1 S.B. CIVIL WRIT PETITION NO.657/2006 (Khem Singh Khakhar & Anr. vs. U.O.I. & Anr.) Date of Order :: 12.05.2008 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr.Pushpendra Singh, for the petitioners. Mr.M.R. Singhvi, for the respondents. By way of filing present writ petition, petitioners have prayed for direction to the respondents to consider the candidature of the petitioners for promotion on the post of Clerk- cum-Cashier as per the notice/letter dated 19th December, 2005. Further it is prayed that the respondents may be directed to follow the open criteria of selection for promotion without restricting the number of candidates and made promotion on the basis of merit and condition of restricting the number of candidates on the basis of seniority in the rules framed may be quashed and set aside. Brief facts of the case are that the petitioners were appointed on part time basis in the respondent bank. Their services were regularised on the post of Class-IV employee and confirmed on the post of Class-IV employee w.e.f. 01st June, 1994. According to the petitioners, they are possessing requisite qualification for promotion on the post of Clerk-cum-Cashier. An 2 application was filed by the petitioner No.1 for promotion to the post of Clerk-cum-Cashier, but their application was rejected by the bank authorities vide order dated 13th December, 1994 (Annexure-3). As per petitioners, respondent bank issued criteria on 19th December, 2005 for promotion of the departmental employees from the post of Class IV to the post of Clerk-cum-Cashiers for three posts and the written examination for the aforesaid post was scheduled to be held on 12th February, 2006, but no opportunity to appear in the said test was allowed to the petitioner because as per criteria of promotion, petitioners were not in consideration zone. Therefore, as per petitioners, the criteria adopted by the respondent bank is illegal and respondent bank is required to promote the petitioners on the basis of their merit while following open criteria for promotion without restricting the number of candidates. In reply to the writ petition filed by the respondents, it is specifically submitted that for promotion, Rules of 1998 were strictly been undertaken and as per criteria due consideration was made as per the educational qualification, length of service and number of candidates were called for interview keeping in view the number of vacancies. Further it is prayed that 3 promulgation of Rule is a legislative process and is not ordinarily subject to judicial review. The prescribing method of recruitment is in the sole domain of the employer thus, the Rules promulgated vide Notification dated 29th July, 1998 for promotion to the post of Clerk-cum-Cashier and quota fixed for promotion from the post of Class-IV employee to L.D.C. do not suffer from any infirmity, vice or illegality. Admittedly, as per seniority list, petitioners were not within consideration zone for promotion on the post of Clerk- cum-Cashier because as per Rules 90% posts are required to be filled in by direct recruitment and 10% by promotion and further it is provided that promotion is required to be made upon the criteria of seniority cum merit. The petitioners are admittedly junior than those persons who were allowed to appear in the written examination and considered for promotion by the respondents, therefore, petitioners were not allowed to appear in the written examination because against three vacancies, four times candidates were called to appear in the written examination because petitioners are much junior than those candidates who were granted promotion. I have considered rival submissions made by both the parties. 4 In this case, names of petitioners are appearing at serial Nos.38 and 39 and the promotions were made against three posts meant for quota prescribed for promotion from Class-IV employees to the post of Clerk-cum-Cashier and as per determination of vacancies, three vacancies were available to be filled in by way of promotion as per the Rules of 1998 and against those three vacancies, four time candidates were allowed to appear in the written examination as per seniority. Therefore, petitioners were not within consideration zone, therefore, they were not allowed to appear in written test. In my opinion, as per quota for promotion petitioners cannot claim promotion as a matter of right, so also, fixing quota for promotion is within jurisdiction of the respondent Bank. The employee cannot question the method of recruitment. Therefore, the matter of prescribing method of recruitment is jurisdiction of the employer. It is for the employer to decide which post is to be filled in by direct recruitment and how many posts are to be filled in by way of promotion. The employee cannot raise question that the particular number of posts shall be filled in by way of promotion, so also, promulgation of rule is a legislative process and it cannot be questioned by any candidate, therefore, no ground is made out by the petitioners to challenge and claim promotion while 5 following open criteria without restricting the number of candidates on merit basis. In view of the above discussion, no case for interference is made out. Hence, this writ petition is dismissed. (GOPAL KRISHAN VYAS),J. A.K. Chouhan/- A.K. Chouhan/-