JUDGMENT By the Court.—Heard Shri Shashi Nandan, Sr. Advocate assisted by Shri Sudhanshu Pandey for the petitioners. Learned Standing Counsel appears for the State respondents. Shri Ashok Khare, Sr. Advocate assisted by Shri Aditya Kumar Singh appears for the private respondent Nos. 3 to 17. 2. The petitioners are serving as Office Assistants in different branches of Purvanchal Gramin Bank. By this writ petition they have prayed for quashing the select list dated 10.9.2009, issued vide the Circular No. 82, by the General Manager of the Bank for promotion on the post of Officer Scale-I. They have also prayed for preparing a fresh list of selection, for promotion on the criteria of ‘seniority-cum-merit’ as provided in Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1998, and in accordance with the Circular of Advertisement dated 21.5.2009. 3. The Purvanchal Gramin Bank is one of the Regional Rural Banks constituted under Section 3 of the Regional Rural Banks Act, 1976. The bank is sponsored by the State Bank of India with headquarters situated at Gorakhpur. The employees of the bank for the purposes of appointment and promotion are regulated by Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1998 notified on 29.7.1998 vide Circular No. 31 dated 21.5.2009. The General Manager of the bank issued a notification for promotion of employees serving in the Clerical Grade (Office Assistant), to the post of Officer Scale-I. The notification proposed to fill up 23 vacancies by promotion from the clerical grade on the criteria of ‘seniority-cum-merit’, in accordance with the Rules of 1998. The selection was to be made by holding a written test, interview and assessment of the performance of work by a Selection Committee consisting of Chairman of the Bank, a Director nominated by the Bank, and Director nominated by a Nationalised Bank. If there was no Scheduled Castes or Scheduled Tribe member of the Board, the member belonging to the Scheduled Caste and Scheduled Tribe was to be nominated to take part in the proceedings of selection. The selection was based on a total of 100 marks out of which 70 were fixed for written examination, 20 for interview and 10 for appraisal of work. 4. By a Circular No. 52 dated 3.7.2009 the bank increased the vacancies for promotion to 41. The selection was based on a total of 100 marks out of which 70 were fixed for written examination, 20 for interview and 10 for appraisal of work. 4. By a Circular No. 52 dated 3.7.2009 the bank increased the vacancies for promotion to 41. The petitioners’ names were included in Circular No. 15 dated 4.7.2009 and in the list at Sl.Nos. 4, 57, 69, 88, 61, 9, 27, 42, 10 and 96 in accordance with their seniority. The names of respondent Nos. 3 to 17 were also included in this list at Sl.Nos. 109, 116, 129, 145, 150, 151, 168, 172, 179, 181, 182, 183, 184, 185 and 195. 5. The written examination was held on 5.7.2009 in which, it is alleged by the petitioners that the list of successful candidate was declared as per their seniority, two times the number of existing vacancies. The interviews were held at the Head Office vide Circular No. 82 dated 10.9.2009. In the select list the petitioners were not selected. 6. Shri Shashi Nandan, learned counsel for the petitioners submits that the selections were made in violation of the prescribed rules, and the advertisement ignoring the principle of seniority-cum-merit. The petitioners were not unfit to discharge duties on the higher post. The respondents adopted a policy of pick and choose. Some of the candidates namely respondent No. 5-Arun Kumar Tiwari was suspended in 1989; Shri Amar Nath Agrawal’s appraisal, selected at Sl.No. 1, was not satisfactory; the increment of Shri Janardan Lal, selected at Sl.No. 9 was withheld by the department. He would submit that the basis of selection namely seniority-cum-merit was ignored by the bank. He has relied upon B.V. Sivaiah and others v. K. Addanki Babu and others, (1998) 6 SCC 720 ; K. Samantaray v. National Insurance Co. Ltd., (2004) 9 SCC 286; Harigovind Yadav v. Rewa Sidhi Gramin Bank and others, (2006) 6 SCC 145 and the judgment of this Court in Rajendra Prasad Yadav v. Chairman, Samyut Kshetriya Gramin Bank, Azamgarh and others, 2008(4) ADJ 639 (DB). 7. The Circular No. 31 dated 21.5.2009 provides for method of selection for promotion from clerical grades to officer, Junior Management Scale-1. The Circular begins with statement that the recommendations of Human Resource Policy of Thorat Committee are applicable to the Purvanchal Gramin Bank w.e.f. 1.5.2009 under which the process of promotions to the vacancies is in progress. 7. The Circular No. 31 dated 21.5.2009 provides for method of selection for promotion from clerical grades to officer, Junior Management Scale-1. The Circular begins with statement that the recommendations of Human Resource Policy of Thorat Committee are applicable to the Purvanchal Gramin Bank w.e.f. 1.5.2009 under which the process of promotions to the vacancies is in progress. The promotions have to be made in accordance with the specified rules and conditions given in the Regional Rural Banks (Appointment and Promotions of Officers and other Employees)Rules, 1998. 