JUDGMENT Hon’ble Rajesh Tandon, J. Heard Sri C.D. Bahuguna counsel for the petitioner and Sri D.S. Patni and Ms. Seema Sirohi counsel for the respondents. 2. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 25.7.2001 passed by respondent no. 1. 3. Briefly stated, the petitioner was initially appointed on the post of clerk/cashier in the Pithoragarh Kshetriya Gramin Bank, Pithoragarh in the year 1986, and after completion of one year probation period, he was confirmed on the said post in the year 1987. According to the petitioner, his name in the final seniority list of clerk/cashier dated 31.03.1992 stands at serial no. 2 (vide Annexure-2 to the writ petition) and the next promotional post of the post of clerk-cum-cashier, a Group-B post, is Junior Management Grade-1 post (Scale-I-officer), which is a ‘Group-A’ post. The rules of promotion from Group-B post to Group-A post are contained in the Regional Rural Banks (Appointment and promotion of officers and other employees) Rules, 1998. (hereinafter referred to as the Promotion Rules of 1998). The said Rules have been framed Under Section 29 read with section 17 of the Regional Rural Banks Act, 1976, a Central Act. 4. The respondent Bank in the month of April, 2001 notified vacancy of one post of Junior Management Grade-I post (Scale-I officer) Scale-I-officer to be filled by promotion from Group-B employee. A selection committee was constituted for purpose of appointment by way of promotion. As many as 30 Group-B employees including the petitioner and the respondent no. 4, whose name stands at serial no. 7 of the aforesaid final seniority list were called upon for written test, which was held on 27th May, 2001. According to the respondent Bank, 27 candidates could not succeed in written test and as such they were not held entitled to be called in interview. 5. Paragraph.3 of Third Schedule of Promotion Rules of 1998 deals with selection process for promotion to the post of Scale-I officer. The relevant Pragaraph.3 (d) and (J) are reproduced to below: 3(d) Promotion shall be made on the basis of ‘Seniority-cum-merit’. 5. Paragraph.3 of Third Schedule of Promotion Rules of 1998 deals with selection process for promotion to the post of Scale-I officer. The relevant Pragaraph.3 (d) and (J) are reproduced to below: 3(d) Promotion shall be made on the basis of ‘Seniority-cum-merit’. 3(J) Selection process of promotees:- The selection shall be on the basis of performance in written test, interview and ‘five years’ performance Appraisal as per the division of marks (a) Written test 70 Marks (b) Interview 20 Marks (c) Performance Appraisal Report 10 Marks Total Marks 100 Marks 10. Written Test (70 Marks): - The candidates shall be required to appear for written test comprising test in English and test in Banking Law, practice and procedures including working procedures in the Regional Rural Bank concerned. 70 Marks allotted to written test shall be further divided as under:- English 35 Marks Banking Law Practice and Procedure 35 Marks Total Marks 70 Marks A list of only those candidates who secure a minimum 40% marks each in English, Banking Law Practice and Procedures shall be prepared. The Bank, thereafter, shall prepare the list of selected candidates in the order of seniority to the extent of two hundred percent of the vacancies for promotion for the purpose of calling for interview. (B) Interview (20 Marks) :- There shall be no qualifying Marks in the Interview. I . Assessment of Performance Appraisal Report (10 marks):- The performance Appraisal Reports for the preceding three years of the concerned employees, shall be considered. 6. The Interview was held on 24-07-2001 and in view of Paragraph. 3 (J) (A) of Third Schedule of the Promotion Rules of 1998, only two Group-B employees (being 200% of the vacancy) were called in Interview. These two persons are – Petitioner – Mr. Heera Singh Chauhan and respondent no.4, Mr. Parashar Datt Joshi. 7. In Paragraph 3(J) (B) of Third Schedule of Promotion Rules of 1998 it is provided that there shall be no minimum qualifying marks in interview. The petitioner was awarded 14 marks out of 20 in Interview and Mr. Parashar Datt Joshi was awarded 18 marks. 8. Counsel for the petitioner has referred and relied a decision of the Apex court in the case – Sher Singh & others Vs. The petitioner was awarded 14 marks out of 20 in Interview and Mr. Parashar Datt Joshi was awarded 18 marks. 