Shyam Bihari Pandey v. Bhojpur Rohtas Gramin Bank — 1996 DIGILAW 832 (PAT)

Judgment Radha Mohan Prasad, J. 1. In the first writ application bearing C. W. J. C. No.1452 of 1986 prayer of the petitioners is for quashing the Resolution dated 4th/5th February, 1986 contained in Annexure-3 fixing criterion for promotion of officers to the post of area Manager in Bhojpur Rohtas gramin Bank and for issuance of appropriate writ/direction/order commanding the respondents not to give effect to the promotion list, contained in the said Annexure-3 and/or any other appropriate relief/reliefs, which the petitioners in the circumstances are entitled to. 2. In the second writ petition bearing C. W. J. C. No.7556 of 1992 prayer on behalf of the petitioners is to quash the said annexure 3 pursuant to which the respondent Nos.3 to 17 have been promoted to the post of Area manager/senior Manager and to issue appropriate writ/direction/order commanding the respondent Nos.1 and 2 to promote the petitioners to the post of area Manager/senior Manager with effect from the date the respondents Nos.3 to 17 have been promoted. 3. As substantially the prayer in both the writ applications as well as the questions of law are common, with the consent of the parties, they have been heard together and are being disposed of by this common judgment/order. 4. In short, the relevant facts are that the petitioners are officers/branch manager working in Bhojpur Rural gramin Bank (hereinafter referred to as bank) and they claim to be eligible to be promoted to the post of Area manager/senior Manager in the Bank. The said Bank has been constituted under the Urban Rural Banks Act, 1976 (hereinafter referred to as the Act) and it has been sponsored by Punjab National Bank, which is a nationalised bank and holds 35% of the shares, 505 of the shares are held by the Government of Bihar, on 20th September, 1982 a seniority list of Officers working in the bank was circulated vide personnel division Circular No.23/82, in which, as claimed by the petitioners, they were senior to many of the concerned respondents. On 31-12-84 the National Bank for Agriculture and Rural Development, Bombay (hereinafter referred to as NABARD) issued circular letters to chairmen of all Regional Rural Banks fixing eligibility and other criterion for appointment of Area Manager and other senior Managers in the Rural banks. NABARD is an instrument of reserve Bank of India and is an apex institution for Rural Banks in India. 5. NABARD is an instrument of reserve Bank of India and is an apex institution for Rural Banks in India. 5. There were 13 vacancies in the bank for Area Manager and for filing of the same by promotion/appointment interview letters were issued to 29 officers placed at S1. Nos.1 to 28 and 35 in the said seniority list on 27-1-86. It is alleged that had the promotion matter been taken up in 184 when the vacancies occurred, persons only upto S1. No.23 of the seniority list would have become eligible for promotion, but only on account of delay of two years, six more persons have become eligible. The interview were held on 4-2-86 and 5-2-86 and on that basis the concerned respondents were declared successful for promotion by adopting the cut-off mark of 50.2 or more marks in selection process. The criterion followed by the board of Directors at the time of interview itself in making selection was as follows: (i) Service records. . . . . . . Maximum 30 marks. (ii) Performance. . . . . . . Maximum 30 marks. (iii) interview. . . . . . Maximum 40 marks. Out of the total marks allotted for service-records, 9 marks were allotted for length of service, i. e. one mark for one year service and the maximum 21 marks were allotted lor confidential records of last three years of the candidate (56 marks for satisfactory service and 7 marks for good service ). Under the head performance 5 marks were allotted for each excellent performance for which the candidates received letters of appreciation subject to maximum of 15 marks and the remaining 15 marks were awarded for the quality of their work. Under this head provisions of negative marking were also made for the unsatisfactory work of the candidates for the last three years. According to the petitioners to weightage has been virtually given to the seniority of the candidates, inasmuch as, only 9 marks are allotted under the head for length of service, 40% of the total marks have been allotted for personal interview, which according to the petitioners is arbitrary, unreasonable and unconstitutional. 6. The main attack on the impugned selection is on the ground that the guidelines of NABARD dated 31-12-84 have not been followed. 