Judgment 1. Heard counsel for the parties. 2. Both the petitioners are aggrieved because while granting promotions from the post of Clerk-cum-Cashier to the post of Junior Management Grade Scale-I, the respondent-Bank has given a go-by to the Rule of seniority-cum-merit. They submit that the promotion order contained in Annexure-7 dated 1.2.2005 is in breach of not only the rule but also the law which has been laid down in this regard by the Hon ble Supreme Court of India. 3. Some basic facts, however, are not in dispute. The Ministry of Finance, Banking Division issued a notification dated 29th July, 1998. By virtue of this notification a new rule known as the 1998 Rules was brought into existence. The Rule is called the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1988. The 1998 notification is an amendment and is loosely referred to as the 1998 Rules. In the present case our concern is with regard to promotion on the Scale-I post and for the same the necessary parameters have been laid down. Rule states that for promotions from the clerical grade to Scale-I all eligible candidates must sit for a written test which shall comprise of two parts of 35 marks each. The two papers are English and Banking Law and Practice & Procedure. The Rule envisages that a candidate must obtain minimum of 40% marks in the written examination. Thereafter, interview of 20 marks and performance appraisal of 10 marks are also to be taken into consideration. One thing which, however, must be taken note of is that the promotion rule is based on the principle of seniority-cum-merit. Petitioners have brought on record Annexure-3 which is the seniority list issued as on 31.3.2004. In the seniority list name of petitioner no. 1 figures at sl. no. 25 and that of petitioner no. 2 at sl. no. 45. Respondent No. 4 is at sl. no. 61 and the other two respondents figure down below and belong to scheduled caste category. Results were announced after the written examination, ten persons qualified, the details are available in Annexure-6. Seven posts were available for general category and three posts for scheduled caste category. The respondents finally issued promotion order dated 1.2.2005. This promotion order has been brought on record as Annexure-7 and one of the impugned order. Results were announced after the written examination, ten persons qualified, the details are available in Annexure-6. Seven posts were available for general category and three posts for scheduled caste category. The respondents finally issued promotion order dated 1.2.2005. This promotion order has been brought on record as Annexure-7 and one of the impugned order. Since two petitioners did not find their name in the list of promoted officials they have filed the present writ application challenging the decision. 4. Counsel for the petitioners finds fault with the promotion order because they say that the Bank committed an illegality by fixing a minimum of 57% as a benchmark after the entire selection process was over. From the evidence which has been brought on record by way of a counter affidavit, it is apparent that the Board of Directors of the Bank before opening the list of successful candidates and declaring the promotions decided in its meeting dated 1.2.2005 to fix the said benchmark of 57%. Based on this benchmark five people were declared promoted. Respondent No. 4 is in the general category and admittedly junior to these two petitioners. Since respondents no. 5 and 6 belong to scheduled caste category, these petitioners have no quarrel against them as such. Petitioners find fault with the decision of the Board of Directors because there cannot be a benchmark after the entire process of selection was over and there cannot be two benchmarks as such because the 1998 amended rules already envisages a basic benchmark, which is 40% in the written examination. The contention of the petitioners are that by fixing this 57% benchmark the respondent authorities have again turned the principle of seniority-cum-merit on its head and made it into merit-cum-seniority. Respondents have carried out a comparative assessment of all the candidates irrespective of their seniority and thereafter based on the marks, which they have obtained under the three heads results have been announced. 5. Counsel for the petitioners submits that the expression seniority-cum-merit has been well explained in various decisions of Hon ble Supreme Court and he draws my attention to the case of Union of India V/s. Lt. General Rajendra Singh Kadyan, 20006 SCC 698. He lays emphasis on paragraph 12 of the judgment which is quoted hereinbelow: "12. 5. Counsel for the petitioners submits that the expression seniority-cum-merit has been well explained in various decisions of Hon ble Supreme Court and he draws my attention to the case of Union of India V/s. Lt. General Rajendra Singh Kadyan, 20006 SCC 698. He lays emphasis on paragraph 12 of the judgment which is quoted hereinbelow: "12. Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "Seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed (emphasis mine). Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion to All India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them." 6. The other decision which was a case relating to promotions on similar principle and that too of the Rural Banks is the case of B.V. Sivaiah V/s. K. Addanki Babu, 1998 6 SCC 720 . Counsel for the petitioners submits that the Hon ble Supreme Court after discussing the various aspects of the matter concluded, thus: "18. 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." 7. Another decision in this regard is a recent decision which is the case of Harigovind Yadav V/s. Rewa Sidhi Gramin Bank, 2006 6 SCC 145 . The two paragraphs which are relevant, on which petitioners rely are paragraphs 21 and 22. 8. Another decision in this regard is a recent decision which is the case of Harigovind Yadav V/s. Rewa Sidhi Gramin Bank, 2006 6 SCC 145 . The two paragraphs which are relevant, on which petitioners rely are paragraphs 21 and 22. 8. Based on the above decisions of the Hon ble Supreme Court counsel for the petitioners submits that the terminology seniority-cum-merit can never be read to mean merit-cum-seniority. if the rule states that seniority will be one of the criteria then in accordance with the 1998 Rules, the benchmark in this regard has been fixed only for the written examination. No other benchmark can be fixed by the Bank as has been done in the present case. The Board of Directors by fixing 57% benchmark on the date of declaration of the result have exercised an authority or power which is not vested in them. The promotion issue has to be decided in accordance with the statutory rules, which occupies the field and the same cannot be explained away and supplemented by an administrative decision taken by the Board of Directors. 9. Learned counsel appearing for the Bank supports the decision which is the impugned order contained in Annexure-7. He explains the circumstance under which the decision to fix 57% marks as the benchmark before declaration of result was taken by the Board of Directors. He indicates that since there was limited number of vacancies available, therefore, to fill up those posts the benchmark of 57% was fixed. Nobody who touched this benchmark was granted promotion. To show their fairness in the entire process they have brought as evidence, marks which have been awarded to the candidates in the written examination, interview and the performance appraisal report. The stand taken by the Bank in this regard is that based on the marks which the various candidates obtained and their merit the results have been declared. The promotion order, therefore, is in conformity with the rules. 10. Learned counsel appearing on behalf of the private respondents supports the promotion order by submitting before this Court that there is no averment in the writ application that the private respondents in any way manipulated or drew undue advantage from the selection process. The promotion order, therefore, is in conformity with the rules. 10. Learned counsel appearing on behalf of the private respondents supports the promotion order by submitting before this Court that there is no averment in the writ application that the private respondents in any way manipulated or drew undue advantage from the selection process. They are part and parcel of the promotion process by virtue of their own merit and the marks which they have obtained, has helped them find a position in the promotion list. He also submits that since the benefit has already accrued to them as far as on 1st February, 2005, it would be unduly harsh if the Court interferes with the promotion orders in any manner after more than two years. He further submits that even in case of seniority- cum-merit, merit cannot be given a go-by and in this regard he relies on a decision in the case of Ved Prakash V/s. State of Haryana, 2002 10 SCC 359. He specially relies on paragraph 3 of this decision of the Hon ble Supreme Court. 11. The question which this Court now has to decide whether the decision taken by the Bank to fix 57% benchmark at the time of declaration of result is in conformity with the Rules and the law as it has been laid down by the Hon ble Supreme Court in various decisions. If the promotions are in accordance with the rules and the law then the petitioners have no case but if it is found that the promotion order suffers from vice of breach of the rules or the law laid down in this regard then whatever be the consequences the same will have to be interfered with. 12. The principle of seniority-cum- merit is not an alien expression, moreso when large number of litigations relating to Rural Banks in matters of promotions have travelled to Hon ble Supreme Court on many a occasions. On the given facts and the application of the rules the Hon ble Supreme Court has had to interfere with the orders of promotions where they have found that even though the banks have professed with the principle of seniority- cum-merit, in actual working they have turned it into a case of merit-cum-seniority. On the given facts and the application of the rules the Hon ble Supreme Court has had to interfere with the orders of promotions where they have found that even though the banks have professed with the principle of seniority- cum-merit, in actual working they have turned it into a case of merit-cum-seniority. This Court has already taken note of the observations of the Hon ble Supreme Court in the cases of Harigovind Yadav V/s. Rewa Sidhi Gramin Bank, Union of India V/s. Lt. General Rajendra Singh Kadyan and B.V. Sivaiah V/s. K. Addanki Babu (supra). By reading all these decisions one thing is apparent that seniority has its place in the scheme of promotion under the Regional Rural Banks but then it has also been held that seniority is not enough to entitle any employee to beget promotion. The employee in question must establish a minimum level of efficiency and competence before he can claim a privilege based on his seniority. It is in this background that the Courts have talked about a minimum benchmark which these persons have to cross to claim the benefit of their seniority and thereafter promotions. 