JUDGMENT By Prakash Tatia Heard learned counsel for the parties. 2.These appeals have been preferred by the Kshetriya Gramin Bank as well as by the writ petitioners to challenge the judgment passed by the learned Single Judge in W.P. (S) No. 1284 of 2002, W.P.(S) No. 1639 of 2002 and W.P.(S) No. 1671 of 2002 dated 15th March, 2004. The bank was non-petitioner in the writ petition. 3. The question of law involved in these L.P.As is that: “Whether in the facts and circumstances of the case, the criteria adopted by the Bank, in granting promotion to the Officers from Scale I to Scale II posts under the prescribed mode of 'Seniority-cum-merit', committed illegality in giving preference to the merit or has committed grave illegality by ignoring the seniority at all?” 4. Brief facts of the case are that the employees who were eligible candidate for the promotion from the post of Manager (Personnel) in Scale I to Scale II post entered in the fray for the selection in Scale II, for which, procedure was conducted by the Bank according to the Rules notified on 2nd February, 2001 superseding the previous Rules; Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1988. The bank's Board of Directors, in its meeting dated 17th May, 2000 approved the 'Promotion Rules' for promotion of the officers from Scale-I of Scale-II for the vacancies to be arisen out of categorization of the branches. However, it appears that under Clause 'J' procedure for promotion has been prescribed, which is as under: (i) Selection process for promotion:- The selection shall be on the basis of performance of the written test, interview and performance appraisal reports for preceding five years as per the division of marks given below:- (A)Written Test: 60 Marks (B) interview: 20 Marks (C)Performance/Apprisal Reports: 20 Marks Total Marks: 100 Marks (A)Written Test (60 marks): The Candidate shall be required to appear for written test comprising of two parts viz. Part (A) covering Banking Law & Practices of Banking and Part (B) covering Credit Policy, Credit Management including Priority Sector, Economic and Management. (B)Interview (20 marks): There shall be no minimum qualifying marks for the interview. (C)Performance Appraisal Report (20 marks): Performance Appraisal Reports for the preceding five years shall be considered for the purpose of awarding marks for promotion. 5. (B)Interview (20 marks): There shall be no minimum qualifying marks for the interview. (C)Performance Appraisal Report (20 marks): Performance Appraisal Reports for the preceding five years shall be considered for the purpose of awarding marks for promotion. 5. The writ petitioners' contention was that above procedure excluded the criteria for promotion of “Seniority-cum-merit” and converted it into only merit promotion. It was submitted that in this process of grant of promotion, there is no marks prescribed for the seniority. The candidates have been selected only on the basis of the merit and that too by holding a written test of 60 marks, requiring 40 % minimum pass marks in the written test, in two sets of papers, consisting of 30 marks each; 20 marks for interview and performance appraisal report basis marks are 20. Therefore, the promotions given by the respondents to the selected candidates is absolutely illegal. 6. The learned Single Judge found merit in the submission of the petitioner, who challenged the promotions and held that the Bank has given promotion in violation to the criteria of promotion i.e., “Seniority-cum-merit” and in fact gave the promotion only on the basis of “merit”. Hence, the Bank and the respondents in the writ petitions have preferred these L.P.As. 7 .Learned counsel for the appellant submitted that the issue is no more res-integra in view of the judgment delivered by the Hon'ble Supreme Court in the case of Rajendra Kumar Srivastava & Ors Vs. Samyut Kshetriya Gramin Bank & Ors reported in (2010) 1 SCC 335 , which has been followed in another case Rupa Rani Rakshit & Ors Vs. Jharkhand Gramin Bank & Ors reported in AIR 2010 Supreme Court 787, wherein it has been held that that even for giving promotion under the criteria of “Seniority-cum-merit” an employer can prescribe minimum merit marks and thereby can judge the seniority and give promotion according to the seniority. Here, in this case, the same procedure has been followed by the Bank and Bank has prescribed certain parameters to judge the minimum merit of the candidates for the high post in the bank of managerial capacity and thereafter, the promotions have been given according to inter se seniority of the selected candidates irrespective of their marks which they secured in the process of judging minimum merit. 8. 