JUDGMENT 1. - Tho controversy involved in this case, is with regard to promotion on the post of Junior Management Officer Scale I in Gr. A and petitioner has prayed for direction that he is entitled for promotion from the date his junior persons were promoted with all consequential benefits. It is also prayed that, if needed, appointment/promotion of respondent No. 3 may be set aside. 2. Learned counsel for the petitioner before arguing on merits of the case has invited my attention that controversy involved in this case has already been decided by Hon'ble Apex Court in case of B.V. Sivaiah and Ors. v. K. Addanti Babu and Ors., reported in AIR 1998 SC 2565 in which it is held by the Hon'ble Apex Court that promotion against the quota of seniority cum merit is required to be made while giving weightage to seniority. In the said judgment the criteria laid down by the Bank for promotion was declared illegal and in this case also the criteria made applicable by the respondent Bank fixing the minimum passing marks in written examination, interview and service record (jointly) is contrary to the law laid down by the Hon'ble Apex Court. Further it is submitted that Hon'ble Apex Court in case of Har Govind v. Rewa Sidhi Gramin Bank and Ors., (2006) 6 SCC page 145 reiterated the principle laid down in case of B.V. Sivaiah's case (supra). Similarly the Division Bench of this Court in D.B. Civil Special Appeal No. 709/99 Sharafat Ali v. Marwar Gramin Bank decided on 21.09.2004 passed an order that authority shall consider the case of petitioner in accordance with law laid down by Hon'ble Apex Court for promotion. 3. Learned counsel for the petitioner has further invited my attention that learned Single Judge of this Court vide judgment dated 16.11.2006 in S.B.Civil Writ Petition No. 1614/2003 followed the judgment of Division Bench passed in Sharafat Ali's case (supra) and following directions were issued by the learned Single Judge "In view of it, this petition for writ is allowed in the terms of the judgment in the case of Sharafat Ali v. Marwar Gramin Bank (supra). The respondents are directed to consider candidature of the petitioners for promotion accordingly." 4. The respondents are directed to consider candidature of the petitioners for promotion accordingly." 4. While citing tho above judgments it is prayed that the controversy involved in this case has attained finality upto Hon'ble Apex Court in case of B.V. Sivaiah's case (supra) and Har Govinds case (supra). 5. Upon above submissions, learned counsel for the Bank Shri P.K. Bhansali vehemently contended that the controversy involved in present case is not covered by the judgment delivered by Apex Court in B.V. Sivaiah's case (supra) and Har Govind's case (supra), therefore, matter may be decided on its own merit. 6. On 02.05.2008 when case was listed for final disposal a prayer was made by the counsel for respondent Bank Shri P.K. Bhansali that preliminary objection with regard to maintainability of the writ petition may be decided first before entering into the merits of the case. Upon such prayer, after hearing both the parties the preliminary objections raised by counsel for the Bank were rejected vide order dated 06.05.2008. Thereafter, number of adjournments were sought on behalf of respondent bank on different grounds and finally arguments were concluded on 17.07.2008. 7. According to facts of tho case the petitioner was initially appointed in the respondent Bank on 01.05.1984 as clerk-cum-cashier in Group B post. As per petitioner, he discharged his duties with best of his abilities and never gave any cause of complaint to bank authorities. It is submitted that petitioner is working as clerk cum cashier since 1984 and as per rules next promotional post is Junior Management Officer Scale I in Gr. A, which is enumerated in Rules known as Regional Rural Banks (Appointment and Promotion of Officers & Other Employees) Rules, 1998 (for short hereinafter referred to as 'the Rules of 1998'). 8. As per Rules of 1998, a candidate becomes eligible to be considered for appointment by way of promotion on the post of Junior Management Officer Scale I in Gr. A category on fulfillment of criteria laid down in the Rules. According to eligibility criteria under the Rules, a candidate must have completed 10 years of service and should be matriculate. Alternative qualification has also been prescribed in the Rules, however, the same is not relevant for present controversy because petitioner is fulfilling the above qualification. A category on fulfillment of criteria laid down in the Rules. According to eligibility criteria under the Rules, a candidate must have completed 10 years of service and should be matriculate. Alternative qualification has also been prescribed in the Rules, however, the same is not relevant for present controversy because petitioner is fulfilling the above qualification. In