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2003 DIGILAW 1286 (AP)

Ashok Reddy v. Golconda Grameena Bank

2003-10-17

E.DHARMA RAO

body2003
ORDER : Dharma Rao, J. This writ petition is filed to issue a writ of mandamus declaring the action of the first respondent in issuing the Circular No. PER 121999-2000 dated 9-8-1999 promoting the respondents 2 to 7 overlooking the petitioners as illegal and consequently to promote the petitioners as MMG Scale - II. 2. Both the petitioners are working as Branch Managers and their next promotion is Middle Management Grade - II criteria for which is Seniority-cum-merit. While so, the first respondent issued circular dated 27-3-1999 announcing eight vacancies of MMG - II pertaining to the years 1996, 1997 and 1998 and that the Officers in Scale will be considered in the ratio of 1:4 that performance appraisal reports will carry 60 marks and interview will carry 40 marks and an employee who gets minimum of 60% will be considered for promotion in the order of seniority. It is the case of the petitioners that the mode of selection announced by the first respondent is erroneous inasmuch as the principle of Seniority-cum-merits was interpreted by the Supreme Court saying that there cannot be comparative assessment of merit and a senior person with average-merit has to be given promotion even though a junior with more merit is available. In doing so, the Management can fix minimum necessary merit for the purpose of promotion by way of assessment of performance reports and interview. It is further stated by the petitioners that the first respondent misinterpreting the rule promoted junior officers during the years 1996, 1997 and 1998 and the Seniors, aggrieved of the same filed writ petitions which were disposed of by a Full Bench of this court setting aside all the promotions following the rule of Seniority-cum-Merit as interpreted by the Supreme Court. It is the case of the petitioners that 60% cannot be regarded as minimum qualifying marks for the purpose of promotion inasmuch as it is not in consonance with the principle laid down by the Supreme Court. In culmination of the process of selection, the first respondent issued the impugned circular, ignoring the petitioners who are at Sl. No. 6 and 10. as per the latest seniority list and though the respondents 2 to 7 are at Sl. No. 1, 4, 7, 11, 13 and 16 they were promoted. In culmination of the process of selection, the first respondent issued the impugned circular, ignoring the petitioners who are at Sl. No. 6 and 10. as per the latest seniority list and though the respondents 2 to 7 are at Sl. No. 1, 4, 7, 11, 13 and 16 they were promoted. It is also submitted that though the 2nd respondent suffered punishment or reprimand in the year 1997 and the 4th respondent suffered with the punishment of postponement of increments in 1996-1997, they got promotions. Though there is neither any adverse entry in the personal files of the petitioners nor they suffered any punishment, yet they were deprived of the promotion because of the arbitrary fixation of the minimum necessary marks by the 1st respondent. Challenging the action of the respondent the petitioners came up with the instant writ petition. 3. The promotion of respondents 2 to 7 was stayed by this court by order dated 20-8-1999. Now the respondents 3, 4 and 6 have filed petition to vacate the stay ordered on 20-8-1999. The sum and substance of the counter affidavit tiled by them is that the Management - first respondent is empowered to fix minimum necessary merit for the purpose of promotion by way of assessment of performance reports and interview. While admitting that a Full Bench of this court allowed batch of writ petitions and directed to hold selection afresh and the present selections are made in pursuance of the above directions and the mode of selection is assessment of performance reports for the preceding three years as an officer and performance in the interview marks will be assigned as per the weightage based or their yearly confidential reports of the preceding three years. It is contended that the minimum marks were awarded to the Officers based on the performance of the individual officer and not taken comparative assessment, that all the candidates who secured minimum qualifying marks of 60% will be selected as per their inter se seniority. It is also contended that since the petitioners also participated in the interview, they would have questioned the minimum qualifying marks before selection procedure and announcement of the results. The right to fix minimum qualifying marks is absolutely vested with the employer for selecting suitable and eligible candidates for effective management, which is also approved by the Apex Court in umpteen number of decisions. The right to fix minimum qualifying marks is absolutely vested with the employer for selecting suitable and eligible candidates for effective management, which is also approved by the Apex Court in umpteen number of decisions. These respondents deny that they suffered any punishment in culmination of any disciplinary proceedings, nor were there any adverse entries in their personal tiles. Therefore, sought to vacate the interim direction. 