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2003 DIGILAW 973 (PAT)

Jai Prakash Jha v. Munger Kshetriya Gramin Bank

2003-09-05

CHANDRAMAULI KR.PRASAD

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Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing the order dated 8.6.2001 (Annexure-1) whereby the appeal preferred by the petitioner against his non promotion from J.M.G. Scale-I to M.M.G. Scaie-II has been rejected. Further prayer made by the petitioner is to quash the result of promotion from J.M.G. Scale-I to M.M.G. Scale-ll circulated vide letter dated 26.5.2001. 2. Short facts giving rise to the present application are that the petitioner is an employee of the Munger Kshetriya Gramin Bank {hereinafter referred to as the Bank) in the J.M.G. Scale-I and was a candidate for promotion to M.M.G. Scale-ll. For that purpose he appeared in the written test, interview and his performance appraisal report was also assessed. Similarly all other employees of the Bank were assessed and a list was published of those employees who have been found fit for promotion to M.M.G. Scale-ll. Petitioners name does not find place in the same. He preferred appeal which as stated earlier has been rejected. 3. It is common ground that for promotion to M.M.G. Scale-ll the provisions of the Regional Rural Bank (Appointment promotion of officers and other employees) Rules, 1998 (hereinafter referred to as the Rules) apply. The second schedule to the said rule inter-alia provides that Scale-II officers shall be appointed only by promotion and for that purpose criteria for promotion shall be Seniority-cum-merit. It also provides for holding written test of 60 marks, interview, of 20 marks and 20 marks has been allocated for the performance appraisal report. The rule also provides that written test shall consist of two parts of 30 marks each and a candidate is required to secure 40% marks in each part to make them eligible to appear in the interview. 4. It is the stand of the petitioner that he had secured more than 40% marks in both the parts of the written test and called for interview, which assertion has not been denied. Respondents have however stated that for assessing the minimum merit 55% marks out of the total 100 marks was fixed and the petitioner having not secured 55% marks he has not been promoted. This according to the respondents was in the light of the promotion modality dated 3.1.2001 adopted by the respondent bank. 5. Mr. Respondents have however stated that for assessing the minimum merit 55% marks out of the total 100 marks was fixed and the petitioner having not secured 55% marks he has not been promoted. This according to the respondents was in the light of the promotion modality dated 3.1.2001 adopted by the respondent bank. 5. Mr. Ramchandra Jha appearing on behalf of the petitioner submits that the rule having provided for the manner in which promotion shall be made and it having provided for minimum marks in the written test only the respondents bank cannot fix 55% marks in all for judging the minimum merit of the candidates. He emphasises that the promotion has to be made on the basis of seniority and the petitioner having secured more than 40% marks in each part of the written test, respondents lack authority to deny him the promotion. Dr. S.N.Jha however appearing on behalf of the respondents submits that nothing prevents the employer to supplement the rule and in fact the action of the respondent bank in fixing the minimum total marks of 55% in the written test, interview and performance appraisal report is in fact supplementing the rule, which has been done to assess the minimum merit. 6. Having appreciated the rival submission, I do not find any substance in the submission of learned counsel for the petitioner. The rule as stated earlier has provided for minimum marks in the written test only. However the bank for the purpose of assessing the minimum merit decided to promote only such employees who have secured 55% marks in total. !n my opinion it is not supplanting the rules but supplementing the same which is permissible in law. In fact the point raised in the present application has been considered by this Court in the case of Rakesh Kumar Thakur V/s. Munger Kshetriya Gramin Bank & ors., 2002 (2) B.B.C.J. 243 : 2002(3) PLJR 247 and in the said case it has been held as follows: "It is to be seen that the criterion of seniority-cum-merit does not prevent the authorities from fixing the minimum necessary merit requisite for efficiency of administration and the impugned provision in the "modalities" seeks to do no more than this. On the basis of the discussions made above, I am clearly of the view that the impugned provision in the "modalities" simply supplements the statutory rules relating to promotion and in no way supplants or operates contrary to the provisions of the rules." 7. Mr. Ramchandra Jha then submits that the Judgment rendered by this Court in the case of Rakesh Kumar Thakur is a judgment in per incuriam as the same is in conflict with the Full Bench decision of this Court in the case of Ranchi Kshetriya Gramin Bank and others V/s. D.P.Singh alias Dina Nath Prasad Singh and others, 2000 (1) P.L.J.R. 251 and my attention has been drawn to paragraph-28 of the Judgment which reads as follows: "To conclude all these aspects the answer to the reference shall be as under: (i) In case of merit on the basis of criteria of seniority-cum-merit greater emphasis has to be given on seniority. But an officer can not claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duty of higher post, he may, be promoted. (ii) Seniority-cum-merit in the matter of promotion postulates that given minimum necessary merit requisite for efficiency of administration, seniors even though less meritorious shall have priority and a comparative assessment of merit is not required to be made. (iii) Board of Directors can fix norms laying down marks for seniority, educational qualification, assessment of performance and interview for promotion to the post of Area/Senior Manager but allocation of less marks for seniority and more mark for assessment of work and interview is not permissible when promotion is to be made on "Seniority-cum- Merit" basis. Similarly selecting the persons for promotion who secured highest marks in the interview is not in consonance with the prescribed principles of "Seniority-cum-Merit". 8. I do not have the slightest hesitation in rejecting the submission of the learned counsel for the petitioner. True it is that in the case in which promotion has to be effected on the principles of Seniority-cum-Merit, seniority has to be taken into consideration, but it cannot be said that the seniority alone shall be the relevant factors in a case where promotion is to be made on the basis of the Seniority-cum-Merit. True it is that in the case in which promotion has to be effected on the principles of Seniority-cum-Merit, seniority has to be taken into consideration, but it cannot be said that the seniority alone shall be the relevant factors in a case where promotion is to be made on the basis of the Seniority-cum-Merit. In such case the minimum merit has to be assessed and once the candidates acquired that merit seniority shall have the dominant role. In fact the Full Bench decision of this Court in the case of Ranchi Kshetriya Gramin Bank (supra) was considered by this Court in the case of Rakesh Kumar Thakur (supra) and the same has been distinguished. Hence it can not be said that the decision of this Court in the case of Rakesh Kumar Thakur is a judgment in per incuriam. 9. In the result I do not find any merit in the writ application and it is dismissed accordingly. No cost.