IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWELVETH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 25268 of 1998 Between: S. Sunil Kumar S/o. Bhupathi Rao Srirama Grameena Bank, Kondur Branch, Nizamabad Mandal & Dist. ... PETITIONER AND 1 Srirama Grameena Bank Rep. by its Chairman, Khalelwadi, Nizamabad. 2 Nabard Rep. by its Managing Director, Mumbai. 3 The Selection Committee, Srirama Grameena Bank, Nizamabad. ...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, more in the nature of Mandamus, declaring the action of the Chairman, Srirama Grameena Bank, Nizamabad in not considering the case of the petitioner to the post of MMGS II as being arbitrary, illegal, unconstitutional and contrary to the guidelines issued by NABARD and issue a consequential direction directing the respondents to promote the petitioner to the post of MMGS II with retrospective effect from 18.11.97, on which date juniors to the petitioner are promoted, with all consequential benefits of pay scale, seniority etc., and issue such other writ, order or direction as the Hon'ble High Court deems fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.A.GIRIDHAR RAO Counsel for the Respondent No.: MR.K.GOPALA KRISHNA MURTHY The Court made the following : O R D E R:- The petitioner, an officer in Junior Management Grade Scale I in the service of Srirama Grameena Bank, Nizamabad, the 1st respondent herein, is aggrieved by the action of the said bank in not considering his case for promotion to the post of officer in Middle Management Grade Scale II, while promoting his juniors. He seeks a further direction to grant him the said promotion with retrospective effect from 18.11.1997, on which date his juniors were promoted, along with all consequential benefits. 2. The petitioner was appointed as an officer in Junior Management Grade Scale I (JMGS I) in the 1st respondent bank in the year 1987. The next promotional post is that of officer in Middle Management Grade Scale II. It is the case of the petitioner that the said promotion is to be effected on the principle of seniority-cum-merit only. It is his grievance that the 1st respondent-bank overlooked his candidature and promoted his juniors. It is pointed out that as per the seniority list dated 23.01.1996, the petitioner stood at Serial No.11. It is stated that the candidate who stood at serial No.17 in the seniority list was promoted ignoring the case of the petitioner though he is admittedly senior. It is further stated that on 16.09.1997, the 1st respondent bank conducted interviews to fill up three more vacancies in Middle Management Grade Scale II but he was once again ignored and his juniors who stood at serial Nos.13 and 15 of the seniority list were promoted. 3. Aggrieved thereby, he preferred an appeal to the Chairman of the 1st respondent bank on 02.120.1997 but the same was dismissed on 09.02.1998 by a single line order. The petitioner, relying upon the Judgment of the Supreme Court in B.V.SIVAIAH VS. K. ADDANKI BABU[1], contends that the 1st respondent bank gave a go-by to the principle of seniority-cum-merit, which it was bound to follow in effecting the subject promotions, and accordingly seeks a declaration to that effect and a consequential direction that he should be promoted with retrospective effect from the date his juniors were given promotion. 4. The 1st respondent bank filed a counter-affidavit stating that as per the circular letter dated 01.12.1987 issued by the NABARD, it was no doubt true that promotion was to be effected on the basis of seniority with due consideration to minimum merit / fitness. However, according to the 1st respondent bank, the NABARD clarified the guidelines issued in the circular dated 01.121987 by way of a subsequent circular dated 11.05.1998, wherein allocation of marks under various heads was prescribed for assessing the eligibility of the candidates to be considered for promotion. The 1st respondent-bank admitted that the juniors to the petitioner were considered and given promotion over looking his case. However, it is the case of the 1st respondent-bank that the petitioner did not qualify for promotion as per the guidelines indicated by the NABARD in the subsequent circulars and the rules. The first respondent bank therefore contended that the petitioner was not entitled to be considered for promotion as per the parameters of selection indicated by the NABARD in its circulars and the rules framed thereafter. It is stated that the petitioner was promoted on 17.01.2000 as an officer in Middle Management Grade Scale II and therefore, he is not entitled to retrospective promotion on par with his juniors. 