Karnataka High Court
S.V. Narayana And Ors. vs The Kolar Gramin Bank, Rep. By Its ... on 30 June, 2003
Equivalent citations: ILR2003KAR3615
Author: K. Ramanna
Bench: K. Ramanna
JUDGMENT Nayak, J.
1. In these Writ Appeals what falls for decision is the validity of the method and procedure adopted by the Management of Kolar Gramin Bank in selecting and promoting respondents 2 to 12 herein to the post of Field Supervisors. When the validity of their appointment to the post of Field Supervisors was called in question in Writ Petition No. 13400 of 1991 by the appellants herein and certain others, a learned Single Judge of this Court without finding any merit in any one of the contentions raised on behalf of the writ petitioners dismissed the Writ Petition by Judgment and Order dated 17th of April, 1998. Hence, these writ appeals by the aggrieved writ petitioners, six in number.
2. The facts of the case be stated briefly are as under.
The appellants at the relevant point of time were working as Junior Clerks in the establishment of the Bank. The next promotional post for Junior Clerks is the post of Senior Clerk 50% of posts in the cadre of Field Supervisors are required to be filled by way of promotion from the cadres of Senior and Junior Clerks in terms of the statutory Regulations governing recruitment to that post. On 1-1-1990 the Bank's Management issued employment notification to fill 11 posts of Field Supervisors. The Management after processing the claims of the appellants herein, the other writ petitioners as well as contesting respondents issued memorandum on 26-11-1990 whereunder respondents 2 to 12 were promoted as Field Supervisors. The validity of selection and appointment of the respondents 2 to 12 was assailed before this Court in Writ Petition No. 13400 of 1991.
3. Sri K. Subba Rao, learned Senior Counsel for the appellants at the threshold would maintain that though under the relevant statutory rules the post of Field Supervisors has to be filled by the method known as 'seniority-cum-merit', actually the Management treated that post as the selection post and without giving any weightage to the seniority, but only on the basis of relative and comparative merit, selections were made and on that count itself, the selection and appointment of respondents 2 to 12 is liable to be quashed. Sri Subba Rao also contended that learned Single Judge erred in law in placing reliance on the Judgment of the Supreme Court in SRI JAGATHIGOWDA, C. N AND ORS. v. CHAIRMAN CAUVERY GRAMINA BANK AND ORS., without appreciating the facts of that case. Be that as it may, Sri Subba Rao would maintain that, that judgment of the Supreme Court came to be considered by a three-Judge Bench of the Supreme Court later in B.V. SIVAIAH AND ORS. ETC. v. K. ADDANKI BABU AND ORS., and having considered that Judgment, the Supreme Court has laid down that if a post has to be filled by, 'seniority-cum-merit' method along with the appraisal of performances of candidates who come under zone of consideration, the recruiting authority should prescribe a 'standard minimum' in order to bring in only required number of eligible candidates from the feeder cadre so as to screen them further for promotion by adopting 'seniority-cum-merit' method.
4. On the other hand, Sri Rajagopal, learned Counsel for the contesting respondents would contend that the precise question now raised by the appellants was not raised by them in the Writ Petition and, therefore, such a plea could not be permitted to be raised at the appellate stage. Sri Rajagopal would maintain that appellants are estopped from raising such contention for the first time in the appeal placing reliance on the Judgment of the Supreme Court in UNIVERSITY OF COCHIN, REP. BY ITS REGISTRAR, UNIVERSITY OF COCHIN v. N.S. KANJOONJAMMA AND ORS., Sri Rajagopal would also contend that for no fault of the contesting respondents they were appointed to the post of Field Supervisors nearly 13 years back and since then they have been in continuous service in that post and, therefore, at this distance of time, it would be totally unjust and inequitable to interfere with their promotion even in the event of the Court coming to a conclusion that the selection and appointment of the contesting respondents in the year 1990 to the post of Field Supervisor was irregular or illegal. Thirdly, Sri Rajagopal would point out that during the pendency of the writ proceedings, appellants 1 to 3 were promoted to the post of Field Supervisor with effect from 22-06-2002 and in all probability even the remaining appellants might have been promoted by this time and in that view of the matter also, it is not a fit case where this Court should step in under Article 226 and interfere with the promotions made nearly 13 years back. According to Sri Rajagopal, such a course is just and proper not only for the reasons stated by him but also for the fact that the service regulations were subsequently amended in the year 1998, and the procedure envisaged under 1998 rules is substantially different from the earlier procedure governing appointment to the post of Field Supervisor Sri K. Ramdas, learned Senior Counsel for the Bank's Management would reiterate the contentions advanced by Sri Rajagopal and support the order of the learned Single Judge.
