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2012 DIGILAW 522 (PAT)

Bal Krishna Singh v. Union of India

2012-03-27

S.N.HUSSAIN

body2012
ORDER All the petitioners of the above mentioned writ petitions are Office Assistants of Grade ‘B’ Scale in various Regional Rural Banks (Kshetriya Gramin Banks) (hereinafter referred to as `the Banks’ for the sake of brevity) of different districts in the State of Bihar. The controlling authority of all the aforesaid rural Banks is the National Bank for Agricultural and Rural Development ( hereinafter referredto as `the NABARD’ for the sake of brevity), which issues orders and directions to the Banks concerned in that regard, from time to time as required. 2. All the aforesaid writ petitions have been heard together and are being decided by this common order as the grounds taken and facts involved in all the cases are similar in nature and the reliefs claimed therein are also the same as they have all challenged the promotions of the private respondents of the abovementioned six writ petitions to the posts of Scale-I Officers and had sought direction to respondent-authorities of the Banks to consider the cases of the petitioners for their promotions from the posts of Office Assistants to the posts of Scale-I Officers with effect from the date when the Office Assistants, junior to the petitioners, had been promoted. 3. Learned counsel for the petitioners in all the aforesaid cases had claimed that the authorities of the Banks i.e. the Board of Directors had acted in complete violation of the Rules laid down by the Government of India while considering promotions of the Office Assistants to the posts of Scale-I Officers in the Banks by way of completely ignoring the seniorities and also by fixing cut off marks in interview merely with a view to pick and choose their favourite candodates. It has also been claimed that while promoting the private respondents, the authorities of the Banks had completely overlooked the concerned Rules and the relevant case laws of the Apex Court, which provided that such promotions had to be carried out strictly as per the prescribed Rules. They also averred that the petitioners had been deprived of their right as provided under Articles 14 and 16 of the Constitution of India as their legal and fundamental rights have illegally been encroached upon by the respondents. 4. They also averred that the petitioners had been deprived of their right as provided under Articles 14 and 16 of the Constitution of India as their legal and fundamental rights have illegally been encroached upon by the respondents. 4. On the other hand learned counsel for respondent-authorities of the Banks stated that the Department of Economic Affairs under the Ministry of Finance, Government of India had issued notification dated 29.07.1998 providing Rules for recruitment and promotion of various grades of employees and Third Schedule of the said notification provided mode of promotion for Scale III, Scale II and Scale I etc., which showed that the basis of such promotion was seniority-cum-merit and for merit written test, interview and appraisal reports were to be taken into consideration and in these circumstances, the minimum qualifying marks, both in written test and also in interview, were required as the mode of selection was the seniority-cum-merit. In this connection, he relied upon a decision of the Apex Court in case of K. Samantaray Vs. National Insurance Co. Ltd., reported in (2004) 9 S.C.C. 286. 5. Hence learned counsel for respondent-authorities averred th at the Board was justified in fixing minimum qualifying marks in interview after written test even though there was no such provision prescribed in the Rules. However, the candidates were informed one month in advance by call letters for interview, in which it was specifically mentioned that minimum qualifying marks had been fixed by the Board for interview also, but none of the petitioners objected to that and took part in the interview and only when they did not succeed in interview, they filed the instant writ petitions. In this connection, learned counsel for the respondents relied upon two decisions of the Supreme Court in case of Regional Provident Fund Commissioner Vs. Hooghly Mills Company Limited and others, reported in (2012) 2 S.C.C. 489 and in case of Barat Vijaykumar Balakrishna and others Vs. Modh Vinay Kumar Dasr atyhlal and ors. reported in (2011) 5 Supreme 308 . 