8. The process of promotion provided in the Third Schedule to the Rules is quoted as above. It is submitted that since the recommendation of Thorat Committee providing for two modes of promotion namely normal promotion after 10 years of service and promotions on fast track channel after six years of service on the post of Office Assistant, and the recommendations were accepted, Rules have to be modified by the bank in exercise of the powers under Section 29 of the Regional Rural Banks Act, 1976. It is contended that the petitioners were holding the post in the clerical cadres prior to the implementation of the recommendations of the Thorat Committee. The petitioner in Writ Petition No. 35630 of 2009 was after the implementation of the recommendation of Thorat Committee re-designated as Office Assistant and is as such eligible for promotion on the post of Officer Scale-1. In Para 19 it is stated that since the Rules of Central Government under Section 29 of the Act of 1976 have not been framed after the acceptance of the recommendation of the Thorat Committee, the promotions undertaken in accordance with the procedure prescribed in Rules of 1998 is totally illegal and arbitrary. It is not open to the Bank to deviate from the recommendations made by Thorat Committee and that the Rules to that extent have become redundant. 9. Shri Ashok Khare, learned counsel appearing for the respondents declared successful in the selection submits, that the criteria of ‘seniority-cum-merit’ was strictly followed in accordance with the Rules of 1998. The petitioners could not secure minimum of 40% marks in the written examination i.e. 28 marks (14+14) in each discipline out of 70 marks (35+35) in the written examination. They were, therefore, not entitled to be considered by the Selection Committee for promotions. 10. The petitioners could not secure minimum of 40% marks in the written examination i.e. 28 marks (14+14) in each discipline out of 70 marks (35+35) in the written examination. They were, therefore, not entitled to be considered by the Selection Committee for promotions. 10. Shri Ashok Khare has relied upon paras 17 and 18 of B.V. Sivaiah’s case (Supra) in which it was held that seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having same length of service, it is generally determined on the placement in the select list for appointment. It was further held that criteria of ‘seniority-cum-merit’ in the matter of promotion postulates that given the minimum necessary merits requisite for efficiency of administration, the senior even though less meritorious shall have priority and comparative assessment of merit is not required to be made. For assessing the minimum necessary merit the competent authority can lay down the minimum standards that is required, and also prescribed 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 records and interview and prescribing minimum marks, which would entitle a person to be promoted on the basis of seniority cum merit. 11. In the counter-affidavit of Shri Ramesh Prasad Singh, Manager Personnel Department, Purvanchal Gramin Bank, Gorakhpur filed on behalf of the Purvanchal Gramin Bank through Chairman-respondent No. 1 and the General Manager (Administration)-respondent No. 2, it is admitted that criteria for promotion in the Rules of 1998 is ‘seniority-cum-merit’. The Rules of 1998, provide that after written test a list of only those candidates, who secured minimum of 40% marks each in English, and Bank Law and Practice and Procedure, shall be prepared. The bank will thereafter prepare a list of selected candidates in order of seniority to the extent of 200% for promotion for calling them for interview. In para 7 of the counter-affidavit of Ramesh Singh, Manager, Personnel Department of the bank at Gorakhpur it is stated that Rules of 1998, make it clear, that (i) securing minimum 40% marks in each subject is fixed by the Rules of 1998; (ii) list of candidates securing 40% marks is prepared upto 200% of vacancies for calling for interview. In para 7 of the counter-affidavit of Ramesh Singh, Manager, Personnel Department of the bank at Gorakhpur it is stated that Rules of 1998, make it clear, that (i) securing minimum 40% marks in each subject is fixed by the Rules of 1998; (ii) list of candidates securing 40% marks is prepared upto 200% of vacancies for calling for interview. Thereby senior candidate scoring only 40% marks in each subject i.e. just 28 marks (14+14) each discipline out of 70 marks (35+35) fixed for written test, will certainly get a place in the list of candidates called for interview and in reference a junior candidate having scored marks in higher percentage than those of their seniors will not be able to ensure any position in the list of candidates called for interviews. It is further stated in the counter-affidavit that in accordance with the Rules of 1998 a list of 82 candidates having secured minimum 40% marks in each subject in the written test held on 5.7.2009, against total vacancy of 41 upto 200% was prepared with strict adherence to their seniority and was circulated vide Circular No. 69 dated 30.7.2009. 