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Yogendra Rai vs Adhyaksha, Basti Gramin Bank And … on 30 January, 2008

Allahabad High Court Yogendra Rai vs Adhyaksha, Basti Gramin Bank And … on 30 January, 2008Equivalent citations: 2008 (2) AWC 1277 Author: B Chauhan Bench: B Chauhan, A Tandon

JUDGMENT

B.S. Chauhan, J.

1. This writ petition has been filed for quashing the promotion list dated 23.09.2000 (Annex.4) insofar as it promotes respondent Nos. 3 to 5 and ignores the claim of the petitioner, and also for quashing the impugned Circular dated 16.03.2000 (Annex.2) providing for a minimum benchmark for the assessment of minimum merit.

2. The facts and circumstances giving rise to this case are that the petitioner as well as respondent Nos. 3 to 5 held the post of Scale – I Officer in the respondent Bank. All of them being eligible for promotion to the post of Scale – II Officer were considered. However, the said respondent Nos. 3 to 5 have been promoted though they were admittedly junior to the petitioner. Petitioner has been non-suited as he failed to secure the 70 % benchmark as provided under the Circular dated 16.03.2000.

3. We have heard Shri Bhagwati Prasad, Learned Counsel for the petitioner and Shri Yashwant Verma for the respondent Bank.

4. The facts are not in dispute. Respondent Nos. 3 to 5 were junior to the petitioner as in the seniority list, the petitioner’s name figured at serial No. 38 whereas the names of the said respondent Nos. 3 to 5 had been shown at serial Nos. 39, 40 and 43 respectively. The criteria for promotion as provided under the Rules is seniority-cum-merit. The Circular dated 16th March, 2000 provides that to determine the minimum merit, the performance appraisal for three years would be examined and would be subject to award of a maximum of 70 marks. 30 marks have been assigned for interview. Another condition imposed was that unless a candidate secures 70 out of 100 marks, he shall not be promoted. These marks for assessing the merit had been further sub-divided in four categories as under:

(a) Relating to business such as deposit targets 30 marks loan targets, loan disbursement and recovery follow-up loans.

(b) Correspondence, record keeping, administrative 10 marks control and assistance to Senior Officers

(c) Customers service, Industrial Relations etc. 10 marks

(d) Confidential Report 10 marks

5. The petitioner as well as respondent Nos. 3 to 5 were assessed in the year 2000. Petitioner could secure only 46.45 marks so far as his performance appraisal for three years was concerned. He was awarded 12 marks in interview and, thus, could obtain a total of 58.45 marks only. Respondent Nos. 3 to 5 secured more than 70 marks as fixed under the Circular. As the petitioner miserably failed to achieve the said benchmark, he was not promoted.

6. It has been submitted by Shri Bhagwati Prasad, Learned Counsel for the petitioner that while assessing the candidates for promotion, no marks had been assigned for seniority at all, therefore, it was a selection exclusively on merit giving a complete go bye to seniority.

7. There is a complete fallacy in the submission made by the Learned Counsel for the petitioner. The criterion provided for promotion is that once a candidate crosses the benchmark, his seniority becomes of paramount importance. For example, had the petitioner secured 71 marks and the respondent No. 3 92 marks, the petitioner had to be given priority over the respondent No. 3 in view of the fact that he was senior to the respondent No. 3. It is not a case that the seniority had been ignored or seniority itself had to be assigned certain marks. Seniority can not be given any marks in a case like the instant, for the simple reason that the seniority of candidates selected in the same selection is generally prepared on the basis of the merit list and, therefore, if marks are to be assigned for seniority, it would be only on the basis of the length of service and in a particular case, the contesting candidates may obtain the same marks for seniority as they stood selected in the same selection. In fact the criteria for seniority-cum-merit, if applied, a minimum merit is to be assessed and if it is achieved, the comparative merit of candidates become irrelevant as the promotion has to be granted exclusively on the basis of seniority amongst the candidates who acquire the minimum benchmark fixed.

8. A Seven Judges Bench of the Hon’ble Supreme Court, in State of Kerala and Anr. v. N.M. Thomas and Ors. , observed as under:

Seniority cum merit’ means that given the minimum necessary merit requisite for efficiency of administration, the senior, though less meritorious, shall have priority. This will not violate Articles 14, 16(1) and 16(2) of the Constitution of India.

