LPA No. 1376 of 2011 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH 1. LPA No. 1376 of 2011 (O&M) Date of Decision: August 08, 2011 Sanjogita Joshi and others …Appellants Versus Naresh Kumar and others ...Respondents 2. LPA No. 1377 of 2011 (O&M) Harbinder Singh and another …Appellants Versus Chaman Lal and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. R.K. Chopra, Sr. Advocate with Mr. Amit Chopra, Advocate for the appellants. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. These set of two appeals filed under Clause X of the Letters Patent are directed against a common judgment dated 04.07.2011 rendered by the learned Single Judge holding that the service conditions of the employees of the Punjab Gramin Bank- respondent No.2 (for brevity 'the respondent-Bank') are governed by the Regulations Punjab Gramin Bank (Officers and Employees) Service Regulations, 2005 (for brevity '2005 Regulations'). The 2005 Regulations have been formulated by the Board of Directors of the respondent-Bank in exercise of their powers conferred by Section LPA No. 1376 of 2011 (O&M) -2- 30 of the Regional Rural Banks Act, 1976 (for brevity 'the Act'). 2. It has also been concluded that the regulations have been prepared in consultation with the Punjab National Bank being the sponsor bank and National Bank of Agriculture and Rural Development (NABARD) as also with the previous sanction of the Central Government. Regulation 14 of the 2005 Regulations, all promotions are to be made at the discretion of the bank and no officer or employee could claim promotion to a particular post or cadre as a matter of rights. However, promotions are governed by the Rules known as Regional Rural Banks (Appointments and Promotions of Officers and others Employees) Rules, 1998 (for brevity '1998 Rules'). According to Rule of 1988 Rules, all vacancies as determined under Rule 5 by the Board are to be filled by promotion or direct recruitment in accordance with the provisions made in those rules and third Schedule appended to those Rules. Thereafter third Schedule has been reproduced which gives details of various posts, their source of appointments and the principle of promotion to be applied marks for interview, performance appraisal report etc. The principles to be followed for promotion is seniority- cum-merit. In so far as Scale-II and Scale-I of Group 'A' Officers are concerned, there is no qualifying marks set apart for interview to render them eligible for promotion, which was effected on the basis of assessment of a candidate by written test, interview and Performance Appraisal Reports for promotion to Scale-III Officer, minimum qualifying marks of 50% has been prescribed in the LPA No. 1376 of 2011 (O&M) -3- interview. For Scale-II and Scale-I officers, no minimum qualifying marks have been prescribed. 3. The learned Single Judge has noticed in para 14 of the judgment of Hon'ble the Supreme Court rendered in the case of B.V. Sivaiah and others v. K. Addanki Babu and others (1998) 6 SCC 720 and has reached a conclusion that the general principles laid down by Hon'ble the Supreme Court are made applicable only where the Rules are silent with regard to criteria of seniority-cum- merit in the matter of promotion. In case the criteria is prescribed by the Rule itself then the said statutory rules must govern the promotion as was the position in the present case. The criteria in the present case has been laid down for promotion in the third Schedule appended to 1998 Rules. The third Schedule prescribes that there should not be any minimum qualifying marks in the interview, therefore, the mandate of the 1998 rules has to prevail instead of general principles of 'seniority-cum-merit' as laid down in B.V. Sivaiah's case (supra). Accordingly, the learned Single Judge reached a conclusion that circular dated 10.10.2009 is inconsistent and contrary to 1998 Rules and the same cannot be enforced to the detriment of the candidates fulfilling the eligibility criteria as per 1998 Rules. It has further been held that that the circular cannot be applied to the candidates rendering them ineligible for promotion. In that regard reliance has been placed on the celebrated judgments of Hon'ble the Supreme Court rendered in the cases of Sant Ram Sharma v. State of Rajasthan, 1967 SLR 906 and State of LPA No. 1376 of 2011 (O&M) -4- Haryana v. Shamsher Jang Bahadur, 1972 SLR 441. The learned Single Judge has referred to criteria adopted in 1998 Rules and the circular which reads as under: “That apart, the process of promotion was initiated vide letter dated 23.6.2009, according to which promotions were to be made in terms of the 1998, Rules which provide for seniority-cum-merit as the basis. The eligibility criteria was prescribed, mode of selection and process of selection was laid down i.e. written test, interview and Performance Appraisal Reports. Wherever minimum marks were required to be obtained, it was so specified. These were all in consonance with the 1998 Rules. The last date for submission of the applications was 10.7.2009. The written test was held on 9.8.2009 and the results were declared on 8.9.2009. Thereafter, vide Circular No. 38/2009 and 37/2009 dated 10.10.2009, the criteria for selection process for promotion was changed by fixing 40% of the interview marks as minimum qualifying marks for interview i.e. out of 20 marks 8 marks for general category. The change, which has been brought about in the selection criteria, is at the fag end of the selection process for promotion, when the written test has already been held and the result LPA No. 1376 of 2011 (O&M) -5- was also declared but before the interview for promotion of Officers was to take place. This as already held was in violation of the statutory Rules governing the service. But still as the process has already been initiated in June, 2009 and was in midst of it, the said change could have not been brought about by the Bank. It is by now settled by the catena of judgments that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced.” 4. It is also pertinent to mention that the learned Single Judge rejected the preliminary objection raised by the appellants that the writ petitioner-respondents participated in the selection process and they are debarred from challenging the same. The learned Single Judge has accepted the contention that there cannot be any estoppel against the statute and any selection process, which is based on circular, which is contrary to the statutory rules and which was issued during the selection process cannot be sustained. 5. We have heard learned counsel for the appellants at a considerable length and are of the view that the judgment of the learned Single Judge does not suffer from any legal infirmity warranting admission of the appeal. As has been rightly concluded by the learned Single Judge that the departmental instructions and circular cannot be issued in contravention of the statutory rules. The LPA No. 1376 of 2011 (O&M) -6- aforesaid finding does not in any way suffer from any legal infirmity. The appeal is wholly without merit and cannot be admitted. 6. Accordingly, both the appeals fail and the same are dismissed. 7. A photocopy of this order be placed on the file of connected case. (M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE August 08, 2011 Atul