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2009 DIGILAW 404 (JK)

Altaf Hussain Mali v. Ellaqui Dehati Bank

2009-08-20

MUZAFFAR HUSSAIN ATTAR

body2009
1. "Seniority-cum-Merit Rule" provided in Regional Rural Banks (Appointment and Promotions of Officers and Other Employees) Rules, 1998 (for short `Rules of 1998) is placed at the focused position in these writ petitions. What is the purport and promise of "seniority-cum-merit" rule requires to be adjudicated upon in the writ petitions. 2. The facts in all these petitions are more or less not only similar but identical as well, which has necessitated hearing of these petitions together, and are accordingly decided by this common judgment. 3. A common thread running through all these petitions reveal that all the petitioners came to be appointed as Branch Managers in the respondent-bank in pursuance of recruitment process initiated in the year 1981. The petitioners in all the writ petitions came to be appointed as Branch Managers in pursuance of the said selection process, in the month of Nov. 1982. After successfully completing two years probation period the service of petitioners in all the writ petitions have been confirmed in the year 1984. 4. Some of the branches of the respondent-bank because of their performance were upgraded to Scale-II branches barring one petitioner all the petitioners were asked to officiate in Scale-II in the year 2002 and were also paid officiating allowance. 5. The respondent-bank issued circular No. 8 of 2005 dated 11th April 2005 wherein and whereunder it was informed that process for making promotions to 23 categorized posts in Scale-II has been initiated and it was further informed that 92 Scale-I officers in order of seniority are being called to appear in written test scheduled to be held in the month of May 2005. After qualifying the written test all the petitioners were called for interview. On completion of the selection process office order dated 17.09.2005 was issued and the Officers mentioned in the said office order were promoted to Scale MMGSII with effect from 17.09.2005. The petitioners in all the writ petitions, however, were not promoted and being aggrieved of their non-promotion challenged the said order so far it pertains to respondent No.4 to 15, and sought quashment of the said order. The petitioner(s) also prayed for issuance of writ in the nature of mandamus to declare the process of promotion undertaken by respondents 2 & 3 for promotion from officer Scale-I to Officer Scale-II to be non-est in the eye of law. The petitioner(s) also prayed for issuance of writ in the nature of mandamus to declare the process of promotion undertaken by respondents 2 & 3 for promotion from officer Scale-I to Officer Scale-II to be non-est in the eye of law. Further prayer for issuance of writ in the nature of certiorari for quashing the exercise of promotion undertaken by respondents 1 to 3 in the matter of promotion from Officer Scale-I to Scale-II and also of the quashment of promotion order dated 17.09.05 so far it relates to respondents 4 to 15 is made. Further prayer is made that by issuance of writ of mandamus or any other appropriate writ the respondents 1 to 3 be commanded to make promotion to officer Scale-II in strict accord with the criterion as dictated and mandated by the promotion Rule namely "Seniority-cum-Merit". It is further prayed that respondents 1 to 3 be directed to promote the petitioner to Scale-II position from the date the petitioner(s) have been officiating as Scale-II officer and to give all consequential service benefits to the petitioner(s). The reliefs sought for are almost identical in all writ petitions. 6. The entire case of the petitioners is build on the edifice that respondents 1 to 3 instead of following the Rule of "seniority-cum-merit" have in essence followed the Rule of "merit-cum-seniority" and thus, the petitioner(s) were deprived of the right of being promoted to the Scale-II illegally and arbitrarily. 7. Respondents 1 to 3 have filed the reply affidavit. While admitting the pleadings of the petitioner(s) based on the record in respect of their appointment as class I officer(s) it is also admitted that petitioner(s) secured the grade in the written test and were called for interview. In respect of pleas raised by the petitioner in each petition that the Rule of seniority-cum-merit has been observed in breach and promotions made in violation thereof, the respondents have responded to the said plea in para 19 of the SWP No. 981/05. This pleading of respondents 1 to 3 is identical in all the writ petitions. The para 19 of the reply is reproduced as under:- "In reply to para 20, it is submitted that it is not correct to state that any minimum merit was prescribed as contended by the petitioner. The seniority was given weightage when only senior officers were called for written test and interview. The para 19 of the reply is reproduced as under:- "In reply to para 20, it is submitted that it is not correct to state that any minimum merit was prescribed as contended by the petitioner. The seniority was given weightage when only senior officers were called for written test and interview. Depending upon the order of merit, as surfaced, qua each of the officers after written test and interview, promotions were affected on that basis. Since the petitioner did not fall in first 23 officers, obviously he could not be promoted. The respondent bank has strictly followed the rules in this behalf. It is submitted that in the principle of seniority cum merit, the merit is not given a go bye. The purpose of written test and the interview is to identify suitable officers on the basis of merit for purposes of promotion but at the same time weightage is given to the seniority, as the senior officers alone are called for written test and interview. Otherwise the total number of officers in Scale I cadre is more than 92 officers who were called for appearing in the written test and thereafter in the interview. It is submitted that out of 92 officers who appeared in the written test only 52 obtained the minimum marks prescribed in this behalf and they alone were called for interview. It is, therefore, submitted that the principle of seniority cum merit has been followed in the matte of promotion." 