8. Counsel for the petitioner has referred and relied a decision of the Apex court in the case – Sher Singh & others Vs. Surinder Kumar & others, reported in 1998 (3) J.T. 728 wherein the Apex Court while examining a promotion matter of Himanchal Gramin Bank, has observed as under: “3. It is not disputed that the criterion for making promotion from the post of Clerk to that of Field Supervisor was Seniority-cum-merit. On a consideration of the facts placed before the High Court, the Single Judge as also the Division Bench came to the conclusion that, while making selection, the Bank did not follow this criterion and instead, it made promotion on the basis of merit-cum-seniority which vitiated the selection.” “5. Since the Bank had adopted the criteria of “merit-cum-seniority” and not “seniority cum-merit” in making selection in question and did not produce the original records despite several directions and opportunities, the High Court was right in holding that the entire selection was vitiated. There is no infirmity in the judgments passed by the High Court and the same are upheld.” 9. Coming to the relevant provision involved in the present case, in Paragraph 3 (J) of the Promotion Rules of 1998, it is provided that only such candidate will be selected who secures a minimum of 40% marks in both the subjects, namely, (i) English, and (ii) Banking Law Practice and procedure. In both the subjects, out of 35 marks, 14 marks being 40% was required to be secured by the candidate. 10. Counsel for the petitioner has submitted that clause (A) of Paragraph. 3 (j) of the Third Schedule of the Statutory Promotion Rules of 1998 provides for securing 40% marks as minimum qualifying marks in written test for selection by the candidate applying for promotion. Clause (B) of Paragraph 3(J) specificially provides that there shall be no minimum qualifying marks in Interview. Clause (c) of the said Paragraph provides that the ‘performance appraisal report’ of preceding three years [It is five years in Paragraph. 3 (J)] shall be considered. Clause (B) of Paragraph 3(J) specificially provides that there shall be no minimum qualifying marks in Interview. Clause (c) of the said Paragraph provides that the ‘performance appraisal report’ of preceding three years [It is five years in Paragraph. 3 (J)] shall be considered. Counsel for the petitioner further submitted that It is evident that the Statutory Promotion Rules of 1998 prescribes 10 marks under the head ‘performance appraisal report’, but did not require the candidate to obtain any ‘minimum qualifying marks’ or ‘cut-of-marks’ under the head. Whereas the last portion of the alleged resolution of the Board of directors dated 18-04-2001, Annexure-7 to the Counter-affidavit, provided the following, which is contrary to the statutory Rule: p;u lfefr }kjk fu/kkZfjr dV vkQ ekdZ”kl ls vf/kd vad izkIr djus okys vH;FkhZ dks izkséfr gsrq lapkyd e.My ds fopkjkFkZ izLrqr djsxhAÞ 11. Counsel for the petitioner has submitted that since the Statutory Promotion Rules of 1998 prescribes 40% marks as minimum qualifying marks or ‘cut-of-marks’ in written test and did not prescribe any other minimum marks or cut-of-marks in ‘Interview’ and ‘performance appraisal report’, it means the legislature impliedly prohibited to fix any minimum qualifying marks or cut-of-marks in ‘Interview’ and ‘performance appraisal report.’ 12. Counsel for the respondent bank submitted that in view of Annexure-12 to the counter-affidavit, it is clear that selection committee prescribed ‘Minimum Qualifying Marks (Cut-of-marks) as 55 and since the petitioner did not secure so much minimum marks, he can not claim his selection for the promotion post of scale-I officer. 13. According to the petitioner there is no provision in ‘The Regional Rural Bank Act, 1976’ nor the Regional Rural Banks (Appointment and promotion of officers and other employees) Rules, 1998 which empowers ‘Management’ of a Regional Rural Band or ‘Board of directors’ of any the such bank to issue any resolution or circular authorizing Selection Committee of the bank to fix any other mode/method for promotion other than the mode/method prescribed by the Statutory Promotion Rules of 1998. 