12. It is further stated in para 8 of the counter-affidavit that under the provisions of Thorat Committee’s recommendations approval of Government of India is taken for creation of vacancy as on 31st March every year. Based on the business as on 31.3.2008, 23 vacancies were created and circulated vide Bank Circular No. 31 dated 21.5.2009 and that as on 31.3.2009 altogether 41 vacancies were notified to be filled by Bank’s Circular No. 52 dated 3.7.2009. The 200% of 41 vacancies i.e. 82 candidates, securing minimum of 40% marks in the written test were called for interview, according to their seniority. Only those seniors, who obtained 40% marks in written test got their place in the ratio of 1:2 in the list of candidates for interview. Thereafter the established system of Annual Performance Appraisal, which includes ratings under three major heads namely general intelligence, job knowledge, and initiative and resourcefulness were marked in four different grades namely (i) Excellent (ii) Good (iii) Above average and (iv) Average. All eligible candidates were awarded marks in the same criteria. 13. In para 19 of the counter-affidavit of the bank it is stated as follows : “19. All eligible candidates were awarded marks in the same criteria. 13. In para 19 of the counter-affidavit of the bank it is stated as follows : “19. That the contents of paragraph No. 23 of the writ petition are again a repeated and hypothetical version on the part of petitioners, hence vehemently denied. In reply thereto it is submitted that the promotion under the reference has been completed in accordance with the provisions of RRB (Appointment and promotion of Officer and other Employees) Rules, 1998, in such rules under the head “Mode of Selection” it is stipulated that, “The selection shall be made on the basis of performance in the written test, interview and 5 years performance appraisal report as per the division of marks given below: (a) Written Test 70 marks English 35 marks Banking law Practice and Procedures 35 marks (b) Interview 20 marks (c) Performance Appraisal Report 10 marks Total Marks 100 marks Therefore merely being successful in the written examination did not entitle the petitioners for final selection and only they secure minimum 40% marks in written examination to be enlisted among candidates prepared strictly according to the seniority of the candidates and limited to only 200% of total vacancies thereafter they have to obtain maximum marks in interview and performance appraisal and if they stand in the seniority list within the number of vacancies, a place in the final select list may be ensured to them. As such the select list prepared on the basis of laid down procedures in Rules 1998 issued by G.O.I. Is based on principle “Seniority-cum-merit” and is according to law.” 14. In the counter-affidavit of Shri Ramesh Prasad Singh, it is further stated in para 19 that the Rules of 1998 are being followed in compliance with the Circular letter of NABARD dated 29.10.2008. There exists nothing in the Rules of 1998, which may run counter to the acceptance of the Thorat Committee recommendations nor has the petitioner been prejudiced in any manner. The petitioner has appeared in the written examination held on 5.7.2009 without any protest and has thereafter chosen to file the writ petition without disclosing the fact that the written examination has been held in which the petitioner has participated. In para 20 it is stated that the respondent bank has not deviated in any manner from the Thorat Committee recommendations. In para 20 it is stated that the respondent bank has not deviated in any manner from the Thorat Committee recommendations. In para 23 it is stated that all clerical staff in the respondent bank except compassionate appointees possess more than 10 years length of service to their credit. The merger of 3 separate clerical cadre into the clerical cadre of Officer Assistant has in no manner affected promotion proceedings by filling up the post of Officer Scale-1. 15. In para 8 of the Circular No. 147 of Purvanchal Gramin Bank dated 20.3.2009 it is stated that the Government of India appointed a Committee under the Chairmanship of Dr. Y.S.P. Thorat for a wide ranging review of the policy and Human Resource Management in Regional Rural Banks and that the Central Government has after receipt of the recommendations issued directions to implement the recommendations. The proposals were placed in the meeting of the Board of Directors of the bank held on 3.3.2009 and in which apart from other matters, it was decided that since the detailed policy for appointment and promotions, in implementation of the recommendations of Thorat Committee, is to be shortly issued by the Central Government, the appointment and promotions shall be made after the receipt of such policy. Para 10 of the Circular provides that bank has