IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 190 of 2007 Nainital Almora Kshetriya Gramin Bank and another . .……… Appellants Versus Kundan Singh Sammal and others ……… Respondents Hon’ble Tarun Agarwala, A.C.J. Hon’ble Dharam Veer, J. Heard Shri R.K. Raizada, the learned counsel for the appellants and Shri I.S. Mehra, the learned counsel for the opposite parties. 2. The present intra Court appeal is against the order and judgment of the learned Single Judge allowing the writ petition and directing the respondents-Bank to fill only 20 posts out of 24 posts advertised through direct recruits and the remaining 4 posts by way of promotion. The facts leading to the filing of the writ petition is, that the respondents-Bank issued an advertisement inviting applications for filling up 24 posts of clerks by way of direct recruitment. The petitioners, who are Messengers and class-IV employees of the Bank, filed the writ petition alleging that 7 posts were required to be filled up by way of promotion and that the advertisement filling up 24 posts by way of direct recruitment was incorrect. 3. It transpires that the cadre strength of the clerks in the Bank is 75. The appointments of clerks used to be governed by the Regional Rural Banks (Appointment and Promotion of Officers and other employees) Rules, 1988 (hereinafter referred as Rules, 1988). Under these Rules, appointment of clerks was to be made solely by direct recruitment. These Rules were superceded by 2 Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1998 (hereinafter referred as Rules, 1998) and, for the first time, a provision was made for filling up the post of clerks by way of promotion. Relevant Rules are Rules 5 and 6 which are quoted hereunder:- “5. Vacancies – The Board may, in consultation with Sponsor Bank, determine the number of vacancies in each category of posts to be filled keeping in view the guidelines issued by the Central Government from time to time. 6. Filling up of vacancies – All vacancies determined under rule 5 by the Board shall be filled by promotion or recruitment in accordance with the provisions contained in third Schedule of these rules.” 4. A perusal of the aforesaid indicates that the Bank was required to determine the number of vacancies in each category of posts and such vacancies which was determined was to be filled up by way of promotion or by way of recruitment in accordance with the provisions contained in the III Schedule. Under Clause 4 (a) of the III Schedule, 90% of the post of clerk-cum-cashier / clerk-cum-typist is required to be filled up through direct recruitment and the remaining 10% by promotion. 5. In the light of the aforesaid, the respondents-Bank determined 27 vacancies under Rule 5 of the said Rules. 10% of these 27 posts were required to be filled up by way of promotion and accordingly three posts, out of 27 posts, were filled up by way of promotion by the Bank. The remaining 24 posts were consequently advertised to be filled up by way of direct recruitment. 3 6. The learned Single Judge mis-interpreted the provisions of Rules 5 and 6 read with Schedule-III in arriving at a conclusion that the total strength in the cadre has to be divided, namely, 90% by direct recruitment and 10% by way of promotion and consequently calculated that since the total strength in the cadre is 75 posts, the total number of persons to be promoted would come to 7 and since three persons have already been promoted, the Court directed the respondents-Bank to promote four more persons so that the optimum strength of 10% by way of promotion is achieved. 7. In our view, the approach adopted by the learned Single Judge is incorrect. A perusal of Rule 5 and 6 of the Rules read with Clause (4) of the III Schedule clearly indicates that 10% of the vacancies was required to be filled up by way of promotion and not 10% of the total strength. The vacancy determined under Rule 5 was 27 vacancies and 10% of the 27 vacancies comes to 2.7 or 3 which the respondents-Bank had filled up by way of promotion. The remaining 24 posts were consequently required to be filled up by way of direct recruitment. 8. In view of the aforesaid, we are of the opinion that there was no error in issuance of the advertisement made by the respondents-Bank / appellants. In the light of the aforesaid, the judgment of the learned Single Judge cannot be maintained and is set aside. The appeal is allowed. (Dharam Veer, J.) (Tarun Agarwala, A.C.J.) 24.11.2009 Shiv/Bhaskar