IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4136 of 2004 1. Arun Kumar son of Late Gupteshwar Prasad, resident of Santoshi Nath Path, Gali No.9, Gaulakshini, Sssaram, P.S.Sasara, Rohtas, at present posted as officer in Bhojpur Rohtas Gramin Bank, Branch Sasaram, Rohtas 2. Ram Nath Choudhary son of janki Nath Choudhary, resident of Patelnagar, Gali No.6 Gaulakshini, Sasaram, p. S. Sasaram, Rohtas at present posted as Branch Manager, Bhojpur, Rohtas Gramin Bank, Darihat, Rohtas 3. Bindhyachal Singh son of Late Chandrama Singh, resident of Village Jonhi P.S. Bikramganj, Rohtas, at present posted as an officer at Bhojpur-Rohtas Gramin Bank, branch Dhangain, Bikramganj, Rohtas 4. Ram Sanehi Singh son of Late Ishwar Dayal Dingh, resident of village Dengna, P.O. Cath, Rohtas, at present posted as Branch Manager, Bhojpur Rohtas Gramin Bank, Branch Chauri, Bhojpur. …Petitioners Versus 1. Madhya Bihar Gramin Bank through its Chairman, Mina Plaza, South of the Museum, Patna 800001 2. The Board of Directors Madhya Bihar Gramin Bank Mina Plaza, South of the Museum, Patna 800001 3. The Chairman Madhya Bihar Gramin Bank Mina Plaza, South of the Museum, Patna 800001 4. General Manager, Madhya Bihar Gramin Bank Mina Plaza, South of the Museum, Patna 800001 5. Mr. S.C. Jha Personnel Manager Madhya Bihar Gramin Bank Mina Plaza, South of the Museum, Patna 800001 …Respondents ----- 08. 28.09.2011 Four petitioners herein held the post of scale I officers in Madhya Bihar Gramin Bank (for short „the Bank‟) which was earlier known as Bhojpur/Rohtas Gramin Bank. They claim consideration for promotion against 16 posts of scale II officers for which, according to them, process of selection had already begun on formulation of promotion policy as contained in communication dated 26.04.2000 (Annexure-2). It is the stand of the petitioners that those posts is/are required to 2 be filled up in accordance with the Regional Rural Banks (Appointment & Promotion of Officers &) Other Employees) Rules 1988 (for short „Rules 1988‟). As per the said Rules, seniority cum merit was the criteria and the promotion was to be granted based on interview only. The Respondent-Bank did not take any action in pursuance of Annexure-2 and subsequently came out with another communication dated 19.01.2004 (Annexure-4) whereby it was informed to all concerned that promotion to scale II in respect of 78 posts shall now been made in accordance with the Promotion Rules of 1998. Learned counsel for the petitioner contends that as per the provisions contained in 1998 Rules, the promotion are to be made based on seniority cum merit but after subjecting the candidates to written examination/test. It is thus argued that the respondents have committed a serious error in adding 16 posts which fell vacant earlier and for which process of selection had already begun. In other words, the grievance of the petitioners is that the respondents are required to consider the case of petitioners and others as per the 1988 Rules and not 1998 Rules. The respondents, on the other hand, have supported the impugned action. Learned counsel referred to and relied on the averments made in paragraph 5(a) to (f) of the counter affidavit filed on behalf of the respondents. This Court considers it apposite to quote in extenso the averments made in the said paragraph which read as under: “5. That in short the question raised in the petition is to whether the said 16 posts had 3 arisen prior to 29.07.98 i.e. the date when the promotion Rules, 1998 came into effect. This question is to be answered in negative on the following, amongst other, grounds:- a) That it would be relevant to state that the powers to create posts in different categories by a Regional Rural Bank, in this case the Respondent bank, is not absolute and the same is controlled and regulated by various provisions of the rules framed by the Central Government, in exercise of rule making power conferred by the Regional Rural Banks Act, 1976. In the present context rule 3 and rule 4 of the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules 1988 are relevant, corresponding to rule (4) & (5) of the promotions Rules , 1998, which read as follows:- “(3) The Board of Directors of each Regional Rural Bank may in consultation with its sponsor bank, create such number of posts as are specified in the second schedule from time to time. (4) The Board may in consultation with the sponsor bank, determine the number of vacancies in each post in view of the guidelines issue by the Central Government from time to time.” b) That the true import of the aforesaid provisions and rules makes it clear that creation of any number of posts are to be approved by the Sponsor Bank of the Respondent Bank c) That a proposal for creation of 16 posts in Scale II officers cadre was passed in the meeting held on 02.03.2000 by the Board of Directors of the respondent bank and the same was forwarded to the Sponsor Bank. But the proposal was not approved by the Sponsor Bank and the Sponsor Bank vide its letter No.PRB/MPP-45 dated 22.01.2003 advised the respondent bank to reconsider the matter. Accordingly the proposal was again considered in 169th meeting of the Board of Directors of the respondent bank held on dated 25.03.2003. The excerpts of the said decision is- “Nidesak Mandal Ne Apni 150 vi baithak dinak 2/3/2000 ke mada sankhya 11 (ka)(i) ke tahat liye gaye 4 nirnay ko punrikshit karate hue scale 2 ki prasangadhin 16 riktioon ko bhi nayi pronnati niyam 1998 ke tahat bhare jane ka nirnay liya” d) That the aforesaid decision of the Board of Directors of the respondent bank was communicated to the Sponsor Bank and the Sponsor Bank gave its concurrence vide its letter dtd. 6.9.2003 to fill up 78 vacancies of scale II officers, including the 16 posts under question, as per new Promotion Policy i.e. Promotion rules of 1998, after obtaining approval of the Board of Directors of the Respondent Bank. The Board of Directors of the respondent bank approved the filling up of the above said 78 vacancies in Scale-II officers cadre in accordance with the provisions of Promotion rules 1998 as mentioned in circular letter No.