6. The main attack on the impugned selection is on the ground that the guidelines of NABARD dated 31-12-84 have not been followed. as preference was to be given to agriculture/commerce/economics graduates, but no such preference has been given to them in the said promotion nor the criterion of seniority-cum-merit as was indicated in the said guidelines was followed for grant of the impugned promotion. It was also alleged that some of the respondents, who were punished for irregularities and misconduct and not found fit for confirmation, have been promoted, whereas the petitioners, whose service records throughout have been clean and are senior to persons promoted have been ignored. 7. It appears that on 1st December, 1987 NABARD clarified as to what it meant by fixing seniority-cum-merit as the criterion vide annexure-4 in the second writ case. According to the nabard, seniority-cum-merit means seniority with due consideration of minimum merit/fitness. Fitness implied that there is nothing against the officer and no disciplinary action is pending or contemplated against him and accordingly, directed the Bank to review the promotion done in the light of the above clarification to ensure that there is no supersession. It is thus, claimed by the petitioner that the seniors were to be promoted first if there was no disqualification in terms of annexure-4. But when this was not done, the) made representation for review through the employees Association. On 27-2-1988 the Board of Directors of the Bank asked for guidance from the NABARD whether the superseded persons can be promoted by increasing the number of post or alternatively whether the promotees could be demoted after two years in case the Bank refused their promotion. It is stated that on 7-8-1991 the sponsored Bank create more 18 posts of M. M. G. grade II which is equivalent to Area/sr. Manager of bank. However, when the respondents did not consider their claim for review as per the decision of the NABARD, the petitioners of the first case filed the writ petition in the year 1986 and the petitioners of the second case filed writ petition in the year 1992. 8. In the writ petitions mala fide has also been alleged against the then chairman of the Bank, who had taken up the promotion matter on 27-1-1986, when his tenure of office was to expire. 9. 8. In the writ petitions mala fide has also been alleged against the then chairman of the Bank, who had taken up the promotion matter on 27-1-1986, when his tenure of office was to expire. 9. Counter-affidavits, have been filed on behalf of the bank in both the case and on behalf of respondents 5 to 7 in the first case. In the counter-affidavits of the respondent Bank allegation of mala fide has been denied and it is stated that the respondent-Bank took up the matter for promotion only after the receipt of the letter No.112/316 (Gen)/84, dated 8.5.85 issued in clarification of earlier circular by nabard. As regards the criterion adopted, it is stated that the Board of directors fixed the said criterion, in which there was no illegality or irregularity committed by them. It is also contended that the petitioners having appeared before the interview Board on 4-2-86 and 5-2-86 for selection to the post on promotion, are not entitled in law to challenge the said criterion at the subsequent stage when they were not found fit for promotion by the Board. It is however, admitted that the promotion was to be made on the basis of non-selection rule of seniority-cum-merit. It is, however, further stated that as per the guidelines dated 31-12-84, who had put in 8 years of service as officers in the bank were found eligible for promotion. It is, admitted that the petitioners and respondents fulfilled the said criterion and as such, they were called for interview. In para 14 of the counter-affidavit it has been denied that the promotion as not given on the basis of the guidelines of NABARD, i. e. on the basis of seniority-cum-merit. It is stated that the criteria for promotion was fixed by the board pursuant to the circular of nabard. 10. In the counter-affidavit filed on behalf of the concerned respondent nos.5 to 7 it is stated that the respondents and already joined and have been working now for more than 10 years as area Manager/senior Manager. The respondent No.14 has already retired in june, 94 and respondent No.11 in february, 96. It is stated that retirement of some of the respondents and petitioner No.2 is also due shortly. The respondent No.14 has already retired in june, 94 and respondent No.11 in february, 96. It is stated that retirement of some of the respondents and petitioner No.2 is also due shortly. As such, according to the said respondents any disturbance in the status after lapse of about 10 years would adversely affect their rights and the services of the Bank. They have also contended that despite the knowledge of the criterion adopted by the Board, the petitioners took the chance and appeared in the interview and only when they were rejected by the selection committee, they started raising hue and cry with regard to the selection criterion, which