8. Learned counsel for the writ-petitioners also supported the contentions as advanced by learned counsel for the Bank. Learned counsel for the writ petitioners submitted that the law has been considered by the Hon'ble Supreme Court in the case of Bhagwan Das Tiwari & others Vs. Dewas Shajapur Kshetriya Gramin Bank and others reported in 2006 (12) SCC 574 wherein Hon'ble Supreme Court relied upon earlier judgment of Hon'ble Supreme Court delivered in the case of B.V Sivaiah and others Vs. K Addanki Babu and others reported in (1998) 6 SCC 720 held that in the matter of promotion on the basis of “Seniority-cum-merit”, seniority is required to be given greater emphasis though it may not be the only determinative factor. In those cases, some minimum marks were prescribed for judging the minimum merit for grant of promotion and that was found to be violative to the parameters of giving promotion in the category of promotion meant for “Seniority-cum-merit”. This view has been followed in the Bhagwandas Tiwari's case and learned counsel for the writ-petitioners submitted that Full Bench of Patna High Court also rendered its judgment in the case of Ranchi Kshetriya Gramin Bank Vs. D.P. Singh reported in 2000 (1) PLJR 251 , wherein also when merit was given preference to seniority while granting promotion on the basis of “Seniority-cum-merit”, the Full Bench set aside those promotions. The case of Full Bench Patna High Court delivered in the case of Ranchi Kshetriya Gramin Bank (Supra), was considered by Hon'ble Supreme Court in Rupa Rani Rakshit's case and the judgment delivered by the Jharkhand High Court in the case of Rupa Rani Rakshit on the basis of said Full Bench Judgment of Ranchi Kshetriya Gramin Bank (Supra) has been upheld. Therefore, the learned Single Judge rightly held that the criteria adopted by the Bank was contrary to the procedure for giving promotion under the category of “Seniority-cum-merit” procedure. 9. We considered the submissions of learned counsel for the parties and perused the facts of the case as well as the judgments relied upon by learned counsel for the parties. 10. It will be appropriate to consider the case of Rajendra Kumar Srivastava because the Hon'ble Supreme Court in this case has considered the earlier judgments of the Hon'ble Supreme Court delivered in the case of B.V. Sivaiah (Supra) and Bhagwan Das Tiwari (Supra) also apart from several other judgments. 10. It will be appropriate to consider the case of Rajendra Kumar Srivastava because the Hon'ble Supreme Court in this case has considered the earlier judgments of the Hon'ble Supreme Court delivered in the case of B.V. Sivaiah (Supra) and Bhagwan Das Tiwari (Supra) also apart from several other judgments. In Rajendra Kumar Srivastava's case, the procedure for promotion was, as stated in paragraph 3 of the judgment, which is as under: “After considering the guidelines contained in the Government of India's Letter dated 23.09.1988 and Letter No. 823 dated 7.10.1996 of National Bank, the Board passed a resolution that sixty points be earmarked on the basis of work done during the previous three years in the selection procedure for promotion on the Scale II posts and forty points be given for interview and in this manner the promotion procedure should be completed. Also, an information in this behalf be given to National Bank.” 11. In the facts of the said case, two questions were formulated by the Hon'ble Supreme Court, which are as under: (i)Whether minimum qualifying marks could be prescribed for assessment of past performance and interview, where the promotion are to be made on the principle of seniority-cum-merit? (ii)Whether the first respondent Bank was justified in fixing a high percentage (78 %) as the minimum qualifying marks (minimum merit) for promotion? 12. The Hon'ble Supreme Court in the said case after considering the case of various other cases including the case of B.V. Sivaiah held in paragraph 13, which is under: “13. Thus it is clear that a process whereby eligible candidates possessing the minimum necessary merit in the feeder posts is first ascertained and thereafter, promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary merit is recognised and accepted as complying with the principle of “seniority-cum-merit. What would offend the rule of seniority-cum-merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority-cum-merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority-cum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the functions of the higher post, is not violative of the concept of promotion by seniority-cum-merit. (Emphasis supplied) 13. Hon'ble Supreme Court while considering the question no. 2 in Rajendra Kumar Srivastava's case, which was relating to prescribing of minimum qualifying marks including the marks in written test, held in paragraph 16 that “Where the assessment of minimum merit is with reference to previous performance record (Annual Confidential Records) and/or by interview, as contrasted from a written examination, prescription of 78 % as minimum, will not be considered as unreasonably high.” 14. In the case of Bhagwan Das Tiwari and in the case of B.V. Sivaiah, it has been held that principles of “Seniority-cum-merit” are conceptually different and that in “Seniority-cum-merit”, greater emphasis is on seniority, though it may not be only determinative factor. In