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Uttarakhand High Court · body

2017 DIGILAW 288 (UTT)

Daya Ram v. Chairman, Uttaranchal Gramin Bank

2017-05-17

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. 1. Petitioner was appointed on the post of Probationary Officer in the Junior Management Grade Scale-I (hereinafter referred to as the ‘Scale-I Officer’) in Ganga Yamuna Gramin Bank in the year 1986. On 30.6.2006, three Regional Rural Banks, situated within the territories of Uttarakhand, namely, Ganga Yamuna Gramin Bank, Alaknanda Bank and Pithoragarh Kshetriya Gramin Bank were amalgamated and a new bank under the name ‘Uttaranchal Gramin Bank’ was created. Thereafter, 49 vacancies of the post of Scale II Officers became available in the Uttaranchal Gramin Bank. A Circular was issued by the Bank on 3.9.2007. These posts were to be filled up as per the Recruitment & Promotional Rules, 1998. 2. Petitioner also participated in the selection process. Written examination was held on 2.12.2007. Result was declared on 2.1.2008. Since the petitioner did not secure the minimum marks in written examination in one of the papers, he was not called for interview. The final result was declared on 27.2.2008. 3. Learned Senior Counsel for the petitioner has vehemently argued that the petitioner should have been given relaxation in marks, since he belongs to the S.C. category. He then contended that the reservation should have been provided for promotion to the post of Scale-II. 4. Sri D.S. Patni, Advocate, appearing for the Bank, has argued that the petitioner has undergone the process and was aware of the Circular issued on 3.9.2007. He has taken a chance and now, at this stage, he cannot be permitted to challenge the selection process. He then contended that as per the Rules and Regulations, prevalent at the time of initiation of selection process, there was no provision for reservation of caste to caste categories, promotion, promotional avenues etc. Thus, according to him, the petitioner is now estopped from challenging the selection process. According to him, the petitioner is required to obtain minimum marks in each paper which was held on 2.12.2007. 5. I have heard learned counsel for the parties and gone through the record very carefully. 6. The Ministry of Finance has issued a Notification on 29.7.1998 under Section 29 of the Regional Rural Banks Act, 1976, framing the Regional Rural Banks (Appointment and Promotion of Officers and other employees) Rules, 1998. Rule 3 provides for Category of posts. Rule 4 deals with creation of posts. The mode of filling up of vacancies is provided under Rule 6. Rule 3 provides for Category of posts. Rule 4 deals with creation of posts. The mode of filling up of vacancies is provided under Rule 6. Constitution of Committee is provided under Rule 11. Rule 12 provides that there shall be reservation of posts for the Scheduled Castes, Scheduled Tribes, other backward classes and other categories of persons in such proportion as may be specified by the Central Government from time to time. 7. According to the Third Schedule, the post of Scale III Officer falls in Group ‘A’. It is to be filled up 100% by promotion. The promotion is to be made on the basis of seniority-cum-merit. Officers holding post for eight years as an officer on regular basis in the Regional Rural Bank shall be considered for promotion in Scale II post in the Bank. The selection process for promotion is as under:- Selection process for promotion The selection shall be on the basis of Performance in 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 appraisal reports 20 Marks Total Marks 100 Marks 8. The respondent-Bank has issued the Circular on 3.9.2007, wherein, it was also stipulated that the candidate is required to get 40 marks in each paper i.e. Paper-A and Paper-B. The petitioner has secured only 11 marks in paper-A and 13 marks in paper-B. He has not secured 40% marks in paper-A. It is in these circumstances he was not called for interview. Petitioner knew throughout about this mandatory requirement provided under the 1998 Rules as well as in the Circular dated 3.9.2007. 9. Learned Senior Counsel for the petitioner has vehemently argued that this circular was not brought in the notice of the petitioner. It has come into notice that the circular was widely circulated amongst the employees. It is not the case of petitioner that he was not aware of the circular dated 3.9.2007, on the basis of which he sat in the examination on 2.12.2007. Petitioner was required to challenge the conditions before participating in the selection process. He has challenged the selection process only after he was found unsuccessful. It is not the case of petitioner that he was not aware of the circular dated 3.9.2007, on the basis of which he sat in the examination on 2.12.2007. Petitioner was required to challenge the conditions before participating in the selection process. He has challenged the selection process only after he was found unsuccessful. Their Lordships of Hon. Supreme Court in (1995) 3 SCC 486 in the case of Madan Lal and Others vs. State of J&K and Others, have held that when a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn around and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. Their Lordships, in paragraph no. 9, have held as under:- “9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla vs. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.” 10. Learned Senior Counsel for the petitioner has referred to Circular dated 3.9.2007, wherein, there is a provision for 5% relaxation of marks for S.C. category candidates. 