1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R 1. S.B.CIVIL WRIT PETITION NO.5137/2003 (Pankaj Misra Vs. Baroda Rajasthan Gramin Bank & Ors. 2. S.B.CIVIL WRIT PETITION NO.5138/2003 (Megh Raj Soni Vs. Baroda Rajasthan Gramin Bank & Ors. ] 3. S.B.CIVIL WRIT PETITION NO.5139/2003 (Hem Raj Chittora Vs. Baroda Rajasthan Gramin Bank & Ors. Date of Order : : 03/11/2008 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr.A.K.Rajvanshy, for the petitioners. Mr.Anil Bhandari, for the respondent No.1-Bank. Dr.Puspendra Singh Bhati, for the respondents No.2 to 5. BY THE COURT: All these three writ petitions involve common question of law and facts and therefore, with the consent of learned counsel for the parties, these writ petitions are heard and decided together by taking the facts of S.B.Civil Writ Petition No.5137/2003; Pankaj Mishra Vs. Baroda Rajasthan 2 Gramin Bank & Ors. as leading case. I have heard learned counsel for the parties. The facts and circumstances giving rise to these writ petitions are that the petitioners are working on the post of Officer Scale-I in Group-A with the respondent-Marudhar Kshetriya Gramin Bank, which was subsequently amalgameted with Baroda Rajasthan Gramin Bank (for short "the Bank" hereinafter). The respondent-Bank prepared a seniority list Annexure-1 dated 1st February, 1997. The persons shown in the seniority list, namely, Sohan Lal Sharma, Sita Ram Soni, Ashok Kumar Godara, Gurdeep Singh Matharu and Vijay Singh Nehra have aleady been promoted on the post of Officer Scale-II and after promotion of these persons, Hem Raj Chittora, who is the petitioner in S.B.Civil Writ Petition No.5139/2003 stands at serial No.1 and one Om Prakash Goswami stands at serial No.2 in the seniority list. The petitioners Pankaj Mishra and Megh Raj Soni stand at serial Nos. 3 and 10 in the seniority list of Officer Scale-I. Thus, according to the petitioners, they are within the number of 10 in the seniority list. It is submitted that 10 posts of Officer Scale-II are to be filled in under the provisions of Regional Rural Banks (Appointment & Promotion of Officers & Other Employees) Rules, 1998 (for short “the Rules of 1998” 3 hereinafter) by way of promotion. The procedure for the promotion has been provided in third Schedule under Rule 6. So far as the Officer Scale-II in Group A is concerned, the source of appointment is 100% by way of promotion and the promotions are to be made on the basis of seniority-cum- merit. According to the eligibility criteria, the selection process has been provided for the promotion, which provides that the selection shall be on the basis of performance in the interview and Performance Appraisal Reports for preceding five years as per the division of marks given in; (a) written test which is of 60 marks, (b) interview which is of 20 marks and (c) Performance Appraisal Reports which is of 20 marks; total 100 marks. So far as interview is concerned, the marks provided are 20 and it has been made clear under the Rules of 1998 that there shall be no minimum qualifying marks for the interview. Thus, the Rules of 1998 is clear to the extent that there shall be no minimum qualifying mark for the interview. According to the petitioners, they have passed written examination and their Performance Appraisal reports for the preceding five years are satisfactory and since the criteria for promotion is seniority-cum-merit, they are entitled to be promoted on the post of Officer Scale-II. However, by order Anneuxre-6 dated 8th August, 2002, the respondent Bank 4 provided that out of total 20 marks of the interview, the candidate seeking promotion for the Officer Scale-II in Group- A is to secure minimum 10 marks in the interview which is contrary to the Rules of 1998. Since the petitioners could not secure the minimum qualifying 10 marks in the interview out of 20 marks, therefore, the junior persons to that of the petitioners have been promoted. Hence, this writ petition. A reply to the writ petition has been filed by the respondent-Bank stating therein that the circular dated 8th August, 2002 has been issued by the respondent-Bank with the object for maintaining minimum standard so that a candidate can be considered for promotion who has secured minimum 10 marks in interview and minimum 12 marks in work appraisal as qualifying marks and this circular has been issued on the basis of the guidelines issued by the NABARD. Learned counsel appearing for the private respondent submits that since they have been promoted and have been getting the benefit of promotional post, therefore, even if the petitioners succeed, their