Madhya Pradesh High Court
Shri S.S.Ramraika vs Shri P.K.Dubey Judgement Given By: ... on 26 March, 2014
Author: A.K. Sharma
Bench: A.K. Sharma
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Appeal No : 1825 of 2007
S.S. Ramraika and others
- V/s -
P.K. Dubey and others
Writ Appeal No : 1870 of 2007
P.K. Singh and others
- V/s -
Sharda Gramin Bank and others
Writ Appeal No : 1824 of 2007
Rakesh Singhai and others
- V/s -
Shobharan Singh Choudhary and others
Writ Appeal No : 1822 of 2007
Rakesh Singhai and others
- V/s -
Sharda Gramin Bank and others
Writ Appeal No : 1872 of 2007
P.K. Singh and others
- V/s -
Sharda Gramin Bank and others
Writ Appeal No : 1871 of 2007
P.K. Singh and others
- V/s -
Sharda Gramin Bank and others
Present : Hon'ble Shri Justice Rajendra Menon.
Hon'ble Shri Justice A.K. Sharma.
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Shri Ashish Shroti and Shri Rajesh Maindiratta,
Counsel for the appellants (in all the cases).
2
Writ Appeal No :: 1825 / 2007 and connected matters.
S.S. Ramraika and others Vs. P.K. Dubey and others.
Shri Brian D‟Silva, Senior Advocate, with Shri
Gaurav Sharma for the Bank and its Officers.
None appears for the other respondents, even
though served and represented.
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Whether approved for reporting: Yes / No.
ORDER
26/03/2014 As common questions of law and facts are involved in all the appeals, they are being decided by this common order. For the sake of convenience, the pleadings and material available in the record of Writ Appeal No. 1825/2007 are being referred to in the order. 2- Appellants and private respondents were working as Officers in the Sharda Gramin Bank, a Regional Rural Bank, constituted under the provisions of Regional Rural Bank Act, 1976. The question involved in the writ petition pertained to promotion of the employees from Scale I to Scale II post. Promotion is to be held in accordance to the provisions of Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1988. It is not in dispute that the promotion for the post in question is to be undertaken in accordance to the principle i.e.. seniority-cum-merit, and in the promotion exercise that was undertaken and which was disputed in the present case, the Bank formulated a policy for promotion. The Board of Directors of the Bank resolved on 30.12.1995 that the promotion shall be held on the basis of a Circular contemplated and circulated vide Annexure E and a letter dated 1.11.1995. It was indicated in these documents that for promotion to the post in question, different criteria were fixed and marks allotted for each heads like seniority, qualification, performance appraisal and interview. 40% marks were fixed for seniority; 15%, 25% and 20% respectively and it was also resolved that only such candidates would be eligible for promotion who obtain a minimum 40% in aggregate. Thereafter, when 3 Writ Appeal No :: 1825 / 2007 and connected matters.
S.S. Ramraika and others Vs. P.K. Dubey and others.
the promotion exercise was to be actually held, certain modification were made in the Policy and by another Circular dated 24.9.1999, and it was decided that an interview would be held in which 40 marks would be awarded, it was also decided that certain marks would be awarded for qualification and performance appraisal, and the candidates, who obtained minimum 60 marks, would be entitled for promotion. The criteria for grant of marks for seniority was done away with in this amended circular. Promotion exercise was conducted as per this circular and the orders of promotion of the appellants/petitioners were passed. 3- The private respondents challenged the promotion on the ground that the system followed for promotion without allotting any marks for seniority, the system will come as per the principle of merit- cum-seniority and as no marks are being awarded for seniority inspite of the fact that the promotion is affected on the principle of seniority-cum- merit.
4- Learned Single Judge allowed the writ petition by holding that as no mark is awarded for seniority and as the criteria laid down is promotion on the basis of seniority-cum-merit is violated, applying the law laid down in the case of Bhagwandas Tiwari Vs. Dewas Shajapur Kshetriya Gramin Bank and others, (2006) 12 SCC 574, interference was made by the learned writ court.
5- Shri Ashish Shroti and Shri Rajesh Maindiratta, learned counsel appearing for the appellants, and Shri Brian D‟Silva, learned Senior Advocate appearing for the Bank, argued that the criteria followed and the principle of seniority-cum-merit only contemplates that a senior is entitled for promotion subject to his fulfilling a minimum benchmark fixed for assessment of his fitness. It is stated that merely because no marks were fixed for seniority, the principle of promotion on the basis of seniority-cum-merit is not violated and inviting my attention to the law laid down by the Supreme Court in cases pertaining to promotion on the principle of seniority-cum-merit, it is argued that the learned writ court has committed an error in interfering with the matter only because no marks were awarded for seniority. It was emphasized by 4 Writ Appeal No :: 1825 / 2007 and connected matters.
S.S. Ramraika and others Vs. P.K. Dubey and others.
all the counsel appearing that in these cases a procedure was followed for assessing the minimum benchmark of the candidates and all such candidates who had achieved this minimum benchmark i.e.. 60% marks, based on appraisal and interview, they have been promoted irrespective of their position in the merit list as per seniority. It is stated that no person who is senior and who has received the minimum benchmark is superceded for promotion based on the marks obtained in the process of selection.
