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Rajasthan High Court · body

2000 DIGILAW 604 (RAJ)

Rajan Gandhi v. Aravali Kshetriya Gramin Bank

2000-05-09

SHIV KUMAR SHARMA

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Honble SHARMA, J.–What is required to be considered, while applying the principle of ``seniority-cum-merit for the purpose of promotion? This is the common question which falls for consideration in all these five writ petitions. (2). The petitioners have been working on the post of Officer in the respondent Aravali Khestriya Gramin Bank. On October 5, 1993 seniority list of officers came to be published wherein the petitioners were assigned seniority as under: Ravindra Singh at Serial No.1 Rajendra Mohan Sharma at Serial No.2 Rajan Gandhi at Serial No.3 Prakash Chandra at Serial No.7 Ram Niwas Bairwa (SC) at Serial No. 30 (3). The respondents officers were placed in the said seniority list thus- P.C. Jain at Serial No. 4 C.S. Pancholi at Serial No. 13 R.L. Agarwal at Serial No. 24 C.S. Sharma at Serial No. 25 Shantilal Tailor at Serial No. 27 K.L. Jatava at Serial No. 32 (4). In exercise of the powers conferred by section 29 read with section 17 of the Regional Rural Bank Act 1976 the Central Government notified the Regional Rural Bank (Appointment and Promotion of Officers and other Employees) Rules, 1988 (for short 1988 Rules). The Board of Directors of the respondent Bank in their meeting held on September 28, 1988 adopted 1988 Rules and the same were made applicable to the respondent Bank w.e.f. September 28, 1988. (5). Rule 4 of the 1988 Rules provides that the Board shall determine the vacancy of each post from time to time and the vacancies so determined shall be filled by deputation, promotion or direct recruitment in accordance with the provisions contained in the Schedule appended to the Rules. In the Schedule as regards to the post of Area/Senior Manager it has been provided as under- ``7. Area Manager or Senior Manager- (a) Source of recruitment- Hundred percent by promotion from amongst confirmed officers working in the Bank. Promotions will be on the basis of the ``seniority-cum-merit... (b) Qualification and eligibility- (i) A Graduate of recognised University... (ii) Eight years service as an officer in the regional Rural Bank concerned... (c) Mode of selection- Interview and assessment of the performance reports for the preceding three years period as officer for promotion. Promotions will be on the basis of the ``seniority-cum-merit... (b) Qualification and eligibility- (i) A Graduate of recognised University... (ii) Eight years service as an officer in the regional Rural Bank concerned... (c) Mode of selection- Interview and assessment of the performance reports for the preceding three years period as officer for promotion. A look at the aforesaid provisions demonstrates that promotion from the post of officer to the post of Area/Senior Manager is to be made 100% by promotion from amongst the officers who have completed eight years of service in the Bank as officer, on the basis of seniority-cum-merit and the mode of selection shall be interview and appraisal of performance of the previous three years. (6). The respondent Bank determined seven vacancies for the post of Area/Senior Manager. (7). Board of Directors of the respondent Bank in their meeting held on February 20, 1996 approved the procedure for making promotions against seven vacancies of Area/Senior Manager wherein promotion to be made on the criterion of seniority-cum-merit by assigning marks as under- Seniority -30 Performance -40 Interview -30 Total -100 On March 14, 1996 a Circular was issued by the respondent Bank incorporating the aforesaid decision of the Board of Directors. In para 8 of the Circular it was prescribed that the marks so obtained on the basis of aforesaid applicable factors shall be aggregated and the final merit list shall be prepared in the descending order and the results declared. The competent authority shall make promotions from the merit list strictly in the order of merit to the extent of vacancies. (8). On April 15, 1996 the petitioner Rajan Gandhi served notice for demand of justice on the respondent Bank calling upon the bank to withdraw the Circular 44 dated March 14, 1996 being against the principle of seniority cum merit. It was also stated in the notice that in case the interviews are held for promotion he shall appear for the interview under protest. Other petitioners also submitted protest in writing and stated that they shall appear for the interviews under protest reserving their right to challenge the procedure being adopted by the Bank for making the promotions. (9). On April 18, 1996 a representation was given by Rajasthan Gramin Bank Officers Organisation to