5. Having heard the learned Counsel for the parties, the only question that arises for decision-making is whether the selection and appointment of the contesting respondents 2 to 12 to the post of Field Supervisors vide Order dated 26-11-1990 is in conformity with the recruitment rules governing the post of Field Supervisors.
6. In exercise of the powers conferred by Section 29 of the Regional Rural Banks Act, 1976 (Act 21 of 1976), read with Section 17 thereof, the Central Government, after consultation with the National bank and the Sponsor Banks specified in the First Schedule to the Rules has enacted the rules called the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1988 (for short 'the Rules). The Rules came into force on the date of their publication in the Official Gazettee, that is to say, with effect from 28-9-1988. Schedule II to the Rules contain the particulars of different categories of posts which are required to be filled either by direct recruitment or by way of promotion. The Rules mandate that the direct recruitment and promotions should be effected in terms of and in conformity with the provisions contained in Schedule II. The recruitment to the post of Field Supervisor is dealt with by Schedule II, at Item No. 5. It reads as follows:
"5. Field Supervisors
a) Source of recruitment I) Fifty percent by direct recruitment from the open market II) Fifty percent by Promotion from amongst confirmed Senior and Junior clerk-cum-cashier Or clerk-cum-typist or stenographer or steno-typist on the Basis of Seniority-cum-merit
7 . The post of Field Supervisor is required to be filled by two modes: (1) fifty percent by way of promotions from the feeder cadres of Senior and Junior clerk-cum-cashier or clerk-cum-typist or stenographer or steno-typist on the basis of seniority-cum-merit and (2) fifty percent by way of direct recruitment. With regard to recruitment by way of promotion, the Rules prescribe the qualifying service in the feeder cadre. As regards Senior clerk-cum-cashier, four years experience is prescribed whereas for the officials serving in the cadres of Junior clerk-cum-cashier or Junior clerk-cum-typist or stenographer or steno typist or Senior or Junior clerk-cum-cashier, six years qualifying service is prescribed. The Rule with regard to the mode of selection states that selections should be made after interviews and assessment of performance reports for preceding three years period in the case of recruitment by way of promotion.
8. The Management of the Bank after the Rules came into force issued Circular No. 87/89-90 dated 1-1-1990 incorporating guidelines to be followed by the recruiting agencies in the Bank by way of promotion to the post of Field Supervisors. The guidelines also provide with regard to the assessment of merits of the candidates who come under zone of consideration. The Circular among other things provide thus :
"Marks will be awarded in the following pattern -
MAXIMUM MARKS - 150 Marks for Service - 60 Marks for leave Record - 10 Performance - 40 Interview - 30 Educational ualificatio - 10"
In addition thereof, the guidelines further detail awarding of marks under each of the above heads. There is no necessity for us to refer to those details for the purpose of disposal of these writ appeals.