been following the criteria of ‘seniority-cum-merit’ for promotions. After the acceptance of the recommendation of the Thorat Committee the procedure of promotions by normal and fast track channel is being followed and accordingly the table given in para 10 provides that for promotions from Category-B to Category-A, Officer Scale-1 for those who have completed 10 years of service are eligible to normal mode of promotion to 50% posts to be selected after holding written test, interview and performance assessment with three times the candidates including repeaters for the vacancies. For those, who are graduate and completed 6 years of service a fast track channel is provided in the same table with a written examination, interview and performance appraisal. There is no difference of procedure in the Circular dated 20.3.2009 for promotions. Clause-10 simply divides two methods of promotion namely normal for those, who have completed 10 years of service for 50% vacancies and fast track channel for remaining 50% vacancies from amongst those, who are graduates with 6 years of service. There is no difference of procedure in the Circular dated 20.3.2009 for promotions. Clause-10 simply divides two methods of promotion namely normal for those, who have completed 10 years of service for 50% vacancies and fast track channel for remaining 50% vacancies from amongst those, who are graduates with 6 years of service. The Bank has clarified that there is no one in the Category-B for promotions to Officer Scale-1 except those, who were appointed on compassionate grounds having less than 10 years of service. The petitioners, therefore, have not sufferred any prejudice, if the bank has not followed the Fast Track Channel by providing to fill up all the vacancies for promotion by holding written test, interviews and performance appraisal. 16. In B.V. Sivaiah (Supra) it was held by the Supreme Court that ‘seniority-cum-merit’ in the matters 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 which in turn may be based on service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. 17. In K. Samantaray (Supra) the criteria for promotion namely ‘seniority-cum-merit’ and ‘merit-cum-seniority’ and the hybrid mode was explained. It was held that promotion is understood as advancement in rank, grade or both. The principles of ‘seniority-cum-merit’ and ‘merit-cum-seniority’ are conceptually different. For the former the greater emphasis is laid on seniority, though it is not the determinative factor, while in the later, greater emphasis is laid on merit, which is the determinative factor. The third mode is the hybrid mode, in which seniority is duly respected and merit is appropriately recognized. 18. The principles of ‘seniority-cum-merit’ and ‘merit-cum-seniority’ are conceptually different. For the former the greater emphasis is laid on seniority, though it is not the determinative factor, while in the later, greater emphasis is laid on merit, which is the determinative factor. The third mode is the hybrid mode, in which seniority is duly respected and merit is appropriately recognized. 18. In Harigovind Yadav (supra) the Supreme Court held that in the matter of criteria of ‘seniority-cum-merit’ for promotion, 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, actually followed the merit-cum-seniority principle and was not in consonance with the principle of seniority-cum-merit. 19. In Rajendra Prasad Yadav this Court examined the criteria of ‘seniority-cum-merit’ for promotions from the post of Field Supervisor in Gramin Bank. Following the judgments cited as above, the Court held that it was open to the employer to fix minimum standard which a candidate should achieve before he could be granted promotion having regard to his seniority, but it was not open to the employer to make appointment on the basis of relative merit secured by the candidates on the basis of the marks fixed for various disciplines ignoring the seniority. The Division Bench held that learned Single Judge has expressed his opinion contrary to the law laid down by the Supreme Court. Instead of remanding the matter in view of the fact that persons, who were already promoted were not impleaded the Court found it appropriate to dispose of the writ petition with liberty to the petitioners to approach the Board of Directors to ventilate their grievances by making representations. 20. In B.V. Sivaiah (Supra) the Supreme Court after laying down the principles of law as aforesaid proceeded to consider the promotions in Rayalaseema Gramin Bank, Pinakini Gramin Bank, Bastar Kshetriya Gramin Bank, Rewa Sidhi Gramin Bank and Chhindwara-Seoni Kshetriya Gramin Bank. In para 26 the Supreme Court approved the promotion process adopted by the Rayalaseema Gramin Bank in its Circular dated 27.9.1989 in which it had set aside 34 marks for seniority, 10 marks for qualifications, 20 marks for interview and 56 marks for performance. In para 26 the Supreme Court approved the promotion process adopted by the Rayalaseema Gramin Bank in its Circular dated 27.9.1989 in which it had set aside 34 marks for seniority, 10 marks for qualifications, 20 marks for interview and 56 marks for performance. Out of total number of 120 marks, the maximum number of marks, which may be awarded for seniority was 34 and 0.75 marks was to be given for each completed month of service over and above the minimum qualifying service. If two persons were appointed on the same day, same number of marks had to be awarded for seniority out of 120. 