the respondent Bank calling upon the Bank to withdraw the procedure as prescribed in the Circular dated March 14, 1996. (9). On April 18, 1996 a representation was given by Rajasthan Gramin Bank Officers Organisation to the respondent Bank calling upon the Bank to withdraw the procedure as prescribed in the Circular dated March 14, 1996. On April 19, 1996 interviews were held by the Staff Selection Committee of the Bank. The petitioners appeared before the Selection Committee under protest reserving their right to challenge the selections. (10). The respondent Bank promoted Sarvashri P.C. Jain, C.S. Pancholi, R.L. Agrawal, C.S. Sharma, Shantilal Tailor, K.L. Jatav and Mohan Lal Meena against the seven vacancies determined by the Bank. Five persons were promoted against the general category whereas against the reserved category Shri K.L. Jatav was promoted in the SC quota and Shri Mohan Lal Meena was promoted against ST quota. Promotion of Mohan Lal Meena does not affect any of the petitioners in the present petitions. Promotion of K.L. Jatav, has been challenged by the petitioner R.N. Bairwa in S.B. Civil Writ Petition No. 2269/1996, whereas promotions of P.C. Jain, C.S. Pancholi, R.L. Agarwal, C.S. Sharma, and Shanti Lal Tailor have been assailed by the other petitioners. (11). Reply to the writ petition has been submitted by the respondent Bank as well as the other respondents with the averments that the promotion is the function of the management and the discretion of the management by judging the suitability of the officer for promotion cannot be interfered unless malafide is alleged and proved. It was also stated that the petitioners who appeared in the examination as per the Circular dated March 14, 1996 after became unsuccessful have no right to raise grievance now. The petitioners have not impleaded party to all those officers who were selected by the Selection Committee, the writ petition deserves to be dismissed on this ground alone. It was also pleaded that the petitioners could have availed the alternative remedy as provided in Clause 7 of the Circular dated March 14, 1996 within 40 days from the date of declaration of the result, but the petitioners did not file appeal before the Board of Directors and rushed to this court directly, therefore the writ petition is not maintainable. (12). Petitioners submitted rejoinder to the reply to the writ petitions. (13). I have pondered over the rival submissions and carefully scanned the material on record. (14). (12). Petitioners submitted rejoinder to the reply to the writ petitions. (13). I have pondered over the rival submissions and carefully scanned the material on record. (14). In B.V. Sivaiah vs. Addanki Babu (1), the question that falls for consideration before their Lordships of the Supreme Court was as to what is meant by ``Seniority-cum-Merit, the criteria prescribed for promotion to the post of Area Manager/Senior Manager in the regional Rural Banks under the Regional Rural Banks (Appointment and Promotions of Officers and other Employees) Rules. 1988. Their Lordships in para 18 observed as under- ``We thus arrive at the conclusion that the criterion of `seniority-cum-merit in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. (15). Before I proceed to consider the question as to whether the afore quoted criterion has been followed in letter and spirit by the respondent Bank in making the promotion under challenge, I deem it necessary to draw distinction between the criterion `seniority-cum-merit and `merit cum seniority in the matter of promotion. This distinction was drawn by the Honble Supreme Court in B.V. Sivaiahss case (supra) and it was indicated that the principles of `merit-cum-seniority lays greater emphasis on merit and ability and seniority plays a less significant role, seniority is to be given weight only when merit and ability are approximately equal; on the other hand, as between the two principles of seniority and merit, the criterion of `seniority-cum-merit lays greater emphasis on seniority. But an officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. (16). But an officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. (16). In B.V. Sivaiahs case their Lordships of the Supreme Court considered circulars issued by various Banks. In the circular dated 27.9.1989 issued by Rayalaseema Grameen Bank sets apart only 34 marks for seniority out of total number of 120 marks only those officers who had secured the highest number of marks were ultimately promoted. It was held that mode of selection was contrary to the principles of `seniority-cum-merit. In the circular dated 16.3.1992 issued by Pinakini Grameen Bank out of total number of 100 marks, 55 marks to be awarded for seniority. There was no indication in the circular as to