o IN THE HKH COURT OF JUbK:ATU ATBILASU&. CHHATTISeARH rcTITION N0. 22xro QF 2004 PEHTEONSi; RE^OIsDBsnTS; ..c-^? ^>9}SS^ ^<3^^ ^^^- Tapas Kumar Rcy, S/o Lal®f\C.. Roy, Aged about 44 yeca's, Second Officer, Raig<yh Regiond Rirai Barit, Br'onch: Kabir Chowk, Rmyrh, Tehsil & Disfrict Raigarh, Cnhattisgarh. - Ver^us - ^ • J^py Raigcrh Regional ftirai 6^.^^ Bank.Throi^i:IlB 2. ^'f./ '^-y/'-/ 6q? y^.^ Efe^" 8"*^' Chairman, Head Office, Rcngarh ftegional Rural Bank, Sta-tion Road, ftaigcrh, Oihottisgarh. Bocrd of Directws, Raigcrh R^iorul Rtral Bank, Station RO(KI, Rdgarh ((;£.) 3. Jair'am Noik, Branch Aftanagw, Raigarh Regional Rural Bank, Fa"sabah<r, bislric-h Jashpuc (C.&.) 4. Loxrri Narcyan Sirgh, Officer Scate-II, Rcugcrh Regioixil Rurai Barfc, 1-tsad Office: Rtiigcrh. Raigarh (C&.) 5. Ramesh Kumar Aycwd, Officer Scale-II, Raigarh Regional Rural Bcmk, Head Office: Rcugorh, ftenqarh (C.&.) 8. tj 10. 11. 12. 13, Ashok Kumar Tiwar'i, Branch Manager, Roigorh Rqional Ru'al Bark, &haramjcuga*h, E>isfricft Raigirh (C6.) yinoy Kumcy Ral<shit, Branch Manag®', Raigarh Regional Rural Bank, Jashpur Nagar, Disfrict: Jishpu- (C.&.) Sanesh Ram Rcj Chouhan, Branch Afton^w, ftaigarh ftegiono) ftur'ai Bark, Tamnar-, bis-frict: Raigarh (C6.) Tekram Sidcr, &-anch Mancger, Staigca-h R^ional Rurai BcuA, Rajptr, &isfr'ict: Jashpir (CG.) &rendra Kumar Borka*, Scaie-II Officer, Branch Atanager-, Raigcr-h Regional Rur-a) Bartc, AAanwa, Disfricf: Jashpur (C.5.) RamLai Aftirs, Scais-rE Officer, granch Mancga', ftaigorh Regiond Rurol Bonk, &hor*abhafa, C>is1rict: Raigorh (C6.) Awadh Ram Wjcri, Scale-II Officer, Raigarh Regiona) Rural Bank. Head Office: ftagcff'h, Oislricl- Roigorh (C.&.) Ashok Kumcr Shrivas, Scaie-II Officer, Broaich omger, Raigarh Regional Rurat Bank, Baramkela, Dislrict. Raigtrh {€&.) :SSS- ^sS^ ^ K^ ^ ~% fr"v'\%^ l-i •° Jijil js^ ^'^•/ -'' K^>y 14. ^ 15. 16. 17. 19. 20. Vlshru Pr'asad Agrawat, Scafe-n Officer, Branch AAancQer, Raigcrh R^ionai Ru'al Bank, SarcBTgcr'h, Dislrich Raiga'h (C.&.) Roopchanel Sahu, Scale-n Officer, Branch Manager, Raiga'h Regional Rurai Bank, Laii'unga, Dislrict Raigcrh (Cj6.) Ajaz Akh-fty, Scate-rE Officer, Br'anch AAanaga", Raigcrh Regionai Rural Bank, Scmna, Dislrict Jashpur (C.6.) 6han Shyam Ptrtei, Scaie-n Officer, Bran:h Mwager, Rai9ar*^1 Rsgional Rural Barfc, Loirg, Dislr'ict Raigcrh (CA.) Santi Ncrcyana AAurthy, Scaie-II Off'icer, Branch AAanoger, RaigcB'h ftegiona! Riral Bank, Kabir Chowk, Raigarh, Disfrict: Raigarh (Cj&.) Rajesh Kumor Agrawat, Scale-IT Officer, &~anch AAanager, Raiga'h Regional Rurat Bank, Bagicha, DislT'id: Jashpur (Cfi.) l\6ilani5crP"- SP^- WST PETinON UN&Eft ARTICLE 226 / 227 OF T coNSTrrunoN OFIN&M FORISSUANCE OF AppR^pniATE Wftrr. vwtTTs. &irecnoN ETC Itiii itllUju /^~' (n^. L^ H1GH COURT OF CHHATriSGARH AT BILASPOR Writ Pctition No. 2200 of 2004 Petitioner Tapas Kumar Roy Versus Respondents Raigarh Regional Riiral Bank and others f^ Post for order on / September, 2006. Sd/- Satish K. Agnihotri Judge ^ ~\ •a>' HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 2200 of 2004 Petitioner Tapas Kninar Roy Versus Respondents Raigarh Regional Rural Banlc and others Single Bench ; Hon'ble Mr. Justice Satish K. Agnihotri, ^1 Shia'.Sanjay K. AgaTi?Tal, Advocate &r tbe petitioner. Sbri P. R. Patantear, Advocate for the respondents No. l anr! 2. Shri P. S. Koshy, Advocate for ttae respondents No. 3 to 20. (l^ 9,. ORDER ( /'September, 2006) The foUowiug order of the Court is passed by Satish K. Agnihotri, J. In tbe pi~esent petition, the petitioner has sought for a writ of certiorari, seeking quasbmgoftJ'ie proinotk>n ofthe respondents No. 3 te 20 to flie post of Officer Grade-II by order dated 11th March, 2004 (Annexiire P/8), following e principles of seniority-cum-merit. The petitioners have fiirther sought a wrif for quashing the inemo dated 24.12.2003 (Annexure P/5) wifh conse.quential reUef. te The iindisputed facts in nutshell are tTiat tlie rRspoTidenf-Bank is a Regional RurEil Bank, sponsored by the State Bank of