6- Accordingly, placing reliance on the following judgments, learned counsel argue that the principle of seniority-cum-merit has been fully complied with and interfering with the same, the learned writ court has committed an error. The judgments relied upon are State of Kerala Vs. N.M. Thomas, (1976) 2 SCC 310; B.V. Sivaiah Vs. K. Addanki Babu, (1998); and, Rajendra Kumar Srivastava and others Vs. Samyut Kshetriya Gramin Bank and others, (2010) 1 SCC 335. 7- Even though the private respondents are not represented, but we have gone through the procedure followed based on the record produced by the learned Senior Advocate for the Bank, and the judgments in question and, therefore, we propose to deal with the matter in accordance to the principle laid down by the Supreme Court in the cases as referred to hereinabove.
8- The principle laid down for promotion based on the system of seniority-cum-merit was first considered by the Supreme Court in the case of N.M. Thomas (supra). Thereafter, with regard to the policy formulated in the Gramin Bank, the matter was again considered by the Supreme Court in the case of B.V. Sivaiah (supra). The principle laid down by the Supreme Court in all these cases go to show that subject to a candidate fulfilling certain bare minimum requirement of fitness, he shall be entitled for promotion based on seniority, but it has been emphasized by the Supreme Court in all these cases that for the purpose of assessing the bare minimum requirement of fitness, if the policy contemplates a procedure for conducting interview, written test or appraisal of service record and thereafter a minimum benchmark is 5 Writ Appeal No :: 1825 / 2007 and connected matters.
S.S. Ramraika and others Vs. P.K. Dubey and others.
fixed. It has been the consistent view of the Supreme Court that this process meets the requirement of the principle known as seniority-cum- merit. For the sake of convenience, it is thought appropriate to reproduce the principle recently laid down and crystallized by the Supreme Court in the case of Rajendra Kumar Srivastava (supra). After taking note of all the previous judgments, including the judgment in the case of Bhagwandas Tiwari (supra) as relied upon by the learned Single Judge, in paragraph 11, the learned Supreme Court has laid down the following principle:
"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 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."6
Writ Appeal No :: 1825 / 2007 and connected matters.
S.S. Ramraika and others Vs. P.K. Dubey and others.
9- From the aforesaid, it is clear that when promotion is to be undertaken on the principle of seniority-cum-merit, a senior is entitled for promotion subject to his fulfilling the minimum criteria for fitness prescribed. The criteria for fitness can be determined by the promoting authority either by appraisal of service record, conducting an interview or holding a written test, but the only requirement of law is that based on a merit list prepared on the basis of marks obtained by such a process, a senior should not be superceded based on the merits of the marks obtained and the only restriction is that a minimum benchmark should be fixed and all persons who fulfil the benchmark irrespective of their position in the merit list should be promoted as per their seniority. That being the position, we propose to analyse the procedure followed in the present case by evaluating as to whether the aforesaid principle has been followed in the present case or has been violated?
10- As already indicated hereinabove, in the present case 100 marks were fixed for the entire promotion exercise and the distribution of the same was 40 marks for interview and 60 marks for appraisal of three years service record of an employee and thereafter it was held that such of the candidates who obtain minimum 60 marks in this process would be promoted. If this is the procedure followed, we have no hesitation in holding that it meets the requirement as laid down by the Supreme Court in the cases discussed hereinabove and the principle approved. Learned Single Judge got carried away by the fact that in the earlier promotion policy also, which was circulated on 1.11.1995, based on the Board‟s meeting dated 30.12.1995, certain marks were awarded for seniority and in the amended process as no marks was being awarded for seniority, held that the principle of seniority-cum-merit is violated. With respect we do not agree with the same. Even if some mark is fixed for seniority, the same does not make any difference for the simple reason that the fitness is being assessed based on interview and the service appraisal and thereafter all such candidates, who fulfil the minimum criteria of 60 marks are being promoted. Allotment of marks for seniority in the earlier procedure followed vide circular dated 7 Writ Appeal No :: 1825 / 2007 and connected matters.
S.S. Ramraika and others Vs. P.K. Dubey and others.
1.11.1995 also contemplates fixation of a minimum criteria by allotting some marks for seniority, but once a senior fulfils the minimum criteria or the benchmark fixed, it does not make any difference if marks for seniority is allotted or not. Accordingly, in the earlier promotion policy followed because some marks were given for seniority and this is done away with, we are of the considered view that the principle of seniority- cum-merit is not violated.
11- In the procedure followed, as indicated hereinabove, as the minimum criteria is fixed, which has to be achieved by each of the candidates and fitness of a candidate is to be assessed based on an interview and service appraisal, we are of the considered view that the principle laid down by the Supreme Court in the cases as indicated hereinabove, are fulfilled in the present exercise undertaken by the respondent bank and in not considering the same the learned Single Judge has committed an error.
12- Keeping in view the aforesaid, all the appeals are allowed. Orders impugned dated 27.9.2007, passed by the learned writ court, are quashed and the promotion exercise undertaken by the Bank as indicated hereinabove, is held to be proper, legal and in accordance with the principles of seniority-cum-merit.
13- Accordingly, all the appeals stand allowed and disposed of.
( RAJENDRA MENON ) ( A.K. SHARMA )
JUDGE JUDGE
Aks/-