11. On the other hand, learned Counsel for the respondent-Bank has drawn the attention of the Court to the letter dated 5.9.2005 issued by the Government of India, Ministry of Finance, wherein, it is stated that there is no reservation for S.T. and S.C. category candidates for promotion within the officer cadre from one scale to another as the promotion is made by selection. 12. According to the circular dated 3.9.2007, general category candidates were required to secure 55% marks to consider for promotion and there was a relaxation of 5% of marks for SC category candidates. This clause would apply only to those candidates who have qualified the written examination of 60 marks. Since the petitioner has not secured minimum 40% marks in each paper, he was not called for interview. Petitioner also knew that no reservation has been provided for SC/ST candidates by the respondent-Bank. It is in these circumstances he has sought a direction for providing relaxation in marks to the petitioner and similarly situated persons. This Court cannot issue a direction to the respondent-Bank to provide reservation for SC/ST category candidates. It is for the Bank to adopt and make a provision for reservation. It is also apt to state at this stage that though the post is required to be filled up by way of seniority-cum-merit but a conscious decision has been taken that the candidates to be considered for promotion to Scale-II posts have to sit in the written examination, face the Interview Board and their Performance Appraisal Reports for the last 5 years were to be seen. The candidates were required to appear for written test comprising of two papers viz. paper-A and paper-B covering English, Banking Law, practice and procedures subjects. 13. In 1988 (2) SCC 233 in the case of R. Prabha Devi and Others vs. Govt. of India their Lordships of Hon. Supreme Court have held that when qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Their Lordships, in paragraph no. 15, have held as under:- “5. The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. Their Lordships, in paragraph no. 15, have held as under:- “5. The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. The amended rule in question has specified a period of eight years’ approved service in the grade of Section Officer as a condition of eligibility for being considered for promotion to Grade I post of CSS. This rule is equally applicable to both the direct recruit Section Officers as well as the promotee Section Officers. The submission that a senior Section Officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, Grade I, is wholly unsustainable. The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making authority. This eligibility condition has to be fulfilled by the Section Officers including senior direct recruits in order to be eligible for being considered for promotion. When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher post. The rule in question which prescribes an uniform period of qualified service cannot be said to be arbitrary or unjust violative of Article 14 or 16 of the Constitution. It has been rightly held by the Tribunal: “When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. It has been rightly held by the Tribunal: “When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. There is no law which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does not outweigh experience.” 14. In 1998 (6) SCC 720 in the case of B.V. Sivaiah and Others vs. K. Addanki Babu and Others, their Lordships of Hon. Supreme Court have held that seniority-cum-merit in the matter 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. Their Lordships in paragraph no. 18, have held as under:- “18. We thus arrive at the conclusion that the criterion of “seniority-cum-merit” in the matter 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 on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit.” 15. In the present case, all the candidates were required to possess the minimum requirement and thereafter they were to be considered strictly as per their merit according to the Rules framed in 1998 read in conjunction with Circular dated 3.9.2007. 16. In 2002 (10) SCC 359 in the case of Ved Prakash and Others vs. State of Haryana and Others, their Lordships of Hon. Supreme Court, have held that the principle of seniority-cum-merit does not mean promotion to be made solely on the basis of seniority ignoring the merit criteria. 16. In 2002 (10) SCC 359 in the case of Ved Prakash and Others vs. State of Haryana and Others, their Lordships of Hon. Supreme Court, have held that the principle of seniority-cum-merit does not mean promotion to be made solely on the basis of seniority ignoring the merit criteria. Their Lordships, in paragraph no. 3, have held as under:- “3. On behalf of the State Government, during the pendency of this appeal, in this Court, an affidavit has been filed indicating certain subsequent events and certain subsequent directions of the High Court relating to the seniority of these officers, but we are not concerned with the same in the present case inasmuch as the only question that arises for consideration in this appeal is whether the High Court was justified in its conclusion in interpreting Rule 9 of the relevant Rules governing the criteria for promotion to the post of Forester from Forest Guard and can it be said that there has been any violation or infringement of any right of the senior Forest Guards who were considered by the Departmental Promotion Committee in the light of the criterion “seniority-cum-merit” and were not selected for