the Rules, criteria for promotion is 'seniority-cum-merit" and petitioner is eligible for promotion because as per seniority and service record petitioner is entitled for promotion. It is submitted that ten vacancies were determined against promotion quota and as per rules these ten vacancies were to be filled in according to the criteria of seniority-cum-merit. Meaning thereby, seniority is to be given top priority and merit is to be seen to the extent of adverse service record of the candidate. However, respondent bank conducted a written examination for adjudging the suitability of candidate for promotion against ten posts fallen vacant against the promotion-quota. The petitioner was within consideration zone, as such he was allowed to appear in the written examination in which he was declared successful. Thereafter he appeared in interview but respondent bank after adjudging the suitability of all the candidates prepared merit list contrary to the criteria provided in the Rules and completely ignored the seniority and persons junior to petitioner were considered and given promotion, meaning thereby although petitioner is senior than the persons who were promoted has been superseded, therefore, all promotions made by the respondent bank are contrary to the rule of "seniority-cum-merit" and judgments of Hon'ble Apex Court. 9. Learned counsel for the petitioner submitted that respondent bank has changed the criteria for promotion from seniority-cum-merit to merit-cum-seniority but as per rules respondent bank is required to grant promotion on the basis of criteria of seniority-cum-merit and for the said purpose seniority is to be given weightage. 10. It is submitted by learned counsel for the petitioner that petitioner has passed the written examination as well as cleared the interview, however, respondent bank issued an order dated 09.11.2002 by which respondent No. 3 was promoted, admittedly they are junior than the petitioner, therefore, all the promotions are contrary to law and ignoring the seniority of petitioner which is contrary to the criteria laid down in the Rules of 1998. As per counsel for the petitioner, due to non-application of proper criteria even the person whose name is at serial No. 81 has been promoted and denied promotion to the petitioner, who stands at serial No.45. Therefore, from the facts narrated above, it appears that bank has adopted the criteria of merit-cum-seniority whereas for promotion on the post of Junior Management Officer Scale I Gr. A was to be made on the basis of the criteria of seniority-cum-merit. 11. As per Rules of 1998, therefore, denial of promotion to the petitioner is violative of Articles 14 and 16 of the Constitution of India. 12. Learned counsel for the petitioner while inviting attention of this Court towards Annex.R/1, the Rules framed by the Ministry of Finance, submit that the post of Junior Management Officer is enumerated in III Schedule at serial No.3 by which 50% posts are required to be filled in by way of direct recruitment and 50% posts are to be filled in by way of promotion. It is also provided that promotions shall be made on the basis of criteria of seniority-cum-merit. The mode of selection is also provided in the Rules at para (f) of Item No.3 of Schedule III under which a candidate is required to appear in written test and interview. Thereafter, his Annual Performance Appraisal Reports, (APARs) are to be seen for the purpose of adjudging the suitability. As per promotion Rules Annex.R/1 the marks are prescribed for adjudging the suitability of candidate for promotion whereby 70% marks are prescribed for written test in which candidate is required to secure minimum 40% marks each in English, Banking Law and Practice & Procedure and, thereafter Bank is required to prepare list of selected candidates to the extent of 200% of the vacancies for promotion for the purpose of calling them for interview. For interview 20 marks are prescribed but it is specifically mentioned that there shall be no minimum marks for interview. Further 10 marks are prescribed for APARs in which the APARs of preceding three years are required to be considered for adjudging the suitability. 13. For interview 20 marks are prescribed but it is specifically mentioned that there shall be no minimum marks for interview. Further 10 marks are prescribed for APARs in which the APARs of preceding three years are required to be considered for adjudging the suitability. 