-1/2004 dt. 19.01.2004, in its meeting held on dated 22.12.2003. e) That it is to be further stated that for promotions the minimum eligibility in terms of number of completed years of service in officer Scale-I cadre is to be reckoned as on the 1st April of year in which the vacancy is expected to arise or has actually arisen as per the stipulation, made in para 2(h) of the Third Schedule of Promotion Rules of 1998 commonly called as New Promotion Policy. f) That as such the cut off date for finding out minimum eligibility was fixed as 1.4.2003 as all the 78 vacancies (inclusive of 16 vacancies discussed in the foregoing paragraphs) have been arisen only on 22.12.03 i.e. after the Promotion Rules 1998 came in to force i.e. after 29.07.98.” It has also been contended with reference to the averments made in paragraph 15 of the counter affidavit that the present application, at the instance of the petitioners, is fit to be rejected on the ground that the petitioners participated in the selection/promotion process carried out in accordance with 1998 5 Promotion Rules and appeared at the written test but could not qualify thereat. Having taken a chance and being declared unsuccessful thereat, the petitioners cannot be allowed to take a somersault and challenge the entire exercise of promotion. In this regard, he has relied on a judgment of this Court rendered in the case of Praveen Kumar Thakur vs. State of Bihar & Ors. since reported in 1999 (3) PLJR 929. Heard learned counsel for the petitioners and learned counsel for the Respondent-Bank. It is the case of the petitioners that 12 posts for grant of promotion in scale II was identified/cleared well before 1998 for which process of selection had already begun and, as such, the respondents were required to complete the process of selection and promotion in accordance with 1988 Promotion Rules. The respondents have taken a stand that the Respondent- Bank(Regional Rural Bank) has no absolute right to create post in different categories of officers. It is controlled and regulated by various provisions/rules framed by the Central Government in exercise of rule making power conferred by the Regional Rural Bank Act, 1976. Rule 3 thereof states that a Board of Directors of each Regional Rural Bank in consultation with its sponsores bank will create such number of posts as are specified in the schedule. The Board, therefore, was required to determine the number of vacancies in each category/post in consultation with the sponsores bank in the present case the Punjab National Bank. The interpretation of rule-provision is 6 that the number of post can be created and made available only after approval of the sponsoring Bank. It appears from the averments made in the counter affidavit that creation of 16 posts in scale II officers cadre was resolved by the Board of Directors of the Respondent-Bank which was forwarded to the sponsores bank which, however, was not approved by the sponsores bank. The said bank vide its communication dated 22.01.2003 advised the Respondent-Bank to re-consider the matter. In the light of the said advice, the proposal was again considered in the subsequent meeting of the Board of Directors of the Respondent- Bank held on 25.03.2003 whereafter it was resolved that 16 vacancies/post should also be filled up according to 1998 Promotion Rules. The said decision of the Board of Directors of the respondent-Bank was communicated to the sponsored bank and concurrence was granted vide communication dated 06.09.2003 to fill up all the 78 posts in question as per the new promotion policy. Looking at the pleadings on record, it is obvious that it cannot be said that 16 posts was/were created prior to 1998 and steps for promotion on those posts had been taken up and, as such, the Respondent-Bank was required to fill up those 16 posts in scale II in accordance with 1988 Rules. The matter can be viewed from yet another angle. The Respondent-Bank thereafter proceeded with the promotional exercise in accordance with 1998 Promotion Rules and held written examination/test. Petitioners appeared thereat. 7 They could not clear the written test/examination. They have now taken a volte face and decided to challenge the entire promotional exercise. The said issue has been considered by this Court in the case of Yogesh Kumar vs. Union of India (2011 (3) PLJR 860). Paragraph 14 of the said report reads as under:- “14. This matter may be viewed from yet another angle also. The petitioners were found eligible for written test and was called in therefor. They participated therein and thereafter was/were shortlisted for oral interview. On being summoned, they appeared at the oral interview conducted by a team of persons of high integrity and caliber and after having failed to get the desired result, filed the present writ petitions challenging the process/procedure adopted at the interview as unfair, discriminatory and biased. The Supreme Court having noticed the aforesaid facts refused relief in Om Prakash Shukla vs. Akhilesh Kumar Shukla, (1986) Suppl. SCC 285=A.I.R. 1986 S.C. 1043. Same view has been held by the Supreme Court in the State of Bihar vs, Madan Lal (supra) (sic). Ratio laid down in aforesaid cases, in my view, would also be applicable to the present case.” In view of aforesaid position in law, this Court would be justified in rejecting the writ petition on the aforesaid count alone. For the reasons aforementioned, this Court finds no merit in the application which is accordingly dismissed. hr ( Kishore K. Mandal )