6. Learned counsel for respondent-authorities further submitted that the minimum qualifying marks in interview was necessary in the said circumstances and hence the mistake in 1998 Rules by not providing minimum qualifying marks was an abrasion, now corrected in 2010 Rules, and hence the Board rightly corrected the abrasion in 1998 Rules by including the minimum qualifying marks for interview also. Learned counsel for respondent-authorities further submitted that the minimum qualifying marks in interview was necessary in the said circumstances and hence the mistake in 1998 Rules by not providing minimum qualifying marks was an abrasion, now corrected in 2010 Rules, and hence the Board rightly corrected the abrasion in 1998 Rules by including the minimum qualifying marks for interview also. In this connection, learned counsel for respondent-authorities relied upon three decisions of the Apex Court in case of B. V. Sivaiah and others Vs. K. Addanki Babu and others, reported in (1998) 6 S.C.C. 720 ; in case of Rajendra Kumar Srivastava and others Vs. Samyut Kshetriya Gramin Bank and others, reported in (2010) 1 S.C.C. 335 and in case of Rupa Rani Rakshit and others Vs. Jharkhand Gramin Bank and others, reported in (2010) 1 S.C.C. 345. 7. Learned counsel for the private respondents, who had appeared on notice, argued on the same line, adopting the submissions made by learned counsel for the respondent-authorities and prayed for dismissal of the above mentioned writ petitions as according to them there was no occasion for this court to interfere into the matter in issue. 8. Considering the averments made by learned counsel for the parties as well as the facts and circumstances of these cases, it is not in dispute that the petitioners of the aforementioned writ petitions were senior than others on the posts of Office Assistants in Grade `B’ scale and they had impleaded only those private respondents, who are junior to them, but had been granted promotion to the post of Scale-I Officers, which is apparent from the seniority list as on 31.10.2009 annexed to these writ petitions. 9. 9. It is also not in dispute that in exercise of powers conferred by section 29 of the Regional Rural Banks Act, 1976 (21 of 1976), read with section 17 there of and in supersession of the Regional Rural Banks (Appointment and Promotion of Officers and other Employees )Rules, 1980 except as respect of things done or committed to be done before such superesssion, the Central Government, after consultation with the National Bank and the sponsor Banks specified in the second schedule, made the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1998 (hereinafter referred to as `the 1998 Rules’ for the sake of brevity), which came into effect from 29.07.1998, the day on which it was published in the official Gazette of India (Extra Ordinary) by the Department of Economic Affairs (Banking Division), Ministry of Finance, Government of India. 10. Third Schedule of the said notification of 1998 was with respect to appointment to different categories of Officers and other employees to Group `A’, `B’ & `C’ posts whether by direct recruitment or by promotion. Clause 3 of the aforesaid Schedule provided for recruitment/promotion to the post of Scale-I Officer. 50% of the posts of Scale-I Officer were to be filled up by direct recruitment through Banking Service Recruitment Board and the remaining 50% posts were to be filled up by promotion from the posts of Office Assistants in Grade-B scale to the posts of Scale-I Officer. Sub-clause (B) of Clause 3 provided for eligibility and procedure of such promotions for promotees, which reads as follows :- “3(a) Name of the Post: Scale-I Officer (b) Classification: Group ‘A’ (c) Source of appointment: 50% by direct recruitment through Banking Service Recruitment Board and 50% by promotion. (d) Whether promotion to Promotions shall be made on the basis of be made on seniority basis seniority-cum-merit. or seniority-cum-merit basis: (e) Eligibility: A) For Direct Recruit: xx xx xx B) For Promotees Promotion shall be made amongst employees holding the Eligibility: post in Group `B’ post on regular basis in the concerned Regional Rural Bank and who possess following qualifications and experience, namely- i) A) Must have passed Matriculation or Senior School Certificate Examination or equivalent examination or Bachelor’s degree examination or equivalent from a recdognised University; and B) Must have 10 years experience in the concerned Regional Rural Bank as a Group `B’ employee. OR ii) A) Must have passed Matriculation or Senior School Certificate or equivalent examination or Bachelor’s degree examination or equivalent examination from a recognized University; and B) Must have passed Part I examination of certificate of Associate of Indian Institute of Bankers examination; and C) Must have eight years experience in the concerned Regional Rural Bank as Group `B’ employee. OR iii) A) Must have passed Matriculation or Senior School Certificate Examination or equivalent or Bachelor’s degree examination or equivalent from a recognised University or equivalent and B) Must have passed Part I and Part II examination of the certificate of Associate of Indian Institute of Bankers Examination; and C) Must have six years experience in the concerned Regional Rural Bank as a Group `B’ employee : Provided that no employee shall be considered for promotion