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2011 DIGILAW 401 (GAU)

Nikunja Debnath v. Tripura Gramin Bank

2011-05-05

UTPALENDU BIKAS SAHA

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JUDGMENT Utpalendu Bikas Saha, J. 1. The Petitioner Shri Nikunja Debnath filed W.P.(C) No. 291 of 2009 and the Petitioners, namely, Shri Asit Kr. Paul, Shri Tapan Paul, Shri Pankaj Laskar and Shri Asis Kr. Paul filed W.P.(C) No. 321 of 2009 for quashing the select panel prepared for promotion to the post of Officer Scale 1 published on 17.9.2009 [Annexure-5 to W.P.(C) No. 321 of 2009] and all appointments made thereon causing promotion to the aforesaid post of Officer Scale 1 (Junior Management Scale 1) or in the alternative to re-frame the select panel following the principle of seniority-cum-merit as the select list was prepared in violation of the provisions of Rule 5 of the recruitment rules, namely, Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1998 (for short the Rules of 1998) with further prayer not to allow the persons who have been appointed on the basis of the select list prepared in violation of the provisions of the aforesaid para 5 of the Rules of 1998 as adopted in the Respondent Tripura Gramin Bank. 2. As the facts involved and the question arises for decision in both the writ petitions are same, they are taken up together for final disposal by this common judgment and order. 3. The pleaded case of the Petitioners in both the writ petitions, in short, are as follows:- The Petitioners are working under the Bank Respondents as Clerk-cum-Cashier, re-designated as Office Assistant Grade, which is the feeder post of Officer Scale 1. The recruitment rules prescribe two modes of appointment, one is direct recruitment and the other is by promotion following the principle of 'seniority-cum-merit'. Though the Petitioners were eligible to be promoted to the higher post of Officer Scale 1, their names were not included in the select list on the ground that their juniors in the post of Office Assistant Grade obtained more marks than them in interview conducted for the purpose of promotion. As the select list was prepared ignoring the prescription in the recruitment rules, i.e. seniority-cum-merit, the Petitioners filed the instant writ petitions for the relief as stated supra. 4. As the select list was prepared ignoring the prescription in the recruitment rules, i.e. seniority-cum-merit, the Petitioners filed the instant writ petitions for the relief as stated supra. 4. The bank Respondents filed their counter-affidavit resisting the contentions of the Petitioners in their writ petitions wherein it has been stated that the Petitioners and other eligible candidates were asked to sit in the written test and accordingly, the Petitioners and others sit in the said examination and being qualified they appeared in the viva voce test, but the selecting authority found the juniors of the Petitioners more meritorious than them for which their juniors have been given promotion. It is also stated therein that no discrimination has been done to the Petitioners and they cannot have any legal grievance for their non-promotion as promotion cannot be claimed as a matter of right. 5. Mr. S. Talapatra, learned senior Counsel appearing for the Petitioners of both the writ petitions submits that the case in hand is fully covered by a decision of this Court rendered on 18.2.2010 in Niranjan Bonik vs. The Arunachal Pradesh Rural Bank and other, W.P. (C) No. 50 (AP) of 2009 wherein this Court relying on the decision of the Apex Court in B.V. Sivaiah and other vs. K. Addanki Babu and other (1998)6 SCC 720 held that under the principle of seniority-cum-merit, the merit is to be decided only for the purpose to find out whether the senior candidate would be able to shoulder the responsibility of the higher post and for that purpose, written test and interview have been prescribed and after the candidates are qualified in such test and interview, the only thing that remains to be done is to prepare a select list of the selected candidates on the basis of their seniority. He further submits that when under the recruitment rules the prescription for promotion is 'seniority-cum-merit' then 'seniority' should be considered to be the primary basis for promotion and the merit should be the secondary one. Learned senior Counsel submits that the Petitioners of both the writ petitions are senior to the private Respondents in the post of Office Assistant Grade and they (Petitioners) are also qualified for promotion to the next higher post. The Respondent bank has no right to promote their juniors on the basis of so called comparative merit ignoring the seniority position. Learned senior Counsel submits that the Petitioners of both the writ petitions are senior to the private Respondents in the post of Office Assistant Grade and they (Petitioners) are also qualified for promotion to the next higher post. The Respondent bank has no right to promote their juniors on the basis of so called comparative merit ignoring the seniority position. His further submission is that as the select list was prepared ignoring the principle of 'seniority-cum-merit' and consequent thereto the private Respondents have been given promotion to the higher post of Officer Scale 1, the aforesaid select list itself is liable to be quashed, the same being contrary to the provisions of the recruitment rules. He also placed reliance on a decision of the Apex Court in Rajendra Kumar Srivastava and other vs. Samyut Kshetriya Gramin Bank and other (2010)1 SCC 335 wherein the