9. Admittedly the contesting respondents 2 to 12 were assessed, given marks under the heads 'marks for service', 'marks for leave record', 'performance', 'interview' and 'educational qualification'. The Circular in unmistakable term declares that the maximum marks is 150 and even the marks earmarked under the above five heads, if added, will be 150. In otherwords, the assessment of the suitability of a candidate to the post of Field Supervisor by way of promotion is done on the basis of their performance as assessed by the promotion Committee under the aforementioned five heads. However, Sri Ramdas, learned Senior Counsel pointed out that weightage of marks was given to the services rendered by the candidates who come under zone of consideration and it is not that seniority of candidate is completely ignored. Sri Ramdas would draw our attention to the guidelines in the Circular which provide that half a mark will be awarded for every completed month of service. In the instant case, we are told that the contesting respondents and the appellants were appointed on the same day though they were assigned different rankings in the seniority list. In view of the above provision in the circular certain marks calculated at the rate of half a mark for every completed month of service might have been awarded to each and every candidate who came under zone of consideration. That will, however, not satisfy the principle governing promotion by Seniority cum merit method. It is not enough if every person in the feeder cadre who comes under zone for consideration for promotion to the next cadre is awarded marks on the basis of total length of service in the feeder cadre. In the instance case, since the appellant as well as the contesting respondent Nos. 2 to 12 who are appointed to the Feeder Cadre on the same day, all of them would have been awarded equal marks under the head "marks for service". The seniority of an employee in a particular cadre cannot be equated to the total length of service put in by him in that cadre. In certain situation, as in the present case, the total length of service with regard to more than one employee in a particular cadre may be the same. Nevertheless, those employees would be assigned different rankings in the seniority list. The crux of the matter is that, in the instant case, seniority as such does not carry any mark or weightage. Therefore, awarding or adding half a mark for every one completed month of service to all the candidates would not satisfy the Rule governing promotion by 'seniority-cum-merit' method. When this is the position, the learned Single Judge, as we could see from the impugned Judgment, has held against the appellants primarily placing reliance on the Judgment of the Supreme Court in Sri Jagathigowda's case (supra).
In Jagathigowda's case(supra), Cauvery Gramina Bank was constituted by the State Bank of Mysore and established in October, 1976 under the Regional Rural Banks Act, 1976 (for short 'the Act') The NABARD was established in the year 1982 with a view to look after the agricultural and rural development in the country. The NABARD has been issuing guidelines from time to time regarding the conditions of service of the employees of the rural banks in the country. The NABARD issued a circular dated December 31, 1984 providing guidelines for appointments/promotions in the rural banks to the posts of Senior Managers/Area Managers and General Managers. The relevant part of the circular which deals with the recruitment of Senior Managers/Area Managers read as under:
"Area Managers/Senior Managers:
(a) Source of recruitment: 100% by promotion from amongst officers working in bank Promotions will be on the basis of seniority-cum-merit. If suitable officers are not available internally, these posts could be filled by taking temporarily officers of the sponsor Banks and other banks/organisations on deputation".
NABARD issued another circular dated April 7, 1986 which clarified the procedure and provided for the standard to be adopted for promotions in the rural banks in India. The relevant part of the circular is as under:
"For effecting promotions, the Board may constitute one or more staff selection committees depending on the scale of the posts for which the candidates are to be interviewed, for the purpose of selecting the employees of the bank for promotion to higher posts. The Committee should have at least three official directors of the Board excluding Chairman, of which one should be from the National Bank for the Reserve Bank and one each from sponsor Bank and State Government respectively. Also one member from SC/ST community should be represented in such committees as indicates in our circular letter dated 9-12-1985.
The selection of the eligible candidates should be based on performance of respective candidates in the bank. The recommendation of the committees should thereafter have the approval of the Board before effecting promotions".
After the NABARD issued the above guidelines, the Management of the Cauvery Gramina Bank issued its own guidelines by Circular dated 17th July, 1986 for appointment to the posts of Area Managers/Senior Managers and invited applications from eligible officers to be considered for promotion. The relevant part of the circular so issued by the Bank's Management reads as under:
"The question of strengthening the supervisory support of the field as well as the Head Office level consequent on growth in the volume of business and geographical coverage has been examined by the Government of India in consultation with the NABARD. They have approved, in principle, creation of the posts of Area Managers/Senior Managers as and when required and justified by the volume and nature of business. In the light of the guidelines issued by the NABARD in this regard, the Board of Directors have approved creation of a few posts of Area Managers and upgradation of few managers posts at Head Office to Senior Managers posts".
The following guidelines have been laid down for appointment to the posts of Area Managers/Senior Managers.
SOURCE OF RECRUITMENT
(a) 100% by promotion from amongst the eligible officers;
(b) Seniority-cum-merit
(c) If suitable officers are not available internally, the posts could be filled-in by the officers of the sponsor bank All the eligible officers are being advised separately to appear for promotional interview".