is not permissible under the law. It has also been contended that the writ petition is fit to be dismissed and the petitioners are not entitled to any relief on the scale ground that nabard or the Reserve Bank of india, which are controlling bodies of the Bank have not been impleaded as parties to the present proceedings. With regard to the criterion of the selection, it is stated that according to the Act as it existed on the date of selection, the bank was free to appoint its officers in its own manner and was not bound by any rule, circular, guidelines or order issued by anybody including NABARD. According to them, section 17 of the act is the relevant provision in this regard. However, it is contended that nabard came into existence for the first time in the year 1988 by amending act No.1 of 1988, whereas the selection of the concerned respondents were concluded in February, 86 itself. It is further stated that at the time of commencement of the amending Act the concerned respondents were all confined in the service. As regards the guidelines of nabard having not been followed, it is stated that it is of no consequence as it was not mandatory in nature so far as the Bank is concerned. At the best, the guidelines by the NABARD can be said to be its pious wish and just a guidelines and nothing beyond. According to the respondents, the selection criterion adopted by the Board is in perfect conformity with the Constitutional provision and in true spirit to make selection on the seniority-aim merit basis. 11. At the best, the guidelines by the NABARD can be said to be its pious wish and just a guidelines and nothing beyond. According to the respondents, the selection criterion adopted by the Board is in perfect conformity with the Constitutional provision and in true spirit to make selection on the seniority-aim merit basis. 11. The question in these two writ applications thus, fall for consideration (i) whether the circular/guidelines issued by the NABARD was to be followed for consideration of the cases of promotion in question and (ii) whether the promotion was done on the basis of seniority-cum-merit rule, which admittedly was adopted, even by the Board of directors of the Bank or the same has been done purely on selection basis. 12. The first question came up for consideration by a Division Bench of this Court in C. W. J. C. No.933 and 857 of 1988 filed on behalf of Radheshyam lal and Suresh Prasad Singh against vaishali Kshetriya Gramin Bank, samastipur. In the said case the respondent Bank itself had come out with a plea that it had followed the circular issued by the NABARD, as is the fact in the present cases. The Bank in its counter-affidavit in the said case categorically stated that while considering the matter of promotion of the petitioner and the private respondents, it had followed the policy decision of the Government of India in consultation with the NABARD as contained in annexure-2, i. e. promotion to the post of Area Manager and Senior manager were to be made internally on the basis of seniority-cum-merit. The division Bench after considering the role of Central Govt. and of NABARD in making such appointments in regional Rural Bank and also considering various decisions of the Apex Court on the question as to what the seniority-cum-merit means, held that the Central government sponsored Bank and nabard had definite role to play in the affairs of giving direction to the regional Rural Banks and they are empowered to issue such directions to the bank from time to time and that respondents were bound to strictly follow the seniority-cum-merit rule. The said decision was upheld by the supreme Court by order dated 2nd december, 1994 passed in S. L. P. (C)15040-41 of 1994. The said decision was upheld by the supreme Court by order dated 2nd december, 1994 passed in S. L. P. (C)15040-41 of 1994. A Division Bench of kerala High Court also considered this question and held the post to be non-selection posts and that the process of selection for promotion is one of seniority-cum-merit. Further, it was held that the principle of seniority-cum-merit indicated in the guidelines issued by the NABARD and subsequently clarified by the NABARD contemplates selection only on the basis of seniority-cum-merit and it does not give scope for selection by process of assessment of comparative merit. The said judgment of the Kerala High Court was also affirmed by the Supreme Court by the dismissal of the special Leave petition vide order dated 2-5-1990 contained in an-nexure-10 to the supplementary affidavit, filed on behalf of the petitioners in the first case. The Kerala High Court in its judgment after taking into con-sideration the guidelines and circulars issued by the NABARD came to the conclusion that the post of Senior/area managers are non-selection posts and upon consideration of the said guidelines issued by NABARD held as