50% marks were set apart for interview and performance. The Supreme Court upheld the judgment of the High Court concluding that only those officers, who had secured higher number of marks were ultimately promoted and that it was not a case where minimum qualifying marks were prescribed for assessment of performance and merit and those, who secured prescribed minimum qualifying marks were selected. Shri Ashok Khare has also relied upon the ratio of K. Samantaray (Supra) and Harigovind Yadav (Supra) for the same proposition. 21. Both the petitioners and respondents are relying upon same decisions to examine the correctness of the procedure adopted for assessing the comparative merit in the criteria of seniority-cum-merit, and whether the fixing of cut off marks, however low they may be in the written examination excluding the chances of seniors to be considered for promotion, violates the principles of law of ‘seniority-cum-merit’ as determined by the Supreme Court. 22. In K. Samantaray (Supra) the Supreme Court held that it is always open to the employer to specify the area and parameters of weightage to be given in respect of merit and seniority separately so long as policy is not colourable exercise of power nor has the effect of violating any right, statutory scope of interference and other relatable matters. It was found that B.V. Sivaiah’s case is distinguishable on facts. That was a case, where statutory rules governed the field. Fixing the terms, which are at variance with statutory rules is impermissible but that in K. Samantaray’s case there were no codified prescription. Prior to the formulation of policy these guidelines were taken into consideration for rationalising and codifying the existing guidelines relating to promotion within the officers’ cadre. That was a case, where statutory rules governed the field. Fixing the terms, which are at variance with statutory rules is impermissible but that in K. Samantaray’s case there were no codified prescription. Prior to the formulation of policy these guidelines were taken into consideration for rationalising and codifying the existing guidelines relating to promotion within the officers’ cadre. In Harigovind Yadav it was held (para 22), that where the procedure adopted did not provide for minimum standard for promotion but only minimum standard for interview, the selection was made with reference to comparative marks was contrary to the rule of seniority-cum-merit. In Sher Singh v. Surendra Kumar, (1998) 9 SCC 652 , the Supreme Court held while deciding the similar question relating to promotion that criteria for promotion was seniority-cum-merit but the bank did not follow the criteria and made promotions on the basis of merit-cum-seniority. 23. The vacancies in the bank are provided to be filled up under Rule 6 of the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1998 by promotion or direct recruitment under Rule 6, in accordance with the provisions contained in the Rules and third Schedule to the Rules. Rule 6 provides : “6. Filling up of vacancies.—All vacancies, determination under Rule 5 by the Board, shall be filled by promotion or direct recruitment in accordance with the provisions contained in these rules and Third Schedule to these rules.” 24. The Third Schedule appended to the Rules provides for appointment to different categories of officers and other employees to Group-A, B and C posts, where by direct recruitment or by promotion For Scale-1 officer classified as Group-A post Para 3 (c) provides 50% of the vacancies to be filled up by direct recruitment through Banking Service Recruitment Board and 50% by promotion. The promotions is to be made under Para 3 (d) on the basis of ‘seniority-cum-merit’. The mode of selection in Para 3 (f) (ii) is by selection to be made by the Committee, on the basis of written test, interview and performance appraisal reports. The selection process is given in Para 3 (j) as follows : 25. The petitioners have not challenged the selection process for promotees given in Para 3 (f) of the Third Schedule appended to the Rules. The selection process is given in Para 3 (j) as follows : 25. The petitioners have not challenged the selection process for promotees given in Para 3 (f) of the Third Schedule appended to the Rules. In Writ Petition No. 35630 of 2009 the petitioner has prayed for quashing Circular No. 31 dated 21.5.2009 issued by the respondent bank, and not to make promotions on the post of Officer Scale-1. He has also prayed for commanding the respondent No. 2 to frame Rules under Section 29 of the Regional Rural Banks Act, 1976 for appointment and promotions of employees and officers of rural bank as per the recommendation of the Thorat Committee. In Writ Petition No. 53033 of 2009 the petitioners have prayed for quashing the select list for promotions dated 10.9.2009 and have prayed for directions to prepare fresh list of selections for promotion on the basis of seniority-cum-merit as provided in the Rules of 1998 and the Circular of advertisement dated 21.5.2009. 