13. The contention of petitioner is that he was declared successful in the written examination as he has secured more than 40% marks and in the list prepared by the Bank as per his seniority his name was included in the list of successful candidates and he was called for interview but without assigning any reason, knowingly well that petitioner is senior person than the persons who were promoted he has been denied the benefit of promotion, therefore, under the criteria laid down by respondent Bank, the petitioner's case was not considered properly and on the basis of assessment of comparative marks obtained by the candidates who appeared in the written test the petitioner has been denied promotion, which is not permissible under the law because petitioner is senior than those persons who were promoted. Therefore, denial of promotion to the petitioner is in contravention of law laid down by Hon'ble Apex Court in B.V. Sivaiah's case and Har Govind's case (supra). 14. Learned counsel for the petitioner submitted that minimum qualifying marks were prescribed only for written test in which petitioner was declared successful and as per Rules of 1998 respondent Bank was required to prepare a list of successful candidates in order of seniority to the extent of 200% of the vacancies for promotion for the purpose of calling candidates for interview in which petitioner was found suitable and he was called for interview for which no minimum marks are prescribed and in reply also it is no where stated by the respondents that petitioner's Performance Appraisal Reports of three years are adverse, therefore, petitioner is not entitled for promotion as per Rules. On this premise, it is submitted that petitioner was to be given promotion as per seniority after passing written test of 70 marks because no minimum qualifying marks are prescribed out of total 100 marks but at the time of providing promotion the respondent Bank has prepared merit on the basis of marks obtained in written examination, interview and Performance Appraisal Reports (jointly) which is contrary to basic principle of law laid down by Apex Court, in B.V. Sivaiah's case (supra) in which it is held that minimum standards are required to be prescribed but no comparative merit shall be prepared for the purpose of granting promotion against the quota of seniority-cum-merit. 15. It is vehemently argued by learned counsel for the petitioner that time and again petitioner has been denied promotion on the basis of criteria which was later on declared illegal in B.V. Sivaiah's case (supra) & Har Govind's case (supra) but respondents are repeatedly adjudging the suitability contrary to the law laid down by Apex Court, as if they are selecting candidates by way of direct recruitment, therefore, action of respondents is illegal and denial of promotion to petitioner is also totally arbitrary, unconstitutional so also in contravention to the law laid down by Hon'ble Apex Court. 16. Per contra, Learned counsel for the respondent Bank vehemently argued that petitioner is not entitled for promotion as per the criteria Annex.R/1. Learned counsel for respondent while inviting attention of this Court towards the fact that petitioner has passed the written examination, thereafter, he was called for interview and after personal interview service record was considered and a list of selected candidates was prepared on the basis of criteria of seniority-cum-merit and even though petitioner is senior, he did not secure minimum qualifying marks in written test, personal interview and Performance Appraisal Reports (Jointly), therefore, name of petitioner was not found suitable for promotion. The contention of respondent Bank is that after following rules framed by the Union of India (Annex.R/1) process of making promotion was undertaken by the Bank in which petitioner was not found suitable. 17. Learned counsel for the respondent Bank argued that petitioner has no case as he was not found suitable for promotion as per the criteria of the Bank, although he is senior than those persons who were promoted, therefore, this writ petition deserves to be dismissed. 18. 17. Learned counsel for the respondent Bank argued that petitioner has no case as he was not found suitable for promotion as per the criteria of the Bank, although he is senior than those persons who were promoted, therefore, this writ petition deserves to be dismissed. 18. Learned counsel Shri P.K. Bhansali submitted that even as per the Judgment of Apex Court in B.V. Sivaiah's case (supra) Bank is free to lay down minimum standards so also bank can prescribe the mode of assessment of merit of the employee, who is eligible for consideration for promotion. Learned counsel for the respondent Bank while inviting attention of this Court towards para No.18 of the B.V. Sivaiah's case submit that Bank has adopted the Rules framed by the Central Government in which Bank is having jurisdiction to prescribe minimum standards for selection against the quota of seniority-cum-merit, therefore, Bank has rightly considered the case of petitioner as per the criteria and assessed the merit, therefore, it cannot be said that Bank has committed any wrong. Moreover; Bank has acted in consonance with the provisions of law and made promotions in accordance with the principle of seniority-cum-merit in which no interference is required in this writ petition and same deserves to be dismissed. 