training as they were found unsuitable. The expression “seniority-cum-merit” by any stretch of imagination cannot be construed to be equivalent to seniority alone as concluded by the learned Single Judge. Where a promotion is based solely on the basis of the seniority, then there is no question of adjudging the merit of the relevant contesting candidate and promotion is bound to be given on the basis of the seniority in the feeder cadre. But, when Rule 9 itself provides that the promotion is based on the criterion “seniority-cum-merit” it is difficult to comprehend how “merit” will be ignored from consideration, particularly when the selecting authority brought to the notice of the Court that the senior persons were duly considered but were adjudged unsuitable to hold the promotional post because of their performance in the feeder cadre and/or because of some proceedings pending against them. In this view of the matter the conclusion of the learned Single Judge that the promotion to the post of Forester from Forest Guard has to be made solely based on seniority is not sustainable in law. Necessarily therefore the ultimate conclusion that the promotion of these appellants was in contravention of the relevant Rules, cannot be sustained. In this view of the matter the conclusion of the learned Single Judge that the promotion to the post of Forester from Forest Guard has to be made solely based on seniority is not sustainable in law. Necessarily therefore the ultimate conclusion that the promotion of these appellants was in contravention of the relevant Rules, cannot be sustained. In our opinion, on the basis of the affidavits filed by the State Government, it must be held that the promotion of these appellants to the post of Foresters had been duly made and the senior Forest Guards who approached the High Court were also duly considered, but were not sent for training on account of the fact that the appropriate authority did not consider them suitable notwithstanding their seniority in the cadre. We are of the considered opinion that the said selecting authority did commit no mistake in following the principle of “seniority-cum-merit” and ultimately applying the said principle selecting the present appellants for being promoted to the post of Forester. We, therefore, set aside the impugned judgment of the learned Single Judge as affirmed by the Division Bench in appeal and allow the appeal.” 17. In 2010 (1) SCC 335 in the case of R.K. Srivastava and Others vs. Samyut Kshetriya Gramin Bank and Others, their Lordships of Hon. Supreme Court, in the case pertaining to a Gramin Bank, have held that the merit can be assessed either by written test or interview or on the basis of work-performance during previous years, or by combination of these methods. Their Lordships have explained the entire gamut of principle of ‘seniority-cum- merit’ and ‘merit-cum-seniority.’ Their Lordships have further held that the prescription of minimum benchmark for merit and then making promotions according to seniority out of candidates achieving benchmark is a valid concept for promotion by seniority-cum-merit. Their Lordships in paragraph nos. 11, 13 and 18 have held 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. 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 candidates 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. 12. In Sivaiah1, a three-Judge Bench of this Court held that while the principle of seniority-cum-merit laid greater emphasis on seniority, the principle of merit-cum- seniority laid greater emphasis on merit and ability, with seniority playing a less significant role. This Court held: (SCC p. 730, para 18) “18. We thus arrive at the conclusion that the criterion of ‘seniority-cum-merit’ in the matter 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 on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit.” 13. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit.” 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. 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. 18. Whether the guidelines/rules adopted for assessing the minimum necessary merit by prescribing marks under several heads or by prescribing a specific minimum mark, is reasonable or arbitrary, would depend upon the facts of each case. If it is demonstrated that the minimum marks were fixed with the intention of favouring someone or to specifically exclude someone, the courts may interfere. Similarly, where the minimum marks are shown to have been fixed to defeat or nullify the mode of seniority-cum-merit for promotion, there may be a cause for interference. In other cases, there is very little scope to interfere with the procedure adopted to ascertain the minimum required merit.” 18. Their Lordships of Hon. Supreme Court in (2016) 1 SCC 454 in the case of Madras Institute of Development Studies vs. K. Sivasubramaniyan, have held that when a candidate takes part in selection procedure, he is estopped to challenge the same. Their Lordships in paragraph nos. 13 and 14, have held as under:- “13. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of Experts. Their Lordships in paragraph nos. 13 and 14, have held as under:- “13. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of Experts. It was only after he was not selected for appointment that he turned around and challenged the very selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post. 14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.” 19. Accordingly, there is no merit in this petition and the same is hereby dismissed. 20. All pending applications also stand disposed of accordingly.