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2007 DIGILAW 2064 (PNJ)

Gireesh Kumar v. Government Of India

2007-11-27

M.M.KUMAR

body2007
Judgment M.M.Kumar, J. 1. This petition filed under Article 226 of the Constitution prays for quashing order dated 28.05.2003 (Annexure P-7) promoting the private respondents No. 4 to 17 as Officers Scale-I in preference of the petitioners, who claim to be senior to the respondents. It has further been prayed that a direction be issued to consider and promote the petitioners from the date the private respondents have been promoted with all consequential benefits. 2. Brief facts necessary for the disposal of the controversy raised in the instant petition are that the petitioners are working on the post of Clerk-cum-Cashier. For further promotion to the post of Officer Scale I, 25 posts till 31.03.2000 became available, as is evident from the circular dated 25.02.2002 (Annexure P-3). During the following year i.e. till 31.03.2001, 20 more vacancies arose. Accordingly, a written test for 45 posts was held on 10.02.2002. The result of the written test was declared vide circular dated 04.03.2002 (Annexure P-4). The case of the petitioner is that new promotion policy was notified on 29.07.1998 and 10 posts in the cadre of Officers Scale I were available prior to that date and therefore 10 posts were filled up on the basis of the policy/rules existing prior to 29.07.1998 as is evident from the circular letter dated 14.05.2002 (Annexure P-5). 3. The petitioner has claimed that under Section 29 read with Section 17 of the Regional Rural Bank Act, 1976 (for brevity "the Act"), Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1988 (for brevity "the Rules"), were framed by the Government of India, Ministry of Finance on 29.07.1998 (Annexure P-1). A detail reference has been made in the petition to Rule 12 which provides for promotion on the basis of seniority-cum-merit. It has further been pointed out that the selection process of the candidates in case of promotion is to be made by the Committee on the basis of written test, interview and performance appraisal report. Apart from this, the Rule also deals with the selection process for promotees which is based on the performance in the written test, interview and five years performance appraisal report which has been allotted 70, 20 and 10 marks respectively. Apart from this, the Rule also deals with the selection process for promotees which is based on the performance in the written test, interview and five years performance appraisal report which has been allotted 70, 20 and 10 marks respectively. The grievance made by the petitioner is that the Board of Directors of the respondent Gramin Bank took a decision in its meeting held on 29.11.2002 that minimum bench mark of 60 percent is to be met by the selected candidate. The decision was circulated on 18.04.2003 (Annexure P-6). It is claimed that on the basis of the afore-mentioned circular the private respondents have been promoted as 28.5.2003 (P-7) as Officer Scale I by ignoring the meritorious and superior claim of the petitioners. 4. In the written statement filed by respondent No. 3, a preliminary objection has been raised that the petitioners are estopped from challenging the selection and appointment of private respondents after having participated in the selection process and failed. It has been asserted that the claim of the petitioners for fixing the bench mark of 60 percent for promotion to the post of Officer Scale I is wholly misconceived. It has further been pointed out that the selection procedure for filling up 35 posts in the cadre of Officer Scale-I, notified vide circular dated 18.04.2003 (Annexure P-6) was well within the knowledge of all the petitioners. All of them participated in the selection process with full knowledge but without any protest. Therefore, they are not permitted to challenge the same. Another preliminary objection raised is that the recruiting agency can very well formulate its own procedure and criteria for the purpose of selecting the best available candidate which cannot be challenged merely on surmises and conjectures or for the reason that it did not suit a particular set of persons that too after taking a chance and remaining unsuccessful. It is claimed that the criterion dated 18.04.2003 (Annexure P-6) has been framed for the purpose of achieving higher standard of excellence in service. 5. On merits it has been averred, that the written test was conducted on 10.02.2002 for 25 vacancies. Subsequently, the Sponsor Bank and the Board of Directors of the respondent-Bank, gave approval to 45 vacancies vide circular letter dated 25.02.2002 (Annexure P-3). 5. On merits it has been averred, that the written test was conducted on 10.02.2002 for 25 vacancies. Subsequently, the Sponsor Bank and the Board of Directors of the respondent-Bank, gave approval to 45 vacancies vide circular letter dated 25.02.2002 (Annexure P-3). Out of 45 posts 10 posts were to be filled under the old rules and 35 posts were to be filled under the new rules of 1998. The criteria and the modalities to be adopted for promotion of 35 persons under the new rules was placed before the Board of Directors in its meeting held on 29.11.2002 which took a conscious decision to fix the criteria of awarding marks in respect of the last five years performance appraisal report commencing from 1997-98 to 2001-02 and to take into consideration penalty awarded from 01.04.1997 till the date of interview. It further determined the bench marks of 60% for general candidates and bench marks of 50% for scheduled caste candidates for promotion to the post of Officer Scale I. The criteria was circulated amongst all those who qualified the written test and who were to appear for interview. It is claimed that the criteria adopted by the respondent bank is totally fair and reasonable and the promotions made vide order dated 28.05.2003 (Annexure P-7) are in conformity with the criteria circulated which is wholly transparent. There are further averments made that the criteria adopted in the circular dated 18.04.2003 (Annexure P-6) is not contrary to the promotion policy and it is, in fact, in tune with the same. It is claimed that further assessment is to be made on the basis of performance in the written test, performance of appraisal reports and interview. 