Calcutta High Court (Appellete Side)
Sri Ranjan Roy & Ors vs Gour Gramin Bank & Ors on 7 July, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas
W.P.No.21888(W) of 2006
Sri Ranjan Roy & Ors.
v.
Gour Gramin Bank & Ors.
Mr.Piush Chaturvedi
Mr.Pradip Kumar Panja ....for the petitioners
Mr.Dilip Kumar Kundu
Mr.Arjun Basu. ....for the bank
Mr.Bikash Ranjan Bhattacharya
Mr.Subhodeep Mukherjee
Mr.Imran Tarafdar ....for the fifth-seventh respondents
Heard on: July 7, 2011 Judgement on: July 7, 2011 The Court:- The three petitioners in this art.226 petition dated September 15, 2006 are challenging an order dated July 12, 2006 to the extent it concerns the promotions of the five private respondents from Officer Cadre (Scale-II) to Officer Cadre (Scale-III) in Gaur Gramin Bank, the first respondent, and they are seeking a mandamus commanding the bank and its Chairman to promote them from Officer Cadre (Scale-II) to Officer Cadre(Scale-III).
The bank issued a circular dated March 11, 2006 initiating a process for filling ten vacancies in Officer Cadre(Scale-III) according to provisions of the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1998.
The rules provide as follows:
Name of the Post: Scale III Officer; Source of appointment: 100% by promotion:
Promotion shall be made on the basis of seniority-cum-merit; Interview: 25 marks, the 2 minimum qualifying mark being 50%; Performance Appraisal Report: 75 marks, reports for preceding five years shall be considered for the purpose of awarding marks.
Sl. No.7 of the circular dated March 11, 2006 is quoted below: "7.Cut off marks for final selection on the basis of seniority cum merit taking into consideration the makrs scored in interview and performance appraisal reports for the preceding five years will be 60(sixty) or relaxed marks as stated in Sl. No.8 below."
Sl. No.8 of the circular is quoted below:
"8.Reservation: As per latest Govt. Rules.
The Board also considered relaxation for interview and final cut off marks for candidates belonging to SC/ST communities as proposed below.
Category of Officers Interview Final Cut Off Marks
General Candidates 12.50 60.00
SC/ST Candidates 11.25 55.00
The petitioners participating in the process without any objection have alleged in this petition that against the available and notified ten vacancies only their five juniors were promoted when the remaining five vacancies could be filled by appointing them on promotion, if the seniority-cum-merit principle was actually applied to the selection process.
Mr. Chaturvedi appearing for the petitioners has argued as follows. The "cut off marks for final selection" were fixed de hors the rules. Even if it is held that the bank was empowered to fix the "cut off marks for final selection", then also, on the facts, it cannot but be held that 60 being highly excessive,- the fixation defeated the seniority-cum-merit principle and converted the process to a merit-cum-seniority one.
Mr. Kundu appearing for the bank has argued that the petitioners participating in the process without any objection are estopped from questioning the selection process, especially when they have not questioned the circular dated March 11, 2006. According to him, there was no reason for the bank to justify in its opposition fixation of the "cut off 3 marks for final selection" at 60, for no case had been stated in the petition that it was arbitrary.
Mr. Bhattacharya appearing for the private respondents has argued as follows. The petitioners participating in the process without any objection are estopped from questioning the selection process. They are not entitled to any relief, for by not disclosing the facts concerning a 2003 selection process in which they had participated, they have attempted to mislead this Court. Counsel for the petitioners has argued a case nowhere stated in the petition.
Mr Chaturvedi has relied on B.V.Sivaiah & Ors. v. K Addanki Babu & Ors., (1998) 6 SCC 720; Somak Das v. State of West Bengal, (2005)2 CAL LT 465(HC); Chairman, Sagar Gramin Bank & Ors. v. Manicklal Bhowmick & Ors., 2005(3)CHN 238; Hargovind Yadav v. Rewa Sidhi Gramin Bank & Ors., 2006(4) Supreme 673; Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya Gramin Bank & Ors., AIR 2007 SC 994; Uttar Banga Kshetriya Gramin Bank & Ors. v. Jayanta Choudhury & Ors., 2007(2) CHN 476; Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bank & Ors., (2010) 1 SCC 345; and Ramesh Kumar v. High Court of Delhi & Anr., (2010)3 SCC 104.
Mr. Kundu has relied on Union of India & Ors. v. S. Vinodh Kumar & Ors., (2007)8 SCC 100; and Rajendra Kumar Srivastava & Ors. v. Samyut Kshetriya Gramin Bank & Ors., (2010) 1 SCC 335.
Mr.Bhattacharya has relied on National Buildings Construction Corporation v. S. Raghunathan & Ors., (1998)7 SCC 66; Rani Laxmibai Kshetriya, Gramin Bank v. Chand Behari Kapoor & Ors., (1998)7 SCC 469; the order of the Supreme Court dated November 1, 2004 dismissing a Petition for Special Leave to Appeal (Civil) No.10509/2004 (South Malabar Gramin Bank v. P.V.Rajendran & Ors.); and Dalip Singh v. State of Uttar Pradesh & Ors., (2010) 2 SCC 114.
4The first question is whether the petitioners have attempted to mislead this Court.