19. Besides above, it is submitted by learned counsel for the respondent Bank that before appearing in the written examination, the criteria was well within the knowledge of petitioner and said criteria is not under challenge in this writ petition and as per criteria petitioner's candidature was considered and he was not found suitable for promotion, therefore, he cannot be allowed to raise voice against the criteria prescribed by the Bank for the purpose of granting promotion under the quota of seniority-cum-merit and the said criteria is not under challenge in this writ petition, therefore, till the criteria Annex.R/1 exists, the petitioner's candidature will be considered according to that criteria and in the present case candidature of petitioner was properly considered but he has failed to obtain the minimum standards as prescribed in the criteria for promotion under the seniority-cum-merit quota, therefore, this writ petition deserves to be dismissed. 20. 20. Learned counsel for the respondent Bank further argued that petitioner has filed this writ petition in 2007 for claiming promotion against the vacancies of 2002 and no explanation for such delay has been explained by the petitioner, therefore, this writ petition deserves to be dismissed. It is further argued that not only the petitioner has filed this petition with a delay of 5 years but in subsequent selections, he participated and declared unsuccessful in written examinations. 21. It is true that petitioner has filed writ petition in the year 2007 and claiming right of promotion for the selections made in 2002 in which he was declared successful in written test but denied promotion on the ground of comparative assessment of merit and he also appeared in subsequent selections in which he was declared unsuccessful. In my opinion when similar controversy was pending before this Court and matter was under adjudication then it is not proper to dismiss this writ petition on the ground of delay 22. I have heard both the parties and perused the entire record of the case so also the judgments cited by counsel for the parties. The main question in this case is whether the candidature of petitioner has rightly been considered for promotion under the quota of seniority-cum-merit or not and whether in the event of not challenging the criteria laid down in the Rules of 1998, the petitioner is entitled for any relief. In this case following facts are not in dispute which are (i) petitioner was appointed in the bank on the post of clerk cum cashier on 01.05.1984 and he is senior than respondent No.3. (ii) It is not disputed by both the parties that Rules of 1998 (Annex.R/1) are applicable for promotion on the post of Junior Management Officer in Scale I Gr.A. (iii) It is not disputed that petitioner was not eligible to appear in the written examination and was not possessing the qualification laid down in the Rules, (iv) It is no where disputed by the parties that petitioner was not declared successful in the written examination, (v) It is also not disputed by the respondents that any adverse entry was found in the APARs of preceding three years of petitioner, (vi) Admittedly no marks are prescribed for interview after passing the written examination. 23. 23. On the basis of above undisputed facts, for adjudicating present controversy it is to be seen whether respondent bank has rightly followed the procedure provided in the Rules of 1998. For the said purpose, first of all criteria for selection is required to be examined. The relevant abstract of the said Rules for promotion for Scale I Officer is as follows: 3.(a) Name of 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 promotions to : be made on seniority basis or seniority-cum merit basis : Promotions shall be made on the basis of seniority-cum merit. (e) Eligibility : (A) For Direct Recruits : (i) Qualification & Eligibility direct recruits : (i) Degree of recognised University in any discipline or its equivalent. (ii) Proficiency in local language as may be laid down by the Board. (ii) Age Between 18 years and 26 years (relaxable in case of Scheduled Castes/Scheduled Tribe Candidates; or Candidates belonging to other categories in accordance with the instructions/orders issued by the Central Government). (B) For Promotees : Eligibility: Promotions shall be made amongst employees holding the post in Group "B" post on regular basis in the concerned Regional Rural Bank and who possesses following qualification and Experience namely: (I) (A) Must have passed matriculation or Senior School Certificate Examination or equivalent examination of bachelors degree examination or equivalent from a recognised University; and (B) Must have 10 years experience in the concerned Regional Rural Bank as a Group "B" employee. or (II) (A) Must have passed Matriculation