6. Mr. R.K. Malik, learned counsel for the petitioners has drawn my attention to Section 29 of the Act and argued that once a detailed provision has been made by the Act incorporating the promotion criteria then the respondents do not have any jurisdiction to super impose another criteria by introducing the bench mark of 60 percent vide decision dated 18.04.2003 (Annexure P-6). According to the learned counsel the afore-mentioned decision of the respondent bank is wholly contrary to the Rules framed under Section 29 of the Act and, therefore, it is liable to be set aside. According to the learned counsel the afore-mentioned decision of the respondent bank is wholly contrary to the Rules framed under Section 29 of the Act and, therefore, it is liable to be set aside. He has claimed that after setting aside the illegal criteria a direction deserves to be given to the respondents to hold the test in accordance with the provisions of 1998 Rules promulgated on 29.07.1998 and quash appointments of the private respondents. He has further submitted that in any case the vacancies which have arisen before 29.11.2002/18.04.2003 when the decision Annexure P-6 was taken have to be filled up in accordance with the criteria prevalent at that time. According to the learned counsel 35 vacancies have arisen prior to 29.03.2001 and new vacancies have arisen after that. In that regard, he has placed reliance on a judgment of Honble the Supreme Court in the case of Y.V. Rangaiah v. J. Sreenivasa Rao, 1983(1) SLR 789 (SC). 7. Mr. Malik, learned counsel for the petitioners has further submitted that once the criteria of seniority-cum-merit has been prescribed by the Rules framed in pursuance to Section 29 read with Section 17 of the Act, then a person fulfilling the minimum necessary merit requisite for efficiency of administration has to be given the benefit of promotion even though less meritorious then his junior. In other words, in matter of promotion, a senior is granted promotion subject to minimum necessary merit, although such a senior may not be as meritorious as a person junior to him. Learned counsel has placed reliance on two judgments of Honble the Supreme Court in the cases of "B.V. Sivaiah v. K. Addanki Babu, 1998(4) SCT 46 : JT 1998(5) SC 96 and Harigovind Yadav v. Rewa Sidhi Gramin Bank, JT 2006(5) SC 601. 8. Learned counsel has maintained that the case of the petitioners, who were senior to their counter part respondents No. 4 to 17, are clearly covered by the aforementioned judgment of Honble the Supreme Court. 9. Mr. Malik has further submitted that the principle of estoppel would not be attracted because there cannot be any estoppel against statute. In support of his submission, learned counsel has placed reliance on a Division Bench judgment of this Court in the case of Sumer Singh Yadav v. State of Haryana, 1999(1) SCT 525 : 1996(1) RSJ 34. 10. Mr. Mr. Malik has further submitted that the principle of estoppel would not be attracted because there cannot be any estoppel against statute. In support of his submission, learned counsel has placed reliance on a Division Bench judgment of this Court in the case of Sumer Singh Yadav v. State of Haryana, 1999(1) SCT 525 : 1996(1) RSJ 34. 10. Mr. Vipin Mahajan, learned counsel for respondent No. 3 has opposed the prayer made by the petitioners and argued that the principles of estoppel would squarely apply to the facts of the present case. According to the learned counsel the criteria dated 18.04.2003 was known to the petitioners before hand and they participated in the selection process. He has maintained that once they have participated in the selection process then they are estopped from challenging the criteria merely because after availing the chance they have failed. He has further submitted that earlier there were 1976 Rules and the selection process was initiated on 15.01.2002. Referring to clause 5 of the circular, learned counsel has pointed out that minimum bench merit mark of 50 percent of the total marks in respect of written test, interview, performance appraisal report was also indicated. On account of increase in the number of vacancies to 45 there was bifurcation of the vacancies by keeping in the view the date of 29.07.1998. Out of the total 10 vacancies had occurred prior to 29.07.1998 and 35 vacancies were of the later period. Therefore, the criteria providing for 60% bench marks was laid down on 18.04.2003 (Annexure P-6). He has maintained that the afore-mentioned change has been brought to advance the object of selecting the best persons from the available material, which is absolutely within the para meters of law as has been laid down by Honble the Supreme Court in the case of M.P. Public Service Commission v. Navnit Kumar Potdar, 1995(1) SCT 50 : (1994)6 SCC 293. 