11. The Committee constituted by the Management of the Bank screened the eligible officers for promotion in the light of the guidelines issued by the NABARD from time to time. The Committee after conducting interview awarded interview marks on the basis of the performance. The officers who obtained 85 marks out of 150 were short listed for promotion and on the basis of such list the promotion orders were issued on 31st July 1986. When the validity of those promotions was called in question before this Court, it was contended that the promotions were made primarily on the basis of the appraisal forms and that procedure was illegal. That contention found favour with this Court and the promotions were set aside. The correctness of the Judgment of this Court was assailed before the Apex Court. The Apex Court without agreeing with the reasoning of this Court held as follows:-
"We have heard learned Counsel for the parties at length. We are of the view that the learned Single Judge and also the Division Bench of the High Court fell into patent error in quashing the promotions made by the Bank. The High Court has failed to appreciate that the NABARD circular dated April 7, 1986 clarified the earlier circular and specifically provided that "the selection of the eligible candidates should be based on performance of respective candidates in the bank". The guidelines are applicable to all the employees of the rural bank. The High Court fell into patent error in holding that the guidelines were not applicable to the impugned promotions. We are of the view that the cumulative reading of the two guidelines issued by the NABARD (quoted above) clearly shows that the promotions were to be made on the basis of the comparative assessment of the performance appraisal of the officers concerned. This has precisely been done by the Director's Committee of the Bank. Even otherwise the procedure adopted by the Director's Committee was just and fair. The instructions of the NABARD being in the nature of guidelines the promotions made by the Bank cannot be set aside unless the same are arbitrary and unfair. It is settled proposition of law even while making promotions on the basis of seniority-cum-merit the totality of the service record of the officer concerned has to be taken into consideration. The performance appraisal forms are maintained primarily for the purpose that the same are taken into consideration when the person concerned is considered for promotions to the higher rank. The High Court with respect, was not justified in holding that the performance appraisal could not be taken into consideration by the Director's Committee while considering the officers for promotion to the higher rank".
12. On facts itself it could be seen that the facts of this case and the facts of Sri Jakathigowda's case are not identical or similar. In Jagathigowda's case(supra) as could be seen from para-4 of the judgment, the recruiting agency had set down minimum standard of merit for the purpose of shortlisting the eligible candidates for the purpose of consideration for appointment to the post of Field Supervisors by way of promotion. In this case, we do not find prescription of any 'minimum standard' or 'minimum necessary merit' for shortlisting the eligible candidates for further screening for the purpose of promotion to the post of Field Supervisors by 'seniority-cum-merit' method. Be that as it may, we need not dilate this aspect further, because, the Judgment in Sri Jagathigowda's case(supra) cited on behalf of the Management of the Rural Banks was considered by a larger three-Judge Bench of the Supreme Court in B.V. SIVAIAH's case(supra) and held that the opinion of the Supreme Court in Sri Jagathigowda's case (supra) has been in the line of the earlier judgment of the Supreme Court and observed thus:-
"In Jagathigowda C N (1996 AIR SCW 3421) (supra) this Court was dealing with promotion made to the post of senior Manager in a Rural Bank which promotion was made prior to the Rules and was governed by circulars of the National Bank dated December 31,1984 and April 7, 1986 Circular dated December 31, 1984 provided that promotion to the post of Area Manager/ Senior Manager should be on the basis of seniority-cum-merit By circular dated April 7, 1986 it was prescribed that selection of the eligible candidates should be based on performance of respective candidates in the bank to be assessed by a Staff Selection Committee after interviewing the candidates. The selection was made by the Selection Committee after calling the eligible officers for interview in accordance with their seniority and in the interview the marks were awarded according to the performance appraisal forms. The officers who obtained 85 marks out of 150 were shortlisted for promotion. The performance appraisal comprised of matters such as dimension of work, general intelligence, job knowledge, initiative and resourcefulness etc. The service record of the officers who assailed the promotion before the High Court was adverse. In the judgment under appeal the High Court had set aside the promotion on the ground that service record of the recent past should have been taken into consideration and in case there was nothing adverse against an officer he could not be denied promotion on the ground that some other junior to him was more meritorious and the promotions were made on the basis of selection inasmuch as marks were assigned on the basis of performance appraisal and interview. The said judgment of the High Court was reversed by this Court. It was observed that the circular dated April 7, 1986 issued by the National Bank specifically provided that the selection of the eligible candidates should be based on performance of respective candidates in the bank. It was held that the High Court was not justified in holding that the performance appraisal could not be taken into consideration while considering the officers for promotion to the higher rank. It was also observed that "while making promotions on the basis of seniority-cum-merit the totality of the service record of the officer concerned has to be taken into consideration". This judgment, in our opinion, does not make a departure from the law laid down by this Court in the earlier judgments explaining the criterion of 'seniority-cum-merit' because in this case the selection had been made by taking into account the seniority as well as performance and performance was appraised by assigning marks on the basis of performance appraisal and interview. Those who secured 85 marks out of 150 marks were shortlisted for promotion which shows that securing 85 marks out of 150 marks was treated as the minimum standard of merit for purposes of promotion and those who satisfied the said minimum standard were selected for promotion on the basis of seniority".
