Civil Writ Petition No. 18209 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Date of Decision : July 4, 2011 Civil Writ Petition No. 18209 of 2010 Naresh Kumar ....... Petitioner Versus Punjab Gramin Bank & others ....... Respondents **** Civil Writ Petition No. 2485 of 2010 Parmod Kumar ....... Petitioner Versus Union of India & others ....... Respondents **** Civil Writ Petition No. 3291 of 2010 Chaman Lal & others ....... Petitioners Versus Union of India & others ....... Respondents **** CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present : In CWP No. 18209 of 2010 : Mr. R.S. Ahluwalia, Advocate for the petitioner. Mr. N.C. Sahni, Advocate for respondents No. 2 & 3. Mr. H.K. Brinda, Advocate for respondent No.4. Civil Writ Petition No. 18209 of 2010 -2- Mr. Rishav Jain, Advocate for Mr. Arun Jindal, Advocate for respondent N o.5. In CWP No. 2485 of 2010 : Mr. M.S. Sidhu, Advocate for the petitioner. Mr. Karminder Singh, Advocate for Union of India. Mr. N.C. Sahni, Advocate for respondents No. 2 & 3. Mr. H.K. Brinda, Advocate for respondent No.4. Mr. Rishav Jain, Advocate for Mr. Arun Jindal, Advocate for respondent N o.5. In CWP No. 3291 of 2010 : Mr. Manik Bakshi, Advocate for the petitioners. Mr. Karminder Singh, Advocate for Union of India. Mr. N.C. Sahni, Advocate for respondents No. 2 to 5. **** AUGUSTINE GEORGE MASIH,J. This order will decide three writ petitions i.e. Civil Writ Petition No. 18209 of 2010 titled Naresh Kumar versus Punjab Gramin Bank & others, Civil Writ Petition No. 2485 of 2010 titled Parmod Kumar versus Union of India & others and Civil Writ Petition No. 3291 of 2010 titled Chaman Lal & others versus Union of India & others, as common questions of law and facts are involved therein. The challenge in these writ petitions is to the circular No. 38/2009 dated 10.10.2009 (Annexure P-4) issued by the Punjab Gramin Bank, respondent No.1 vide which the Board of Directors of the Bank has fixed 40% of 20 marks for interview i.e. 8 marks as minimum qualifying marks for interview for Civil Writ Petition No. 18209 of 2010 -3- the general category, which according to the petitioners is in violation of the Rule 8 of the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1998 (hereinafter referred to as 1998, Rules). For convenience facts are taken from CWP No. 18209 of 2010. Briefly, facts are that Punjab Gramin Bank, respondent No.1 (hereinafter referred to as the Respondent No.1-Bank) issued a circular No. 38/2009 dated 23.6.2009 for filling up 12 vacancies by promotion from Clerical cadre to Officer Scale-I. As per the said circular in terms of 1998, Rules, which was notified on 29.7.1998 and subsequent clarifications thereto adopted by the Board in its meeting dated 28.12.2007, the selection of Clerks for promotion was to be made on the basis of written test, interview and assessment of Performance Appraisal Reports (PARs). The written test was tentatively slated for 9.8.2009. The promotion was to be made on the basis of seniority-cum-merit and the eligibility criteria was also specified therein. Mode of selection and the minimum eligibility was also given. 1.4.2008 was fixed as the date for reckoning the minimum eligibility in terms of the number of years of service for promotion. All eligible candidates were to be considered for promotion. The selection was to be made on the basis of performance in the written test, interview and 5 year Performance Appraisal Reports (PARs) and the division of marks were 70, 20 & 10 respectively totalling 100 marks. The break up of the 70 marks of the written test and the subjects were also given. List of only those candidates was to be prepared, who secure a minimum of 40% marks ( 14 marks) in case of General category and in case of SC/ST minimum 35% i.e. 12 marks. The Bank thereafter was to prepare the list of selected candidates in the order of seniority to the extent of two hundred percent of the vacancies for promotion for the purpose of calling for interview. In the interview there was no minimum qualifying marks prescribed and the Performance Appraisal Reports for the preceding five years of the concerned employees shall to be taken into consideration. Last date of receipt of applications at the Head Office was fixed as 10.7.2009. This circular was in consonance with the 1998, Rules. Civil Writ Petition No. 18209 of 2010 -4- Petitioners applied for promotion within the time stipulated, appeared in the written test on 9.8.2009 and qualified the same. They were called for interview, which was to be held on 29.10.2009. Before the interview could take place, circular No. 