8. It may not be out of place to mention here that petitioner in SWP No. 1650/07 failed to take steps for effecting service on respondents 4 to 15, and the court vide its order dated 12th Feb. 2009 dismissed the writ petition against the said respondents. 9. It is not in dispute that service of petitioners in respondent-bank is governed by Rules of 1998 which rules have been framed by Central Government in exercise of powers vested u/s 29 of Regional Rural Bank Act of 1976. For promotion to the post of Scale-II officers, the Rules of 1998 provide appointment to Sale-II officers is to be made 100% by promotion. The Rules of 1998 in respect of promotion to Scale-II officer deal as under:- "d) whether promotion to be made on seniority basis or made on the basis of seniority-cum-merit." 10. For promotion to the post of Scale-II officers, the Rules of 1998 provide appointment to Sale-II officers is to be made 100% by promotion. The Rules of 1998 in respect of promotion to Scale-II officer deal as under:- "d) whether promotion to be made on seniority basis or made on the basis of seniority-cum-merit." 10. The officers who are holding post of Scale-I officer for eight years on regular basis are entitled to be considered for being promoted/appointed in Scale-II post. The officer however, must have been confirmed in the feeder grade post. The selection of officers to Scale-II is to be made by selection of the candidates which is to be made by the committee on the basis of written test, interview and assessment of performance appraisal reports for preceding five years as officer in Scale-I/Field Supervisor. The committee is to consist of Chairman of Regional Rural Bank as Chairman, a Director nominated by sponsor bank-Member, a Director nominated by the National Bank-Member . The number of candidates to be considered for promotion from officer Scale-I to Officer Scale-II is to be restricted to four times the number of vacancies available for promotion. The selection process has to be on the basis of performance in the written test, interview and performance, appraisal report of preceding five years as per the division of marks which provide 60% marks(written test) 20% marks (interview) and 20% marks (performance appraisal report). It is further provided in the Rules of 1998 that the candidates should be required to appear for written test comprising of two parts, part A and part B and it is provided a list of only those candidates who secure minimum 40% marks in each part shall be prepared and such candidates shall be called for interview. Heard. learned counsel for parties. Considered the matter. 11. Two diametrically opposite stands have been taken by ld. counsel for parties in interpreting the Rule of seniority-cum-merit. Mr. R.A. Jan ld. counsel for the petitioner, with his eloquence was at pains to explain that in Rule of seniority-cum-merit, it is the seniority which has to prevail and only senior members are to be promoted to the next higher post. Two diametrically opposite stands have been taken by ld. counsel for parties in interpreting the Rule of seniority-cum-merit. Mr. R.A. Jan ld. counsel for the petitioner, with his eloquence was at pains to explain that in Rule of seniority-cum-merit, it is the seniority which has to prevail and only senior members are to be promoted to the next higher post. The ld counsel further submitted that respondents 1 to 3 while making appointment by way of promotion to the Scale-II officers have given a complete go-bye to the intendment of the Rule "seniority-cum-merit" and have thus violated the right of petitioner(s) as guaranteed under Article 14 and 16 of the Constitution. The ld. counsel submitted that the Regional Rural Bank being an authority within the meaning of Article 12 of the Constitution is under legal mandate to comply with the provisions of Article 14 and 16 of the constitution which fall in part-III of the Constitution. The ld. counsel further submitted that excepting one petitioner all other petitioners because of their performance were ordered to officiate as Scale-II officers and officiating allowance was also paid to them. The said position dates back to year 2002. Whereas, the process of promotion in respect of 23 posts of Scale-II officers was initiated in the year 2005.The ld. counsel thus would convey that the petitioners were found to be competent enough to man the Scale-II officer post. The ld. counsel further submitted that method and procedure followed by respondents 1 to 3 in making the promotion to Scale-II officers is violative of the mandate of the judgment titled B.V. Sivaiah and ors etc appellant, v. K.Addanki Babu and ors etc respodennts, reported in AIR 1998 SC 2565. The ld counsel made pointed reference to paragraphs 12,14,18,25,26,29 and 32. The ld. counsel also referred to and relied upon the judgment of the Honble Supreme Court in case titled Harigovind Yadav appellant v. Rewa Sidhi Gramin Bank and ors, respondents, reported in (2006) SCC 145 and case titled Bhagwandas Tiwari and ors v. Dewas Shajapur Kshetiya Gramin Bank and ors, reported in AIR (2007) SC 994. The ld counsel thus, prayed for allowing these writ petitions. 12. Mr. Z.A.Shah ld. Sr. Advocate, appearing on behalf of respondent Nos. The ld counsel thus, prayed for allowing these writ petitions. 