It may also be appropriate to note what this very Bench had to observe with regard to the essential attributes of the method of 'seniority-cum-merit' and the method of 'merit-cum-seniority' (popularly called 'selection method'). In DODDAMAHADEVAIAH v. NEW MANGALORE PORT TRUST, BY ITS SECRETARY, MANGALORE AND ORS., this Bench speaking through S.R. NAYAK, J, held in paras 8 and 9 thus:
"8. It is trite that since the promotional post of Deputy Traffic Manager in terms of Recruitment Regulations has to be filled up by the method known as 'promotion by Selection' the process necessarily involves assessment of relative merits of candidates who come under zone of consideration. It is true that seniority in feeder post is one of the important factors for making promotions when the recruiting agency has to adopt the method of seniority-
cum-merit or seniority-cum-suitability. But, seniority would have only a marginal role to play where the post has to be filled by way of selections Speaking for a Division Bench of the High Court of Judicature of Andhra Pradesh, one of us (S.R. NAYAK, J) A. VEMA REDDY v. CONTROLLER GENERAL OF DEFENCE; ACCOUNTS, NEW DELHI AND ORS. (2001) 5 ALD 131 (DB) observed:
" There are two well known methods which are adopted in the recruitment rules for making promotions and they are (1) seniority-cum-fitness or sometimes called, seniority-cum-merit; (2) promotion by selection. While the method of seniority-cum-fitness is generally prescribed for promotions in the lower cadres, the method of promotion by selection is adopted in making promotion to the higher echelons of service. There is a clear cut distinction between the two methods of promotion.
9. In the case of promotion by seniority-cum-fitness, every civil servant is entitled to the consideration of his case for promotion according to his seniority, either in the provisional seniority list or final seniority list, as the case may be. The promoting authority has to consider the cases of all eligible officers who come within the zone of consideration strictly according to the seniority. If the senior most official due for promotion is found fit for promotion he has to be promoted and there is no question of comparing his merit with those of his juniors in terms of relative merit. In otherwords, unless the senior official is found unfit for promotion either on account of adverse service record or does not satisfy other conditions or qualifications prescribed under the rules, he has a right to be promoted. It is only after reaching the conclusion that the senior most official is unfit for promotion, the promoting authority could proceed to consider the case of the next senior and so on, on each occasion for promotion. In the case of promotion by selection, on the otherhand, merit is the sole consideration from among the eligible officials who came within the zone of consideration for promotion. In this mode, generally speaking, whether an officer is senior or junior is immaterial. If, under the rules, an official is eligible for promotion, he has a right for consideration of his case. The authority making the selection has to make the selection on the basis of comparative merit among the eligible candidates. In other words, selection of a candidate for promotion would depend upon the assessment of his superior relative merit among the officials who come within the zone of consideration. But, even in a case where promotion is by way of selection, seniority has relevance where merit of two or more candidates is equal. In such case, seniority should be the basis in making selection and appointment, as held by the Supreme Court in UNION OF INDIA v. ML CAPOOR - AIR 1974 SC 74. But, where the merit is unequal promotion by selection has to be made according to merit only. Thus, it can be safely said that seniority by itself is no basis to make promotion in either of the methods."