38/2009 dated 10.10.2009 was issued wherein it was stated that the sponsored Bank i.e. the Punjab National Bank has conveyed to respondent No.1-Bank a clarification given by National Bank of Agriculture and Rural Development (NABARD) Head Office Mumbai with regard to minimum qualifying marks for interview, according to which the Board of Directors of the Regional Rural Banks, if so decides, can fix a minimum reasonable benchmark for interview. In view of the clarification, the Board of Directors of the respondent- Bank fixed 40% of the 20 marks for interview i.e. 8 marks as minimum qualifying marks for the interview and in the case of SC/ST/PC/ XSM categories, the minimum qualifying marks were fixed at 35% of 20 marks i.e. 7 marks. Interview was held on 29.10.2009 but the petitioner's name did not figure in the select list issued on 30.10.2009. On enquiry, it was brought to his notice that as the petitioner did not obtain the minimum qualifying marks i.e. 8 in the interview, as per the circular dated 10.10.2009, he was not selected. Petitioners in CWP No. 2485 of 2010 is similarly placed as petitioners in CWP No. 18209 of 2010 whereas in CWP No. 3291 of 2010 the petitioners are seeking promotion from Scale-I to Scale-II Officers, where the challenge is to Circular No. 37/2009 dated 10.10.2009. All these candidates have similar grievance as they failed to attain the minimum qualifying marks in the interview as provided in circular dated 10.10.2009 leading to the challenge to the said circular. Upon notice having been issued, reply has been filed by respondents No.1 & 2, wherein preliminary objections have been taken that the petitioner is estopped from challenging the selection process once he had participated in the same and having been unsuccessful cannot now challenge the same. Reliance has been placed on the judgment of this Court in the case of Gireesh Kumar and others vs. Government of India and others 2008(3) SLR 814. Civil Writ Petition No. 18209 of 2010 -5- Another objection which has been raised is that the petitioner has no locus standi to file the present writ petition as CWP No. 16205 of 2009 was preferred by All Punjab Gramin Bank Association (Registered and Recognised) and All Punjab Gramin Bank Employees Union (Registered and Recognised) challenging this very circular dated 10.10.2009 wherein interim order dated 23.10.2009 was passed that promotion process may go on but the result shall not be declared till the next date of hearing i.e. 8.12.2009. Thereafter interim stay granted by this Court was not extended further. The petitioners in that writ petition insisted upon the respondent-Bank that the result of the interview held on 29/30.10.2009 be declared. As a matter of fact thereafter the result was declared on 30.12.2009. The writ petition was ultimately got dismissed as withdrawn on 19.8.2010. Since the challenge to the impugned circular stood withdrawn the petitioners could not now challenge the same through the present writ petition. Another objection, which was taken was that the writ petition is bad for non-joinder of necessary parties. 12 persons were promoted from Clerks to Scale-I Officers but only three have been impleaded as respondents. On merits, the circular dated 10.10.2009 was supported by the respondent-Bank by pleading that the minimum Benchmark was fixed by the Bank on the basis of instructions dated 31.7.2008/ 1.8.2008 and letter issued by the National Bank of Agriculture and Rural Development (NABARD) dated 13.8.2008 and the letter dated 19.8.2008 issued by the Punjab National Bank, which is the sponsor Bank, wherein it was stated that the Board of Directors, if so decided, could in the light of the judgment of the Hon'ble Supreme Court in the case of B.V. Sivaiah and others v. K. Addanki Babu and others AIR 1998 SC 2565 and Rajendra Kumar Srivastava and others vs. Samyut Kshetriya Gramin Bank and others 2001(2) Banking Commercial Law Reporter 560 fix a minimum benchmark for interview for promotion. It has been further pleaded that the petitioner was made aware of the circular dated 10.10.2009 much before the date of interview and he along with other candidates was fully aware of the policy of the Bank fixing the minimum benchmark. Having willingly and voluntarily Civil Writ Petition No. 18209 of 2010 -6- appeared and having been unable to achieve the minimum benchmark cannot now question the criteria fixed for interview. Merely being senior is not enough for a candidate to be promoted as per the policy and seniority-cum-merit and having failed to cross the benchmark of interview as per the assessment of the Members