IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9249 of 2006 ANIL KUMAR GAUR Versus THE CHAIRMAN, UTTAR BIHAR KSHETRIYA GRAMIN BANK & ORS ----------- For the petitioner: Mr. Gyan Prakash For the respondent Bank: Mr. Prabhakar Jha. -------- 05. 03.09.2008 This is yet another matter where the petitioner despite being senior to many a respondents, having met the minimum bench mark in the written examination, has been denied promotion by fixing minimum qualifying marks in interview contrary to the Rural Bank Rules 1998, contained in Annexure-1. It is not in dispute that an Officer, Grade-I can be promoted to Grade-II post, based on minimum qualifying marks in the written test but then there cannot be any minimum qualifying marks in so far as interview is concerned. Petitioner sat in the examination and was successful as would be evident from the communication he received dated 18.11.2005, contained in Annexure-5. But when it came down to the final notification granting promotion, petitioner‟s name did not figure and many a respondents junior to him figured in the list. Notices had been issued to the private respondents which have been validly served but they have not cared to appear or contest the writ application. The petitioner has categorically stated in para 17 of the writ application that the Selection Committee arbitrarily fixed a minimum qualifying marks in the interview and the performance appraisal work and based on this, they have ignored the claim of the petitioner and granted promotion to the juniors on the ground that he - 2 - did not get the minimum qualifying marks in the interview. In the counter affidavit which has been filed on behalf of the respondents there is no categorical denial of the averments made in para 17 of the writ application. In fact, they accept the decision in this regard by stating in para 9 of the counter affidavit that minimum qualifying marks for personality test and interview was kept and based on the said consideration promotions have been granted. The Court fails to understand that despite persistent decision with regard to this issue that promotion in such matters are to be granted on the basis of seniority-cum-merit, various banks are adopting and devising methods of not complying with the statutory rule issued as far back as in the year 1998 and the decisions of the Hon`ble Supreme Court. The Court, therefore, would like to reproduce paragraph 22 of the decision of the Hon`ble Supreme Court rendered in the case of Hargovind Yadav v. Rewa Sindhi Gramin Bank, (2006) 6 SCC 145: “22. 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. But where the procedure adopted does not provide the minimum standard for promotion, but only the minimum standard for interview and does the selection with reference to comparative marks, it is necessary to the rule of “Seniority-cum- merit” …….” The Supreme Court further taking into consideration the - 3 - case of B. V. Sivaish v. K. Addanki Babu, (1998) 6 SCC 720 has this to observe in paragraph 23:- “……. As we have already noticed, in this case, the procedure is not one of ascertaining the minimum necessary merit and then promoting the candidates with the minimum merit in accordance with seniority, but assessing the comparative merit by drawing up a merit list, the assessment being with reference to marks secured for seniority, performance, postings at rural/difficult places and interview. The fact that the appellant had failed to secure the minimum marks in the interview, is not relevant as the entire procedure adopted by the Bank ( of which interview is a part) is found to be vitiated and not in consonance with the principle of “seniority-cum-merit”. Issues of promotions based on “seniority-cum-merit” have come up for consideration before the Hon`ble Supreme Court in many a cases and in most of these cases including the latest one the Supreme Court had deprecated insistence of judging the basic merit first by keeping minimum qualifying marks in interview before granting promotion, ignoring the seniority of the employees in question. In the present case also the petitioner has been denied his rightful claim for promotion not on the ground that he did not have seniority and merit in so far as his performance appraisal or written examination is concerned but because the Bank fixed a minimum qualifying marks in the interview to judge his merit first. The Bank had therefore lost sight of the own policy of „seniority-cum- - 4 - merit‟ while granting promotions. In view of the settled legal position in this regard the Court has no hesitation in recording that the order of promotion dated 1.12.2005 contained in Annexure-6 requires interference. The breach of Rule of 1998 has been established by the petitioner. In that view of the matter Annexure-6 stands quashed. The respondents, however, are given liberty that if the given seniority and the marks which had been obtained by the petitioner irrespective of the minimum qualifying marks obtained in the interview the petitioner can be given his due place of promotion from the date in question which is 1.12.2005, then there may not be an occasion to drastically alter the promotion order contained in Annexure-6. If the petitioner‟s interest cannot be accommodated in the light of the above, then the respondents are directed to carry out exercise of promotion afresh which has to be in conformity with not only Rule of 1998 contained in annexure-1 but has to be in conformity with the decisions of the Hon`ble Supreme Court, some of which have been referred to in the earlier part of this order. The writ application of the petitioner stands allowed to the extent indicated above. rkp (Ajay Kumar Tripathi, J)