India. The Regional Rural Banks Act, 1976 (for sliort 'the Act, 1976') gives power by virhie of Section 29 of ttie Act, 1976 to the Central Govemment to make niles. Section 29 (a) provides tbat the C-entral Govemment may afiter consultation with the National Banks and Sponsor Banks by notTfication in the ofRcial gazette make niles for canying ont the pmvisions of this Act. Sub-section (2) (b) of ttie Act of 1976 also confers power on the Central Govemment to frame rules regarding the /r' ^^ ^f7 manner in which the Officers and other eniployees of the Regional Riiral Banks sball be appointcd. Section 30 of the Act of 1976 contemplates about power to inake regiilations. Sub-section (l) of Section 30 provides that Board of Directors of the Regional Ruial Bank may, after consiiltation witli fhe Sponsor Bank and National Bank and witTi the previous sanction of flie Central Oovemnient, by notification in the official gazette roake regulation, not incoTisistent with tTie provisions ofthis Act and Rules made there-under to provide for all inatters for which tlie provision is necessary or expedient for the piirpose of giving effect to the provisions of the Act of 1976. Siib- section (2) of Section 30 of the Act of 1976 also provides that eveiy regiilation shall as soou as luay be after it is niade under the Act by the Board of Directors be forwarded to the Central Goveminent and tbe Govemiaent shall cause a copy of the same to bc laid before each House of the Parliaineut, while it is in session for a total period of thirly days which may be coiupriserl in one session or two or inore successive sessions. The Central Govenxment vide notification dated 29th July, 1998 framed tbe Regional Rural Banks (Appointment and Promotion of Officers and other eiuployees) Rules, 1998 (for short 'the Rules 1998') which canie iato force w.e.f. fhe date of tfae publication in the offlcial gazette i.e. 27.9.1998. As per the Rules, 1998 tlie vacaiicies of ofiicers and other employecs are to be filled np by each Regional Rural Bank, in accordaiice witb these rules and subject to such giMflelmes as may be issued by the Centi-al Govemment, from time to time. Thirri Schedule under Rule 6 provides for promotion from Scale I OfRcer to Scale II OfRcer on the basis ofseniority-cum-merit, which is reproduced berein below:- /r (^ 3. manner in which the Officers and othcr employees of" the Regional Riiral Banks shall be appointed. Section 30 of the Act of 1976 conferoplates about power to make regulations. Snb-section (1) of Section 30 provides fhat Board of Directors of tbe Regional Rui-al Bank may, after consiiltation witti the Sponsor Bank and National Bank and witTi the previous saaction of tjie Central Goveminent, by notification in the ofFicial gazette make regulation, nol: inconsiste.nt with tlie provisions ofthis Act and Rules made there-under to provide for all inatters for which the provision is aecessaiy or expedient for the plirpose of giving effect to the provisions of tbe Act of1976. Sub- section (2) of Section 30 of the. Act of 1976 also provides that eveiy regiilation shall as soon as may be after it is niade under the Act by the Board of Directors be forwarded to the Central Govemment and tbe Goveraiaent shall cause a copy of the same to be laid before each House of the Parliament, wbile it is in session for a total period of thirty days wliich may be coinprised in ooe session or two or inone successwe sessions. The Central Govenuaent vide notification dated 29th July, 1998 fi'EiHied the Regional Rural Banks (Appointment and Proinotion of Officers and other CTnployees) Rules, 1998 (for short 'f-be Rules 1998') which came into foice w.e.f. the date ofthe piibUcation in tlie ofBcial gazettei.e. 27.9.1998. As per tbe Rules, 1998 the vacancies of officers and other employees are to be fflled up by each Regional Rural Bank, in accordance with these rules and siibject to such gliiflelines as inay be issued by the Ccnti-al Govemment. from time to time. Third Schedule under Rule 6 provides for piomotion