follows: "the process of screening should be confined to eliminating the unsuitable candidates and not for selecting the more meritorious of the candidates. It should also be remembered that while the criterion for posts of Area managers/senior Managers Is on the basis of seniority-cum-merit, Ext. P1 Itself lays down the criterion of merit only for appointment to the post of General f managers. The guidelines never contemplated assessment of comparative merit. This is clear from the fact that in the subsequent classification given by the nabard it clearly pointed out that it is a promotion post on non-selection rule of seniority-cum-merit and it also further says that the rule envisages promotion by seniority with due consideration to minimum merit/fitness. It also lays down that there should be no supersession unless warranted by adverse remarks, disciplinary action etc. It clearly mentions that the promotions made should be reviewed on the basis of these clarifications, and see that there are no supersessions unless warranted in the. light of the above guidelines, we find that though the guidelines indicated seniority-cum-merit basis under the guise of implementing the guidelines of Gramin Bank resorts to applying the principle of merit-cum-Seniority and the process of assessing comparatives merit. light of the above guidelines, we find that though the guidelines indicated seniority-cum-merit basis under the guise of implementing the guidelines of Gramin Bank resorts to applying the principle of merit-cum-Seniority and the process of assessing comparatives merit. What the Gramin Bank has done is not contemplated by the guidelines. In this context it may also be mentioned that even Ext. Rx (d) the subsequent clarification does not indicate a different situation. It only mentions that promotions are not to be given automatically without any screening whatsoever and the management is entitled to make objective assessment to consider the un-suitability. This clearly indicates that the screening is meant to weed out people who are not suitable for the post. It is not meant to give a chance for junior people with more merit to supersede the seniors. " The Division Bench of Kerala high Court relied upon the decision of the Supreme Court in the case of State of Kerala and Anr. V/s. N. M. Thomas and others, reported in A. I. R.1976 S. C.490. 13 The criterion of seniority-cum-merit rule, as given in the circular of nabard dated 31-12-1984 has also been tested by this Court in the case of d. P. Singh V/s. Ranchi Kshetriya Gramin bank, reported in 1992 (1) PUR 409. The Board of Directors had adopted a resolution of allotment of marks laying down norms of promotion from officers to the post of Area Senior Managers.100 marks were fixed as total marks for selection on the basis of seniority-cum-merit on the pattern of Govt. of India notification dated 28-9-89.40 marks were allotted for seniority, 1 mark for each completed quarter of service, 6 marks for educational qualification, 24 marks for assessment of viva voce and 10 marks were allotted for interview. Thereby 40 marks were allotted for seniority and 60 marks for judging the merit of the candidate. This court after considering the various decision of the apex Court, held that there cannot be any doubt that promotion cannot be claimed as matter of right and for the purpose of promotion, the minimum educational qualification and other eligibility criterion may be laid down. This court after considering the various decision of the apex Court, held that there cannot be any doubt that promotion cannot be claimed as matter of right and for the purpose of promotion, the minimum educational qualification and other eligibility criterion may be laid down. The relevant rule in regard to the manner of appointment of senior managers/area Managers was Rule 7 of the guidelines, issued by the NABARD for filling of 100 per cent of the said posts by promotion from amongst confirmed officers working in the Bank and the basis to be followed is seniority-cum-merit. In view of the said rule 7 the Court held that the Board of Directors exceeded their limit in laying down the norms for promotion of officers to the post of Area/senior Managers, whereby they fixed only 40 marks towards seniority and 60 marks for other qualification for the purpose of judging the comparative merit of the candidates. It was held that even in laying down the marks for educational qualification they acted contrary to the Rule, inasmuch as no mark should have been-allotted for post-graduate degree or Doctorate in the aforementioned subjects as the Rule does not authorise so to do. Similarly, laying down qualify marks for the interview is also held to be in total disregard to the statute/rule inasmuch as the court held that qualifying marks may be laid down in the case of direct appointment in selection posts or where the job is of a