Judgement By means of this writ petition, the petitioner has prayed for writ of certiorari calling for the records and quashing the order dated 6-5-2000 passed by Respondent No. 1 promoting Respondent Nos. 2 and 3 on the post of Middle Management Scale-II in the Bank and further a writ of certiorari quashing the impugned circular (Annexure No. 7. to the petition) issued by Chairman, Ganga Yamuna Gramin Bank, Dehradun, Respondent No.1. 2. Briefly stated, facts of the case are that the petitioner was appointed as Probationary Officer in Ganga Yamuna Gramin Bank (hereinafter referred to as Bank), Dehradun. During the probation period, he was given the charge of Branch Manger, Branch Naitwar, District Uttarkashi. The petitioner completed his probation successfully and was confirmed on the post of Probationary Officer in the service w.e.f. 6-1-1988 vide order dated 25-1-1988. At present the petitioner is posted as Branch Manager in the Bank Branch Nagni, District Tehri Garhwal. On 4-12-1999, the Respondent No.1 issued a seniority list of Probationary Officer of the Bank and in the said list the name of the petitioner was at SI. No.7. The post of the Branch Manager on which the petitioner is working since 1986 belongs to Junior Management Scale-I in the Bank and the person working on the said post is to be promoted to the post of Middle Management Scale-II in the Bank. 3. The petitioner was considered for promotion but has been superseded and his juniors have been promoted, therefore the petitioner. has challenged the said selection and the procedure followed by the Selection Committee according to Board's Circular dated 11-111999, which is contained in Annexure No.7 to the writ petition. The petitioner has prayed for the quashing of the Clause-4 of the said circular• dated 11-11-1999 on the ground that the said circular is contrary to the settled rule of promotion on the basis of seniority-cum-merit as the Rules known as Regional Rural Banks (appointment and promotion of officers and other employees) Rules, 1988. Rule 7 of the said Rules prescribes source of recruitment, qualification and mode of selection. For convenience, Rule 7 is being reproduced hereunder .7. Area Managers or Senior Managers:- (a) Source of recruitment: Hundred percent by promotion from amongst confirmed officers working in the bank. Promotions will be on the basis of seniority-cum-merit. Rule 7 of the said Rules prescribes source of recruitment, qualification and mode of selection. For convenience, Rule 7 is being reproduced hereunder .7. Area Managers or Senior Managers:- (a) Source of recruitment: Hundred percent by promotion from amongst confirmed officers working in the bank. Promotions will be on the basis of seniority-cum-merit. If suitable officers are not available internally, these posts could be filled by taking temporarily officers of the sponsor banks and other banks or organizations on deputation. (b) Qualifications (i) A Graduate of recognized University or any equivalent and eligibility qualifications recognized as such by Government of India, preference being given to Agriculture or Commerce or Economics Graduates. (ii) Eight years service as an officer in the regional rural bank concerned. provided that the Board may, with the prior approval of National Bank, relax the period of service by a period not exceeding two years, if suitable candidates of requisite experience are not available. Note: The post of Area Managers and Senior Mangers will be equivalent in rank and will be inter-changeable. (c) Mode of selection: Interview and assessment of performance reports for the preceding three years period as officer for promotion. 4. The Bank issued a Circular on 5-5-1999 to fill up the gap for clause-3 of Rule 7 of the aforesaid Rules and prescribed a detailed procedure for selection. Relevant clause 4 of the said Circular dated 5-5-1999 provides for procedure for selection which prescribes that the selection shall be made on the basis of assessment of evaluation of performance for last three years and interview. In the same clause-4 of the said circular dated 5-5-1999, 20 marks out of 100 marks have been allotted to seniority to be given to those candidates who have put in more than 8 years of service and for every year after 8 years of service 5 marks for each year have been allotted but not more than 20 marks. In sub-clause (b) of clause-4 of the said circular, 60 marks have been allotted on evaluation of three years' performance and for confidential report and in clause (c) of the said clause, 20 marks have been allotted for interview. 5. In sub-clause (b) of clause-4 of the said circular, 60 marks have been allotted on evaluation of three years' performance and for confidential report and in clause (c) of the said clause, 20 marks have been allotted for interview. 