9. In Sadi Lal v. Deputy Commissioner, Gurgaon and Ors. 1974 (1) SLR 217; and Govind Ram Purohit and Anr. v. Jagjiwan Chandra and Ors. 1999 SCC (L&S) 788, a similar view has been reiterated. Thus, it is apparent that the Apex Court provided for giving seniority a weightage without compromising with the merit as the candidate had to possess the minimum requisite merit.

10. In Sr. Jagathigowda C.N. and Ors. v. Chairman, Cauvery Gramina Bank and Ors. , the Apex Court has observed as under:

It is settled proposition of law even while making promotion 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 promotion to the higher rank.

11. In Union of India v. Lt. Gen Rajendra Singh Kadyan , it was observed as under:

Wherever fitness is stipulated as the basis of selection it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in 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 assessment of comparative merit both in the case of 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.

12. The said principle was approved, reiterated and followed by the Hon’ble Apex Court in The Central Council for Research in Ayurveda and Siddha v. Dr. K. Santhakumari ; and Bibhudatta Mohanty v. Union of India and Ors. .

13. In view of the aforesaid judgments of the Hon’ble Supreme Court, even if the promotion is to be made on the basis of ‘seniority cum merit’, the junior person having a better merit can be promoted ignoring the claim of the senior person, in case the senior person fails to acquire the minimum benchmark. A Division Bench while deciding Writ Petition No. 7385 of 1989, Kamal Prakash Singhal v. The Chairman Aligarh Gramin Bank, Aligarh along with other petitions, vide judgment and order dated 07.04.2004, while deciding a similar case fixing benchmarks for promotion, upheld the circular and dismissed the petition. While deciding the said case, reliance had been placed upon the earlier judgment of This Court in Rajendra Kumar Srivastava (supra); and Vinod Kumar Verma v. Union of India and Ors. 2004 (1) ESC 19.

14. While deciding the Writ Petition No. 39772 of 2004, Birendra Pal and Anr. v. The Union of India and Ors. a Division Bench of this Court to which one of us (Dr. Justice B.S. Chauhan) was a member, vide judgment and order dated 27.09.2004 upheld the validity of the circular providing for similar benchmark and dismissed the petition refusing to interfere with the promotion process.

15. A very heavy reliance has been placed by Mr. Bhagwati Prasad on the judgment of the Hon’ble Supreme Court in Harigovind Yadav v. Rewa Sidhi Gramin Bank and Ors. , to fortify his submission that the seniority is to be assigned marks. The Apex Court did not say so rather held that promotion, if to be made on the criterion of “Seniority-cum-merit”, should not be done exclusively on merit. The Court negatived the idea of selecting the meritorious where Rules provided a criterion of “Seniority-cum-merit”, but did not rule out the provision of fixing a minimum benchmark. In 17 of the said judgment the Hon’ble Supreme Court itself observed as under: Interviews can be held and assessment of performance can be made by the Bank in connection with promotions. But that can be only to assess the minimum necessary merit.

16. Shri Bhagwati Prasad has also relied upon a Division Bench decision of This Court in Writ Petition No. 4589 (SB) of 1989, Surendra Narayan Singh and Ors. v. Rai Bareilly Development Gramin Bank and Ors. decided on 17.02.1997 wherein it has been held as under: …Where the promotion is based on seniority-cum-merit, the officers cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him, may be promoted, meaning thereby that if the criterian of seniority-merit is applied, the promotion of the juniors in preference to the senior, is possible only in case the senior is found not fit to discharge the duties of the higher post. The criterion of better merit, is thus, not envisaged where criteria for promotion is seniority-cum-merit.

17. With all due respect, such a proposition of law applies only where the Rules provide for promotion on the basis of the seniority subject to the rejection of unfit. In that case, promotions are to be granted on the basis of seniority unless the person has been awarded some adverse entry or has been imposed some punishment making him disentitled for promotion. More so, in order to assess the suitability, a minimum merit can always be fixed by the employer.

18. The submission made by Shri Bhagwati Prasad that in fact it has been a selection on merit exclusively is without any substance for the simple reason that when appointment is made on merit-cum-seniority, the seniority has a relevance only for the purposes of bringing a person within the zone of consideration and the selection is made purely after assessing the inter se merit of candidates.