or Senior School Certificate or equivalent examination or bachelors degree examination or equivalent examination from a recognised university, and (B) Must have passed part I examination of certificate of Associate of Indian Institute of bankers examination, and (C )Must have eight years experience in the concerned Regional Rural Bank as a Group "B" employee. or (III) (A) Must have passed Matriculation or Senior School Certificate Examination or equivalent or bachelors degree examination or equivalent from a recognised university or equivalent, and (B) Must have passed part I and part II examination of the certificate of Associate of Indian Institute of Bankers Examination; and (C ) Must have six years experience in the concerned Regional Rural Bank as a Group "B" employee: Provided that no employee shall be considered for promotion unless he has been confirmed in the feeder grade post. Note: (I) The incumbent eligible for promotion on or before the publication of this notification shall continue to be considered for promotion to Scale I Officer post. (II) The service of the incumbents, who are holding the post eligible for promotion before publication of this notification, shall continue to be counted for the purpose of promotion to Scale I Officer post. (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 lest, interview and performance appraisal reports. (e) Composition of Committee: The Committee (for considering promotion) shall consist of the following persons namely: (i) The Chairman of the Concerned Regional Rural Bank - Chairman (ii) A Director nominated by the sponsor bank -Member (iii) A Director nominated by National Bank - Member Note: If none of the members of the Committee belongs to Scheduled Castes and Scheduled Tribes the Board may nominate a person belonging to Scheduled Castes/Scheduled Tribes as an additional member and such person shall participate in the process of selection by the concerned committee. (h) Reckoning of the minimum eligibility The minimum eligibility in terms of the number of years of service for promotion shall be reckoned as on the 1st April of the year in which the vacancy is expected to arise or has actually arisen. (i) Number of Candidates to be considered for promotion All eligible candidates shall be considered for promotion. (h) Reckoning of the minimum eligibility The minimum eligibility in terms of the number of years of service for promotion shall be reckoned as on the 1st April of the year in which the vacancy is expected to arise or has actually arisen. (i) Number of Candidates to be considered for promotion All eligible candidates shall be considered for promotion. (J) Selection process for promotees The selection shall be on the basis of performance in the written test, interview and five years Performance Appraisal Reports as per the division of marks given below: (A) Written Test : 70 marks (B) Interview : 20 marks (C) Performance : 10 marks Appraisal Reports Total Marks 100 marks (A) Written Test (70 marks): The candidates shall be required to appear for written test comprising test on English and test in Banking Law, practice and procedure including working procedures in the Regional Rural Bank concerned. 70 marks alloted to written test shall be further divided as under: English marks 35 Banking Law Practice & Procedure marks 35 Total Marks marks 70 A list of only those candidates who secure minimum of 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 per cent of the vacancies for promotion for the purpose of calling for interview. (B) Interview (20 marks) There shall be no minimum qualifying marks in the interview. (C) Assessment of Performance Appraisal Report The Performance Appraisal Reports for the preceding three years of the concerned employee shall be - considered. 24. According to above criteria, indisputably petitioner was allowed to appear in written examination in which he was declared successful because he has obtained more than 40% marks as required in the criteria out of 70 marks, therefore, as per Rules after acquiring minimum 40% marks the respondent Bank was under obligation to prepare a list of selected candidates in order of seniority to the extent of 200% of vacancies for promotion for the purpose of calling candidates for interview. Petitioner appeared in the interview in which he was not required to obtained any minimum qualifying marks, therefore, obviously he has cleared the second hurdle. Petitioner appeared in the interview in which he was not required to obtained any minimum qualifying marks, therefore, obviously he has cleared the second hurdle. Thereafter, Performance Appraisal Reports were required to be considered for that purpose it is no where stated by the respondents in reply that Performance Appraisal Reports of petitioner for preceding three years were adverse. Meaning thereby, there was nothing against the petitioner and in the Rules of 1998 Annex.R/1 it is no where provided that merit assessment will be made on the basis of marks obtained by a candidate jointly in written test, interview and service record. The only requirement is to qualify the written examination which is minimum standard provided in the Rules and thereafter, promotions are to be made on the basis of seniority. As per the criteria itself, no comparative merit can be assessed by the respondent bank for promotion. 