14. According to the petitioner Selection Committee could not have fixed the cut-of-marks arbitrarily and particularly in contravention of the settled norms laid down in the Statutory Promotion Rules of 1998. Therefore, the decision of the Selection Committee to fix the ‘cut-of-marks’ arbitrarily and without any basis as 55 out of 100 marks is wrong, illegal, and non-existent in the eye of law. 15. Therefore, the decision of the Selection Committee to fix the ‘cut-of-marks’ arbitrarily and without any basis as 55 out of 100 marks is wrong, illegal, and non-existent in the eye of law. 15. Following Chart makes the position more clear : 1 2 3 4 5 Sr. Item Maximum Minimum Quali- Marks Marks Marks Pres- fying marks actually required by cribed for the required for got by The Selec- subject as selection under Petitioner tion per the the Promotion Committee Promotion Rules of 1998, being 55% Rules of 1998 being 40% 1. Written 70 28 30 38.5 Test being above 40% 2. Interview 20 (No minimum 14 11.5 marks required) being 70% 3. Performance 10 (No minimum 9 5.5 Appraisal marks required) being 90% Reports 4. Total 100 ------- 53 55 16. On a perusal of the Item no.1, i.e., Written Test, it becomes apparent that Statutory Promotion Rules of 1998, required minimum eligibility marks as 28 out of 70 marks and the petitioner actually got 30 marks, that is, 2 marks above the required marks. The selection committee arbitrarily required 38.5 marks as ‘minimum eligibility marks’ or ‘cut-of-marks’ being 55% of 70 marks, under the item ‘written test’. The Selection Committee required 10.5 more marks than 28 marks as ‘minimum eligibility marks’ under the item ‘Written test’. According to the submission of the petitioner, this apparently intended to nullify the Statutory Promotion Rules of 1998. 17. Counsel for the petitioner submitted that the petitioner has been disqualified by the Selection Committee for promotion on the ground of not getting total 55 marks out of 100 marks and in other words lacked by 2 marks by getting 53 marks as a whole. As per Statutory Promotion of 1998, the petitioner was required to get 28 marks out of 70 marks in written test and no further marks was required to be added towards ‘Interview’ or the ‘Performance Appraisal Reports’; and since the petitioner had already got 30 marks out of 70 marks in written test he was already selected in view of sub-Paragraph (A) of Paragraph. 3 (J) of the third schedule of promotion Rule of 1998. 18. According to this submission of the petitioner even under the head ‘Interview; and ‘Performance appraisal report’, the petitioner had already got 70% and 90% marks under the aforesaid items. 3 (J) of the third schedule of promotion Rule of 1998. 18. According to this submission of the petitioner even under the head ‘Interview; and ‘Performance appraisal report’, the petitioner had already got 70% and 90% marks under the aforesaid items. So, there could not be any ground to disqualify the petitioner under these items. Hence entire selection process vitiates in law. 19. Having heard the counsel for the parties at length I find, that the Statutory promotion Rules of 1998 clearly provides for minimum qualifying marks in written test as 40% out of 70 marks and does not prescribe any minimum qualifying marks in Interview or Assessment of Performance Appraisal Reports but the Selection Committee in the letter dated 24-07-2001, Annexure – 12 to the C.A., has fixed 55 as minimum qualifying marks (cut off marks) as a whole in written test, Performance Appraisal and Interview for holding any candidate, eligible for promotion to the post of Scale-I Officer, despite the fact that Paragraph 3 (J) of first schedule specifically provides that no minimum marks will be required in Interview. 20. Counsel for the answering respondents have submitted that the three elements-Written test, Interview and past 5 year appraisal performance report would form ‘Minimum eligibility’ of a candidate for consideration for promotion.’ 22. However, counsel for the petitioner submitted in reply the Statutory Promotion Rules of 1998 does not prescribe any such ‘Minimum eligibility’ and the Statutory Rules only requires 40% marks as ‘Minimum eligibility’ for purpose of selection and promotion to the Scale-I post. 23. Counsel for the petitioner submitted that the petitioner could not be disentitled for selection for promotion particularly under the criterion “Seniority-cum-merit” when the petitioner had cleared the ‘Minimum eligibility criteria’ by securing 40% marks in the written test as is provided in Paragraph. 3 (J) of the First Schedule of the Promotion Rules of 1998. 24. In view of above, the matter is remitted to the respondent no. 1 for reconsidering the case of the petitioner. The respondent Bank is directed to reconsider the matter in accordance with the Regional Rural Banks (Appointment and accordance of officers and other employees) Rules, 1998, within a period of two months after obtaining the certified copy of this order. 25. Subject to the aforesaid observations, writ petition is disposed of. There will be no order as to costs.