unless he has been confirmed in the feeder grade post. Note: I. The incumbents eligible for promotion on or before the publication of this notification shall continue to be considered for promotion to Scale I Officer post. II. The service of the incumbents, who are holding the post eligible for promotion before publication of this notification shall continue to be counted for the purpose of promotion to Scale I Officer post. (f) Mode of Selection: i) In the case of direct recruitment, the selection of candidates shall be made by the Banking Service Recruitment Board on the basis of written test and interview and in accordance with the procedure specified by them. ii) In the case of promotion, the selection of the candidates shall be made by the Committee on the basis of written test, interview and performance appraisal reports. (g) Composition of: The Committee (for considering promotion) shall consist of Committee: the following persons, namely:- i) The Chairman of the concerned Regional Rural Bank- Chairman ii) A director nominated by the sponsor bank-Member iii) A director nominated by National Bank-Member Note: If none of the members of the Committee belongs to Scheduled Castes and Scheduled Tribes the Board may nominate a person belonging to Scheduled Castes/Scheduled Tribes as an additional member and such person shall participate in the process of selection by the concerned Committee. (h) Reckoning of the The minimum eligibility in term of the number of years of minimum eligibility: service for promotion shall be reckoned as on the 1st April of the year in which the vacancy is expected to arise or has actually arisen. (i) Number of candidates to All eligible candidates shall be considered for promotion. be considered for promotion: (j) Selection process for The selection shall be on the basis of performance in the promotees: written test, interview and five years performance appraisal Reports as per the division of marks given below:- A) Written test: 70 marks B) Interview: 20 marks C) Performance Appraisal 10 marks Reports : Total marks: 100 marks A) Written Test (70 marks) The candidates shall be required to appear for written test comprising test in English and test in Banking Law, practice and procedures including working procedures in the Regional Rural Bank concerned 70 marks allotted to written test shall be further divided as under:- English 35 marks Banking Law Practice and Procedures 35 marks Total marks 70 marks A list of only those candidates who secure a minimum of 40% marks each in English, Banking Law, practice and procedures shall be prepared. The Bank, thereafter, shall prepare the list of selected candidates in the order of seniority to the extent of two hundred per cent of the vacancies for promotion for the purpose of calling for interview. (B) Interview (20 marks) There shall be no minimum qualifying marks in the interview. (C) Assessment of The Performance Appraisal Reports for the proceeding Performance Appraisal three years of the concerned employees, shall be Report considered. 11. The aforesaid Rules has been framed in compliance of Article 309 of the Constitution of India for regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of such institution. A bare perusal of the aforesaid Rules shows that such promotion has to be given on the basis of seniority-cum-merit and hence seniority is to be given importance as the main criterion for promotion, whereas for merit several provisions are prescribed in the Rules to test whether any of such persons, who are sought to be promoted on the said posts, is a bad egg, not fit for the post on which promotion is to be made. 12. 12. So far the question of merit is concerned, the Rules provides written test of 70 marks, interview of 20 marks and performance appraisal report of 10 marks. For written test minimum qualifying marks of 40% in each of the subjects had been provided, but for interview it has been specifically prescribed in the Rules that there shall be no minimum qualifying marks in the interview. It is to be noted that under Third Schedule, criteria for promotions to various posts had been prescribed and minimum qualifying marks for interview had not been prescribed in any of such promotions, except for promotion to the post of Scale III Officer only, specially because for that promotion, no written test had been prescribed in the Rules. 13. Hence, considering the Rules of 1998 in its entirety, it is quite apparent that no minimum qualifying marks have been provided for the interview because minimum qualifying marks had already been prescribed for the written test. The said Rule being a general Rule, was not an abrasion at all nor there was any occasion for the authorities to amend the said Rules by an executive instruction. In the said circumstances, the case laws relied upon by learned counsel for the respondents in case of B. V. Siviah (supra); in case of Rajendra Kumar Srivastava (supra) and in case of Rupa Rani Rakshit (supra) are not applicable to the facts and circumstances of these cases. 