25. In the Rules a candidate is required to pass the written test in which he has to acquire minimum 40% marks out of 70 marks, thereafter, no minimum marks are prescribed for interview and APARs. Meaning thereby, after passing written examination which is the minimum standard prescribed in the rules, there is no hurdle except adversity in the APARs, which is not pointed out by the respondents in the present case, therefore, in my opinion petitioner even without challenging the criteria laid down in the rules is entitled for promotion because respondent bank has committed an error while preparing select list on the basis of comparative assessment of the candidates which is not permissible in the rules and bank has acted contrary to the law laid down by Apex Court for considering the candidature against the quota of seniority-cum-merit. It is very strange that at page 33 of the paper hook it is replied by the respondent bank that : "That as for selection process for promotion to the post of Officers Scale 1 is concerned it is respectfully submitted that one of the criteria is merit and if a person is found suitable in merit and he has seniority then only as per seniority-cum-merit a person can be promoted from the post of clerk-cum-cashier to Officer Scale 1. Thus, it is respectfully submitted that it is only on the basis of seniority-cum-merit (i.e. seniority and merit) that a person becomes entitled for promotion to Officer Scale 1 provided there exist vacancies of Officers Scale 1 in the service of Respondent No.1 Bank." 26. It is no where provided in the Rules that at the time of granting promotion against the quota of seniority-cum-merit, merit will be seen and seniority will be ignored, more so, no minimum marks are prescribed for preparing merit out of 100 marks for including name of senior candidate who has passed written test by securing 40% marks out of 70 marks for written test and it is no where provided that comparative merit will be considered for promotion. Therefore, from the reply it is obvious that respondents have acted contrary to the rules and ignored the claim of petitioner for promotion. 27. Similarly, at page No.38 of the paper book, it is replied by the respondents that : "That it is also submitted that as the petitioner has passed the written test, he was called for personal interview. That after personal interview of eligible candidates was completed, a list of selected candidates was prepared on the basis of seniority-cum-merit. Even though the petitioner was senior but as he did not secure the minimum qualifying marks in the written test, personal interview and Performance Appraisal Reports for last throe years (jointly), the name of the petitioner was not included in the list of selected candidates as per Promotion Rules, 1998." 28. Upon perusal of above, it is very strange that either bank authorities have not understood the rules in proper manner or intentionally the case of petitioner has been ignored because it is no where provided in the Rules that minimum qualifying marks for written examination, interview and Performance Appraisal Reports of preceding three years will be assessed jointly for the purpose of assessing the merit of the candidate. Rules only speak of securing minimum 40% marks out of 70 marks in written examination, thereafter, bank is required to prepare a select list as per seniority. Therefore, petitioner being senior was very much entitled for promotion but his legitimate claim of promotion for which he is legally entitled has been denied to him. Rules only speak of securing minimum 40% marks out of 70 marks in written examination, thereafter, bank is required to prepare a select list as per seniority. Therefore, petitioner being senior was very much entitled for promotion but his legitimate claim of promotion for which he is legally entitled has been denied to him. More so, after the adjudication by Hon'ble Apex Court in B.V. Sivaiah's case (supra) in which it has been held that no assessment on the basis of comparative merit should be made. Petitioner is very much entitled for promotion. Para 18 of the said judgment is as follows: "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 he 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." 29. The above judgment is based on earlier judgment of Apex Court reported in State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 in which the then Chief Justice Shri A.N. Rai explained the criteria of seniority-cum-merit which is as follows: "With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority." 