5. Clause 5 of the said Circular dated 5-5-1999 provides for interview which provides that the candidates for interview shall be called three times of the total vacancies and it further provides that the Selection Committee shall evaluate the officer on the basis of work knowledge, knowledge about the responsibility of the present post and efficiency to hold the higher responsible post, zeal to work in a leading capacity, ability to take a decision and communication skill. Thus, the circular gives a detailed procedure for assessment of the suitability of the officer for promotion. This Circular dated 5-5-1999 contained in Annexure No.6 to the writ petition has been modified by the impugned circular dated 11-11-1999. The validity of this circular dated 11-11-1999 is under challenge and the procedure adopted in accordance with the said circular dated 5-5-1999 is also under challenge in this writ petition as the petitioner has been superseded on account of the said procedure. It will be useful to reproduce the Circular dated 11-11-1999 in verbatim:- "FOR All the branches of Ganaa Yamuna Rural Banks Ganga Yamuna Rural bank Letter No.: Personnel/99/13 Head office Gandhi Road, Dated 11-11-1999 Dehradun-248001 Telephone: 659151/654656 Office Supervisor Procedure is to be adopted for promotion from Junior Manners Cateaorv-1 to Medium Managers Cateaorv-2. Please take reference to our circular letter no. Personnel/99/06 dated 5-5-1999, on the subject noted above, in which it has "been mentioned that according to the criteria prescribed by NBARD, 5 branches in 31-3-1997 and 2 branches in 31-3-1998 have been categorized in our bank and the permission to make promotions on 7 posts has been given by the Board of Directors according to Rules of Promotion-1988 of Government of India and Sponsored Bank; Procedure is to be adopted separately for 5 posts created in 31-3-1997 and 2 posts created in 31-3-1998. Procedure of selection for 5 posts will be completed first. Amendment in some items mentioned in the above circular letter, has been made in the meeting of Board of Directors dated 28-10-1999. Procedure of selection for 5 posts will be completed first. Amendment in some items mentioned in the above circular letter, has been made in the meeting of Board of Directors dated 28-10-1999. The items which have been amended are given below: Item no.-4 Selection Procedure (paae-1) The selection will be made according to the assessment of work done within last 3 years and on the basis of interview. The determination of marks for different items will be as under :Items (a) Assessment of work done and confidential report for last 3 years (31-3-1995,31-3-1996 and 31-3-1997 for 5 posts) (31-3-1996, 31-3-1997 and 31-3-1998 for 2 posts) Interview Total: 3. Zone of selection (paae-3): The candidates who are not declared as unfit for promotion and who are included in the area of consideration, will• be enlisted on the basis of seniority. The candidates, whose names will appear in the above list, three times of the vacant posts, the zone of selection will create after including them. 4. Select List: All the eligible candidates of merit will be enlisted in order of their seniority. In selection procedure of both the two phases, the marks obtained in assessment of work done and interview after mentioning separately will be added. Thus, the marks obtained by each candidate shall be shown out of total marks of 100. According to the Rules dated 20-9-1988 issued by Government of India and circular letters issued by NABARD, that the basis of selection would be the seniority which means that the senior is to be selected first from the qualified candidates. Thus, the candidates who obtain 70 or more marks out of 100 will be considered for promotion from the seniority list amongst the pay scale of Junior Manager Grade/Scale-I in order of their merit. List of selected candidate~ be placed before the Board of Directors for approval. 5. Unfit for promotion :The decision has been taken that the candidates who obtain less than 40% marks Le. who will obtain less than 28 marks out of 70 in work done and reporting, will be declared as unfit for promotion Le the names of those candidates will be included in the list for promotion only who obtain 28 or more marks out of 70 marks in work done and reporting. Other selection procedure will remain same as before as is mentioned under our previous circular letter Personnel/99/06 dated 5-5-1999. Other selection procedure will remain same as before as is mentioned under our previous circular letter Personnel/99/06 dated 5-5-1999. According to the approved selection necessary procedure relating to the promotion for 5 posts will be completed soon and he Officers will be informed accordingly. All the officers will ensure to note the contents of the above circular letter. Sd/illegible (Avtar Krishna) President" Maximum Marks 70 (b) 30 100 6. From a perusal of clause-4 of the impugned circular dated 11-11-1999, it reveals that the 70 marks out of 100 marks have been awarded on the basis of last three years' performance & confidential report and for interview 30 marks have been awarded. This Circular further provides that the selection shall be made on the basis of seniority-cum-merit which means that from most the suitable candidates, the senior most person shall be selected, as such a candidate who obtains 70 marks shall be found suitable for promotion and the name of the selected candidates shall be arranged according to seniority and senior most candidate shall be given promotion. It further provides that those .candidates who obtain less than 40% marks in performance and reporting which means if a person who obtains less than 28 marks out of 70 marks, they shall be held unsuitable for promotion. Only those candidates shall be considered for promotion who obtain at least 28 marks out of 70 marks. 