JUDGMENT By the Court.—Aggrieved by the non-promotion to the post of Senior Manager (Officer MMGE-II) the two petitioners have preferred this writ petition initially but it has been pressed before us only on behalf of petitioner No. 1 and, therefore, is confined to him only. 2. The petitioner No. 1-Anil Kumar was selected for the post of Officer in the Gorakhpur Chhetriya Bank in the year 1981 and after completion of training joined as Branch Manager on 3.1.1982. For promotion to the post of Officer MMGE-II, proceedings were initiated by the respondent No. 1 in the year 1997. Though there are no statutory rules framed laying down procedure and criterion for promotion yet the Bank have issued executive orders providing that criterion for promotion would be "seniority-cum-merit" and the officers having completed eight years of service would be eligible to be considered for such promotion. It also provides that the merit of the officer concerned shall be ascertained on the basis of the service record as well as interview. The respondent-bank has prescribed certain marks for interview and service record etc. and it is also provided that those, who obtain 40% and above, shall only be treated suitable for promotion, but those, who secure less than 40%, shall be unsuitable for promotion. The petitioners, however, have not been selected and promoted to the post of Officer MMGE-II though large number of persons junior to them were promoted vide select list dated 6.8.1997. It is contended that the aforesaid promotion is wholly illegal inasmuch as instead of making promotion on the basis of "seniority-cum-merit", the respondent No. 1 has adopted the criterion of merit and has made comparative assessment of various officers and the promotions have been given accordingly. 3. Learned counsel for the petitioner submitted that since the petitioner has obtained more than 40% marks as prescribed, he ws entitled to be treated suitable for promotion and thereafter on the basis of seniority he ought to have been selected without being tested on comparative assessment on merit with his juniors. 4. The bank has filed its counter-affidavit wherein it is not disputed that the promotion will be on the basis of "seniority-cum-merit". For the purposes of determining the merit the mode of selection prescribed is as under : "(Interview and assessment of performance reports for the preceding three years period.......)" 5. 4. The bank has filed its counter-affidavit wherein it is not disputed that the promotion will be on the basis of "seniority-cum-merit". For the purposes of determining the merit the mode of selection prescribed is as under : "(Interview and assessment of performance reports for the preceding three years period.......)" 5. In para 8 of the counter-affidavit the respondents have stated as under : "8. That as would be clear and evident from a bare perusal of the aforesaid rules, all officers who have completed 8 years service as officer in the answering Respondent-Bank, would fall within the eligibility criteria; however, the selection mode for the said posts would be interview and assessment for the preceding 3 years period as officers for petitioner promotion." 6. In para 14 it is stated that the Board of Directors issued circular postulating basis and criterion of promotion and the said circular dated 18.3.1997 has been placed on record as Annexure C.A. 2 and paragraph 13 thereof provides as under : Þ13- ÁksUufr gsrq vk;ksXrk : foxr rhu o"kksZ ds dk;Z fu"iknu ewY;kadu ds vk/kkj ij 40% ls de vad ¼50 esa ls 20½ ikus okys vf/kdkjh ÁksUufr gsrq vk;ksX; ekus tk;sxsaA blh ds lkFk ukckMZ ds ifji= la[;k C&78 fnukad 1-12-1997 esa ifjHkkf"kr ;ksX;rk dk Hkh m)j.k uhps Ánku fd;k tk jgk gS %Þ "Fitness implies that there is nothing against an officer, no disciplinary action is pending against him and none is contemplated. The officer has neither been reprimanded nor any adverse remarks have been conveyed to him in the reasonable recent past." 7. However, after admitting the above procedure for promotion the respondents have said in para 15 of the counter-affidavit that the promotions were to be made on the basis of comparative assessment of the performance appraisal of the officer concerned. In paragraph 18 they have justified non-selection of the petitioners stating as under : "18. In any view of the matter the petitioners have no right to be promoted but only to be considered for promotion. In the exercise of promotion in question, they were considered but not found suitable on the basis of objective assessment of comparative merit and thus their names did not figure in the list of promoted candidates. In any view of the matter the petitioners have no right to be promoted but only to be considered for promotion. In the