30. In these circumstances, when judgment in case of B.V. Sivaiah's case (supra) was rendered in 1998 in which above principle of law was laid down and the Central Government has framed the Rules for the said purpose while following the adjudication made by Hon'ble Supreme Court in B.V. Sivaiah's case (supra) then there is no reason left for the respondent bank to act contrary to the Rules and law laid down by Apex Court. 31. 31. The above facts speak loudly that the Central Government has made Rules in consonance with the law laid down by Apex Court but respondent bank has failed to act in accordance with the criteria laid down by the Central Government which is obviously framed on the basis of law laid down by Apex Court in B.V. Sivaiah's case (supra) in which it is held that a senior though less meritorious shall have priority and comparative assessment of merit is not required to be made and this proposition of law was well within the knowledge of Central Government, therefore, above criteria was prescribed uniformly for all the Banks, therefore, in my opinion without challenging the criteria prescribed by the respondent bank it is held that petitioner, who was declared successful in written examination and cleared all the hurdles including interview and consideration of his service record then there was no occasion for the respondents not to grant promotion to the petitioner . After declaration of law in case of B.V. Sivaiah's Case (supra) respondents cannot be allowed to prepare comparative merit for the purpose of granting promotion on the basis of seniority cum merit, therefore, obviously petitioner has been denied promotion illegally and unconstitutionally. 32. Before concluding, it is required to be observed that not only respondent bank but other banks of the Country were flouting the law laid down by the Apex Court in B.V. Sivaiah's case (supra), therefore, Hon'ble Apex Court in case of Har Govind v. Rewa Sidhi Gramin Bank and Ors., (2006) 6 SCC page 145 held in para No. 21 and that there were several rounds of litigation which had been fought up to the Supreme Court where the High Court and the Supreme Court have repeatedly and clearly held that the procedure prescribed in the promotion policy circular dated 02.02.1989 is not in consonance with the principle of seniority-cum-merit prescribed for promotion under the Rules concerned but amounted to following the principle of merit-cum-seniority and therefore vitiated. Further it is observed that in spite of these decisions, the first respondent Bank again adopted the very same procedure contained in the promotion policy of 02.02.1989 and again failed to promote the appellant. Further it is observed that in spite of these decisions, the first respondent Bank again adopted the very same procedure contained in the promotion policy of 02.02.1989 and again failed to promote the appellant. Therefore, the Apex Court while holding that appellant of that case was denied promotion for more than 16 years by repeatedly adopting the said erroneous procedure, therefore, it is not necessary to drive the appellant once again to face the process of selection for promotion and to do complete justice directed the respondent Bank to promote the appellant of that case as Field Officer. Paras 21 and 27 of the said judgment are as follows: 21. It is thus clear that this Court did not accept the promotion policy contained in circular dated 02.02.1989 as being in consonance with the principle of seniority-cum-merit. This Court held that the policy which did not prescribe a minimum standard for assessing merit and which promoted candidates on the basis of comparative merit, with reference to total marks obtained by the eligible candidates, followed the merit-cum-seniority principle. The decision in Sivaiah relating to Area/Senior Managers of the first respondent bank was followed by the High Court in the case of appellant, in its judgment dated 13.10.1998 and it was held that the procedure adopted by the first respondent bank for promotion of third Respondent and V.P. Singh as per circular dated 2.2.1989 was contrary to the Rules which required promotions by seniority-cum-merit, and the bank was directed to redo the promotions by considering the case of appellant and other eligible candidates by adopting the criteria of seniority-cum-merit. That decision attained finality as the appeal and SLP were rejected. It may be stated that even prior to the decision in Sivaiah relating to Area/Senior Managers of the first respondent bank, the same view had been expressed in the earlier judgment dated 09.10.1996 of the Division Bench of the Madhya Pradesh High Court in LPA No.151/1996 and connected cases and civil appeals arising out of SLP (c) Nos.17780-81/1997 filed against the said judgment