11. After hearing learned counsel for the parties and perusing the record, I am of the considered opinion that there is no merit in this petition. It is pertinent to notice that the Regional Rural Banks have been established under the provisions of the Act. Section 17 of the Act empowers a Regional Rural Bank to appoint such number of officers as it may consider necessary and in such manner as may be prescribed. It is pertinent to notice that the Regional Rural Banks have been established under the provisions of the Act. Section 17 of the Act empowers a Regional Rural Bank to appoint such number of officers as it may consider necessary and in such manner as may be prescribed. It also empowers to the bank to determine the terms and conditions of their appointment and service. Section 24 of the Act postulates that in the discharge of its functions, a Regional Rural Bank is to be guided by directions issued by the Central Government in regard to matters of policy involving public interest. Those directions could be issued by the Central Government, after consultation with the National bank for Agriculture and Rural Development. According to Section 29 of the Act, the Central Government is empowered to make rules, in consultation with the National bank and the Sponsor Bank for carrying out the provisions of the Act. The Central Government has also been empowered to make rules regarding the manner in which the officers and other employees of the bank are to be appointed. Accordingly, the Central Government has framed the rules, which were published vide notification dated September 28, 1988. However, the new rules were promulgated vide notification dated 27.07.1998. 12. Rule 3 of the Rules provides that the Board of Directors, each Regional and Rural, may in consultation with its Sponsor Bank create from time to time such number of posts as are specified in second schedule to the Rules. Rule 4 prescribes that the Board of Directors may in consultation with the Sponsor Bank determine the number of vacancies in each cadre, keeping in view the guidelines issued by the Central Government from time to time. However, Rule 5 makes provision for filling up of vacancies and provides that all vacancies determined under Rule 4 by the Board of Directors, are to be filled by deputation, promotion or direct recruitment in accordance with the provisions contained in Second Schedule appended to the Rules. In respect to the post of Officer Scale I, following provision has been made in third schedule of the Rules : "Appointment to different categories of officers and other employees to Group A, B and C posts where by direct recruitment or by promotion shall be effected as follows : 3. (a) Name of the post : Scale - I Officer. (a) Name of the post : Scale - I Officer. (b) Classification : Group A (c) Source of appointment : 50% by direct recruitment through Banking Service Recruitment Board and 50% by promotion. (d) Whether promotion to be made on the seniority-cum-Merit basis. : Promotions shall be made on the basis of seniority-cum-merit. (e) Eligibility : For direct ........ (B) For Promotees Eligibility : Promotion shall be made amongst employees holding the post in Group `B post on regular basis in the concerned Regional Rural Bank and who possess following qualifications and experience namely : (f) Mode of Selection : (i) In the case of direct recruitment, the selection of candidates shall be made by the Banking Service Recruitment Board on the basis of written test and interview and in accordance with the procedure specified by them. (ii) In the case of promotion, the selection of the candidates shall be made by the committee on the basis of written test, interview and performance appraisal reports." 13. It is further appropriate to notice that the Bank-respondent No. 3 issued a circular No. 13/PD/2002/01 dated 15.01.2002 releasing the modality concerning written examination and for promotion from clerical cadre to Office (Scale I) cadre. For the written examination, two papers were prescribed. Paper - I was of English, carrying 35 marks and Paper - 2 is concerning Banking Law, Practice and Procedure, which again carried 35 marks. The circular further prescribed the eligibility. Clause - 2 of the circular provided for zone of consideration and clause - 3 is devoted to the selection process/procedure. According to clause - 3 (II) (i), the selection was to be made on the basis of performance in the written test, interview and performance of appraisal report for preceding five years i.e 1996-97, 1997-98, 1998-99, 1999-2000 and 2000-01. The controversial minimum merit-bench mark was prescribed by clause 5(i) and the same read as under : "5) Minimum Merit-Bench Mark : i) The clerk-cum-Cashiers/clerk-cum-Typists who are called for interview shall then have to secure a minimum of 50% of total marks allotted for written test, interview and performance appraisal reports, all the three put together, subject to admissible relaxation to SC/ST candidates, if any. ii) The list of the clerk-cum-Cashiers/clerk-cum-Typists who secure minimum Bench marks as above shall be arranged in the order of seniority on the basis of their inter-se seniority by applying the selection rule of seniority-cum- merit and will be considered for promotion subject to the number of promotional vacancies." However, the bench mark of 50% was further varied to 60% by clause 5, vide circular dated 18.04.2003. 