14. In that regard the principle is well-settled that when the statutory Rules is prescribed, the executive instructions cannot be pressed into service to amend such Rules or to add something, which the statutory Rules prohibited. Such statutory Rules can be amended or varied only in accordance with the procedure provided for amendment of statutory Rules and not by any such executive instructions as only in the event of a gap in the statutory Rules, the executive instructions may supplant it. In the instant case, there is no question of any gap rather existing statutory Rules specifically prohibited fixing any minimum qualifying marks for interview and hence it is quite apparent that the respondents had no authorities at all to amend it by such executive instructions. 15. Such executive instructions or directions cannot legally amend or supersede or override statutory Rules. In the instant case, there is no question of any gap rather existing statutory Rules specifically prohibited fixing any minimum qualifying marks for interview and hence it is quite apparent that the respondents had no authorities at all to amend it by such executive instructions. 15. Such executive instructions or directions cannot legally amend or supersede or override statutory Rules. They can only fill up the gap and supplant the statutory Rules, where it is silent and in this process the executive instruction or direction cannot be inconsistent with the Rules already framed. In this connection reference may be made to various decisions of the Apex Court in case of State of Gujrat Vs. Akhilesh C. Bhargav, reported in (1987) 4 SCC 482 ; in case of M. Srinivasa Prasad Vs. Comptroller and Auditor General of India, reported in 2007(4) SCC 246; in case of Sant Ram Sharma Vs. St ate of Rajasthan, reported in 1967 SLR 906; in case of St ate of Haryana Vs. Shamsher Jang Bahadur, reported in 1972 SLR 441 and in case of Parmeshwar Prasad Vs. UOI, reported in 2002(3) SCT 482. 16. Furthermore the Apex Court in case of Harigovind Yadav Vs. Rewa Sidhi Gramin Bank and others, reported in (2006) 6 SCC 145 had specifically held that where the procedure adopted did not provide the minimum qualifying marks for interview, but the petitioner had failed only because he did not secure minimum marks fixed by the authorities in the interview, the entire procedure adopted by the Bank, of which the interview was a part, was found to be vitiated against the specific provisions of the Rules, which was also not in consonance with the principle of seniority-cum-merit. The Apex Court has also held in case of Maharashtra State Road Transport Corporation and others Vs. Rajendra Bhimrao Mandve and others, reported in AIR 2002 Supreme Court 224 that after initiation of the process of promotion, the Bank had no authority to alter the procedure prescribed. 17. It may be noted that in the earlier statutory Rules of 1988, there was no provision for any marks for interview, much less any qualifying marks for interview, but in the 1998 Rules, which is under consideration in these cases, 20 marks have been specifically provided for the interview. 17. It may be noted that in the earlier statutory Rules of 1988, there was no provision for any marks for interview, much less any qualifying marks for interview, but in the 1998 Rules, which is under consideration in these cases, 20 marks have been specifically provided for the interview. However, it was specifically directed in the said Rules that there would be no qualifying marks for interview although for written test minimum qualifying marks of 40% had been provided. 18. So far the question of information about the cut off marks for interview sent by the respondents to the petitioners vide interview letters is concerned, the respondents wrongly relied upon the decisions of the Apex Court in case of Regional Provident Fund Commissioner (supra) and in case of Barot Vijaykumar Balakrishna (supra) as the facts of those cases were not akin into the facts of the instant cases, whereas, in a circumstance, exactly similar to these cases, the Apex Court had specifically held that after initiation of the process for promotion, the Bank cannot alter the principles already laid down for such promotions. Reference in this connection may be made to a decision of the Apex Court in case of Maharashtra State Road Transport Corporation Vs. Rajendra Bhimrao Mandve & Ors. (supra). 