the said case it has been held that method adopted therein fixing 75 % as minimum qualifying marks is violative of principles of “Seniority-cum-merit”. After considering the above two case; Bhagwan Das Tiwari (Supra) and B.V. Sivaiah (Supra), the Hon'ble Supreme Court observed that prescribing a minimum of 50 marks out of 100 for interview was not violative of the principle of seniority and in paragraph 37 of the Sivaiah's case, the Hon'ble Supreme Court held that minimum marks prescribed for assessing merit do not depart from the seniority-cum-merit principle. As we have already noticed that in Bhagwandas Tiwari's case minimum qualifying marks were fixed as 75 % and, therefore, in Rajendra Kumar Srivastava case, it has been held that wherever minimum qualifying marks are fixed more than 75 % the “Seniority-cum-merit” principle will be violated. 15. As we have already noticed that in Bhagwandas Tiwari's case minimum qualifying marks were fixed as 75 % and, therefore, in Rajendra Kumar Srivastava case, it has been held that wherever minimum qualifying marks are fixed more than 75 % the “Seniority-cum-merit” principle will be violated. 15. The question arises whether the candidates can be asked to take a written examination, which has been objected by learned counsel for the petitioner, that if the bank would have judge the minimum merit on the basis of “performance appraisal report” and on the basis of 'length of service” it may not have violated the selection under the category of “seniority-cum-merit” as has been done in various cases which were considered by the Hon'ble Supreme Court and in a case where more minimum marks were prescribed for written test then selection were declared violative to the basic principle of “seniority-cum-merit”. This has been answered by Hon'ble Supreme Court in Rajendra Kumar Srivastava's case in paragraph (11), which is as under: 11. It is also well settled that the principle of seniority-cum-merit, for promotion, is different from the principle of “seniority” and the principle of “merit-cum-seniority”. Where promotion is on the basis of seniority alone, merit will not play any part at all. But where promotion is on the principle of seniority-cum-merit, promotion is not automatic with reference to seniority alone. Merit will also play a significant role. The standard method of seniority-cum-merit is to subject all the eligible candidate is in the feeder grade (possessing the prescribed educational qualification and period of service) to a process of assessment of a specified minimum necessary merit and then promote the candidates who are found to possess the minimum necessary merit strictly in the order of seniority. The minimum merit necessary for the post may be assessed either by subjecting the candidates to a written examination or an interview or by assessment of their work performance during the previous years, or by a combination of either two or all the three of the aforesaid methods. There is no hard-and-fast rule as to how the minimum merit is to be ascertained. So long as the ultimate promotions are based on seniority, any process for ascertaining the minimum necessary merit, as a basic requirement, will not militate against the principle of seniority-cum-merit. (Emphasis supplied) 16. There is no hard-and-fast rule as to how the minimum merit is to be ascertained. So long as the ultimate promotions are based on seniority, any process for ascertaining the minimum necessary merit, as a basic requirement, will not militate against the principle of seniority-cum-merit. (Emphasis supplied) 16. A bare perusal of the above decision will make it clear that the employer can prescribe the standard method of 'seniority-cum-merit' selection and also may prescribe the minimum merit necessary for the post and also may prescribe the manner in which it will be judged. In that process the candidates can be asked to take written examination or an interview or their work may be assessed according to their performance during the service period in past. The employer may also decide whether it may opt for two of the above criteria with option of either of two or may adopt criteria consisting of all the three aforesaid methods i.e., taking written examination, interview and assessing past work. After this mode of assessment the ultimate promotions should be based on seniority only meaning thereby once one clears 'minimum eligibility test' then he can be given promotion according to his seniority and not on the basis of the marks obtained in the minimum merit test. In this case, the bank has adopted this mode and for this issue there is no dispute. Bank after the minimum merit test placed the candidates in the list of promotion according to their seniority. 