how 55 marks for seniority were to be given. It did not prescribe minimum qualifying marks for assessment of performance and merit on the basis of which an officer would be considered for selection. It was held that selection was contrary to the principle of seniority-cum-merit. Circular dated 2.2.1989 of Rewa Sidhi Gramin Bank prescribed that candidates who have secured less than 40% marks in interview will not be considered for promotion. It was further laid down that the list of successful candidates in the order of total marks obtained will be placed before the Board. It was held that circular was not in consonance with the principle of `seniority-cum-merit. In the circular issued by Chhindwara-Seoni Kshetriya Gramin Bank, 50 out of 100 marks were prescribed as qualifying marks for interview and only those who had obtained the qualifying marks in interview were selected for promotion on the basis of seniority. It was therefore a case where a minimum standard was prescribed for assessing merit of candidates and those who fulfilled the said minimum standard were selected for promotion on the basis of seniority. It was held that selections were made in accordance with the principles of seniority-cum-merit. (17). Admittedly the case on hand is not a case where minimum qualifying marks are prescribed for assessment of performance and merit and those who secure the prescribed minimum qualifying marks are selected for promotion on the basis of seniority. It was held that selections were made in accordance with the principles of seniority-cum-merit. (17). Admittedly the case on hand is not a case where minimum qualifying marks are prescribed for assessment of performance and merit and those who secure the prescribed minimum qualifying marks are selected for promotion on the basis of seniority. As already stated 1988 Rules provides that promotion from the post of officer to the post of Area/Senior Manager is to be made 100% by promotion from amongst the officers who have completed eight years of service in the Bank as officer on the basis of seniority cum merit and the mode of selection shall be interview and appraisal of performance of the previous three years. Circular dated March 14, 1996 set apart only 30 marks for seniority out of total number of 100 marks and only those persons who secured highest number of marks were ultimately promoted. Under these circumstances Under these circumstances it can not be held that Circular dated March 14, 1996 is in consonance with the principle of `seniority-cum-merit. It appears that the Board of Directors of the respondent Bank totally forgotten the criterion `seniority-cum-merit while approving the procedure for making promotion against seven vacancies of Area/Senior Managers. The criterion of `seniority-cum-merit was converted in to that of `merit-cum-seniority without any rational basis has got no nexus with the 1988 Rules. As is held in B.V. Sivaiahs case (supra) the criterion of seniority cum merit in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration the senior, even though less meritorious shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. The respondent Bank ought to have prescribed the minimum qualifying marks and the mode of selection shall be interview and appraisal of performance of the previous three years and ought to have selected the persons for promotion on the basis of seniority. (18). The respondent Bank ought to have prescribed the minimum qualifying marks and the mode of selection shall be interview and appraisal of performance of the previous three years and ought to have selected the persons for promotion on the basis of seniority. (18). In so far as the argument advanced in respect of alternative remedy is concerned, to my mind the provision of appeal enumerated in the circular dated March 14, 1996 cannot be termed as efficacious remedy in the facts and circumstances of this case. The petitioners have not assailed the promotion on individual basis but have challenged the procedure that was adopted by the respondent Bank in making promotions. The procedure laid down in the said circular was approved by the Board of Directors in their meeting held on February 20, 1996. Since the petitioners have challenged the procedure which has been approved by the Board of Directors of the respondent Bank itself, under these circumstances filing any appeal before the Board of Directors of the Bank for challenging the promotion would be against the principles of audi altem partem. Further the order of promotion dated April 22, 1996 was approved by the Board of Directors of the Bank therefore no purpose would be served by filing appeal. (19). I also do not find any merit in the argument advanced in respect of impleadment of the parties. The petitioners have