4. Counter-affidavit is also filed by the 1st respondent, which is a statutory body sponsored by the State Bank of Hyderabad, of which the petitioners and respondents 2 to 7 are Officers. It is submitted that the promotions were effected in consonance with the directions given by a Full Bench of this Court in WP No. 14459 of 1995 and Batch, which include WP No. 19132 of 1998 filed by the petitioners herein. Justifying their action of fixing 60% as the minimum qualifying marks, this respondent submitted the Apex Court has authorised the Competent Authority to lay down minimum standards required and also prescribed the mode of assessment of the merit for promotion and in consonance of the said principle, the Board of Directors in its meeting held on 22-3-1999 prescribed the minimum qualifying marks as 60% by way of assessment of performance report and interview and assigned the marks for performance based on the confidential reports of the preceding three years as under Excellent performance 20 per year Good 17 per year Above average 13 per year Average 10 per year The contention of the petitioners that the respondent fixed arbitrary minimum necessary marks in their favour is denied. The further allegation that to favour some Officers the first respondent fixed the minimum necessary marks at such a higher figure is also denied. It is further submitted that had the petitioners a genuine grievance, they would have made representation to the Board of Directors, setting forth all their grievances. It is also submitted that the first respondent bank deals with public money and is. therefore, duty bound to protect the interests of the public by recruiting competent personnel to man the supervisory posts able to shoulder higher responsibility, and therefore, they should possess requisite merit also. It is also submitted that the first respondent bank deals with public money and is. therefore, duty bound to protect the interests of the public by recruiting competent personnel to man the supervisory posts able to shoulder higher responsibility, and therefore, they should possess requisite merit also. This is all the more necessary when the selection is not based on any written test and only the performance appraisal reports for the preceding three years and the marks secured at the interview were taken into consideration. It is also stated that the performance appraisal report of the first petitioner was average for the two years and of the second petitioner for one year, denotes that no sincere efforts were made by them during subsequent years. Thus justifying their action of promoting the respondents 2 to 7. sought for dismissal of the writ petition. 5. In the backdrop of these facts and circumstances, the point that arises for consideration is whether the respondents are right in fixing the maximum marks under the revised policy relating to promotions from JMGS -I to MMGS - II with effect from 26-11-1998 on the directions of the High Court in fixing the maximum marks of 60% based on performance appraisal report of proceeding three years and maximum of 40 for interview and further fixing 60% marks out of 100 marks is the minimum as minimum marks in the interview and performance of preceding three years put together which an officer must get to be considered for promotion is valid. The further question would be whether listing of all the candidates who secured minimum qualifying marks of 60% as per their inter se seniority is valid to fill up the vacancies of 1996, 1997 and 1998 ? 6. When the respondents have undertook to fill up the above said posts by way of promotion and set the criteria for promotion as seniority-cum-merit a batch of writ petitions came to be filed and a Full Bench of this court considered the said promotions and set aside the same following the judgment of the Supreme Court and further direction to the respondents Bank to hold selections afresh. Based on the above said judgment of the Full Bench, the circular dated 27-3-1999 was issued announcing eight vacancies for the years 1996,1997 and 1998 after prescribing the minimum qualifying marks and the interviews were conducted and list of eligible candidates for promotion was made and the promotions were effected through the impugned proceed 9-8-1999. Aggrieved of the same, the present writ petition is filed. 7. The first respondent through their Circular PER/2/1998-99 dated 13-4-1998 has issued the selection policy, according to which the mode of selection is interview and assessment of performance reports for the preceding three years period as an Officer. Further petitioner also sought to place reliance on the notification issued by the Government of India. Ministry of Finance dated 28-9-1988 commonly known as Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1988. under which for the post of Area Manager or Senior Manager, the source of recruitment is hundred percent by promotion from amongst the confirmed Officers working in the Bank and the promotion will be on the basis of Seniority-cum-merit and if suitable Officers are not available internally, these posts would be tilled by taking temporary Officers of the Sponsor banks and other banks or organizations on deputation. For this post the mode of selection is interview and assessment of performance reports for the preceding three years period as Officer for promotion. The petitioners also relied on Rules issued by the Government of India in supersession of