Therefore, we find considerable force in the contention of Sri Subba Rao that the Rules mandate that the posts of Field Supervisors from the source of in-service candidates have to be filled by 'seniority-cum-merit' method. Simply because, the validity of the guidelines contained in the Circular dated 01.01.1990 is not assailed by the appellants or similarly circumstanced others and they also applied for appointment to the post of Field Supervisors, it cannot be said that the appellants are not entitled to assert their constitutional right guaranteed under Articles 14 and 16 of the Constitution. The stray observation of the Supreme Court in UNIVERSITY OF COCHIN, REP. BY ITS REGISTRAR, UNIVERSITY OF COCHIN v. N.S. KANJOONJAMMA AND ORS., (supra) made particularly in the context of that case would not be a valid basis to declare the law that if a candidate without assailing validity of apparently illegal Rules/Regulations, prescribed by an employer governing recruitment to a post applies for appointment to such post and participates in selection process, he cannot later call in question the validity of appointments made under or following such apparently illegal Rules/Regulations Whether an applicant should be permitted to agitate his grievance in such fact- situation depends upon facts and circumstances of each case and no fast hard rule can be laid down by the Court. It needs to be noticed that when the appellants put forth their claims to the appointment to post of Field Supervisors by way of promotion, statutory Rules were holding the field and, therefore, it is reasonable to construe that they put forth their claims in terms of the statutory Rules and it cannot be said that they put forth their claims for appointment only under the administrative instructions / guidelines which are contrary to the statutory Rules framed by the Management of the Bank. Be that as it may, we are of the considered opinion that under no circumstance technicality can be allowed to overtake justice. The argument placed before us by Sri Rajagopal, to our mind, is technical if not hypertechnical.
13. It is true, as rightly pointed out by Sri Rajagopal, by force of circumstances respondents 2 to 12 appointed to the post of Field Supervisors more than 13 years back have been continuing in the service till now. But, that fact itself would not come to the aid of the contesting respondents to claim that their appointments shall not be disturbed. If a person is not entitled to a right in law, the consequence of denying such right to him cannot be the botheration of Law Courts. Law Courts exist to enforce law, not to thwart law or to perpetuate illegalities. The promotions were effected in the year 1990 and the appellants without any loss of time approached this Court by filing Writ Petitions. We can see from the proceedings that these writ proceedings could not be decided by the Court earlier, may be under pressure of works on the Court, but the delay in disposal of the dispute cannot be attributed to the appellants. In the circumstance, the suggestion of Sri Rajagopal to the Court to declare law only and not to grant relief, is not acceptable to us. That will not serve the ends of justice, particularly, when we find that there is absolutely no lapse or laches on the part of the appellants.
14. The judgments in V. KAMESHWARI (SMT.) v. UNION OF INDIA AND ORS., 1993 SUPP (2) SCC 407 and ASHOK KUMAR SHARMA AND ANR. v. CHANDER SHEKHER AND ANR., 1993 SCC(L & S) 857 cited by Sri Rajgopal are of no help to deny the relief to the appellants. Similarly, the other circumstance stated by Sri Rajagopal that appellants 1 to 3 were subsequently promoted to the post of Field Supervisors with effect from 22-06-2002 cannot be a valid ground to refuse relief. The appellants have been asserting their right for appointment to the post with diligence and promptitude. Therefore, it is just and proper to restore legitimate rights of the appellants.
15. In the result and for the foregoing reasons and with respect to the learned Judge, we cannot sustain the impugned Judgment. We accordingly allow the writ appeals and set aside the impugned order of the learned Single Judge and allow Writ Petition No. 13400 of 1991 and quash. Annexure-D dated 26-11-1990 whereunder respondents 2 to 12 were promoted to the post of Field Supervisors. Let a 'writ of mandamus' shall issue to the Management of the Bank to consider the claims of the appellants and similarly circumstanced others to the post of Field Supervisors by way of promotion strictly in conformity with the statutory Rules and the law laid down by the Apex Court in B.V. Sivaiah's case and after such exercise, if the appellants and similarly circumstanced others are found qualified for promotion to the post of Field Supervisors, they should accordingly be promoted to the said post with retrospective effect, that is to say with effect from 26-11-1990 with all benefits, pecuniary or otherwise, admissible to them under the relevant Service Regulations. The above direction should be carried out by the Bank's management within a period of three months from today. The contesting respondents 2 to 12 are permitted to hold the office of Field Supervisors only till the Bank's Management undertakes and completes the exercise directed above.
In the facts and circumstances of the case, the parties are directed to bear their own costs.