of the Interview Committee, the challenge of the petitioner is without any basis. Counsel for the petitioners in these writ petitions have argued that the circular No. 38/2009 dated 10.10.2009 is not sustainable as the same is in violation of the 1998 Rules, which are statutory in nature, which do not provide for any qualifying marks for the interview for promotion. Further once a selection process has already been started on the basis of the Rules and Policy framed, which in these cases was as per circular No. 23/2009 dated 23.6.2009, could not be altered during the continuance of the said process. In support of this contention reliance has been placed on a judgment of the Hon'ble Supreme Court in the case of Maharashtra State Road Transport Corporation and others vs. Rajendra Bhimrao Mandve and others AIR 2002 SC 224 and a Division Bench judgment of this Court in the case of Sonia Tanwar and others vs. State of Punjab and others 2008(4) S.C.T. 81. As regards the judgment of the Hon'ble Supreme Court in the case of B.V. Sivaiah and others v. K. Addanki Babu and others (supra) and it is submitted by the counsel for the petitioners that the same lays down the general principle of seniority-cum-merit and deals with the earlier Rules of 1988, which have been superseded by the 1998 Rules. In 1998 Rules, governing the case of the petitioners, there is a specific Rule which provides that there shall be no minimum qualifying marks in interview and, therefore, instructions/circular contrary to the statutory Rules which provide minimum qualifying marks cannot be sustained. They contend that all selected candidates are not required to be impleaded as respondents and only persons junior to the petitioners have been impleaded. As regards the principle of estoppel, which has been pressed into service, they contend that the Civil Writ Petition No. 16205 of 2009 was filed by Civil Writ Petition No. 18209 of 2010 -7- the Union/ Association and no adjudication on the circular in question was embarked upon by this Court and the writ petition was ultimately withdrawn as having been rendered infructuous. Merely because the writ petition was not pressed by the Association/Union on merits, would not leave the petitioners without any right to challenge the circular which is in violation of the statutory Rules. As regards the petitioners having participated in the selection process and now seeking to challenge the same, they contend that there can be no estoppel against statute and any selection process, which is based on a circular, which is in violation of the statutory Rules and that too issued during the selection process, cannot be sustained. On this basis, it is prayed by the petitioners that the writ petition deserves to be allowed. On the other hand, counsel for the respondents have vehemently pressed the preliminary objections against the petitioners and have placed reliance on the judgments of the Hon'ble Supreme Court in the cases of B.V. Sivaiah and others v. K. Addanki Babu and others (supra), Gireesh Kumar and others vs. Government of India and others (supra), Rajendra Kumar Srivastava and others vs. Samyut Kshetriya Gramin Bank and others (Supra), Ashwani Gupta vs. Union of India etc. 2007(2) SLR 373, O.P. Kondal vs. Parvatiya Gramin Bank and others 2008(2) Service Law Reporter 141 and Samsul Haque and Ors. vs. Nadia Gramin Bank and Ors. 2008(5) SLR 783. The counsel have supported the impugned circular dated 10.10.2009 by contending that the minimum benchmark can be fixed by the employer to assess the suitability of a candidate for promotion, as the promotion is to be based on the principle of seniority-cum-merit. On this basis they have prayed for dismissal of the writ petitions. I have heard counsel for the parties and have gone through the records of the case. The objections which have been raised by the respondents need to be dealt with at the outset. The first objection, which has been raised, is with Civil Writ Petition No. 18209 of 2010 -8- regard to the petitioners having been unsuccessful in the selection process and having participated in the same have no right to challenge the result and are bound by the principle of estoppel. The other objection, which would be connected with this, would be that the employees Union / Association earlier filed CWP No. 16205 of 2009 challenging this very circular dated 10.10.2009 would bar the present writ petitions preferred by the petitioners, who are members of the employees Union / Association, which had preferred the earlier writ petition, which ended in withdrawal of the writ petition on the ground that