exercise of promotion in question, they were considered but not found suitable on the basis of objective assessment of comparative merit and thus their names did not figure in the list of promoted candidates. In this view of the matter the present writ petition is not even maintainable before this Honble Court much less in the exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India and is liable to be dismissed with special costs to the Respondent-Bank." 8. During the course of arguments learned counsel for the Bank admitted before the Court that the criterion for promotion to the post in question is "seniority-cum-merit". He also does not dispute that as per the guidelines laid down by the Bank the marks have been prescribed for interview and the performance of the officer concerned in the preceding three years and it is also provided that those, who would secure less than 40% shall be unfit for promotion. It is thus, evident that in order to determine the merit of the candidate fall in the zone of consideration the eligibility/suitability/Bench mark of 40% has been laid down by the respondent-Bank and those, who secure 40% and above are fit for promotion. 9. Now, the sole question for consideration is where the criterion for promotion is "seniority-cum-merit", the concept of comparative assessment would be attracted or not ? 10. The issue is no more res integra having been concluded by the Apex Court in the case of B.V. Sivaiah and others v. K. Addanki Babu and others, AIR 1998 SC 2565 : 1998 (6) SCC 720 , wherein it was held "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. 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". 11. Following the above decision, the Apex Court in Diploma Engineers Sangh v. State of U.P. and others, JT 2007 (4) SC 532, said "This is similar to as seniority-cum-merit and seniority-cum-suitability. Application of such criterion does not mean that promotion is automatic, on the basis of seniority. It means that a list of all candidates in feeder post should be prepared in the order of seniority, and each candidate as per the rank in seniority is considered on merit. Whoever is found unfit, is rejected. Whether the candidate is fit or unfit is determined by adopting the procedure prescribed by the rules. It can also be by an interview. It can be with reference to the grades assigned in the Annual Confidential records. It can be by any other reasonable and relevant method prescribed." 12. The decision in B.V. Sivaiah (supra) and the passage quoted above, has been referred and followed also in Sher Singh and others v. Surinder Kumar and others, JT 1998(3) SC 728; Hari Govind Yadav v. Rewa Sidhi Gramin Bank and others, JT 2006 (5) SC 601; and Bhagwandas Tiwari and others v. Dewas Shajapur Kshetriya Gramin Bank and others, JT 2006 (10) SC 258, and it is evident therefrom that in a case where criterion for promotion is "seniority-cum-merit" the concept of comparative assessment does not arise at all. Here the respondents have admitted that the petitioner was not selected on account of comparative assessment and the performance appraisal of other officers. It is not the case of the respondents that the petitioner was unfit for promotion having secured less than 40% marks. We have thus, no hesitation in holding that the respondents have erred in not selecting the petitioner for promotion. The writ petition, therefore, deserves to be allowed. 13. In the result, the writ petition is allowed. It is not the case of the respondents that the petitioner was unfit for promotion having secured less than 40% marks. We have thus, no hesitation in holding that the respondents have erred in not selecting the petitioner for promotion. The writ petition, therefore, deserves to be allowed. 13. In the result, the writ petition is allowed. However, instead of declaring the entire promotion illegal and quashing the same, since the other persons are working on the promoted post for the last one decade and petitioner also stated that he is not interested in getting the promotion of other quashed, but is more interested in his own promotion, we are moulding the relief considering the interest of all and directing the Bank to consider the petitioner for promotion to the post of Officer MMGE-II with effect from the date his juniors have been promoted. We further direct that if the petitioner has secured 40% or above marks in the interview and performance appraisal etc. he will be considered for promotion with effect from the date his juniors have been promoted with all the consequential benefits except arrears of salary, which shall be admissible to him from the date of this judgment. It is made clear that the petitioner shall be entitled for cost, which we quantify to Rs. 5,000/-. ————