particular nature. The Court took notice of the fact that the petitioners were to be promoted to non-selection posts and that it was not a case where fresh appointment had to be made based upon written test and viva voce test. It was also noticed that it was not a case where the promotion had to be made on the basis of merit-cum-seniority. Referring to the Supreme court decision laying down law that for the purpose of giving promotion on the basis of seniority-cum-merit, comparative merit is required to be considered once they stand equally so far as the seniority is concerned; however added that". . . . . . it does not mean that for the purpose of considering the suitability of a candidate to hold higher post, seniority alone will have to be taken into consideration. . . . . . it does not mean that for the purpose of considering the suitability of a candidate to hold higher post, seniority alone will have to be taken into consideration. " The Court, thus, held that the mode of selection being seniority-cum-merit, there cannot be any justification for awarding only 40 marks for seniority and 60 marks for evaluating the merit including the assessment of performance of last three years. 14. So consideration of the above there cannot be any doubt that the principle to the followed for giving promotion to be post of Area Manager/senior manager in the Bank was/is the seniority-cum-merit. The question thus, now remains to be considered is-as to whether the criterion adopted by the board was in consonance with the said principle of seniority-cum-merit. The learned Counsel of the petitioners contended that in view of the law laid down by the Apex Court where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of this seniority alone, if he is found unfit to discharge the duties of the higher post on account of which he may be passed over and an officer junior to him may be promoted, but so long as the service of the employee in the department is satisfactory and he has obtained the increments and promotions in due time and also fulfils the requisite qualification, if any, laid down for giving promotion, then the office gets preferential right in the matter of promotion by virtue of his seniority. 15. On the other hand, learned counsel for the respondents submitted that in case where the principle of seniority-cum-merit is to be followed, the comparative merit has to be adjudged and only if on merit the two stand on equal footing the senior person will be given preference. I am unable to accept the said submission of the learned Counsel for the respondents. If the said submission is accepted, then there will be no distinction between two principles namely, seniority-cum-merit and merit-cum-seniority. The Prin-ciple-seniority-cum-merit and merit-cum-seniority came up for consideration many times and the view of the apex Court has been that if the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. The Prin-ciple-seniority-cum-merit and merit-cum-seniority came up for consideration many times and the view of the apex Court has been that if the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duty on higher post, he may be passed over and an officer junior to him may be promoted. Whereas, selection for appointment on selection post is to be made on the principle merit-cum-seniority, i. e. preference with regard to the seniority, is to be given only when the merit is equal. In cases where this principle is followed, the Court is to only see whether the cases of eligible officers senior to a particular selected officer were considered or were omitted from consideration. A writ Court is not to scrutinise what particular weight was given /to the merit of selected officer in comparison with the merit of a senior officer, as has been held by Full Bench of this Court in the case of N. P. Mathur and others V/s. State of Bihar and others, reported in 1971 P. L. J. R.471. 16. Normally, three principles/rules are followed in considering the cases for promotion to higher grade/rank. First rule is on the basis of sheer seniority where promotion is to be given as a matter of course subject to only the service record being satisfactory. The second principle is seniority-cum-merit, where the officer cannot claim promotion as a matter of right by virtue of his seniority alone, but will have to also fulfil the requisite conditions/qualification for discharge of the duty on higher post including the satisfactory service-record. The third principle is the merit-cum-seniority, where the merit has prime role to play and only if two persons/officers are found equal in merit, the seniority will have role for giving preference in the matter of promotion to senior person/officer. These things, however, always are subject to rota and quota rules applicable to the given cases. 