froi-n Scale I Officer to Scale I? OflHcer on the basis ofseniority-cum-merit, wbich is reproduced herein below:- ^ I. Q •^ "(a) Name of the post Scale II Officer (li) Classiflcation Group "A" (c)Source of appointment 100% by protnotion. (dj Whether proinotions Proinotions shaU be niade on the basis of seniority- to be made. on seniorily ciini-merit. basis or seniorily-cura- merit basis (e) EUgibility Officei-s boldiog post for eight years as an officer on regillar hasis in tbe Regional Rui-al Bank shaU be considered proinotion in scale II post in that Bank. Provided tfaat uo officer shall be considered for promotion unless he has been confinned in the feeder grade post. Provided fiirther that the. boari day, with the. prior approval of National Bank, relax the qualifyuit sen?ice for a period not exceeding two years, if eligible officers are not available. Note : (I) The officers eligible for proinotion to the post of Area Managers/ Senior Managers/officers scale II on or before the publication ofthis notificatioii shall continue to be considered for promotion to Scale II ofHcer post. (II) Tbe service of tbe incuinbents, who are liolding tbe post eligible for Turoniotion before publication of this notification, shall continue for the purpose of proinotion to Scale II officer post. (fl Mode ofselection The selection of candidates shall be niade by the committee on the basis of writteu test and interview and assessment of the Performance Appraisal Report for the preceding five years as an ofBcer in scale-T field supervisor. The Cominittee (for considermg promotioa) shaU consist ofthe following persons, nainely:- (i) The Chainnan of the concemed RRgioual Rural Bank Chairman. (ii) A Director nomiinated by Qie sponsor bank - Member. (iii) A Director nominated by National bank - Member. Note : If none of the ineinbers of the Coniniittee belongs to Schediried Castes/Scheduled Tribes the Board may nominate a person belonging to Scheduled Castes/Schedukd TnTies as an additional member emd such (g)Coiaposition of Committee ^" r-jy sj/ i persons shall participate Coininittee. (h) Reckoning of the ininiinuin eligibilily (i) Niiinber of candidates to be considered for proniotion Q Selection Process for promotion. (A) Written test (B) Interview (C) Perfonnance Appraisal Reports Total marks (A) Written test (60 inarks) (B) Interyiew (20 mai-ks) (C) Perfonnance appraisal reports (20 inarka) in the process of selection by fhe concemed The minmium eligibility in teniis of the laeinber of years of service for promotion shall be reckoned as on the 1st April ofthe year on which the vacancy is expected to arise or has actually ariseu. The number of candidates to be. considered for proniotion froin ofidcer scale I to ofGcer scale II sball be restricted to four tinies the nuinber of vacancies avaflable for proinotion. The selection shall be on fhe basis of PerfonQance in tlie wi-itten test, inteivie'w and Perfomiance Appraisal Reports for preceding five years as per the division ofniarks given below: : 60 marks : 20 inarks : 20 inarks : 100 marks The Candidates shall be reqiiired to appear for written test comprising of two parts (A) covering Banteing l^aw and Practice of Banking and Part (B) covering Credit. Poli(y, Credit Management including Priority Sector, Econoinics and Management : 60 tuai'ks allotted to written test shall be farther divided as under: :Part "A' 30 marks :Part<"B" SOmarks : A list of only those candidates who secure a ininiinum on 40% uiarks in eacb part shall be prepared and such candidates shall be caBed for uiterview. : There shall be no minimum qualifying marks for the interview. : Performance Appraisal Reports for the preceding five years sha1l be considered for fhe purpose of awarding marks for promotion. (^o^ 5. 6. 