Allahabad High Court
Rajendra Pratap Mishra And Others vs Aryavart Gramin Bank And Others on 10 March, 2017
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR RESERVED COURT NO.19 Case :- SERVICE SINGLE No. - 4506 of 2005 Petitioner :- Rajendra Pratap Mishra and others Respondent :- Aryavart Gramin Bank and others Counsel for Petitioner :- A M Tripathi Counsel for Respondent :- Lalit Shukla,Shamshad Ahmad Khan Hon'ble Dr. Justice Devendra Kumar Arora, J.
1. Heard Mr. A.M. Tripathi, learned Counsel for the petitioners, Mr. Lalit Shukla, learned Counsel for the opposite parties Nos. 1 and 2-Bank and Mr. Shamshad Ahmad Khan, learned Counsel for opposite parties Nos. 3 to 18.
2. Petitioners have approached this Court under Article 226 of the Constitution of India, challenging the order dated 24.11.2004 issued by the General Manager, Barabanki Gramin Bank, Head Office, Dewa Road, Barabanki contained in Annexure No.1 to the writ petition, so far as it relate to fixing of the bench mark i.e. 55 marks in the promotion from Clerk to Officer Scale-I in the Bank. Petitioners have also challenged the promotion orders of all the juniors to them after summoning the originals from the Bank authorities and consider the promotion of petitioners from Clerks to Officer Scale-I from the date which they have promoted the juniors to petitioners from Clerks to Officer Scale-I.
3. Shorn off unnecessary details the facts of the case are as under :
Barabanki Gramin Bank is one of the Regional Rural Banks established under Section 3 of the Regional Rural Banks Act, 1976 for the purpose of developing economy by providing credit and other facilities to the agriculturists and artisans etc. The Sponsor Bank of the Barabanki Gramin Bank is the Bank of India. Section 17 of the Regional Rural Banks Act, 1976 provides that a Regional Rural Bank may appoint such number of officers and other employees, as may be, considered necessary and may determine the terms and conditions of their appointment.
4. According to petitioners, they were initially appointed as Clerk on 21.8.1984 in the Barbanki Gramin Bank and since then, they are performing their duties on the post of Clerk/Cashier in the different branches of Barabanki Gramin Bank, Barabanki with sincerity and honesty. Their services are governed by the Appointment & Promotion of Officers & Other Employees Rules, 1988 [in short, Rules, 1988] published in the Gazette on 29.7.1998, by means of which, the criteria for promotion from Clerk to Officer Scale-I has been mentioned i.e. seniority-cum-merit by prescribing the test of 100 marks i.e. written test of 70 marks, interview 20 marks and performance appraisal 10 marks,. The opposite parties with regard to the promotion in the Officer Cadre as well as the Clerical Cadre circulated guidelines for promotion on different posts vide Circular dated 18.11.2004, wherein under the heading of mode of selection, the minimum qualifying marks in aggregate was 60 out of total 100 marks but the same has been amended from 60 marks to 55 marks out of 100 marks, vide Circular dated 24.11.2004.
5. Submission of the learned Counsel for the petitioners is that petitioners along with other candidates have applied for promotion from Clerk cadre to Officer Scale-I cadre. The written test was held on 2.1.2005, in which, petitioners were declared successful. Thereafter, petitioners appeared in the interview, which was held on 26.2.005, 27.2.2005 and 28.2.2005. Subsequently, the result was declared vide letter dated 7.4.2005, in which the persons placed at serial No. 9, 10, 11, 29, 30, 31, 34, 35, 15, 39, 41, 43 and 38 in the seniority list were declared successful and were given promotion from Clerk to Officer Scale-I ignoring the claim of petitioners who were at serial No. 13, 28, 15 and 17 in the seniority list. His submission is that junior persons were promoted by ignoring petitioners' candidature, which is discriminatory and in violation of promotion criteria i.e. seniority-cum-merit by adopting pick and choose policy, therefore, the whole exercise is void ab initio and is liable to be set-aside.