17. The Supreme Court in the case of State of Mysore V/s. Syed Mahmood, reported in A. I. R.1968 S. C.1113 has explained the principle of seniority-cum-merit as seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion. 17. The Supreme Court in the case of State of Mysore V/s. Syed Mahmood, reported in A. I. R.1968 S. C.1113 has explained the principle of seniority-cum-merit as seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion. In the said case the Supreme Court held that while making selection for promotion to the post of Senior Statistical Assistants from the cadre of junior Statistical Assistants in 1956 the State Government was under a duty to consider whether having regard to their seniority and fitness, they should be promoted. The principal enunciated by the Supreme court is that where the promotion is based on seniqrity-cum-merit the officer cannot claim promotion as a matter of right by virtue of seniority alone if he is found unfit to discharge the duty on higher post, he may be passed over and the officer junior to him may be promoted, However, the officer of outstanding merit may be put in special category even where the rule followed for promotion is seniority-cum-merit, which the Supreme Court has also approved in the case of State of Kerala V/s. N. M. Thomas (supra) and in the case of state of mysore V/s. C. Seshadri and others, reported in AIR 1974 SC 460 , otherwise while testing comparative merit, in my opinion, the junior can only be given preference, if seniors are found unfit, to discharge the duties. 18. It is not the case of the respondents that the petitioners have not been found fit to discharge the duties. In the case of State of Mysore and another V/s. EN. Nanjundiah and another, reported in 1969 (3) SCC 633 , the supreme Court while considering the case of deputation held: "so long as the service of the employee in the new Department is satisfactory and he is obtaining the increments and promotions in that Department, it stands to reason that the satisfactory service and the manner of its discharge in the post the actually fills should be deemed to be rendered in the present department. " 19. The said decision was followed by the Supreme Court in the case of state of Mysore V/s. C. R, Seshadri and others (supra) wheren its was held: "on the other hand if seniority-cum-merit is the rule, as in the supreme Court decisions cited before us, promotion is problematical. " 19. The said decision was followed by the Supreme Court in the case of state of Mysore V/s. C. R, Seshadri and others (supra) wheren its was held: "on the other hand if seniority-cum-merit is the rule, as in the supreme Court decisions cited before us, promotion is problematical. In the absence of positive proof of the relevant service Rules. It is hazardous to assume that by efflux of time the petitioner would have spiralled up to deputy Secretaryship. How could we speculate in retrospect what the rule was and whether the petitioner would have been selected on merit and on the strength of such dubious hypothesis direct retroactive promotion and back pay. " The Supreme Court also observed: "nothing has been suggested against the petitioner in his career to disentitle him to promotion and we have no doubt Government will give him his need. However, if the criterion for promotion is one of seniority-cum-merit, comparative merit may have to be-assessed if length of service is equal or an outstanding junior is available for promotion" 20. This aspect of the matter was again considered by the Supreme Court in the case of State of Kerala and another v. N. M. thomas, reported in A. I. R.1976 s. C.490, wherein it was held: "the Principle of equality is applicable to employment at all stages and in all respects, namely, initial recruitment, promotion, retirement, payment of pension and gratuity. With regard to promotion, the normal principles are either merit-cum-seniority or seniority-cum-merits. 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 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 ). The relevant touchstone of validity is to find out whether the rule of preference secures adequate representation for the unrepresented backward community or goes beyond it. " 21. After going through the law laid down by the Apex Court it cannot be disputed that promotion cannot be claimed as a matter of right. The relevant touchstone of validity is to find out whether the rule of preference secures adequate representation for the unrepresented backward community or goes beyond it. " 21. After going through the law laid down by the Apex Court it cannot be disputed that promotion cannot be claimed as a matter of right. For the purpose of promotion the minimum educational qualification and other eligibility criterion can be laid down ana the same are to be followed where the principle of seniority-cum-merit is followed Tor giving promotion, as I have already noticed above in the present case, the petitioners claim for promotion