promotion may be protected. Learned counsel for the petitioners submits that the order impugned Annexure-6 dated 8th August, 2002 is contrary to the Rules of 1998 which in clear terms provide that there shall be no minimum qualifying marks for the interview 5 whereas the rule itself do not make any minimum qualifying passing marks for the interview but the respondent made minimum qualifying marks for the interview and passed an order contrary to the rules to the extent that the candidate has to secure minimum 10 marks out of 20 marks for interview, which the petitioners did not. Learned counsel has relied on a decision of Hon'ble Supreme Court in Harigovind Yadav Vs. Rewa Sidhi Gramin Bank & Ors., AIR 2006 Supreme Court 3596 and a recent decision of this Court in Gajendra Kumar Dhanawat Vs. Mewar Aanchalik Gramin Bank & Ors., S.B.Civil Writ Petition No.4570/2007, decided on 6th August, 2008. In Harigovind Yadav Vs. Rewa Sidhi gramin Bank & Ors. (supra), the Hon'ble Supreme Court held that the procedure adopted providing only for minimum standard for interview and thus selection with reference to comparative marks is contrary to the rule where promotion is on the seniority-cum-merit. In para 18 of the said judgment, the Hon'ble Supreme Court observed as under:- “As we have already noticed, in this case, the procedure is not one of ascertaining the minimum necessary merit and then promoting the candidates with the minimum merit in accordance with 6 seniority, but assessing the comparative merit by drawing up a merit list, the assessment being with reference to marks secured for seniority, performance, postings at rural/difficult places and interview. The fact that the appellant had failed to secure the minimum marks in interview, is not relevant as the entire procedure adopted by the Bank (of which interview is a part) is found to be vitiated and not in consonance with the principles of seniority-cum-merit.” It was further observed as under:- “In that case promotions were not governed by any statutory Rules, but by a promotion policy. The above observations made with reference to such a policy, which wholly occupied the field insofar as promotion is concerned, are not relevant where the statutory Rules require promotion by seniority-cum- merit.” In Gajendra Kumar Dhanawat Vs. Mewar Aanchalik Gramin Bank and Ors. (supra), this Court held that where promotion is according to seniority-cum-merit the primary consideration is seniority and minimum merit required to make the person fit for appointment only is to be fulfilled but there is no room to adjudge comparative merit by ignoring the 7 seniority altogether. In the instant case, undisputedly the promotion from Officer Scale-I in Group-A to Officer Scale-II is governed by statutory rules i.e. Rules of 1998 and the Rules of 1998 as noticed above requires the promotion by seniority-cum-merit. Apart from the rules regulating the promotion on the seniority- cum-merit, the schedule annexed with the rule i.e. Rule 6 makes it clear that there shall be no minimum qualifying marks for the interview whereas by order impugned Anneuxre-6 dated 8th August, 2002, out of 20 marks kept for the interview, a candidate is required to secure minimum 10 marks. Obviously, providing such minimum qualifying marks in interview is contrary to the rules of 1998 and therefore, the order impugned Annexure-6 to the extent providing minimum qualifying marks for interview i.e. 10 marks out of 20 cannot be sustained and undisputed the petitioners have been denied promotions only on the ground that they did not secure minimum qualifying marks i.e. 10 marks in interview out of 20 marks and that being contrary to the rules of 1998 and therefore, the writ petitions deserves to be allowed. Consequently, these three writ petitions are allowed. The order impugned Annexure-6 dated 8th August, 2002 to the extent providing minimum qualifying 10 marks in 8 interview is hereby quashed. The petitioners have already succeeded in the written test as well as Performance Appraisal Report and therefore, are entitled for the promotion from the date the persons junior to the petitioners have been promoted as also entitled for seniority over the persons junior to the petitioners who have already been promoted. The petitioners are also entitled for the consequential notional benefits and shall rank senior to the persons junior to the petitioners. The respondents shall complete the exercise promoting the petitioners within three months from the date of producing the certified copy of this order. There shall be no order as to costs. (H.R.PANWAR), J. NK