5. Having heard Sri A.Giridhar Rao, learned counsel appearing for the petitioner and Sri K.Gopala Krishna Murthy, learned counsel appearing for the respondent-bank, it was felt desirable that the records pertaining to the selection process followed by the respondent-bank for effecting promotions be perused so as to assess whether the 1st respondent-bank followed the principle of seniority-cum-merit. However, inspite of ample opportunity being given, the records have not been produced before this court. In such circumstances, this court is constrained to adjudicate the matter in the absence of the records and on the basis of the material available. The Counter affidavit filed by the first respondent bank does not detail as to how the candidature of the petitioner was assessed for promotion to the said post. There is no indication as to how he was found unfit to be promoted along with his juniors. The only reference made by the 1st respondent-bank is to the circular instructions of the NABARD and the rules framed thereafter on 28.09.1988. 6. Sri A. Giridhar Rao, learned counsel appearing of the petitioner placed reliance upon the circular No.8 of 1995-96 dated 24.02.1996 issued by the NABARD, wherein a clarification was given to the effect that the guidelines relating to the allocation of the marks for promotion of staff under the circular dated 11.05.1988 had been subsequently withdrawn and kept in abeyance under the circular of the NABARD bearing No. 185/316(Gen)/88-89 dated 18.07.1988. 7. It is therefore manifest that the circular dated 11.05.1998 was kept in abeyance by a subsequent circular which was issued a mere two months thereafter on 18.07.1988. It appears that the 1st respondent- bank being ignorant of this development, placed reliance upon this circular in evaluating the candidature of the petitioner for promotion. This is apparent from the counter filed by the first respondent-bank. The denial of promotion to the petitioner basing on the circular instructions and guidelines which were already withdrawn and kept in abeyance cannot therefore be countenanced. The reliance placed by the first respondent-bank on the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules 1988 notified under the Notification dated 28.09.1988 is also of no assistance. The said rules do not indicate any specific allocation of marks for assessing minimum merit for effecting promotions and on the other hand, the second schedule of the said rules under Clause – VII, dealing with Area Managers or Junior Managers, clearly indicates that the source of recruitment to the said posts is to be hundred percent by way of promotion only on the basis of seniority-cum-merit. 8. In B.Sivaiah’s case (supra), the Supreme Court while dealing with the issue of promotions on the basis of seniority-cum-merit stated as hereunder. “We thus arrive at the conclusion that the criterion of ‘seniority- cum-merit’ in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. 9. In view of the principle laid down by the Supreme Court in the aforesaid decision it is clear that the 1st respondent-bank could have evaluated the candidature of the petitioner for assessing whether he possessed the minimum necessary merit for promotion. In the absence of the records demonstrating the actual selection process adopted by the first respondent-bank, this court has no option but to go by what has been stated by the first respondent-bank in its counter. As stated supra, except for relying on the circular dated 11.05.1998 which was withdrawn and kept in abeyance by the NABARD itself on 18.07.1988 and the rules notified on 28.09.1988, the 1st respondent-bank has not come forth with any reason to justify the denial of promotion to the petitioner. 10. In such view of the matter this court holds that the action of the first respondent-bank in denying promotion to the petitioner to the post of officer in Middle Management Grade Scale- II along with his juniors is not on sustainable or justifiable reasons and must accordingly be held to be illegal. Being bound to follow the principle of seniority-cum- fitness, it appears that the first respondent-bank adopted a comparative assessment of merit basing on the allocation of marks prescribed under the withdrawn circular dated 11.05.1988 and acted contra to the principle laid down by the Supreme Court in B. Sivaiah’s case (supra). The petitioner is, therefore, entitled to be promoted on par with his juniors. 11. The learned counsel appearing for the petitioner fairly conceded that his client would not press for any monetary benefits in the event of his being given retrospective promotion. The record shows that the petitioner has, in fact, been given promotion to Middle Management Grade Scale II on 17.01.2000. He must therefore be given the benefit of continuity of service in the said post from the date his juniors were promoted. 12. The writ petition is accordingly allowed declaring the action of the first respondent-bank in not considering the case of the petitioner for promotion to the post of officer in Middle Management Grade Scale II along with his juniors as illegal and unsustainable; and consequently directing the first respondent-bank to promote the petitioner to the said post with retrospective effect from 18.11.1997, being the date on which his juniors were promoted. It is clarified that the petitioner will not get any monetary benefits due to his promotion with retrospective effect and the same will be taken into account only for continuity of service in the said post. 13. The writ petition is accordingly allowed. Therefore shall be no order as to costs. ___________________ SANJAY KUMAR.J, 12th June, 2009 yvl/amd [1] AIR 1998 SC 2565