It is true that the petitioners have not stated anything concerning the 2003 selection process in which also they had participated, and that that process was also initiated and carried out on terms and conditions identical to the ones on which the 2006 process was initiated and carried out. But I do not think non-disclosure of facts concerning the 2003 selection process has amounted to an attempt on the part of the petitioners to mislead this Court, for they are irrelevant for this case.
The second question is whether the petitioners are estopped from questioning the 2006 selection process that they have questioned after participating without any protest and finding themselves unsuccessful.
Mr. Chaturvedi has argued that since the procedure applying which the selection was made, disclosed for the first time in the bank's opposition, was never known to the petitioners and the challenge goes to the root of the selection that virtually became a merit based selection, it cannot be said that the petitioners' participation in the process without protest will act as an estoppel against them. He has contended that since fixation of the "cut off marks for final selection" itself was de hors the rules, the principle of estoppel cannot apply to the case.
In my opinion, answer to the question whether the principle of estoppel will apply against the petitioners, participating in the process without any objection and throwing a challenge to the process when they found themselves unsuccessful, should be given after ascertaining what is the actual challenge of the petitioners.
The first real contention of the petitioners is that since in the absence of any "cut off marks for final selection" fixed in the rules that specifically fixed 50% of the total interview marks as the qualifying mark in interview, fixation of the "cut off marks for final selection" de hors the rules made the entire process illegal.
5If the contention is accepted, then the of course conclusion will be that the senior most participant in the process obtaining only 12.5 out of total 100 would have been entitled to promotion. This - banishing the concept and requirement of merit - will lead to an absurd interpretation of the recruitment rules.
It has been repeatedly explained by the Supreme Court that a selection based on seniority-cum-merit does not mean that the concept of merit is an insignificant consideration. From the cases cited to me it is evident that in a seniority-cum-merit selection process minimum qualifying mark can be fixed for assessing merit.
Simply because the rules did not prescribe any qualifying mark, it cannot be said that by implication the rules had put a prohibition against fixation of qualifying mark. In my opinion, the contention that the final qualifying mark was fixed de hors the rules has no merit.
The next contention is that, in any case, the qualifying mark 60 being excessively high the fixation resulted in convertion of the process to merit-cum-seniority. It has been argued that the bank wanted only extremely meritorious candidates; and that in the process concept of seniority for which no mark was allotted was given a total go-by.
In my opinion, it has been rightly contended by the respondents that in the absence of pleadings the petitioners are not entitled to contend that fixation of the "cut off marks for final selection" 60 was excessively high. The bank was not called upon to justify the fixation. Even otherwise, I do not find any merit in the contention.
In Rajendra Kumar Srivastava & Ors. v. Samyut Kshetriya Gramin Bank & Ors., (2010) 1 SCC 335 their Lordships considered the following questions:
"8......(i)Whether minimum qualifying marks could be prescribed for assessment of past performance and interview, where the promotions are to be made on the principle of seniority- cum-merit? (ii)Whether the first respondent Bank was justified in fixing a high percentage (78%) as the minimum qualifying marks (minimum merit) for promotion?"6
In that case the qualifying mark was fixed at 78 out of total 100.
While examining the question whether minimum qualifying mark could be prescribed for assessment of past performance and interview, their Lordships said as follows:
"13....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."
While examining whether the minimum qualifying mark could be fixed at 78 out of total marks 100, their Lordships said as follows.
"14.....What should be the minimum necessary merit for promotion, is a matter that is decided by the management, having in mind the requirements of the post to which promotions are to be made. The employer has the discretion to fix different minimum merit, for different categories of posts, subject to the relevant rules. For example, for promotions at lower levels, it may fix lesser minimum qualifying marks and fix a comparatively higher minimum qualifying marks for higher posts."
Rejecting the argument that 78 minimum qualifying mark was unreasonable and arbitrary, in that case, in which promotions were made from Scale-I to Scale-II, their Lordships said as follows:
"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."
As noted hereinbefore in this case the petitioners got opportunity of challenging the circular dated March 11, 2006 fixing the "cut off marks for final selection" at 60. They chose to participate in the process and take a chance. They did not find any reason to say 7 that 60 was fixed arbitrarily and unreasonably. Even when they questioned the process by filing this case they did not take a specific plea that "cut off marks for final selection" at 60 was arbitrary and unreasonable.
Hence in the absence of such a case, there is no reason for this Court to express an opinion whether fixation of the "cut off marks for final selection" at 60 was arbitrary and unreasonable. Any opinion expressed by the Court will amount to upsetting the decision of the authority fixing the mark, without giving it any opportunity to justify why it fixed it at 60. This Court is not supposed to substitute its wisdom for that of the authority competent to fix the "cut off marks for final selection."
The facts and circumstances noted hereinbefore clearly show that it is incorrect to say that the challenge thrown by the petitioners is either supported by the case of the bank stated in its opposition or goes to the root of the selection process.
In my opinion, nothing in the contention, evidently an afterthought, has any potentiality to go to the root of the selection process, and hence I am unable to accept the argument that the principle of estoppel will not apply against the petitioners who chose to question the process when they found themselves unsuccessful.
In my opinion, having participated in the process without any objection they no longer remained entitled to question the fixation of the "cut off marks for final selection"
and division of marks for performance appraisal stated in the opposition. Division of marks for performance appraisal has rather established the transparency of the process.
For these reasons, the petition is dismissed. No costs. Certified xerox.
Sm.(c); ab(f) (Jayanta Kumar Biswas, J.)