17. Now the question arises whether the prescribing of minimum marks of 40 % in written test can be said to be violative of principle of selection under the category of candidates in “seniority-cum-merit”. This issue has also been answered by the Hon'ble Supreme Court in paragraph 19 of Rajendra Kumar Srivastava's case, after considering the case of Bhagwandas Tiwari, it has been specifically held that that whenever minimum qualifying marks are fixed as 75 % and more the “seniority-cum-merit” rule will be violated. Here, in this case, the total marks required to be obtained by the candidate in the written test was 40 % of 60 marks only and aggregate 45 % i.e., marks obtained in written test, interview and assessment of Performance Appraisal Report. Here, in this case, the total marks required to be obtained by the candidate in the written test was 40 % of 60 marks only and aggregate 45 % i.e., marks obtained in written test, interview and assessment of Performance Appraisal Report. The post in question in the Scale II Officer which is meant for the Area Manager and Senior Manager of the bank and, therefore, looking to the post it cannot be said that the minimum marks prescribed for the written test as 40 % is unreasonable or not justified and it is in fact a mode adopted to give preference merit persons only. In Rupa Rani Rakshit case, the case of Rajendra Kumar Srivastava was also considered, which is reported in same volume i.e., (2010) 1 SCC 345. The facts of the Rupa Rani Rakshit's case was different and in that case the procedure was adopted providing for judging a candidate according to criteria mentioned below: Sl. Nos. Particulars Maximum marks (I)Seniority40 (one mark for each completed quarter of service) (ii)Educational qualifications 6 (for possessing graduate degree: 3 marks; postgraduate degree: 2 marks and doctorate: 1 marks) (iii)Performance appraisal24 for very good (A) –8 marks; for good (B) –6 makrs; for average(C) –5 marks; and for poor (D) –0 marks (iv)Interview30 (minimum qualifying marks for interview: 10 marks) Total: 100 18. The said procedure was found to be illegal and contrary to the mode of selection under “Seniority-cum-merit” on the ground that bank procedure to assess candidates inter se merit with reference to the four criteria; period of service, educational qualification, performance during three years and interview by allocating respectively maximum marks of 40, 6, 24 and 30 and then proceeded to promote those who had secured highest marks in merit. The Hon'ble Supreme Court held that there are thus two violations of the relevant Rules (I.) promoting candidates on merit-cum-seniority basis and not on “seniority-cum-merit” basis; and (II.) assessing inter se merit, inter alia with reference to marks allocated to different educational qualifications. In view of these findings, the Hon'ble Supreme Court held that promotion made in such manner were not on the basis of “seniority-cum-merit” even though period of service was also considered as one of the factors for assessment of comparative merit. But the procedure remained as for promotion was for merit-cum-seniority. In view of these findings, the Hon'ble Supreme Court held that promotion made in such manner were not on the basis of “seniority-cum-merit” even though period of service was also considered as one of the factors for assessment of comparative merit. But the procedure remained as for promotion was for merit-cum-seniority. Therefore, even if the marks were collected for the seniority in the facts of the case of Rupa Rani Rakshit's case, the Hon'ble Supreme Court held that even that procedure was not within the criteria prescribed for the promotion under “Seniority-cum-merit”. 19. Therefore, it depends upon the facts of the case and we are of the considered opinion that for requirement of minimum merit for the purpose of promotion in the category of promotion under “seniority-cum-merit”, the employer can prescribe the mode for judging the minimum merit. In that process the employer can prescribe any of the mode for the purpose of judging the minimum merit like written test, interview and assessment of past service and may pick up either of the two of the mode or may also take into consideration all three modes for the purpose of judging minimum merit. Once such criteria is prescribed by the employer they must not be unreasonable so as to became restrictive for the person claiming promotion on the basis of “seniority-cum-merit” and excludes substantially the candidates on the basis of merit and by adopting the mode of prescribing rigid criteria for judging the minimum merit like prescribing minimum marks in the written test as was done in the Bhagwandas Tiwari's case where minimum qualifying marks were fixed as 75 % and Hon'ble Supreme Court held that it is violative of criteria of “seniority-cum-merit”. In this case, prescribing of minimum pass marks in written test 40 % of 60 marks and prescribed aggregate 45 % cannot be said to be excessive looking to the post in question, which is post of Senior Manager and Area Manager of the Bank. 20. In view of above reasons, we are of the considered opinion that judgment passed by the learned Single Judge deserves to be set aside; hence set aide and the writ petitions of the writ petitioners are dismissed and L.P.As are allowed accordingly.