Apex Court reiterated the principle of 'seniority-cum-merit' and 'merit-cum-seniority'. In case of 'seniority-cum-merit, seniority is the sine quo non and in case of 'merit-cum-seniority', merit is the primary consideration and seniority is the secondary one. In the instant cases also the rules prescribe the principle of 'seniority-cum-merit' for promotion to the post of Officer Scale 1 from the post of Office Assistant Grade and admittedly the Petitioners are senior to the private Respondents. In the name of lesser merit, the bank Respondents cannot deny the promotion to the Petitioners to the post of Officer Scale 1 when they have already promoted the junior private Respondents. He also submits that admittedly promotion is not a right, but when a junior officer is promoted superseding his senior to a higher post violating the recruitment rules though the senior is admittedly qualified for promotion then the senior has the right to be promoted to the higher post from the date when his junior has been promoted. 6. Mr. K. Bhattacharjee, learned Counsel appearing for the bank Respondents submits that some of the private Respondents are junior to the Petitioners, but not all and as the Petitioners secured lesser marks in the written test as well as in the interview than those junior private Respondents, the select committee, i.e. the DPC considering all aspects selected the private Respondents for promotion to the post of Officer Scale 1. Therefore, there was no discrimination in the process of giving promotion to the post of Officer Scale 1. 7. Therefore, there was no discrimination in the process of giving promotion to the post of Officer Scale 1. 7. Having heard the learned Counsel appearing for the parties and on perusal of the records as available this Court is of the considered opinion that the law relating to principle of seniority-cum-merit is no longer res integra as it is already settled that seniority will get priority over the merit as the criterion of seniority-cum-merit lays greater emphasis on seniority and merit would be considered only to see whether the senior person is capable to take the responsibility of the promotional post and discharge his duties properly. This Court is of the further opinion that if a person is senior and qualified in the written test as well as in the interview for the purpose of promotion by which the test of merit is evaluated then the employer has no right to promote a junior officer depriving his senior like the Petitioners herein. As it appears that Shri Nikunja Debnath, Petitioner in W.P.(C) No. 291 of 2009 is senior to all the private Respondents and also he was qualified both in written test as well as in the interview conducted for the purpose of promotion, therefore, he cannot be denied promotion by the bank employer when there is no departmental proceeding against him or in any other way he is debarred from getting promotion. 8. The Petitioners in W.P.(C) No. 321 of 2009 in their writ petition in paragraph 3 have stated the seniority position between them and the private Respondents in details. The bank Respondents in their counter-affidavit did not refute the contention of the Petitioners regarding their seniority position. Mr. Bhattacharjee submits that though the Petitioners No. 1 and 2 in W.P.(C) No. 321 of 2009 are admittedly senior to the private Respondents, but the Petitioners No. 3 and 4 are not senior to all the private Respondents. 9. As the instant case is not for fixation of seniority, this Court is restraining itself from expressing any opinion regarding the seniority position of the private Respondents vis-a-vis the Petitioners No. 3 and 4 of W.P.(C) No. 321 of 2009 in the Office Assistant Grade. 10. 9. As the instant case is not for fixation of seniority, this Court is restraining itself from expressing any opinion regarding the seniority position of the private Respondents vis-a-vis the Petitioners No. 3 and 4 of W.P.(C) No. 321 of 2009 in the Office Assistant Grade. 10. It appears from the record that the bank Respondents have prepared a select list for promoting the officers from Office Assistant Grade to Officer Scale 1in violation of the provisions of recruitment rules, particularly Rule 5 of the said Rules. Therefore, this Court has no other alternative except to quash the said select list so far the private Respondents are concerned. Accordingly, the same is quashed. However, as the private Respondents by this time have been promoted, it would not be proper to cancel their promotion, rather it would meet justice if the bank Respondents are directed to consider the case of the Petitioners afresh from the date on which their juniors, the private Respondents have been promoted and if the Petitioners are found senior and qualified then they should be promoted to the post of Officer Scale 1 with retrospective effect, i.e. from the date on which the private Respondents were promoted to the said post and on promotion their (Petitioners) seniority in the promotional post should be counted as per the seniority position maintained in the feeder post. 11. Order accordingly. 12. The bank Respondents shall fix the pay and allowances of the Petitioners in the promotional post notionally. They will not get any extra pay and allowances meant for the promotional post for the period they did not work in the said post. The entire exercise shall be done by the bank Respondents within a period of 45 (forty five) days from the date of receipt of the certified copy of this order. 13. With the above observations and directions, both the writ petitions are disposed of.