dated 09.10.1996 had been dismissed. Therefore we have several rounds of litigation which had been fought up to this Court where the High Court and this Court have repeatedly and clearly held that the procedure prescribed, in the promotion policy circular dated 02.02.1989, is not in consonance with the principle of seniority-cum-merit prescribed for promotion under the Rules but amounted to following the principle of merit-cum-seniority and therefore vitiated. What is surprising is that, in spite of these decisions, the first respondent bank again adopted the very same procedure contained in the promotion policy of 02.02.1989 and again failed to promote the appellant by assigning him marks of 16 (20), 10 (10), 3(5), 24 (40) and 9 (25) and held that he was not eligible for promotion as he did not secure the minimum marks of 10 prescribed for interview. But, admittedly, there was no overall minimum and the procedure required assessment of comparative merit. This is not therefore a case of the appellant failing to secure the minimum necessary merit required for promotion but a case where the appellant's entitlement to promotion was sought to be assessed by adopting a procedure which allotted 20 marks for seniority, 40 marks for performance, 15 marks for posting at rural and difficult centres and 25 marks for interview. The bank has persisted in adopting the merit-cum-seniority procedure in spite of the decisions of this Court in several rounds of litigation referred to above. As the entire promotion procedure adopted by the bank as per its policy dated 02.02.1989 has stood rejected by the High Court and this Court in Sivaiah (supra) as also in the earlier round of litigation of Appellant, the promotion of third Respondent and non-promotion of appellant by adopting the very same procedure is liable to be interfered with. 27. Having regard to the factual background of the case, and having regard to the fact that even under the merit-cum-seniority basis adopted by the bank the appellant had secured high marks and he was denied promotion on the ground that he failed to secure minimum marks in the interview, there is no need to refer the matter for fresh consideration. Having regard to the factual background of the case, and having regard to the fact that even under the merit-cum-seniority basis adopted by the bank the appellant had secured high marks and he was denied promotion on the ground that he failed to secure minimum marks in the interview, there is no need to refer the matter for fresh consideration. With a view to do complete justice, in exercise of our power under Article 142 we hereby direct the first respondent bank to promote the appellant as a Field Supervisor, from the date the third defendant was promoted as Field Supervisor and place him above the third Respondent. However, he will be entitled to monetary benefits flowing from such promotion only prospectively, though the pay is to be refixed with reference to the retrospective date of promotion. 33. In this case admittedly for promotion under the criteria of seniority-cum-merit the merit list has been prepared on the basis of marks obtained by the candidates in written test, interview and Performance Appraisal Reports (Jointly) which is contrary to the provisions of adjudging suitability of the candidate provided in Annex.R/1 in which minimum standard is to qualify the written test by securing 40% marks out of 70 marks. 34. In view of above discussion, law is well settled that where promotion is according to seniority-cum-merit the primary consideration is seniority and minimum merit required to make the person fit for appointment only is to be fulfilled but there is no room to adjudge comparative merit by ignoring the seniority altogether. In present case although Central Government framed the Rules of 1998 after the judgment of B.V. Sivaiah's case (supra) and respondent bank has made applicable those rules but at the time of consideration the suitability of the candidate has been adjudged on the basis of comparative merit and seniority has been ignored altogether which is not permissible as per the law laid down by Apex Court. 35. In this case also petitioner is waiting for promotion since 1984 and he has been denied promotion although he is senior and passed the written examination and appeared in interview for which no minimum marks are prescribed and no adversity is pointed out in service record, therefore, in view of the law laid down by Hon'ble Apex Court in B.V. Sivaiah's case (supra) and Har Govind Yadav's case (supra), this writ petition is allowed. Respondents are directed to promote the petitioner on the post of Junior Management Officer in Scale I Gr.A forthwith from the date persons junior to him were promoted while treating petitioner senior than those persons already promoted with all consequential benefits and cost of Rs.1000/-.Writ Petition Allowed. *******