13. Keeping in view these decisions the Government of India, Ministry of Finance and the Banking Division amended the Rules drastically in the year 1998. The Rules in question themselves have laid down a minimum benchmark in the written examination. If that be so then this Court is of the opinion that there is no further scope or occasion for the Board of Directors to fix yet another benchmark of 57% which was done in this case on the date of declaration of the promotion order. 14. Power to amend the rules is not vested in the Bank. The 1998 Rules is a statutory rule which has been issued by the Central Government by virtue powers conferred upon it under Sec. 29 of the Regional Rural Bank Act, 1976 read with Sec. 17 thereof. If the Rules are quite clear in this regard then these Rules cannot be diluted or any add-ons be allowed by an executive authority when the necessary powers are not vested in him. Since the 1998 Rules still professes that the principle of seniority-cum-merit will be the criteria for granting promotions then fixing of 57% benchmark by the Board of Directors is an illegal exercise, which cannot be sustained. Since the 1998 Rules still professes that the principle of seniority-cum-merit will be the criteria for granting promotions then fixing of 57% benchmark by the Board of Directors is an illegal exercise, which cannot be sustained. The promotions have to be granted strictly in accordance with the 1998 Rules and nothing more can be permitted to be read into the same, more so by the Bank sitting on the administrative side. 15. On a question being put to the counsel for the Bank whether this 57% benchmark is going to be the benchmark in all cases no clear-cut answer as such was given because they say it may vary from the number of posts which may be available to be filled-up from time to time. In other words, it is a variable factor. In matters of selection, appointment/ promotions, there can never be a variable factor because every candidate must know the Rules of the game before the game begins. It will not be open to the Umpire to blow the whistle as and when he feels, the time to wrap-up the game has arrived. This Court, therefore, is of the opinion that the decision of the bank to fix a minimum 57% benchmark in granting promotions to employees as notified in Annexure-7 was an illegal and arbitrary decision and the same deserves to be interfered with. 16. Learned counsel for the petitioners, however, fairly submits that at least two persons Shrimati Nirmala Kumari and Shri Sunil Kumar Sharma are senior to them and, therefore, they have no grievance against them. So far as Shri Kamal Nayan Prasad and Shri Dina Nath Prasad are concerned, they belong to scheduled caste category and, therefore, these two petitioners are not competing against them either. The only person, therefore, whose promotion will be affected by this decision is Shri Kumar Awadhesh Priyadarshi, he is in the general category and admittedly, many places junior to these two petitioners. Counsel for the petitioners, therefore, submits that their grievances would be basically directed against respondent no. 4. 17. Counsel appearing for the private respondents does not dispute the above facts but he does submits that as per his information as of now more posts are available for promotions, if the petitioners are accommodated against those vacancies then he has no grievance. 4. 17. Counsel appearing for the private respondents does not dispute the above facts but he does submits that as per his information as of now more posts are available for promotions, if the petitioners are accommodated against those vacancies then he has no grievance. Counsel for the Bank, however, chooses to remain quiet on this issue and is not willing to commit himself as to the actual vacancies or the avenues, which may be available. It is a matter which falls totally within the domain of the management because if they want to improvise ways and means to accommodate the claim of the petitioners then the jugglery will have to be done by them and this Court would not like to express any opinion on the issue. 18. However, in view of the fact that the Court has found a basic fault in application of the 1998 Rules, the promotions granted in Annexure-7 cannot be sustained and the same is accordingly quashed. It will be open to the Bank to take a fresh decision in light of this order and the law declared by the Apex Court, taken note of in this decision. 19. This writ application stands allowed.