken in to account for preparing the select list to call candidates for an interview depending upon the number of vacancies available in Merit Channel, the criterion adopted cannot be termed arbitrary as the marks obtained for seniority, performance appraisal and CAIIB are based on service record and not on appraisal of the candidate by a mode independent of service record for assessing the true current worth of the candidate. Since equal opportunity is available to all for competing through the Merit Channel, in addition to the prospects through the Seniority Channel, the policy adopted cannot be treated as irrational, discriminatory or arbitrary". Since equal opportunity is available to all for competing through the Merit Channel, in addition to the prospects through the Seniority Channel, the policy adopted cannot be treated as irrational, discriminatory or arbitrary". Since the respondent bank, on the basis of a common agreement between the employees association and the authorities, was required to follow the guidelines laid down in Memo No. 65/81 dated 1.10.1981 prior to the issue of Ext. P5 circular, the method adopted for selection to the higher post cannot be said to be discriminatory or arbitrary. In our opinion, there is no merit in the contention of the petitioner. The Writ Petition is dismissed. No costs.