7. /?. The benchmark for qualifymg the written test was seCTiring ininiinum 40% marks in each part and no miniinum qualifying marks was provided for intei-view. By circular dated 24.12.2003 (Annex-iire P/5), the same selection process as prescribed in the Rules, 1998 was accepted by the Board of Directors to appoint 27 vacant posts of ScaIe-II Officers. This circular is iinpugned in tbis petition. Shri Sanjay K. Agarwal, leanied counsel appearing for the petitioner subniitted that the setection pmcess as prescn'bed in the Rules and also in the iinpHgner! circular arf bad as no ininimiiin qualifyin; marks for tJie interview is provided. The hasis of proniotion i.e. seniority-cum-inerit has becn seniority-cum-written test as 20 inarfcs allotted for interview and perfomiance appraisal has not been taken into considen:)tion for fixing the qiialilying marks. Shri P. R. Patankar, leamed counsel appearing for the rRspondents, oo the contrary, submitted that not pi-fscribing miniiiium qiialilyins rnarks for the interview does not vitiate the sele.ct.ion, as candidates, wbo had secured the niminium 40% inarks in the written test alone were qualified to appear in the interview and their appraisal reports are considered. T^eamed counsel further submitted that havnig appeared in the examination, the pctitioners are estopped froin cha:nenging the sclcction process. Shri P. S. Koshy, leamed counse) appearing for the respondents No. 3 to 20 wTiile adopting t1ie submission of tbe rRsponde.nt-Bank fiirther contended that the point of law and facts involved in the present case are sqiiarely covercd by the decisions of the SuprfTne Court in fhe cases ofHareovind Yadav Vs. Rewa Sidhi Gtainin Baah & Ors.1 and B. V. Sivaiah and others Vs. K. Addanki Babu and othw2. /.^~ 11 9. T have beaTtl leamed counsel for the parties and penised the pleadings and the documents annexcf) to tbe petition and also to flie rctuni. 10. The facts, as stated atoove by the petitioners, are adniitted by fhe parties. The question for considei'Rtion in this pctition is fliat as to whether under seniority-ciiin-merit criteria for promotion, pnescription of miniiniin'i qiialifying marks in infemew is the necessaiy rRqiiu'Rment, when tbe mininiiim qualifying niai-ks have been prescribed in Uie written test snd whether the same is against the djcta laid down by the Siipreme Coiirt in the above stated cases. '•1. Tlie Siiprenie Coiirt has considerRrl tTie TBode. of setection of various Baiilrs isi fhe ease ofB. V. Si'raiah aad otlia's(Supra). lu tbe matter of Rayalaseema CSfanieena Baak, whereiu the selection was made by Circular dated 27.9.1989, setting apart 34 inarks for seniority, 10 marks for qualification, 20 inarks for interview and 56 marks for performance, out of total number of 120 marks, flie minimum nymber ofmarks that could be awanded for seniority was 34 and 0.75 inark for each completed nionth of scrvice over and above the mjnimiim qualifyiTig seryice, it was the case wherR only six officers Tiad secured tbe. highest niimbRr of marks were ultimately promoted anr? it was not tbc oasc t1iat miniTniim qiaalifying marks were prescribBd for merit and tbus who sficiired the minimiiTn quallifyinj marks were promoted on thc basis of seniority, it was held that. the mode ofselection was coutraiy to tbe principle of seniority-cuni-merit. !n the matter of Ptoateini Srameena Baak, the selection was made of onty those ofBcers, who seciired t1ie bighest number of raarks ainongst tfae eligibie officera and it was held that the mefhod of selection was coDtrsiiy to the principlf ofseBJorily-ciim-merit. 12. In the case of B. V. Sivaiah aad others(Supra) fhe Supreme Coiirt has considered the Second Schedule to the Regional Ri]ra1 Banks (AppoiTitment and Promotion of Oflficers and Other Employees) Riiles, 1988, which pmvides tbe pi~omotion criteria. The criteria ofproTnotion on tJbe basis ofseniority-cuin-inerit on the post ofArea Manager-cum- Seoior Manager. In fhaf case the Siiipreme Court in para 18 observed, as undcr:- 1R. We (hw<? arrivp. al flie eonclusion thnl fhe crii.enon of seniority-ciim-merit" in ihs mfitter of promotion posfulates fha.t given thf rninirmwn necessary merit reqiiisite for effidency of adminisfradOTi, ihe senior, even llvough less