6. Elaborating his submission, learned Counsel for the petitioners has submitted that Barabanki Gramin Bank is not competent to fix/frame the said rule/circular by providing 55% marks in aggregate, therefore, the said Circular is against the action and policy as well as the Rules prepared under the Rural Bank Act by the competent authority. He has submitted that in identical circumstances, the officers working in the Pratapgarh Kshetriya Gramin Bank in Scale-I when were superseded by their juniors by fixing the bench mark of 55 marks, they had approached this Court by filing writ petition No. 631 (S/B) of 2005 : Vijay Bahadur Singh & others Vs. Prtapgarh Kshetriya Gramin Bank and others and this Court had passed an order dated 9.5.2005, directing the respondents not to post any junior above the petitioners in the branch.
7. Submission of the learned Counsel for the petitioners is that in the present case, petitioners were awarded the said eligibility marks against the spirit of the rules and seniority has not been given due weightage. In any event the fixation of bench mark of 55% is illegal especially when 40% bench mark is fixed for written test and if any candidate gets 24 marks i.e. 40% in the written test and 8 marks in the performance appraisal i.e. 40% of 20 marks, then, he has to get 23 marks in the interview for securing 55% of the aggregate marks although the maximum marks in interview is 20 marks, which is practically impossible, therefore, there is no nexus for providing the bench marks i.e. 55% and the same is without any basis or reason, and is liable to be set-aside on this ground alone.
8. Per contra, Mr. Lalit Shukla, learned Counsel for the Bank has submitted that the promotions were made in accordance with Regional Rural Banks (Appointment & Promotion of Officers and Other Employees) Rules, 1998 [hereinafter referred to as "1998 Rules"]. As per 1998 Rules, the Board of the Bank constituted a Selection Committee as well as formulated the modalities to be adopted for promotions. The Selection Committee is to be consist of the Chairman of the Bank as Chairman of the Committee and three members i.e. (1) Nominee Director from Sponsor Bank; (2) Nominee Director from NABARD; and (3) an officer belonging to SC/ST category from Sponsor Bank. The interview of the candidates, who had passed the written examination, were taken by the Selection Committee constituted by the Board of the Bank. After the interview, the Selection Committee recommended the names of qualifying candidates to the Board based on performance of each candidate on the basis of written test, interview and performance appraisal report. The Board approved the name of the successful candidates for promotion from Clerk (Group B employee) to Officer Scale-I Cadre in its meeting held on 7.4.2005. Therefore, the contention of the petitioners that the Bank deprived the petitioners for promotions is incorrect.
9. Further submission of the learned Counsel for the Bank is that the Board of the Bank had decided/framed the modalities of promotion as per the guidelines issued by the Government of India in this regard, which envisage that the promotions should be made on the basis of seniority-cum-merit. The selection of candidates for promotion was to be done by the Selection Committee on the basis of three parameters i.e. written test, interview and performance appraisal report. Therefore, in order to decide candidate's suitability for promotion as per rules, the Board of Barabanki Gramin Bank had fixed the minimum qualifying marks in compliance of the provisions of 1998 Rules. The policy guidelines/modalities for promotions were circulated amongst all the branches well in advance but no objection/representation was ever submitted by petitioners in this regard. Therefore, the contention of the petitioners that the bank had fixed/framed criteria contrary to the relevant Act and Regulations is wholly misconceived and misleading.
10. Mr. Shukla has submitted that as per Government Guidelines/provisions of 1998 Rules, a list of those candidates who appeared in written test for promotion and scored 40% marks (28 out of 70) shall be prepared in order of seniority to the extent of 200% of the vacancies for promotion for the purpose of calling for interview. According to him, scoring 40% marks is the eligibility of a candidate for appearing in interview but the selection was to be made on the basis of written test, interview and performance appraisal report. The Board of the Bank prescribed minimum necessary qualifying marks in accordance with these Rules.
11. To strengthen his arguments, learned Counsel for the Bank has relied upon Om Prakash Shukla Vs. Akhilesh Kumar Shukla : 1986 Supp. SCC 285, Union of India and others Vs. Lt. Gen. Rajendra Singh Kadyan and another : (2000) 6 SCC 698; B.V. Sivaiah and others Vs. K. Addanki Babu and others : (1998) 6 SCC 720; Rajendra Kumar Srivastava and others Vs. Samyut Kshetriya Gramin Bank and others : (2001) 3 UPLBEC 2236; Gyanesh Kumar and others vs. Avadh Gramin Bank & others (decided on 21.11.2013, in writ petition No. 639 of 1996)
12. Mr. S.A. Khan, learned Counsel for the opposite parties Nos. 3 to 18 has submitted that promotions of the opposite parties Nos. 3 to 18 have been made in accordance with 1998 Rules after passing the written test, interview and considering the performance appraisal report. The minimum qualifying marks were fixed as per the decision of the Board and the same were well in the knowledge of petitioners and they have accepted the same before appearing in the written test, therefore, they cannot raise any grievance at a later stage regarding the amendment in qualifying marks. His submission is that the promotions were made in accordance with the rules. The answering opposite parties appeared in the interview after passing the written test and, thereafter, the selection committee recommended the name of the answering opposite parties for promotion and the Board granted approval to the recommendation of the Selection Committee in its meeting held on 7.4.2005.