the same has been rendered infructuous in the light of the selection having been completed and the result declared on 30.12.2009. Sequence of events for adjudication of these objections would be essential. CWP No. 16205 of 2009 was filed in this Court on 21.10.2009 by the All Punjab Gramin Bank Employees Union and All Punjab Gramin Bank Association challenging the circular dated 10.10.2009 (impugned herein) interim order dated 23.10.2009 was passed by this Court allowing the respondent-Bank to continue with the process of promotion and the interview Schedule but final result be not declared till the next date of hearing, which was fixed as 8.12.2009. On the said date, the interim order was not extended and thereafter the result of the selection process was declared on 30.12.2009. At this stage, the petitioners in CWP No. 16205 of 2009 moved an application for withdrawal of the writ petition on the ground that the same has become infructuous, which was allowed vide order dated 19.8.2010. It would not be out of way to mention here that CWP No. 2485 of 2010 was filed on 8.2.2010, which came up for hearing before this Court on 11.2.2010, when a direction was issued to tag the records of CWP No. 16205 of 2009 to the office. On 25.2.2010 notice of motion was issued for 11.3.2010 and was ordered to be heard along with CWP No. 16205 of 2009. Thereafter the case was taken up for hearing with the said writ petition from time to time and on 19.8.2010, the application moved by the petitioners in CWP No. 16205 of 2009 was allowed and that writ petition disposed of as having been rendered infructuous. No decision was, thus, rendered by this Court on merits on the circular dated 10.10.2009. CWP No. 2495 of 2010 was kept alive by this Civil Writ Petition No. 18209 of 2010 -9- Court and was not dismissed in the light of CWP No. 16205 of 2009. This was obviously done for the reason that matter was not decided on merit by this Court and in any case the Union had earlier approached this Court before the interview challenging the circular, impugned herein, and in the light of interim order dated 23.10.2009 passed by this Court in CWP No. 16205 of 2009, the petitioners participated in the interview, it cannot thus be said that the petitioners had accepted the criteria, which was now brought about to be introduced by fixing 40% as the minimum qualifying marks for interview by the respondent No.1-Bank vide its circular dated 10.10.2009. In the light of the above, the judgments relied upon by the counsel for the respondents i.e. Gireesh Kumar and others vs. Government of India and others (supra) would not be applicable to the case in hand. Facts are not in dispute. The service conditions of the employees of respondent No.1-Bank are governed by the Punjab Gramin Bank (Officers and Employees) Service Regulations, 2005 (hereinafter referred to as 2005 Regulations), which have been formulated by the Board of Directors of the Punjab Gramin Bank while exercising the powers conferred by Section 30 of the Regional Rural Banks Act, 1976. These 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 deals with the promotion, which reads as under :- “Regulation 14: Promotions : All promotions shall be made at the discretion of the bank and no officer or employee shall claim as a matter of right to be promoted to another post or cadre. Provided that promotions of Officers or employees in the bank shall be made in accordance with the rules framed by the Central Government in terms of Section 29 of the Act.” Perusal of the above regulation would show that all promotions are Civil Writ Petition No. 18209 of 2010 -10- to be made at the discretion of the Bank and no Officer or employee could claim promotion to another post or cadre as a matter of right. However, promotions are to be made in accordance with the rules framed by the Central Government in terms of Section 29 read with Section 17 of the Regional Rural Banks Act, 1976. Exercising this power the Central Government after consultation with the National Bank of Agriculture and Rural Development (NABARD) and sponsor Bank i.e. Punjab National Bank issued notification in official Gazette dated 29.7.1998 notifying the Regional Rural Banks (Appointments and Promotions of Officers and other Employees) Rules, 1998 for effecting appointment and promotions to various cadres in the Regional Rural Banks. As per this notification the Regional Rural Banks (Appointments and Promotions of Officers and other Employees) Rules, 1988 were superseded and these 1998 Rules were to come into force on the date of their publication in the Official Gazette. Rule 