12. Mr. Z.A.Shah ld. Sr. Advocate, appearing on behalf of respondent Nos. 1 to 3 initially tried to canvass that the procedure and method, followed by respondents 1 to 3 in making promotion to Scale-II officer is in strict accord with seniority-cum-merit rule. The ld. counsel further submitted that the said rule has been followed in as much as it was only senior officers who were called for written test and thereafter the promotions were made on the basis of merit which each candidate secured after going through the selection procedure provided by Rules of 1998. 13. The Rules which devised the mode/method and procedure in the present case are not engineered to determine inter se merit amongst the competing candidates. The solemn purpose of enunciating the mode, method and procedure is to assess and adjudge the capability of the eligible officer to man the post, for which his candidature is considered for being promoted and appointed thereto. The principle underlying the "seniority-cum-merit" rule in the present case leads to only one irresistible conclusion that it has nexus with finding a suitable candidate in relation to the post which is the promotional post and for achieving this purpose minimum standard is provided. The procedure is provided to give uniform treatment to all the competing candidates. The procedure, mode and method devised in the present case is to ensure that the senior candidate who is to be promoted to the higher post does possess the qualities which are required for manning the said higher post. Once a candidate is found fit to man the higher post then on the basis of seniority he has to be promoted to the higher post. The competent authority in such circumstances cannot promote person to the higher post on the basis of interse merit secured by eligible competing candidates. The interse merit secured by eligible candidates is rendered inconsequential and pales into significance in view of the fact that promotion is to be made on the basis of the seniority-cum-merit. On the anvil of mode, method and procedure officers competence to hold the higher post is adjudged. Once a senior employee secures the grade he by the force of the Rule "seniority-cum-merit" has to be promoted/appointed to the higher post. On the anvil of mode, method and procedure officers competence to hold the higher post is adjudged. Once a senior employee secures the grade he by the force of the Rule "seniority-cum-merit" has to be promoted/appointed to the higher post. He cannot be deprived of the said right of promotion/appointment to the said post only because amongst the eligible candidates he secured comparatively lesser merit than his juniors. The moment junior person having secured higher merit than senior person is promoted to higher post, the rule becomes Rule of "merit-cum-seniority" and not "seniority-cum-merit". In a situation where only seniority is criterion for making promotion to the next higher post the senior person has to be promoted to that post irrespective of his merit/grade he posses. The Rule of seniority-cum-merit however, has the inbuilt safeguard to ensure that an employee though senior but lacking in the necessary requirement to hold the higher post is not promoted to the higher post as that will adversely affect the functioning of the institution. The Rules of 1998 provide that an officer who has secured 40% marks in each part of the written test is to be called for interview. Interview, performance, appraisal reports are considered to find out that there is nothing adverse recorded in the service records of an employee and/or he has not earned punishment, and was not declared incompetent or does not suffer on account of moral turpitude. An employee who though senior but has earned punishment and is declared incompetent or his service career suffers from moral turpitude cannot be promoted to the next higher post, it is where the "merit" part of "seniority-cum-merit" rule comes into play. The moment nothing adverse like above is found against a senior employee then he on the basis of the seniority has precedence of being promoted to the higher post over his junior, not-with-standing this fact that a junior might have secured higher percentage than the senior. Any other interpretation placed on the rule of "seniority-cum-merit" would render the Rule nagatory and the Rule would literally be denuded of its meaning and value both in letter and spirit. 14. Any other interpretation placed on the rule of "seniority-cum-merit" would render the Rule nagatory and the Rule would literally be denuded of its meaning and value both in letter and spirit. 14. In para 19 of the reply respondents 1 to 3 have tried to justify their action of promoting officers to the higher post on the basis of merit secured by them on the ground that seniority was given weightage when only senior officers were called for written test and interview. In the said para it is submitted by respondents 1 to 3 that for making promotion to 23 Scale-II officers posts, 92 officers were called to take the written test and out of these officers only 52 obtained the minimum marks prescribed in this behalf and they alone were called for interview. The respondents 1 to 3 thus submit that for this reason they have complied with the principle of seniority-cum-merit rule. The very admission made in the para 19 of the reply affidavit of respondents 1 to 3 makes it writ large on the face of the record that the promotion has been made on the basis of merit secured by each officer in the process of selection. This action of the respondents 1 to 3 thus runs counter to the mandate of "seniority-cum-merit" rule. The moment the respondents had short listed 52 candidates who had secured minimum marks in the written test, then senior most 23 persons were required to be promoted to