13. I have heard learned counsel for the parties and perused the record.
14. Under Section 3 of the Regional Rural Banks Act, 1976, it is the Central Government, who by Notification in the official Gazette, establishes one or more Regional Rural Banks, only on being requested by a sponsor bank to establish the same. Under sub-section (3) of Section 3 of the said Act, it is the duty of the sponsor bank to aid and assist the Regional Rural Bank sponsored by it by subscribing to the share capital, training personnel of such Regional Rural Bank and providing such managerial and financial assistance to such Regional Rural Bank during the first five years of its functioning as may be mutually agreed upon between the Sponsor Bank and the Regional Rural Bank. Under sub- section (2) of Section 6, of the capital issued by a Regional Rural Bank fifty per cent shall be subscribed by the Central Government, fifteen percent by the concerned State Government and thirty five per cent by the Sponsor Bank. Under Section 17, the Regional Rural Bank is empowered to appoint such number of officers and other employees as it may consider necessary and may determine the terms and conditions of their appointment and service. Under Second proviso to aforesaid Section 17 remuneration of officers and other employees appointed by Regional Rural Bank will be such as may be determined by the Central Government and in determining such remuneration the Central Government shall have due regard to the salary structure of the employees of the State Government and the local authorities of comparable level and status in the notified area.
15. In B.V. Sivaiah (supra), the Apex Court, while considering the issue with regard to promotion, came to 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.
16. While dealing with the issue with regard to selection for promotion, the Apex Court in Lt. Gen. Rajendra Singh Kadyan (supra), has observed that there are three criteria for selection for promotion depending upon the nature of post and requirements of the service viz. (1) seniority-cum-fitness; (2) seniority-cum-merit; and (3) merit-cum-suitability with due regard to seniority. The Apex Court has observed that wherever fitness is stipulated as the basis of selection, it is regarded as non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness of all respects. "Seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion to All-India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them.
17. It is not in dispute that promotion as Clerk to Officer Scale-I is based on seniority-cum-merit in view of second schedule of the Rules, 1988. In the light of the aforesaid proposition of law and facts, this Court may now examine whether the aforesaid criteria has correctly been followed by the Bank concerned in making the impugned promotions or not.
18. Petitioners are the employee of erstwhile Barabanki Gramin Bank established under Regional Rural Banks Act, 1976. Subsequently, Aryavart Gramin Bank, a Regional Rural Bank, was constituted on 3rd October 2006 by amalgamation of three Regional Rural Banks (RRBs), namely, Avadh Gramin Bank, Barabanki Gramin Bank and Farrukhabad Gramin Bank as per Government of India notification no. F.No.1/4/2006-RRB dated 03-10-2006. The said three Regional Rural Banks were sponsored by Bank of India and had location proximity. Like the parental bodies, the amalgamated entity functions under Regional Rural Banks Act 1976 and was sponsored by Bank of India.
19. In the year 2004, erstwhile Barabanki Gramin Bank had decided to fill up different vacancies. Accordingly, the Board of Directors of the Barabanki Gramin Bank, vide circular dated 18.11.2004 laid down the guidelines for promotion from Group "B" employee to Officer Scale-I, which is as under :
"a. Basis of Promotion : Seniority -cum-Merit b. No. of Vacancies : 22 (Bank has represented the matter to Sponsor Bank and has requested for 5 additional vacancy in Scale I. In case during the promotion process the additional vacancy as requested is approved the promotion will be done as per approval from the Sponsor Bank.) c. Eligibility d. Mode of selection :
e. Number of candidates to be considered for promotion f. Selection Process A list of only those candidates who secure a minimum 40% marks each in English, Banking Law, Practice and procedures shall be prepared. The Bank, thereafter, shall prepare the list of selected candidates in order of seniority to the extent of 200% of the vacancies for promotion for the purpose for calling for interview. In case the sufficient number of candidates for reserved vacancies as per Roaster System are not qualifying the minimum required merit i.e. 40% in the written test, 10% relaxation would be provided to all eligible candidates in SC/ST category.