14 It is, thus, obvious that those who have achieved 60% bench marks were to be appointed in accordance with seniority. It is further pertinent to notice that no marks concerning seniority were kept as was the position in the case of B.V. Sivaiah (supra) and Harigovind Yadav (supra). The case of the bank, therefore, is that after the bench mark of 60 percent has been achieved by everyone then promotions have been given in accordance with seniority of the officers. 15. It rule concerning seniority-cum-merit has been discussed in various judgments by Honble the Supreme Court including the judgments like Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910; State of Mysore v. Syed Mahmood, AIR 1968 SC 1113; State of Mysore v. C.R. Seshadri, (1974) 4 SCC 308, Union of India v. Mohan Lal Kapoor, 1973(2) SCC 836 and State of Kerala v. N.M. Thomas, AIR 1976 SC 490. All the aforementioned judgments were considered by a three-Judge Bench of Honble the Supreme Court in the case of B.V. Sivaiah (supra). The legal position has been summed up in para 18 of judgment, which reads thus : "The criteria 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". 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". (emphasis added) In B.V. Sivaiahs case (supra), the view taken by a Division Bench of Andhra Pradesh High Court was upheld whereby mode of selection was found to be illegal whereby the Rule of `seniority-cum-merit was completely shelved because the circular had set apart 34% marks for seniority, 10% marks for qualification, 20% marks for interview and 56% marks for performance. Accordingly, out of total 120 marks, merely 30 marks were allocated for seniority. It was further found that 50% marks were allocated for interview and performance. In the present case, only minimum bench mark has been prescribed for securing 60% and then appointments have been made in accordance with seniority. It is, thus, obvious that the judgments in the cases of B.V. Sivaiahs (supra) and Harigovind Yadav (supra) would not apply to the facts of the present case. There is a mark difference between application of the rules in the present case then what was done in B.V. Sivaiahs case (supra) and Harigovind Yadavs case (supra). The criteria adopted in B.V. Sivaiahs case has been summed up by Honble the Supreme Court in para 26 which reads thus : "Having heard the learned counsel for the Rayalaseema Grameena Bank as well as five Branch Managers who had been promoted as Area/Senior Managers in the proceeding on December 1, 1989, we find that no case is made out for interference with the said view of the High Court. The promotion process laid down by Rayalaseema Grameena Bank in a circular dated September 27, 1989 sets apart 34 marks for seniority, 10 marks for qualification, 20 marks for interview and 56 marks for performance which shows that out of a total number of 120 marks the maximum number of marks that could be awarded for seniority is 34 and 0.75 mark goes to be given for each completed month of service over and above the minimum qualifying service. In other words, if two persons are appointed on the same date, the same number of marks had to be awarded for seniority. In other words, if two persons are appointed on the same date, the same number of marks had to be awarded for seniority. Moreover, out of a total number of 120 marks more than 50% marks were set apart for interview and performance. The High Court has found that only those officers who had secured the highest number of marks were ultimately promoted. It is not a case where minimum qualifying marks are prescribed for assessment of performance and merit and those who secure the prescribed minimum qualifying marks are selected for promotion on the basis of seniority. (emphasis added). In the circumstances, it must be held that the High Court has rightly come to the conclusion that the mode of selection that was infact employed was contrary to the principles of seniority-cum-merit laid down in the Rules. Civil appeals Nos. 3799-3803 of 1996 filed by the Rayalaseema Grameena Bank as well as Civil Appeals Nos. 3811-3812 of 1996 filed by the promoted officers are, therefore, liable to be dismissed." 16. In the present case, the criteria adopted is that minimum qualifying marks have been prescribed for assessment of performance and merit along with written test. Those who secured the minimum qualifying marks are selected for promotion on the basis of seniority, which fits in with the italicised observation made by the Supreme Court in the extracted para. Moreover, the petitioners have participated in the whole selection process by taking written test and appearing for the interview. They were fully informed about the minimum bench marks prescribed by the bank-respondent No. 3. In these circumstances, it cannot be concluded that they enjoyed another statutory right and estoppel is not to operate. 17. In the facts and circumstances of the present case, the principles of estoppel as laid down by Honble the Supreme Court in the case of Madan Lal v. State of Jammu & Kashmir, 1995(2) SCT 880 : 1995(3) SCC 486; K.H. Siraj v. High Court of Kerala, 2006(3) SCT 146 : 2006(6) SCC 395; Om Prakash Shukla v. Akhilesh Kumar Shukla, (1986) Supp.SCC 285 and Chander Prakash Tiwari v. Shakuntla Shukla, 2002(2) SCT 1093 : 2002(6) SCC 127 are fully applicable to the facts of the present case because all the petitioners were fully aware of the benchmark of 60%, which have been issued as is sought to be projected by the counsel for the petitioners. Therefore, the judgment of Honble the Supreme Court in the case of Shamsher Jang Bahadur (supra) would have no application to the facts and circumstances of the present case. For the reasons stated above, this petition fails and the same is dismissed.