was denied not on the ground that they did not have the requisite minimum educational qualification and/or that they did not fulfil any of the eligibility criterion. The criterion for appointment/promotion of General managers/senior Managers/area managers in Regional Rural Banks is laid down by the NABARD in its circular contained in annexure-2. In the said circular the basis for promotion prescribed is seniority-cum-merits. The qualification and eligibility are also mentioned in clause (b) of Para 1. There is nothing in the said guidelines to indicate that the procedure followed by the Board of Directors is to be adopted for determining the merit of the candidates. The Board of Directors vide annexure-3 have, in fact, exceeded their limits in laying down the norms of promotion of officers to the post of area/senior Managers. Out of the total marks allotted for service records, only 9 marks were allotted for length of service, i. e. , 1 mark for one-year service and the maximum 21 marks were allotted for confidential records of the last three years of the candidates, 5 marks for satisfactory service and 7 marks for good service. Under the head performance 5 marks were allotted for each excellent performance for which the candidates received letter of appreciation subject to the maximum of 15 marks and remaining 15 marks were awarded for quality of their work. Under this head provision for negative mark was also made for the unsatisfactory work of candidates for the last three years. In fact, virtually no weightage has been given to the seniority of the candidates inasmuch as only 9 marks have been allotted under the head for length of service and 40% of the total marks have been allotted for personal interview. In fact, virtually no weightage has been given to the seniority of the candidates inasmuch as only 9 marks have been allotted under the head for length of service and 40% of the total marks have been allotted for personal interview. It is by now well settled by various decisions of the supreme Court that for judging the merit maximum 30 marks should be allotted for interview of the candidates. A reference in this connection, may be made to the decision in the case of B. S. Yadav V/s. State of Haryana reported in air 1987 S. C.454 and Mahendra Singh garg V/s. State of Punjab, reported in 1990 (4) Judgment Today (SC) 704, wherein it has been held that not more than 15 marks should be fixed for interview. In the case of Mahendra Kumar V/s. Rajib Govil, reported in AIR 1991 SC 1607 the Apex Court held that marks for interview and group discussion should not exceed 10% of the total marks. 22. I am quite conscious of various other decisions of the Supreme Court in the case of Mahmood Alain Tori V/s. State of Rajasthan, reported in AIR 1988 SC 1451 in which 30 marks given for interview was held to be not bad in law and in the case of Ajay Hasia V/s. Khalid Mujib, reported in AIR 1981 SC 487 , in Laladhar V/s. State of Rajasthan, reported in AIR 1981 SC 1777 and in state of Uttar Pradesh V/s. Rafiquiddin reported in AIR 1988 SC 162 , from which there cannot be any doubt that allocation of marks for viva voce including the minimum qualifying marks may vary from service to service and from purpose to purpose. 23. Thus, there is no inflexible formula and the same is required to be considered on the facts of each case and upon taking into the relevant provisions of the service rules. In the case of D. . 23. Thus, there is no inflexible formula and the same is required to be considered on the facts of each case and upon taking into the relevant provisions of the service rules. In the case of D. . Singh V/s. Ranchi Kshetriya gramin Bank (supra) the learned single Judge of this Court on consideration of the fact that the petitioner were to be promoted to a non-selection post and that it was not a case where the fresh appointment was to be made, based upon written test and viva voce test and also that it was not a case where the promotion was to be made on the basis of merit-cum-seniority as also noticing that the Supreme Court itself has laid down that for the purpose of giving promotion on the basis of seniority-cum-merit the comparative merit is required to be considered once they stand equally so far as the seniority is concerned, held that there cannot be any justification for awarding 40 marks for seniority and 60 marks for evaluating merit including assessment of performance of last three years. The purpose of assessment as also the interview laid down in the Statute or Rules must be judged in the context of the decision of the Supreme Court as referred to hereinbefore namely, for the purpose of taking into consideration as to whether the person, who is to be promoted is suitable for discharging the higher responsibility or not. It is not a case where comparative merit has to be considered for the purpose of giving promotion to person for better merit either on the basis of educational or assessment of performance or his perfor-mance in the viva voce test. The case of a candidate having outstanding merit may, however, be considered for supersession of a senior. 