B) Interview C) Assessment of Performance of 10 Marks Appraisal Report Total Marks 100 Marks"
20. After the aforesaid circular, the Board of Directors have decided to fix the minimum qualifying marks in aggregate to 55 out of 100 for promotion after considering all the guidelines issued by the Government of India and circulated to the Branches. The decision of the Board was circulated amongst all the staff members vide Bank's Circular No. HO/PERS & I.R./BJM/121/04-05 dated 24.11.2004. As per provisions of Rule F (II) Promotions Rules, 1998, which relate to promotion of Clerk to Officer Scale-I Cadre, in the case of promotion, the selection of candidates shall be made by the Committee on the basis of written test, interview and performance appraisal report.
21. It is an admitted fact that not a single candidate came forward to challenge the decision of the Board of Directors with regard to determination of the minimum merit on the basis of performance of the candidate on these parameters. However, petitioners along with other candidates had applied for promotion on the said post. The written test of the petitioners and other candidates were held on 2.1.2005. The result of the written test was declared on 15.2.2005, in which, forty-four candidates including petitioners and private opposite parties were declared as qualified. Thereafter, interview of all the successful candidates were held on 26, 27 and 28.2.2005 for promotion from the post of Clerk to Officer Scale-I and the result of the same was declared by the Board of Directors on 7.4.2005, in which, petitioners were declared unsuccessful and the private opposite parties were declared successful.
22. Not being satisfied with the final result, petitioners have approached this Court by means of the present writ petition, challenging the Circular dated 24.11.2004 so far as it relates to the fixing of the bench mark i.e. 55 marks in the promotion from Clerk to Office Scale-I in the Bank as well as the order of promotion of all the juniors to the petitioners.
23. In sum and substance, the arguments of the counsel for the petitioners are on two folds; firstly, the Barabanki Gramin Bank is not competent to fix/frame the rule/circular, whereby the Bank fixed an aggregate marks i.e. 55%, which amounts to supplement the existing rules and the same cannot be done by the Board of Directors of the Bank as the said power is vested with the rule making authority defined under the Act; and secondly though seniority position of petitioners are at serial No. 13, 28, 15 & 17 in the seniority list prepared by the opposite parties but the junior persons who were at serial No. 9, 10, 11, 29, 30, 31, 34, 35, 15, 39, 41, 43 and 38, were promoted by the opposite parties in violation of promotion criteria i.e. seniority-cum-merit by adopting pick and choose policy.
24. Insofar as the first submission of the learned Counsel for the petitioner is that the Barabanki Gramin Bank is not competent to fix/frame the rule/circular, whereby the Bank fixed an aggregate marks i.e. 55%, which amounts to supplement the existing rules and the same cannot be done by the Board of Directors of the Bank as the said power is vested with the rule making authority defined under the Act, is concerned, it is relevant to mention that the Board of Barabanki Gramin Bank had fixed the minimum qualifying marks in compliance of the provisions of Rules, 1998. These rules were duly circulated amongst the staff members vide circular no. praka/karmik/sps/32/03-04 dated 5.7.2003. Further, the decision of the Board of Directors in this context was also circulated vide circular dated 18.11.2004. Therefore, the assertion of the petitioners that the action of the respondent-Bank was illegal or unjustified is wholly untenable.
25. In B.V.Sivaih v. K.Addanki Babu; 1998 (6) SCC 720, the Apex Court had an occasion to consider the meaning of ''seniority-cum-merit' and observed as under:-
"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 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."
26. At this juncture, it would be useful to refer the decision rendered in the case of Union of India and others Vs. Lt.Gen Rajendra Singh Kadyan and another (2000)6SCC 698. In this case the first respondent, namely, Rajendra Singh Kadyan sought the aid of the court to prevent unnecessary and avoidable aberration with regard to appointment/promotion. The Apex Court while examining the issue observed that " seniority -cum-merit' postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement, the promotion is based on seniority. Similar view was reiterated in Rajendra Kumar Srivastava vs. Samyut Kshetriya Gramin Bank (2001) 3 UPLBEC 2236 wherein it was held that even where the selection is done on the basis of seniority-cum-merit, a minimum eligibility requirement can be fixed by authorities.