impleaded affected persons P.C. Jain, C.S. Pancholi, R.L. Agarwal, C.S. Sharma, Shantilal Tailor and K.L. Jatav in the writ petitions and the interest of affected persons have been taken care of and the arguments were advanced by Mr. Virendra Lodha, learned counsel on their behalf. It is therefore not necessary to implead all the affected persons as party as they were already represented in their representative capacity by the aforesaid respondents as is held in Arun Tewaris case (2). (20). The ratio indicated in Union of India and another vs. N. Chandrasekharan and others (3), is also not applicable in the instant cases. There can be no estoppel against the statute. The 1988 Rules had provided that the promotion shall be made on the basis of seniority cum merit and as the respondent Bank had not followed the said criterion therefore, it was open to the petitioners to challenge the procedure which was followed by the respondent Bank against the statute. There can be no estoppel against the statute. The 1988 Rules had provided that the promotion shall be made on the basis of seniority cum merit and as the respondent Bank had not followed the said criterion therefore, it was open to the petitioners to challenge the procedure which was followed by the respondent Bank against the statute. Moreover, the petitioners had given in writing to the respondent Bank that they were appearing for interview under protest. In Chandrasekharans case (supra) the incumbents had merely challenged the allotment of marks for interview or performance by the authority. There was however, no rule or statute governing the criterion for selection nor the incumbents had raised any protest before appearing in the interview. Under those circumstances it was held by the Apex Court that the incumbents were estopped from challenging the fixation of marks. (21). The ratio indicated in Jagathigowda C.N. and others vs. Chairman Cauvery Gramina Bank and others (4), is also of no help to the respondents. In the said case their Lordships of the Supreme Court observed that the cumulative reading of the two guidelines issued by the NABARD clearly shows that the promotions were to be made on the basis of the comparative assessment of the performance appraisal of the officers concerned. The instructions of the NABARD being in the nature of guidelines the promotions made by the Bank cannot be set aside unless the same are arbitrary and unfair. It is settled proposition of law that even while making promotions on the basis of seniority cum merit the totality of the service record of the officer concerned has to be taken into consideration. In the said case no marks were assigned but the incumbents were promoted on the basis of the service record maintained by the Bank in the form of performance appraisal. Some of the senior officers who were not found suitable on comparative consideration of the performance appraisal challenged the promotion on the ground that the procedure adopted by the Directors Committee was in violation of the guidelines issued by the NABARD and as the promotions were not made on the basis of seniority cum merit but by way of selection on the basis of interview held by the Committee. Under those circumstances it was held that the instructions of the NABARD were in the nature of guide lines and applicable to all the employees of the Rural Banks. (22). For the reasons aforementioned, all the writ petitions stated allowed and I hold that the criterion for promotion to the post of Area/Senior Manager laid down in Circular dated March 14, 1996 is contrary to the object incorporated in 1988 Rules. I quash the Circular dated March 14, 1996 containing therein the promotion policy approved by the Board of Directors of respondent Aravali Kshetriya Gramin Bank, Sawai Madhopur in their meeting dated Feb. 20, 1996 prescribing marks for making promotion to the post of Area/Senior Manager. As a consequence of quashing the circular dated March 14, 1996, the promotion order dated April 22, 1996 except the promotion of Mohan Lal Meena, automatically stands quashed. The respondent Bank is directed to reconvene the meeting of the Selection Committee to reconduct the selection for making promotion to the post of Area/Senior Manager against the five vacancies of general category and one reserved for SC category of the year 1995 after issuing the necessary circular prescribing minimum qualifying marks for making selection to the post of Area/Senior Manager, and select those persons who secured minimum qualifying marks on the basis of seniority as indicated in B.V. Sivaiahs case (supra). The respondent Bank is expected to complete the aforesaid exercise within a period of six months from the date of receipt of this order. There shall however be no order as to costs.