24. In the present case, virtually only 9 marks out of 100 marks have been fixed for seniority and rest including 40 marks of interview have been fixed for evaluating the merit, such as confidential records, performance of last three years and excellent performance, etc. for which there cannot be any justification in the matter where the promotion is to be granted on the basis of seniority-cum-merit. for which there cannot be any justification in the matter where the promotion is to be granted on the basis of seniority-cum-merit. Thus, in my opinion, the entire process of selection adopted by the Board of Directors was contrary to the well-established law relating to the rule of seniority-cum-merit, which was admittedly adopted as basis for promotion by the Board of directors of the Bank. 25. The Learned Counsel for the respondents including the Bank also ventured to submit that the petitioners are not entitled to raise any grievance against the criterion adopted by the board of Directors, as despite their knowledge about the same, they took change and appeared in the interview and only when their claims were rejected they started raising hue and cry with regard to the selection of criteria, which is not permissible in law. In this regard they placed reliance on the decision of Supreme Court in the case of C. P Karla reported in 1994 (1) Supp. S. C. C.454 and in the case of Vmod kumar and others V/s. State of Bihar and others, reported in 19% (2) All P. L. R.1114. 26. I do not find any merit in the said submission of the Learned Counsel for the respondents. According to their own case as pleaded by the respondents in the counter-affidavit the petitioners appeared for interview before the Board on 4th and Sth february, 1986. From the minutes of the Boards meeting dated 4th/5th february, 86 contained in annexure-6 it is evident that the aforementioned criterion was decided by the Board to be followed in the same meeting. It is not the case of the respondents mat the said criterion was ever notified earlier for the purpose of bringing it to the notice of the concerned persons including the petitioners. In such circumstances, it is difficult to hold that the principle of acquiescence will at all be attracted to defeat the claim of the petitioners. The aforementioned cases on which reliance has been placed have no application to the facts of the present case. In Vmod Kumars case (supra) the fact was that the applicants had notice about the fact that the respondents would conduct one scrutiny test known as preliminary test and another test as main test long back when the notice was published by the bihar Public Service Commission in newspaper. In Vmod Kumars case (supra) the fact was that the applicants had notice about the fact that the respondents would conduct one scrutiny test known as preliminary test and another test as main test long back when the notice was published by the bihar Public Service Commission in newspaper. On the said date they also came to know that their candidature had been restricted for one or the other district. In spite of such knowledge none of the candidates including the petitioners chose to move the court of taw challenging such criteria laid down by the respondents. It was only when large number of persons had been appointed and they either failed in the preliminary examination or not declared successful for the main test that the petitioners moved this Court without impleading them as respondents. Thus in this background the principle of acquiescence was applied to the said case. In the C. P. Karla s case before the Supreme Court the said question was in fact, not involved. The supreme Court did not find any infirmity in the impugned order and thus, held that selection process could not be interfered with on such a vague allegation made by the candidates. 27. In the result, both the writ applications succeed and the impugned resolution of the Board of Directors contained in annexure 3 as well as the consequential orders of promotions are quashed and a writ of mandamus is issued to the respondents Bank for consideration of the matter relating to the promotion of all eligible candidates keeping in view the direction made hereinbefore, however, this will not preclude the Bank from considering the cases of the petitioners for promotion even from the dates when their juniors where promoted if such vacancies are available and in such circumstances, the concerned respondents may not be reverted back to make room for their seniors by virtue of quashing of their impugned promotion. In the peculiar facts and circumstances, there shall be no order as to costs. Petitions Allowed.