19. Admittedly, the process for consideration of promotion in question had started much earlier and the subsequent directions of the Board of the Bank fixing minimum qualifying marks for interview was in the teeth of the statutory Rules of 1998 and was hence not permissible in law. Furthermore, the NABARD had been specifically directing the Banks that 1998 Rules was to be followed strictly in case of promotion and at the same time directed that while carrying out such consideration on the basis of seniority-cum-merit, the selection committee must be guided by judgment of the Supreme Court in case of B. V. Sivaiah (supra). This aspect of the matter has also been considered by a Bench of this Court in C.W.J.C. No. 1375 of 2006 ( Prashant Kumar Choudhary Vs. Begusarai Kshetriya Gramin Bank and others ) and C.W.J.C. No. 2463 of 2006 ( Ranjan Kumar Vs. This aspect of the matter has also been considered by a Bench of this Court in C.W.J.C. No. 1375 of 2006 ( Prashant Kumar Choudhary Vs. Begusarai Kshetriya Gramin Bank and others ) and C.W.J.C. No. 2463 of 2006 ( Ranjan Kumar Vs. Begusarai Kshetriya Gramin Bank and others ), disposed of by a common order dated 26.09.2008 after arriving at the following findings :- “On record is the letter of NABARD dated 3.6.2004 as Annexure R/a to the counter affidavit of the Uco Bank. The very opening lines of the letter state that the 1998 Rules are to be followed strictly in promotions. It simultaneously states that while carrying out such consideration on basis of seniority cum merit, the selection committee must be guided by judgement of the Supreme Court in the case of B.V. Sivaiah & others Vs. K. Addanki Babu and others (1998) 6 SCC 720 . It then refers to another case to support its logic that in absence of fixation of bench marks by Rules for interview and performance appraisal, there was no prohibition in fixing of a reasonable bench mark. That the 1998 Rules provided that the re shall be no minimum qualifying marks for interview of performance and appraisal report but, simultaneously the instruction states that it does not prohibit introduction of qualifying makrs and while view is strengthened by the orders of the Supreme Court. The contradiction in the letter of NABARD is too glaring to be ignored. Whatever may be the recitals and understanding in the letter of the NABARD, the statutory rules very clearly prohibited introduction of any minimum qualifying marks for interview and performance appraisal. Reliance on the judgment of the Supreme Court in case of B.V. Sivaiah & others (supra) is completely misplaced as that was in the context of 1988 Rules which did not provide any marks for interview much less for fixation of any qualifying marks. The issue was therefore left open for fixation of a reasonable Bench mark. An additional issue raised on behalf of the petitioners is that once the process of selection had commenced on 10.07.2004, the rules for consideration for promotion could not be changed thereafter much less by an executive instruction. It had to be done on basis of rules that existed on the date that the process commenced. An additional issue raised on behalf of the petitioners is that once the process of selection had commenced on 10.07.2004, the rules for consideration for promotion could not be changed thereafter much less by an executive instruction. It had to be done on basis of rules that existed on the date that the process commenced. All that is required to be pronounced by this Court now is to affirm the letter of the NABARD for strict compliance of 1998 Rules.” 20. The said decision of the Single Bench has been affirmed by a Division Bench of this High Court in L.P.A. No. 87 of 2009 and another analogous cases (Begusarai Kshetriya Gramin Bank and others Vs. Sanjay Kumar and others) by a common order dated 12.11.2009 after arriving at the following findings:- “By the judgment and order under appeal the writ court has allowed the writ petitions by holding that introduction of bench marks for the purpose of interview and performance appraisal report contrary to the provisions of the statutory rules cannot be permitted in view of well established principle that circulars and executive instructions cannot run counter to the statutory rules. From discussions made by the writ court, it is clear that rules also contain certain bench marks but now by the impugned circular dated 10.1.2005 the Gramin Bank attempted to fix further bench marks adversely affecting the prospect of the concerned Class III employees for promotion to Officer grade on the basis of seniority cum merit.” 21. In the aforesaid facts and circumstances, all the aforesaid writ petitions are hereby allowed and the respondents are directed to consider the cases of petitioners and other Office Assistants in Grade `B’ scale for their promotion to the posts of Scale-I Officer in accordance with the provisions of 1998 Rules and not as per the executive instructions of the Board or the authorities of the Bank issued after commencement of the selection process without fixing any minimum qualifying marks for interview, strictly on the basis of seniority-cum-merit as defined above and they should be granted promotions and seniority from the dates their immediate juniors were granted such promotions along with all emoluments and consequential benefits.