LPA No. 1733 of 2011 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No. 1733 of 2011 in CWP No. 18209 of 2010 Date of Decision: 09.08.2012 Punjab Gramin Bank & another ………Appellants Vs. Naresh Kumar & others ………Respondents ***** CORAM : HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE RAJIV NARAIN RAINA Present: Mr. N.C. Sahni, Advocate for the appellants. **** 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? ***** RAJIV NARAIN RAINA, J. 1. This order will dispose of three Letters Patent Appeals bearing Nos. LPA No. 1631, 1733 & 1734 of 2011 arising out of a common order dated 4.7.2011 passed by the learned Single Judge. 2. The sole issue arising in these appeals is as to the correctness of the order passed by the learned Single Judge allowing the writ petitions and quashing the circular Nos. 38/2009 and 37/2009 both dated 10.10.2009 issued by the appellant Bank. Both circulars have been held to be violative of the IIIrd Schedule of the Regional Rural Banks (Appointment and Promotion of Officers and other Employees Rules, 1998 (for short ‘1998 Rules’). Consequently, LPA No. 1733 of 2011 -2- the selections made from Clerical Cadre to Officer Scale-I have been nullified and a direction has been issued to consider the claim of the petitioners for promotion in accordance with Schedule III of the 1998 Rules. Both the circulars impugned before the learned Single Judge made a departure from the 1998 Rules inasmuch as they altered altered the criteria for promotion by fixing 40% marks out of 20 marks for interview, that is, 8 marks as the minimum qualifying marks for interview for the general category. It is not disputed that the promotion was based on the principle of seniority-cum-merit. It appears from the record that the process of promotion was initially initiated on 23.06.2009 in consonance with the 1998 Rules. The last date for submission of applications was 10.7.2009. The written test was held on 9.8.2009 and results were declared on 8.09.2009. Thereafter by the impugned circulars dated 10.10.2009, the criteria was changed by fixing 40% of the interview marks as minimum qualifying marks for interview i.e. 8 marks out of 20 marks for general category. The Rule was changed after declaration of result but before interview process was to start. 3. The departure from Rule was sought to be justified by the appellant-Bank on a directive received from the sponsor bank i.e. the Punjab National Bank in turn based on a clarification received from the National Bank of Agriculture and Rural Development (NABARD), Mumbai imposing the minimum qualifying marks for interview as a condition precedent for promotion. In view of the clarification received, the Board of Directors of the appellant bank changed the rules of the game after most of it had been played out. In these circumstances, the bank fixed 40% of the 20 marks allocated for interview in a manner that credited 8 marks as minimum qualifying marks for interview for LPA No. 1733 of 2011 -3- general category and 7 marks out of 20 marks for reserved category candidates. When this new regimen was clamped the petitioners failed to get selected on account of not obtaining the minimum qualifying marks in the interview. This is what had brought the unsuccessful petitioners before this Court. 3. The learned Single Judge has found, and in our view correctly, that the impugned circulars could not entrench upon statutory Rules. Though it may be true that an employer can prescribe the minimum bench mark to assess the suitability of a candidate for promotion yet such power does not extend to departure from statutory rules. It is only an amendment in the rules which could carry forward the scheme sought to be introduced, but the Rules or Schedule III thereto in the present case have not been amended which alone could have justified the course adopted. The statutory rules provided 20 marks for interview with the specific condition that “there shall be no minimum qualifying marks in the interview”. This condition operates with respect to promotion to Scale II and Scale I Officers. However, this principle does not apply to promotion to Scale-III Officers where minimum qualifying marks of 50% marks have been prescribed in the interview. The rule making authority was, therefore, conscious of which principle to apply for which post. Even for promotion from Clerk to Scale-I Officer sufficient barriers exist in the rules for securing the best appointment by promotion. A candidate has to secure a minimum 40% marks in the written test consisting of two papers. The Performance Appraisal Reports (PARs) for preceding three years of the employee concerned are also to be taken into account for considering him in the scheme for promotion. While dealing with the system of 'seniority-cum-merit' the learned Single Judge in our view has LPA No. 1733 of 2011 -4- correctly distinguished the decision in the case of B.V. Sivaiah and others v. K. Addanki Babu and others; AIR 1998 SC 2565, on the ground that the criteria of seniority-cum-merit in the matter of promotion merit would remain subservient to rule of seniority but where the rule itself provides for and prescribes the criteria to be followed then the statutory rules would take over and govern the process of promotion. The principles laid down in B.V. Sivaiah and others v. K. Addanki Babu and others (supra) would apply in absence of specific rule, that even a less meritorious candidate would have priority in promotion since comparative assessment of merit inter se is not required to be made. 4. Learned Single Judge has relied upon a catena of judgments from Sant Ram Sharma v. State of Rajasthan, 1967 SLR 906 (SC) downwards to hold that executive instructions cannot superceded or override the statutory rules but can only fill in the gaps and supplement the rules wherever they are silent and the need to do so arises. In the present case the appellant fell victim to the directive of the sponsor Bank i.e. Punjab National Bank under the yoke of a command from NABARD, to fix minimum qualifying marks of interview. The appellant bank apparently without applying its mind to the rules blindly issued the impugned circulars which has caused miscarriage to the petitioner midway in the selection process. 5. After hearing Mr. N.C. Sahni, learned counsel for the appellant-bank at considerable length we find no reason warranting interference with the well considered judgment of the learned Single Judge. The learned counsel for the appellant has not pressed or urged any new ground before us that was not taken before the learned Single Judge. Mr. Sahni has been fair to bring to our notice the order LPA No. 1733 of 2011 -5- passed by the Division Bench of this Court on 8.8.2011 dismissing the appeals preferred by the selected candidates Sanjogita Joshi and others and Harbinder Singh and another in LPA Nos. 1376 & 1377 of 2011 upholding the orders dated 4.7.2011, subject matter of this appeal. Since the order of the learned Single judge has already been upheld, we find no sufficieint reason to reopen the matter at the hands of the appellant-bank. 6. Consequently, all the three LPAs are hereby dismissed. (HEMANT GUPTA) (RAJIV NARAIN RAINA) JUDGE JUDGE 09.08.2012 ‘sp’