the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1988. Schedule III of these Rules deals with appointment to different categories of Officers and other employees to Group A, B and C posts whether by direct recruitment or by promotion. Scale II Officer's source of promotion is 100% by promotion and it shall be made on the basis of seniority-cum-merit and the selection shall be made by a Committee on the basis of written test and interview and assessment of performance appraisal reports for the preceding five years, as an Officer Scale-1 Field Supervisor. Scale II Officer's source of promotion is 100% by promotion and it shall be made on the basis of seniority-cum-merit and the selection shall be made by a Committee on the basis of written test and interview and assessment of performance appraisal reports for the preceding five years, as an Officer Scale-1 Field Supervisor. The selection process for promotion shall be on the basis of performance in the written test, interview and performance appraisal reports for the preceding three years, as per the division of marks i.e. 60 marks for written test, 20 marks each for interview and Performance Appraisal Reports and a minimum of 40% is prescribed in the written test out of 60 marks by each candidate for enlisting him in the panel those eligible candidates will be called for interview and no minimum qualifying marks are prescribed for interview and performance appraisal reports for the preceding five years shall be considered for the purpose of awarding marks for promotion. 8. The Government of India has framed the above Rules for selection and promotion prescribing 40 marks in the written test and 20 marks for the interview and no minimum marks are prescribed in the interview and 40 for the performance appraisal reports for the preceding five years and consequently, 45 marks have to be obtained for enlistment in the panel. Contrary to the said Rules framed by the Government of India the respondents misinterpreting the judgment of the Full Bench issued the present revised promotion policy prescribing maximum marks for performance appraisal reports for the preceding three years as 60 and maximum marks for interview as 40 and the minimum qualifying marks for inclusion in the selection list for promotion as 60% out of 100. Therefore, the selections made OB the basis of the above said revised policy of the first respondent dated 27-3-1999 in filling up the vacancies for the years 1996, 1997 and 1998 is contrary to the said Rules issued by the Government of India under the Regional Rural Banks (Appointment and promotion of Officers and other Employees) Rules, 1998 and is also contrary to the decision of the Apex Court in B.V. Sivaiah and others v. K. Addanki Babu and others, (1998) 6 SCC 720 wherein it was held that the Second Schedule of the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1988 provides that promotion as Area Manager Senior Manager is based on seniority-cum-merit and the various rural banks had interpreted the expression seniority-cum-merit in different manner. The Apex Court held that 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, snail 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 which in turn may be based on service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. It is further held that while applying the principle of seniority-cum-merit for the purpose of promotion, what is required to be considered is the inter se seniority of employee who are eligible for consideration and such seniority is normally determined on the basis of length of service but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in select list for appointment. Such determination of seniority confers certain rights and the principles of seniority-cum-merit gives effect to such rights flowing from seniority and it cannot therefore, be said that the seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service. 9. Such determination of seniority confers certain rights and the principles of seniority-cum-merit gives effect to such rights flowing from seniority and it cannot therefore, be said that the seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service. 9. The learned counsel for the petitioners further relied on a Division Bench Judgment of this court in A Veina Reddy v. Controller General of Defence Accounts, New Delhi and others, 2001 (5) ALT 387 (D.B.) wherein the Bench held that in the case of promotion by seniority-cum-fitness, senior most official due for promotion be considered first and if he is found fit for promotion, he has to be promoted and the question of comparing his merit with those of his juniors in terms of relative merit does not arise. It is further held that in the case of promotion by selection, all the eligible officials have to be considered and selection be made on the basis of comparative merit among those eligible officials and the seniority has relevance in the said method where merit of two or more candidates is equal, seniority by itself is no basis to make promotion in either of the methods. It is further held that denial of promotion to senior employee merely on the ground that he was graded as average and therefore, opining him as not yet fit for promotion without assigning any reasons for such opinion by the DPC is unjust and illegal. 