27. In Gyanesh Kumar and others Vs. Avadh Gramin Bank and others, the controversy was regarding change of criteria as merit-cum-senioirty in place of Seniority-cum-merit. The Division Bench of this Court in its judgment and order dated 21.11.2013 observed as under:-
"we are of the view that it is well within the domain of the competent authority to lay down the minimum standard 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 which in turn may be based on service records and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. In the matter of formulation of a policy for promotion to a higher post, the two competing principles which are taken into account are inter se seniority and comparative merit of employees who are eligible for promotion. "
28. In view of the aforesaid principle enunciated by the Apex Court as well as by this Court coupled with the fact that where a candidate for selection knowing fully well the relevant facts voluntarily appeared for interview without raising any objection, he cannot subsequently turn round and question the selection or procedure adopted for appointment/promotion.
29. Needless to observe here that though petitioners were eligible for promotion as per government guidelines/bank norms, but suitability for promotions was to be assessed by a selection committee appointed by the Board in accordance with the statutory prescription stipulated by Government of India, which envisage that the promotion should be made on the basis of seniority-cum-merit.
30. It may be noted that Board of Directors vide resolution no. 03/2004-05 dated 24.11.2004 resolved to reduce the minimum qualifying marks in aggregate from 60 marks to 55 marks out of total 100 marks for the promotion from Scale II to Scale III, Scale-I to Scale II and from Clerks (Group'B' employees) to Scale-I. This reduction of marks in aggregate from 60 marks to 55 marks was not only advantageous to the private respondents but it was beneficial for all the employees of the Bank as would be evident from the resolution.
31. To understand it more clearly, it ma be mentioned that the Bank has fixed 70 marks for written test and qualifying makrs was 50% in written test as per Service Regulation,which comes out to be 40% of 70 marks i.e. 28 marks. Rest of 30 marks includes interview as well as Appraisal performance Report. Supposedly, if a candidate obtains full marks in interview & APR i.e. 30 out of 30,then also the total comes to be 28+30 = 58 marks, which is only 58% and not 60% of the aggregate as provided in the Service Regulations. It is for this stong reason that the Board of Directors resolved to reduce the aggregate marks from 60 marks to 55 marks, which is quite justified and is based on sound reasoning. Therefore, arguments as advanced by the petitioners are not acceptable.
32. The Bank has produced a copy of the eligible candidates for promotion from Clerical to showing the marks obtained by the candidate in written test, APR and interview. A perusal of the list shows that petitioners, namely, R.P.Mishra, Om Prakash Mishra, Ram Kumar Shukla and Shiv Prasad Mishra had obtained 51.27, 46.22, 47.64 and 47.47 marks. Thus these petitioners even failed to get 55 marks in aggregate, which was earlier more than 55 marks i.e. 60 marks.
33. There is no dispute to the fact that both the petitioners and the private respondents appeared in the written test & interview and after considering their performance and appraisal reports, the selection committee selected the private respondents for promotion as they obtained higher marks than the petitioners, for which Board had also accorded its approval.
34. The assertion of the petitioner with regard to almost similar process for promotion adopted by Pratapgarh Kshetriya Gramin Bank to the post of Scale-I, this Court intervened in the matter and restrained from posting any person junior to the petitioners therein and as such petitioners are also entitled for similar protection is wholly misconceived as Barabanki Gramin Bank has no concern with the affairs of Pratapgarh Kshetriya Gramin Bank.
35. As far as the performance of the petitioners is concerned, it was assessed by the competent authority on the basis of work and conduct together with the marks obtained by them in written test. One should not forget that the process of appraisal of performance is done confidentially and as such it is hard to be believe that performance of the petitioners were always excellent as alleged by them.
36. For the reasons aforesaid, I do not find any good ground to interfere in the circular dated 24.11.2004 fixing of the bench mark for promotion from Clerk to Officer Scale-I. Accordingly, the writ petition is dismissed.
37. Parties to bear their own costs.
Dated: 10.3.2017 [Justice D.K.Arora]
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