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2007 DIGILAW 473 (PAT)

Anup Kumar Bariar v. Siwan Ksetriya Gramin Bank

2007-03-02

AJAY KUMAR TRIPATHI

body2007
Judgment 1. Heard counsel for the petitioners as well as counsel for respondent Bank. 2. Both the petitioners are aggrieved by their non-promotion in Scale-Ill posts with effect from 1.9.2005 by the respondents whereas similarly eight other officers have been granted promotion. The petitioners state that they are working as officials in Scale-ll in the Bank and their next ladder of promotion is in Scale-Ill for which the petitioners alongwith others were considered. Their grievance is that though in terms of the necessary Rules in cases of such promotions the principle of sen-iority-cum-merit has to be adopted but in actual practice the Bank has deviated and violated its Rules. The methodology which they have adopted in granting promotions to Scale-Ill has turned out to be one of merit-cum-seniority. Their main grievance, therefore, is that the Bank by violating the Rule of seniority-cum-merit has committed illegality in grant of promotions to them. 3. It is important for us to take note of the fact that in process of selection Bank in question has to take into account the performance appraisal of the officials which is of 75 marks and 25 marks are reserved for interview. The total adds up to 100 marks but while keeping this criteria for promotion the Bank has fixed a minimum pass percentage in the interview before any candidates performance appraisal can be taken into account whatever be his seniority or marks in the performance appraisal side. 4. To clarify, even if an employee holds very high marks in the performance appraisal which is based on seniority and service record of such employees the same has no role to play in consideration for promotion till the employee in question passes the interview. In other words, 12.5 marks is very important for every employee to get before his performance appraisal can be looked into. By adopting this mechanism the Bank has turned the seniority-cum-merit policy to merit-cum-seniority. It virtually boils down to this that all employees have to first cross the hurdle of interview obtaining at least 50% marks in the same to be eligible to come within the zone of consideration. All those who fail to get the minimum qualifying marks in the interview have to be left out from the zone of consideration for promotion even though they may have very high marks on the side of performance appraisal. 5. All those who fail to get the minimum qualifying marks in the interview have to be left out from the zone of consideration for promotion even though they may have very high marks on the side of performance appraisal. 5. This according to the petitioners is an arbitrary action on the part of the Bank because the methodology, which had been adopted or implemented in granting promotion turns the table and the seniority-cum-merit policy is changed into one of merit-cum-seniority. Every candidate must establish his merit in the interview and once he crosses the initial hurdle then only he can be considered for promotion. This in the opinion and submission of the petitioners is contrary to the established procedure for promotion of seniority-cum-merit. In these two cases both the petitioners have failed to touch the magic 50% marks in the interview. Though it is stated that they had good percentage of marks so far as their performance appraisal report is concerned. Even if they had the requisite seniority and marks, since the Interview Board did not oblige them with the minimum 50% marks, juniors to the petitioners have been granted promotion whereas they have been left out in the race. This according to them is not only arbitrary but also in teeth of various pronouncements in this regard rendered by the Hon ble Supreme Court of India. Learned counsel for the petitioners have drawn my attention to a judgment rendered in the case of Hargovind Yadav vs. Rewa Sidhi Gramin Bank, (2006)6 SCC 145 . In this regard paragraph 22 of the order is relevant and is, therefore, quoted below:- assessment of performance can be made by the Bank in connection with promotions. But that can be only to assess the minimum necessary merit. But where the procedure adopted does not provide the minimum standard for promotion, but only the minimum standard for interview and does the selection with reference to comparative marks, it is contrary. to the rule of "seniority-cum-merit"....." 6. But that can be only to assess the minimum necessary merit. But where the procedure adopted does not provide the minimum standard for promotion, but only the minimum standard for interview and does the selection with reference to comparative marks, it is contrary. to the rule of "seniority-cum-merit"....." 6. The Supreme Court further taking into consideration the case of B.V. Sivaiah vs. K. Addanki Babu, (1998)6 SCC 720 has this to observe in paragraph 23:- "...As we have already noticed, in this case, the procedure is not one of ascertaining the minimum necessary merit and then promoting the candidates with the minimum merit in accordance with seniority, but assessing the comparative merit by drawing up a merit list, the assessment being with reference to marks secured for seniority, performance, postings at rural/difficult places and interview. The fact that the appellant had failed to secure the minimum marks in the interview, is not relevant as the entire procedure adopted by the Bank (of which interview is a part) is found to be vitiated and not in consonance with the principle of sen-iority-cum-merit." 