IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1375 of 2006 PRASHANT KUMAR CHOUDHARY, son of Shri Ram Narain Choudhary, resident of Lohia Nagar, PO Suhrid Nagar, P.S. Begusarai, District Begusarai …………………………. Petitioner Versus 1. BEGUSARAI KSHETRIYA GRAMIN BANK, now renamed as Bihar Kshetriya Gramin Bank, through its Chairman, Bhagat Singh Chowk, Munger 2. The Board of Directors, Begusarai Kshetriya Gramin Bank, now renamed as Bihar Kshetriya Gramin Bank, Bhagat Singh Chowk, Munger 3. The Chairman, Begusarai Kshetriya Gramin Bank, now renamed as Bihar Kshetriya Gramin Bank, Bhagat Singh Chowk, Munger 4. Shri Satyajeet Kumar, name of father not known to the petitioners, presently posted at Garhpura Branch of Bihar Kshetriya Gramin Bank, at & PO Garhpura, District Begusarai 5. Shri Vijay Kumar Agrawal, name of father not known to the petitioners, presently posted at Garhara Branch of Bihar Kshetriya Gramin Bank, at & PO Garhara, Disrict Begusarai 6. Shri Bhupesh Kumar, name of father not known to the petitioners, presently posted as Branch Manager, Lakhanpatti Branch of Bihar Kshetriya Gramin Bank at Saidpur, PO Lakhanpatti, PS Khodawanpur, District Begusarai 7. Shri Rabindra Kumar Jha, name of father not known to the petitioner presently posted as Branch Manager, Malipur Branch of Bihar Kshetriya Gramin Bank, at and PO Malipur, PS. Garhpura, District Begusarai. 8. Uco Bank, through the General Manager, Credit (Priority Sector) Deptt, R.R.B. Wing, Head Office, Bipalabi, Trailokya Maharaj, Sarani, Kolkata-700001 9. The Zonal Manager, Uco Bank, Patna ………………… Respondents ----------- CWJC No.2463 of 2006 RANJAN KUMAR, son of Late Narmadeshwear Prasad, resident of Colony No. 1, Near Kali Asthan, Police Station & PO Katihar, District Katihar …………………………………………… Petitioner Versus 1. BEGUSARAI KSHETRIYA GRAMIN BANK, now renamed as Bihar Kshetriya Gramin Bank, through its Chairman, Bhagat Singh Chowk, Munger 2. The Board of Directors, Begusarai Kshetriya Gramin Bank, now renamed as Bihar Kshetriya Gramin Bank, Bhagat Singh Chowk, Munger 3. The Chairman, Begusarai Kshetriya Gramin Bank, now renamed as Bihar Kshetriya Gramin Bank, Bhagat Singh Chowk, Munger 4. Shri Bhupesh Kumar, name of father not known to the petitioners, presenbtly posted as Branch Manager, Lakhanpatti Branch of Bihar Kshetriya Gramin Bank at Saidpur, PO Lakhanpatti, PS Khodawanpur, District Begusarai 2 5. Shri Rabindra Kumar Jha, name of father not known to the petitioners presently posted as Branch Manager, Malipur Branch of Bihar Kshetriya Gramin Bank, at and PO Malipur, PS. Garhpura, District Begusarai. 6. Uco Bank, through the General Manager, Credit (Priority Sector) Deptt, R.R.B. Wing, Head Office, Bipalabi, Trailokya Maharaj, Sarani, Kolkata-700001 7. The Zonal Manager, Uco Bank, Patna ………………… Respondents ----------- CWJC No.7499 of 2006 1. SANJAY KUMAR, son of Sri Loknath Singh resisident of Village + PO Olapur Gangaur, District Khagaria 2. Parmanand Prasad Singh, son of Sri Bhola Prasad Singh, residsent of Village + PO Mahathi, PS Bibhutipur, Disdtrict Samastipur Versus 1 BEGUSARAI KSHETRIYA GRAMIN BANK, now known as Bihar Kshetriya Gramin Bank B.K.G.B) after its amalgamation, through the Chairman. 2 The Bihar Kshetriya Gramin Bank through its Chairman 3 The Board of Directors, Bihar Kshetriya Gramin Bank, through the Chairman 4 The Chairman, Bihar Kshetriya Gramin Bank 5 The General Manager, Bihar Kshewtriya Gramin Bank (BKGB) All 1 to 5 at Head Office of Bihar Kshetriya Gramin Bank, Bhagat Singh Chowk, Post Box No. 06, Munger- 811201 (Bihar) 6 Uco Bank, through the General Manager, Credit (Priority Sector) Deptt, R.R.B. Wing, Head Office at 10, Bipalabi, Trailokya Maharaj, Sarani, Kolkata-700001 7 The Zonal Manager, Uco Bank, Patna ………………… Respondents ----------- For the Petitioners : Mr Dhruba Mukherji, Advocate Mr Neeraj Kumar, Advocate Abhay Shankar Singh,Advocate For Begusarai Kshetriya Bank : Dr S.N.Jha,Sr.Advocate Mr Abhinav Srivastava, Advocate For Uco Bank : Ms Neelu Agrawal, Advocate. ------- 6. 26.09.2008 Heard leaned Counsel for the petitioners, learned Counsel for Begusarai Kshetriya Gramin Bank now re-christened as Bihar Kshetriya Gramin Bank (hereinafter referred to as Gramin Bank) and the learned 3 Counsel for the United Commercial Bank (hereinafter referred to as the Uco Bank). The petitioners who are from general category and are in the clerical cadre, assail the order dated 10.1.2005 of the Gramin Bank fixing a bench mark of performance appraisal report- 50% and interview – 50% for promotion from clerical cadre to the Officer Scale –I. The promotions are to be made on basis of seniority cum merit. Earlier the terms of promotion were guided by the Regional Rural Bank (Appointment and Promotion of officer and other employees) Rules 1988 (hereinafter called 1988 Rules). These rules were framed under the Regional Rural Bank Act 1976 (hereinafter referred to as „the Act‟). Under the Act the Regional Rural Bank are to be guided on policy matters involving public interest as may be given by the Central Government after consultation with the National Bank for Agriculture and Rural Bank (hereinafter referred to as „the NABARD). Power was given to the Central Government to frame rules relating to the manner in which the officers and employees of the Regional Rural Banks shall be appointed. It was in exercise of this power that 1988 Rules came to be framed. The 1988 Rules with regard to the mode of selection, relevant for the purpose of the present controversy provides as follows:- “(c) Mode of Selection: Interview and assessment of performance reports for the preceding three years‟ period as officer for promotion”. 