7. Admittedly, the procedure prescribed under the circular dated 11-11-1999 have been followed as admitted in para-13 of the counter affidavit. The said circular is contrary to the settled law of seniority-..,um-merit. While applying the principle of seniority-cum-merit, the seniority has to be given if not higher then due weightage alongwith merit of the candidates. The merit is assessed on the basis of performance and reporting and in the impugned circular no marks with respect to seniority has been allotted. Thus, the seniority has been totally ignored in the selection. The procedure prescribed for re-arranging the seniority after the selection is a Rule well known as principle of merit-cum-seniority. It is not the seniority-cum-merit, therefore, clause-4 of the circular dated 11-11-1999 is contrary to the Rule 7 of the Rules, 1988, which provides the selection to be made on the basis of seniority-cum-merit and hence cannot be sustained. The procedure prescribed for re-arranging the seniority after the selection is a Rule well known as principle of merit-cum-seniority. It is not the seniority-cum-merit, therefore, clause-4 of the circular dated 11-11-1999 is contrary to the Rule 7 of the Rules, 1988, which provides the selection to be made on the basis of seniority-cum-merit and hence cannot be sustained. The circular issued by the Bank dated 5-5-1999 provides that 20 marks out of 1 00 marks shall be allotted to seniority to be given to those candidates who have put in more than 8 years of service and for every year after 8 years of service 5 marks for each year have been allotted but not more than 20 marks. This circular dated 5-5-1999 is perfectly in accordance with the selection principle of Seniority-cum-Merit. In the impugned circular, the marks of the interview have been allotted from 20 to 30 which has given wide range of discretion with the Selection Committee. It has been settled by the Hon'ble Apex Court in the case of Ashok Kumar Yadav Vs. State of Haryana reported in (1985) 4 S.C.C. 417that the marks of the interview should not exceed more than 12.2%. 8. Learned counsel for the respondent-Bank submitted that in case of Ashok Kumar Yadav (Supra), the selection was for the direct recruitment and therefore the ratio of the judgment cannot be applied in case of promotion. We do not find any substance in the argument of learned counsel for the Bank. May be appointment by direct recruitment or promotion, the marks of the interview should not be as such which may result in arbitrariness of the Selection Committee. 9. In para-13 of the counter affidavit, the following statement has been made:- 13. That in reply to para 18 the promotions were carried out in accordance with the principle of seniority-cum-merit. The procedure followed by the bank was circulated vide circular dated 11-11-1999 filed annexure 7 to the writ petition which is as follows Particular Mark Assigned Performance and confidential 70 report appraisal for the last 3 years Interview 30 Total 100 The rules framed by the Board of Directors prescribed for a minimum of 70 marks and thereafter the promotions were to be made solely on the basis of seniority. The rules were in consonance with the view expressed by Hon'ble Supreme Court. 10. The rules were in consonance with the view expressed by Hon'ble Supreme Court. 10. Thus, admittedly the circular impugned was followed which is contrary to the Rules known as Regional Rural Banks (appointment and promotion of officers and other employees) Rules, 1988. Thus, the impugned circular dated 11-11-1999 cannot be sustained in the eye of law being contrary to the law laid down by the Hon'ble Apex Court in B. V. Sivaiah and others Vs. K. Addanki Babu and others, reported in SCC 1998, Vol. VI, Page 720. Para 18 of the cited case settles the legal position on the principle of seniority-cum-merit and in the said case the circular of the Bank was quashed which was like the Circular of impugned one. For convenience, para 18 of the said case is being reproduced hereunder :18. We thus alive 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. 11. Therefore, the writ of certiorari is issued" The. circular dated 11-11-1999 is hereby quashed and consequently the entire selection is also quashed. The respondents are directed to complete the fresh selection within a period of one month from the date of production of certified copy of this order in accordance with the circular dated 5-5-1999 which is in conformity with the law laid down by the Hon'ble Apex Court in B.V. Sivaiah case (supra). It is made clear that till the regular selection is not made, the promotee officers shall be allowed to continue to work. 12. The writ petition is allowed accordingly" No order as to costs.