7. The issue of promotion based on seniority-cum-merit have come up for consideration before the Hon ble Supreme Court in many a cases and in most of these cases including the latest one the Supreme Court had deprecated insistence of judging the basic merit first by keeping minimum qualifying marks in interview first before granting promotion, ignoring the seniority of the employee in question. In the present case also the petitioners have been denied their rightful claim for promotion not on the ground that they did not have seniority and merit in so far as their performance appraisal is concerned but because the Bank fixed a minimum qualifying marks in the interview to judge their merit first. The Bank had therefore lost sight of its own policy of seniority-cum-merit while granting promotions. There seems to be force in the argument of the petitioners. 8. Learned counsel for the respondents, however, has few submissions to make. His first contention is that whatever has been done by the Bank is in conformity with the necessary rules which is in vogue and no. (2) that since the promotions had already been granted the rights have accrued to other persons and, therefore, they ought to be heard before any order can be passed. 9. His first contention is that whatever has been done by the Bank is in conformity with the necessary rules which is in vogue and no. (2) that since the promotions had already been granted the rights have accrued to other persons and, therefore, they ought to be heard before any order can be passed. 9. In regard to the two contentions of the respondents this Court observes that the petitioners are not challenging the rules as such but their applicability because fundamentally the employer has accepted the principle of seniority-cum-merit as the basis for promotion. They are aggrieved in the manner in which a minimum qualifying marks in the interview have been kept before seniortty or merit based on the appraisal report is to be taken into consideration. The discrimination lies there and it is because of this procedure that the policy in implementation stands reversed to a position of merit-cum-seniority. The other aspect in this regard is that the Hon ble Supreme Court has time and again recorded its negative opinion on such policy and rules and has intervened and struck down promotions or decision not to grant promotions, if the procedure adopted is such where the seniority is given a go bye and merit is brought to the forefront. The contention of the respondents that the rule as such has to be declared ultra vires does not merit any consideration in view of the pronouncements of the Hon ble Supreme Court in this regard. 10. In so far as the question of notice to the promoted employees is concerned, this Court is of the opinion that since the petitioners are aggrieved by the action of the Bank and the procedure which they had adopted in effecting the procedure of promotion, therefore, once they establish that they have committed an illegality in implementation of that policy the consequence has to follow. Individual notices as such may not be required. Since this Court is satisfied that the Bank has misapplied itself in implementing the policy of seniority-cum-merit while effecting selection of candidates for promotion to Scale-Ill then any selection made by them adopting the wrong process stands vitiated and the entire exercise will have to start afresh. Individual notices as such may not be required. Since this Court is satisfied that the Bank has misapplied itself in implementing the policy of seniority-cum-merit while effecting selection of candidates for promotion to Scale-Ill then any selection made by them adopting the wrong process stands vitiated and the entire exercise will have to start afresh. The petitioners as well as the other selected candidates will have to be relegated to the original position and the Bank will have to hold a fresh process of selection keeping in mind their own policy of seniority-cum-merit and not use the minimum qualifying marks in the interview as a stumbling block to deny persons with seniority their due place in the promotion list. 11. Accordingly, this Court directs that the Bank shall initiate the process of granting promotions to all those candidates who are eligible keeping in mind the seniority-cum-merit principle and not merit-cum-seniority, which has been done in the present case. 12. Accordingly, if the Bank wants to grant promotions to its employees, who fall within the zone of consideration, then the entire exercise ought to be carried out afresh with no minimum qualifying marks being fixed in the interview but to take the entire merit into consideration including the performance appraisal report and the marks obtained in interview before drawing up the final seniority list of promotions. This exercise may be carried out if they so desire within a period of six months. 13. These writ applications are accordingly allowed and office order/notification dated 13.8.2005 granting promotions to employees to Scale-Ill posts are quashed.