4 It is therefore seen that in 1988 Rules there was no marks prescribed for the interview much less any minimum qualifying marks. The 1988 Rules were amended by notification dated 29.7.1998 (hereinafter called as ‟1998 Rules‟). While retaining the promotions to be made on seniority cum merit basis it now provided for a minimum of 40 % marks in the written examination on the basis of which list of selected candidates was to be prepared in order of seniority. The statutory rules next provided 20 marks for interview but stated specifically that there shall be no minimum qualifying marks in the interview. The performance appraisal report for preceding three years was also to be considered. The difference between the 1988 Rules and 1998 Rules now became apparent. While 1988 Rules did not provide any marks for interview much less any qualifying marks for the interview, the 1998 Rules specifically provided 20 marks for the interview and also directed for no minimum qualifying marks at the interview. The submission on behalf of the petitioners therefore is that in accordance with the principles of seniority cum merit, if there be anything adverse against an employee meeting the minimum Bench Mark, those higher in the seniority list shall have to be promoted accordingly subject to the conditions incorporated in 1998 Rules only. The process of consideration for such promotion commenced on 10.7.2004. The order of the Gramin Bank dated 10.1.2005 by an executive instruction was in teeth of the statutory Rules 1998, which was not permissible in law. 5 Counsel for the Gramin Bank submitted that it has only followed the instructions given to it by the sponsor Bank, the Uco Bank. Learned Counsel for the Uco Bank submitted that it had instructed the Kshetriya Bank on 19.10.2004 in accordance with the judgement of the Supreme Court, that in absence of fixation of bench mark by Rules for interview and performance appraisal report there shall be no harm in fixation of reasonable bench mark so that the merit was not unduly stressed in the selection process. This was in terms of the instructions of the NABARD dated 3.6.2004. On record is the letter of NABARD dated 3.6.2004 as Annexure R/A to the counter affidavit of the Uco Bank. The very opening lines of the letter state that the 1998 Rules are to be followed strictly in promotions. It simultaneously states that while carrying out such consideration on basis of seniority cum merit, the selection committee must be guided by judgement of the Supreme Court in the case of B.V.Sivaiah & others Vrs K. Addanki Babu and others (1998) 6 SCC 720. It then refers to another case to support its logic that in absence of fixation of bench marks by Rules for interview and performance appraisal, there was no prohibition in fixing of a reasonable bench mark. That the 1998 Rules provided that there shall be no minimum qualifying marks for interview of performance and appraisal report but, simultaneously the instruction states that it does not prohibit introduction of qualifying marks and while view is strengthened by the orders of the Supreme Court. The contradiction in the letter of NABARD is too glaring to be ignored. Whatever may be the recitals and 6 understanding in the letter of the NABARD, the statutory rules very clearly prohibited introduction of any minimum qualifying marks for interview and performance appraisal. Reliance on the judgement of the Supreme Court in the case of B.V.Sivaiah & others (Supra) is completely misplaced as that was in the context of 1988 Rules which did not provide any marks for interview much less for fixation of any qualifying marks. The issue was therefore left open for fixation of a reasonable Bench mark. An additional issue raised on behalf of the petitioners is that once the process of selection had commenced on 10.7.2004, the rules for consideration for promotion could not be changed thereafter much less by an executive instruction. It had to be done on basis of rules that existed on the date that the process commenced. All that is required to be pronounced by this Court now is to affirm the letter of the NABARD for strict compliance of 1998 Rules. Unless and until the Rules 1998 are not amended or varied in accordance with the procedure for amendment of statutory rules no executive instruction can be pressed in to service to do what the statutory rules do not permit or introduce variance in the same. It is only in the event of a gap in the statutory rules that the executive instruction may supplant it but that too shall have to be restricted to prior to the commencement of the selection process and not thereafter. In the result these writ applications are allowed. The respondents are directed to consider the cases for promotion from clerical grade to the officer scale-I strictly in accordance with 1998 Rules and not the 7 executive instructions dated 3.6.2004, 19.10.2004 and 10.1.2005, more particularly when issued after the process of selection commenced to control this process of selection on seniority cum merit. Let such considerations for promotion from clerical grade to officer scale-I grade of the petitioners be done strictly in accordance with 1998 Rules and they be granted promotion and seniority from the date that their juniors may have been granted such promotion, to which learned Counsel for the petitioners have no objection. The writ applications stand disposed. Snkumar/- (Navin Sinha,J.)