10. The learned counsel for the petitioner further relied on a decision of the Apex Courts in State of Rajasthan v. R.Dayal and others, 1997 (3) Supreme 333 in support of his contention that the vacancies have to be filled in accordance with law existing as on the date when such vacancies arose. 11. 10. The learned counsel for the petitioner further relied on a decision of the Apex Courts in State of Rajasthan v. R.Dayal and others, 1997 (3) Supreme 333 in support of his contention that the vacancies have to be filled in accordance with law existing as on the date when such vacancies arose. 11. Admittedly, the respondent No.1 has taken steps to fill up the vacancies by way of promotion Though revised promotion policy by issuing circular announcing eight vacancies pertaining to the years 1996, 1997 and 1998 instead of making selection on the basis of the Rules existing in the year 1998 under the guise of the Full Bench Judgment of this court framing the promotion policy prescribing a minimum marks of 60% which according to the standards of educational gradations considered to be first class: whereas the Central Government while framing Rules from time to time prescribed 50%. But the respondents have prescribed 60% as the minimum marks, which is contrary to the Rules and the revised policy and it cannot be applied for filling up the vacancies of the year 1996, 1997 and 1998. 12. This contention of the learned counsel for the petitioners is supported by the ratio laid down by the Apex court in R.Dayal's case (supra) which arose under Rajasthan Service of Engineers (Building and Roads Branch) Rules, 1954, Rules 23, 23-A and Rule 24-A to the said Rules were introduced by the statutory amendment with effect from 24-7-1995. Under Rule 24-A revised criteria of eligibility and procedure for promotion of Officers prescribed. It was held that the vacancies which occurred prior to amendment of Rules would be governed by the Original Rules and not by amended Rules and the vacancies that arose subsequent to the amendment to Rules are required to be filled in accordance with law existing as on the date when such vacancies arose. 13. Evidently, the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules. 13. Evidently, the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules. 1998 came into force on the date when it was gazetted i.e. 29th July 1998 and promotion shall be made on the basis of seniority-cum-merit and the marks obtained on the basis of performance made in the written test and performance appraisal reports for the preceding five years, as per the division of marks in the ratio of 60 : 20 : 20 and the minimum qualifying mark one has to obtain is 40% against the Government of India fixing the minimum qualifying marks at 40%. Therefore, the respondents are not correct in fixing 60% marks out of 100 as the minimum qualifying marks for inclusion in the panel for promotion. Even the Apex Court in B.V. Sivaiah's case while dealing with a circular dated 2-2-1989 issued by Rewa Sidhi Gramin Bank prescribing that the candidates who have secured less than 40% marks in interview will not be considered for promotion and their names will not be included in the final list and that the list of successful candidates in the order of total marks obtained will be placed before the Board, duly recommended for consideration for appointment or promotion, has held that the circular is not in consonance with the principle of seniority-cum-merit prescribed in the relevant rules. The Apex Court in the same judgment has held that where 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, 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 and thus the selection so made is in accordance with the principle of seniority-cum-merit. 14. The principle 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. 14. The principle 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. 15. In view of these principles, I have no hesitation to accept the contention of the learned counsel for the petitioners that prescribing 60% out of 100 as the minimum qualifying marks in the interview and performance appraisal reports of the preceding three years put together which an Officer must get to be considered for promotion; and such of those candidates who secure minimum qualifying marks of 60% would be listed as per their inter se seniority is contrary to the ratio laid down by the Supreme Court and the Rules framed by the Central Government. Therefore. I have no hesitation in holding that the revised policy relating to the promotions from JMGS -1 to MMGS - II Grade dated 27-3-1999 pursuant to the judgment of this court dated 26-11-1998 is set aside and the selections made by the first respondent applying such revised promotion policy for the years 1996, 1997 and 1998 are consequently liable to be set aside and are accordingly set aside following the ratio laid down by the Supreme Court that promotions have to be made in terms of the law existing as on the date on which vacancy arose. 16. Consequently, the writ petition is allowed with a direction to the respondents to till up the vacancies as per the law existing as on the date on which the vacancies arose for the years 1996, 1997 and 1998 and pass appropriate orders in consonance with the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1988. as amended from time to time. No order as to costs.