19. The principle of merit-cum-seniority is an approved method of selection. The Hon’ble Supreme Court in Sant Ram Sharma v. State of Rajasthan AIR 1967 SC 1910 held that promotion to ”selection grade posts’ is not automatic on the basis of ranking in Gradation list and the promotion is primarily based on merit and not on seniority alone. The Court held as under: The circumstance that these posts are classed as ”Selection Grade Posts’ itself suggests that promotion to these posts is not automatic being made only on the basis of ranking in the Gradation List but the question of merit enters in promotion to selection posts. In our opinion, the respondents are right in their contention that the ranking or position in the Gradation List does not confer any right on the petitioner to be promoted to selection post and that it is a well established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, available.

20. In State of Orissa v. Durga Charan Das AIR 1966 SC 1547, the Constitution Bench of Supreme Court held that the promotion to a selection post is not a matter of right which can be claimed merely by seniority.

21. In Union of India v. M.L. Capoor , it was held as under:

For inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play only a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale.

22. In B.V. Sivaiah and Ors. v. K. Addanki Babu and Ors. , the Hon’ble Supreme Court held that the principle of “merit-cum-seniority” lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal.

23. In K. Samantaray v. National Insurance Company Ltd. , the Hon’ble Apex Court explained the distinction and difference between principles of merit-cum-seniority and seniority-cum-merit, placing reliance upon earlier judgments in Sant Ram (supra); Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association (Regd.) and Ors. v. Union of India and Ors. 1990 Supp SCC 350, and held that for the purpose of promotion, even on seniority-cum-merit, weightage in terms of numerical marks for various categories, the authority is permitted to work out the marks for individual head otherwise the word ”merit’ would loose its sanctity.

24. In State of U.P. v. Jalal Uddin and Ors. , a similar view has been reiterated and affirmed.

25. A Division Bench of This Court in Rajendra Kumar Srivastava and Ors. v. Samyut Kshetriya Gramin Bank and Ors. 2001 Lab.I.C. 4086, considered the similar provision applicable in a similar Bank providing for promotion on similar circular observing as under: No doubt in Sivaiah’s case (supra) more than 50% marks set apart for interview and performance but in that case only those who secured highest marks were ultimately promoted and that was declared illegal by the Supreme Court. The present case is distinguishable. This is not a case where those who got highest marks in the interview and appraisal were promoted rather those persons who got minimum of 78% marks were considered eligible and from them promotion was made on the basis of seniority. It is settled law even where the selection is done on the basis seniority-cum-merit, a minimum eligibility requirement can be fixed by the authorities.

26. The Court further held that the writ petition was liable to be dismissed only on the ground of acquiescence as the petitioner therein faced the promotion process without any protest. When a candidate appears at the examination without protest and is subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise. The result of interview itself on merit, cannot be successfully challenged by a candidate who gets a chance to be selected in the interview. It is thus held that these writ petitions, challenging the criterion for promotion, are not maintainable at the instance of candidates who have participated in the selection without raising any objection. (Vide Dr. G. Sarena v. University Of Lucknow ; Maj. Chandrabhan Singh v. Latafat Ullah Khan and Ors. ; Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. ; Madan Lal and Ors. v. State of Jammu and Kashmir and Ors. ; Union of India and Anr. v. N. Chandrasekharan and Ors. ; and Utkal University and Ors. v. Dr. Nrusingha Charan Sarangi and Ors. ).

27. Thus, in view of the above, it is apparent that while making promotion on the criterion of “Seniority-cum-merit’, a minimum merit is to be fixed and in case a candidate acquires the same, he would not be superseded by his junior even if the junior is found to be more meritorious. The argument that marks should also be awarded for seniority is preposterous and if accepted, the same would amount to reading something into the rules which even otherwise does not exist. After all, seniority and promotions are based on rules and This Court cannot carve out an additional criteria which is within the domain of the rule making authority. In the instant case, petitioner faced the selection for the promotional post with his eyes open, knowing it fully well that he had to secure the benchmark fixed under the Circular dated 16.03.2000. He did not raise any protest at the time of selection. The Circular is valid, as its validity has already been upheld in earlier cases, referred to herein above. Even otherwise, petitioner cannot be permitted to challenge the said Circular dated 16.03.2000, after being declared unsuccessful in the selection.

28. In view of the above, we do not find any force in this petition. It is devoid of any merit and is accordingly dismissed.

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