26. The judgment in Syndicate Bank SC, ST Employees Association v. Union of India, 1990 (Suppl.) SCC 350, is not of much help to the petitioners. The Supreme Court held that for the purposes of promotion in the cadre of officers upto Scale-V is not based on seniority alone. Apart from seniority other factors based on selective process were also important and as such it could not be held that the promotions in the higher scale were based solely on seniority. The bank in that case followed hybrid system of promotion, in which upto Scale-IV points were given for seniority as well as for other factors, which are based on short of selection process depending upon the educational qualifications, performance in the scale and interview. In the case of promotion from Scale-4 to Scale-7 no points were given for seniority at all. Rule of reservation for SC, ST was to apply to appointment made by promotion on selection basis, subject to procedure somewhat different from the usual procedure adopted in filling up posts reserved for SC & ST on selection basis alone for appointment to be made by direct recruitment. 27. From the aforesaid discussion we find that the recommendation of the Thorat Committee have been accepted but broad based policy on the basis of recommendations has not been issued by the Central Government so far and that Rules have not been amended. 27. From the aforesaid discussion we find that the recommendation of the Thorat Committee have been accepted but broad based policy on the basis of recommendations has not been issued by the Central Government so far and that Rules have not been amended. The petitioners have not challenged the selection process for promotions in Third Schedule of the Rules of 1998. They have prayed for implementation of the recommendations of the Thorat Committee. After the broad based human resource policy is issued by the Central Government, the Rules of 1998 will require amendment. Until then the statutory rules are to be followed. The Circular No. 31 dated 21.5.2009 does not provide for any change in the process of promotion. 28. The ‘seniority-cum-merit’ as the criteria of promotion in the rural bank has been considered by the Supreme Court in B.V. Sivaiah (Supra), K. Samantaray (Supra) and Harigovind Yadav (Supra). The Supreme Court after several rounds of litigation held in Hargovind Yadav (Supra) that where the procedure adopted does not provide a minimum standards for promotion but minimum standard for interview, and selection is made with reference to comparative marks is contrary to the rule of ‘seniority-cum-merit’. In the present case selection has been held in accordance with the process to Third Schedule of Rules of 1998. It does not provide for selections with reference to comparative marks. The Bank followed the procedure prescribed in the Rules to find out minimum merit for preparing a list of the candidates, who secured a minimum of 40 marks each in English, Banking Law Practice and Procedure. It thereafter prepared the list in order of seniority to the extent of 200% of the vacancies for promotion, for the purposes of calling for interview in which 20 marks were fixed with stipulation that there shall be no minimum qualifying marks in the interviews. The preparation of eligibility list of those candidates, who secured 40% marks was not to find out comparative merit in the written examination, but to shortlist the persons having minimum merit for the purposes of promotions to the Scale-1 Officer. 29. We, therefore, find that the prescription of 70 marks in the written test was not to compare merit amongst the eligible candidates but to draw a list of those candidates, who secured a minimum 40% marks in each of the two papers carrying 35 marks i.e. 14 marks in each paper. 29. We, therefore, find that the prescription of 70 marks in the written test was not to compare merit amongst the eligible candidates but to draw a list of those candidates, who secured a minimum 40% marks in each of the two papers carrying 35 marks i.e. 14 marks in each paper. The marks secured in the written examination were not added to the marks in the interview in which no minimum qualifying marks were fixed. The selection, therefore, was based strictly in accordance with the criteria of ‘seniority-cum-merit’ as explained by the Supreme Court in Hargovind Yadav’s case. 30. We also find that the petitioners having participated in the selection were not competent to challenge the same selection on the ground that the process of selection was bad and was not confirming to the principle of ‘seniority-cum-merit’. 31. Both the writ petitions are accordingly dismissed. ————