3 of these Rules gives the category of posts which have been classified as Group 'A', 'B' and 'C', which shall consist of Officers and other employees of each Regional Rural Bank specified in the Ist Schedule to these Rules. Under the Ist Schedule to these Rules, Scale-III, II and I Officers are classified in Group-'A'. Rule 4 provides for creation of posts and Rule 5 provides for determination of vacancies to be filled and Rule 6 provides for filling up of the vacancies. Rule 6 of the abovesaid Rules reads as under :- '6. Filling up of vacancies :- All vacancies, determined under Rule 5 by the Board, shall be filled by promotion or direct recruitment in accordance with the provisions contained in these rules and Third Schedule to these rules.” THIRD SCHEDULE (See Rule 6) Appointment to different categories of Officers and other employees to Group “A”, “B” and “C” posts whether by direct recruitment or by promotion shall be effected as follows : 1. (a) Name of Post : SCALE III OFFICER (b) Classification : Group “A” Civil Writ Petition No. 18209 of 2010 -11- (c) Source of appointment : 100% by promotion (d) Whether promotion to be : xx xx xx xx xx made on seniority basis : or seniority-cum-merit basis: (e) Eligibility : xx xx xx xx xx Note : I. xx xx xx xx xx xx xx II. xx xx xx xx xx xx xx (f) Mode of selection : xx xx xx xx xx (g) Composition of committee : xx xx xx xx xx Note : xx xx xx xx xx xx xx xx xx xx (h) Reckoning of the minimum : xx xx xx xx xx eligibility : xx xx xx xx xx (i) Number of candidates to be: xx xx xx xx xx considered for promotion : xx xx xx xx xx (j) Selection process : 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 below : (A) Interview : 25 marks The minimum qualifying marks in the interview are fifty percent. (b)Performance Appraisal Reports : 75 Marks Performance Appraisal Reports for the preceding five years shall be considered for the purpose of awarding marks for promotion. Total Marks : 100 Marks (a) Name of post : SCALE II OFFICER Civil Writ Petition No. 18209 of 2010 -12- (b) Classification : Group “A” (c) Source of appointment : 100 % by promotion (d) Whether promotion to be made : Promotion shall on seniority basis of seniority-cum- : be made on the merit basis basis of seniority- cum-merit. (e) Eligibility : xx xx xx xx Note : (I) xx xx xx xx xx xx xx (II) xx xx xx xx xx xx xx (f) Mode of Selection : The selection of the candidate shall be made by the committee on the basis of written test, interview and assessment of performance appraisal reports for the preceding five years as an officer in Scale-I/Field Supervisor. (g) Composition of Committee : xx xx xx xx Note : xx xx xx xx xx xx xx (h) Reckoning of the minimum : The minimum eligibility in eligibility term of the number of years of service for promotion shall be reckoned as on the Ist April of the year in which the vacancy is expects to arise or has actually arisen. (i) Number of candidates to be : The number of candidates considered for promotion to be considered for promotion from Officer Scale I to Officer Scale II shall be restricted to four times the number of vacancies available for promotion. (j) Selection process for promotion : The selection shall be on the basis of performance in the written test, Civil Writ Petition No. 18209 of 2010 -13- interview and Performance Appraisal Reports for preceding five years as per the division of marks given below : (A) Written test : 60 marks (B) Interview : 20 marks (C) Performance Appraisal : 20 marks Reports. Total marks : 100 marks (A)Written test : The candidate shall be (50 marks) required to appear for written test comprising of two pars viz. Part (A) Covering Banking Law and Practice of Banking and Part (B) Covering Credit Policy Credit Management including priority Sector, Economics and Management. 60 marks allotted to written test shall be further divided as under : Part “A” 30 marks Part “B” 30 marks A list of only those candidates, who secure a minimum of 40% marks in each part shall be prepared and such candidates shall be called for interview. (B) Interview (20 marks) : There shall be no minimum qualifying marks for the interview. (C) Performance Appraisal : Performance Appraisal Reports (20 marks) Reports for the preceding Civil Writ Petition No. 18209 of 2010 -14- five years shall be considered for the purpose of awarding marks for promotion. (a) NAME OF THE POST : SCALE I OFFICER (b) Classification : Group “A” (c) Source of appointment : 50% by direct recruitment through Banking Service Recruitment Board and 50% by promotion. (d) Whether promotion to be : Promotions shall be made made on