TnjBritririaits, shaff ha.ve priority and a contparative assessment of merit is nat reipnred to be uuide. For assessing the ^ninwraan necessary merii, the compeient authority can lay doivn ihe mininium. siandard fhat is required and afeo presfribe fhf mode of assessmenf of merit of 1he employee who is eligible for considerafion for promotion. Such assessnwnt can be made by assiginng mfjrlrs on the hasis of appraisol of perfortnfjnffe cvn thf hasis of fsenncs recsrd and intenrieiif and prescfibin.g thf vninimum inarks ivhirJi. would eniitle a. po'son to hp. promoied on ihe basis cfseTvoritij-ciim-Tnfrit 13. !n the aiatter of Hargowiad yadav(Supi'a) the Suprenie Court i" paragraphs 17 and 18 1ie1d as nnrler:- " 17. Inlennniia can he held n:nd assessineni of perfonnancf ooin be rnode hy ihe Bank in connection wiih prom.otions. Sid th.af can. be only io assess thf ininimvin necessary merit. Bifl. where ihe procedure adopied, does noi. provide fhe minimum stcmdard for pramoiion, bizi only the mim'mum standcird. for interview and does the selection with refererwv to comparaiive marks, if. is conirary (o the Rule of 'senmrii.y-cum.- rrwril............................ °18................... As Ufe have already »TO<i'ced, in this cose, the procrdurR is noi one of asfeTla.mmg tiie m.i'nimum rwcessafy merii and Ihen promnting ihe canA'dates wi1.h fhf innmman i^ merit in atxordnnce vrilh seniority, hut assessing fhe comparalive vnerit by dravring up a merit list, ihe assesffjnent being iirith referen/oe to inarks secured for senionty, perfonnancs, postings al rural/difficult places and inteiview. T!^e facl 1lvil ilze appelSant had.failed i.o secure the Tmnimuin marks in interview, is nof relevant as th.e entire procedure adapted by the Bank (ofwhich inferview is apari) isfound. to be viiialed and noi in CMnsonance imth the principle of seiwority-cizm-trtefii. ]4. 1n t]]e present case the miniiniim qualilying roarks werc prescribed for assessroent of merit in written test. TbRreafiler, the marks awarded in interview and performance appraisal did not provide for any lummiuni qiialifying inarlcs that in fact provides for coinpai'ative assessment of tbe candidates, who had obtainert ininiinuin quaMfying marks in fhe written test. Out of total 100 mai-ks, 60 niarks were set apart for written test, 20 niarks for interview and 20 iiiarks for perfonnaiice appraisal report and the ininumiin qiialifying marks does not uiclude the marks obtained u) intenriew as well as tbe performance appi-Eiisal 'reports. 15. ?n the facts of the case and in view of the dicta laid down by the Siipreme Coiirt in the cascs cited above, tbe intei-view and the appraisal performance did not provide for minimiini qualifying niarks and it was coinparative assessment on merit. Thus, the niode of selection prescribed was not on the basis of principle of seniority- cuin-inerit but on merit-cuin seniorily. Tbus, the entire selection process is vitiated, not being sn consonance with the priaciple of seniorily-cuni-mRrit. 16. Wifh regard to the next contention that. tl-ie. petitioners be estopped from raising t1ie question of selection process, after having appeared and ta3ed in the selection. In tbe facts offlie case, when tte criteria of promotion was seniority-cum-merit and the respondents No. 1 and 2, T'htJiiur 17. m fact have followed the criteria of TOerit-diTn-seniorily, having inore emphasis on roerit than seniority, after baving examineil the siiitability of the caTididates on the basis of inii'iiimiin qualifying test, the proinotior) oiight to have been marle on the basis of seniority. The petitioTier canTiot he taeld as debarrcri from qucstioning tbe tiasis of selection critcria. As a result anri for the reasons steted-above, this petition is allowcd anrl t.he circiilar 'datRd 24.12.2003 and the iTnpugned selection process consequcnt thereilpOTi staiirl qnashed, heing contraiy to the principle ofseniorily-cum-inerit. No order as to costs. Sd/- Satish K. Agnihotri Judge (2006 AIR SCW 2822') { (1998) 6 SCC 7202}