Scale-II officer post. This action of making promotion on basis of seniority would be subject to only one inhibition that if any of the senior persons service record would show that he has earned punishment or suffers from moral turpitude, then in such circumstances he would be dropped and next officer ranking in the seniority list would be considered for being promoted to the Scale-II officer. The respondents 1 to 3 have nowhere taken such stand against any of the petitioners, so it is admitted that none of the petitioner would suffer on account of moral turpitude as their service career had not suffered any such infraction. This being position the petitioners in all the writ petitions were entitled on the basis of "seniority-cum-merit" rule for being promoted to the Scale-II officer posts. All the petitioners in all the petitions in view of their seniority position would be promoted to Scale-II officer posts. This being position the petitioners in all the writ petitions were entitled on the basis of "seniority-cum-merit" rule for being promoted to the Scale-II officer posts. All the petitioners in all the petitions in view of their seniority position would be promoted to Scale-II officer posts. The securing of 40% marks in each part of written test is determinative factor that officer who has secured the minimum grade as provided, is competent to hold the Scale-II officer post, thereafter promotion was to be made on the basis of seniority which mode admittedly has not been followed. 15. 23 Scale-I officers who are senior most according to seniority list secured 40% marks and were amongst 52 candidates who were called for interview. In view of the above discussion these 23 senior most officers formed one single class. This class of employees was therefore to be promoted to Scale-II officers. The respondents 1 to 3 however have clubbed this class of employees with other employees whos ranking would start from serial No.24 to serial No.52. The "seniority cum merit" rule as discussed above would thus make the senior most 23 persons from amongst 52 officers entitled for being promoted to the Scale-II officers a separate and distinct class. The respondents 1 to 3 however, by clubbing these two distinct and separate classes together have subjected the petitioners to invidious discrimination for purposes of promotion to Scale-II officers post, which renders the action of respondents 1 to 3 violative of Article 14 and 16 of the Constitution. 16. The exercise undertaken by respondents 1 to 3 for making impugned promotion is held to be illegal, voilative of "seniority-cum-merit rule" of the Rules of 1998 and thus infringing the constitutional guarantees as contained in Article 14 and 16 of the Constitution. 17. Mr. Z.A. Shah, at last submitted that it appears that the seniority-cum-merit rule has not been followed by respondents 1 to 3 in making promotions to Scale-II officer post and further submitted that the promotion of junior most officers be ordered to be set aside/quashed. 18. After holding that the impugned promotion order is illegal it is to be seen as to what relief(s) the petitioners would be entitled to. 18. After holding that the impugned promotion order is illegal it is to be seen as to what relief(s) the petitioners would be entitled to. The respondents 1 to 3 have made the promotions in cruel disregard to the law laid down by the Honble Supreme Court in cases B. V. Sivaiah and ors etc appellant, v. K.Addanki Babu and ors etc; Harigovind Yadav appellant v. Rewa Sidhi Gramin Bank and ors; Bhagwandas Tiwari and ors v. Dewas Shajapur Kshetiya Gramin Bank and ors (supra). The respondents 1 to 3 were duty bound to follow the mandate of the judgment passed in B.V. Sivaiah and ors case (supra) in terms of the Article 141 of the Constitution. The respondents 1 to 3 have rendered themselves liable for initiation of action against them. However, it appears that respondents have not been made conscious of the law laid down by the Honble Supreme Court and accordingly a lenient view is taken and no action is ordered to be taken against them. The petitioners in these circumstances would be entitled to all the benefits attached to Scale-II officer post from the date their juniors have been promoted to the said post. 19. By writ of certiorari the impugned order dated 17.09.2005 is quashed to the extend of respondents 4 to 15. 20. The respondents 1 to 3 are directed to reconsider the promotion of the officers to the posts of Scale-II officers strictly on the basis of seniority from amongst 52 persons who had obtained minimum marks and were alone called for interview and promote petitioner(s) to post of class--II officer. It is further declared that those of the respondents who would continue in service on such reconsideration, the quashment of their promotion orders shall not constitute as break in their service and would be treated to have continued in the service in Scale-II officers without any interruption and break. 21. The respondents 1 to 3 are further directed to consider the promotion of petitioners to Scale-II officer post from the date viz 17.09.2005 and accordingly promote them to Scale-II officer from said date. The petitioners will be paid the salary attached to the post of Scale-II officer from the date their juniors have been promoted to the said post viz 17.09.2005 and will be entitled to all other service benefits. 22. The petitioners will be paid the salary attached to the post of Scale-II officer from the date their juniors have been promoted to the said post viz 17.09.2005 and will be entitled to all other service benefits. 22. The respondents 1 to 3 are commanded to pass fresh orders of promotion in accordance with directions given in this judgment. 23. All the petitions are disposed of along with the connected CMPs.