IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (SB) No. 839 of 2001 1/1. Smt. Anita Sagar and others. ………….Petitioners. Versus Chairman, Nainital-Almora Kshetriya Gramin Bank and others. ..……Respondents. Mr. Manoj Tiwari, Senior Advocate with Mr. Manish Basnal, Advocate for the petitioners. Mr. R.K. Raizada, Advocate for respondent no. 1. Mr. K.K. Sah, Advocate for respondent nos. 2 and 3. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. The petitioner was inducted into the service of the Nainital-Almora Regional Rural Bank (hereinafter referred to as the Bank) as a Probationary Officer from the reserved category of schedule caste candidates on 20.3.1985. Onward promotion from the post of the Probationary Officer, (which falls in the category of Junior Manager Grade Scale-I – hereinafter referred to as JMGS-I) is to the Junior Manager Grade Scale-II (hereinafter referred to as JMGS-II). It is not a matter of dispute that the rules regulating promotion from JMGS-I to JMGS-II were promulgated in 1998. Under the aforesaid rules, promotion from JMGS-I to JMGS-II is regulated under the principle of “seniority-cum-merit”. In so far as the issue of seniority is concerned, the name of the petitioner figured at Serial No. 15 in the category of Probationary Officers. Based on the aforesaid position of the petitioner in the seniority list, he was undoubtedly senior to all other scheduled caste candidates, who were eligible for promotion from JMGS-I to JMGS-II. The petitioner was called for an interview, after he had successfully qualified the written examination for purpose of evaluating him for promotion to the JMGS-II. It is the case of the petitioners, that he 2 was liable to be promoted to the JMGS-II irrespective of his inter se ranking in the process of selection, on the basis of his higher position in the seniority list. The process for affecting promotions from JMGS-I to JMGS-II was notified on 7.8.2000. The petitioner, as also others, were interviewed on 15.7.2001. The process of selection culminated with an interview. Despite the petitioner’s seniority and despite the fact that he had qualified the written test, and had been invited for an interview, he was superseded by his juniors. The case of the petitioner before this Court, is that the action of the respondents is in clear violation of the principle of “seniority-cum-merit”. In order to demonstrate the mode and manner of the applicability of the principle of “seniority-cum-merit”, learned counsel for the petitioner has placed reliance on B.V. Sivaiah and others Vs. K. Addanki Babu and others 1998 (6) SCC 720. Our pointed attention has been invited to the following observations recorded therein:- “18. We thus arrive at the conclusion that the criterion of “seniority-cum-merit” in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit.” Learned counsel for the petitioner also relied on the judgment rendered in Union of India and others Vs. Lt. Gen. Rajendra Singh Kadyan and another (2000) 6 SCC 3 698, wherefrom reliance was placed on the following observations: “12. Whenever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. “Seniority-cum-merit” postulates the requirement of certain minimum merit of satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum- fitness and seniority-cum-merit. Merit-cum- suitability with due regard to seniority as prescribed in the case of promotion to All-India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them.” In order to demonstrate that the principle of “seniority- cum-merit” had been violated by the respondents, learned counsel for the petitioner invited our attention to the factual position acknowledged in the counter affidavit filed by the Bank, wherein it was inter alia stated, that as per the third schedule of the relevant rules (promulgated in 1998), all vacancies of the post of JMGS-II were required to be filled-up by promotion from the cadre of JMGS-I, and that, promotion would be made on the basis of “seniority-cum-merit”. In paragraph 4(o) of the counter affidavit, the actual process adopted by the respondents in terms of the rules of 1998 was delineated. Paragraph 4(o) of the counter affidavit is being extracted hereunder, so as not to dilute the position expressed at the hands of the respondents:- “(o) That in Third Schedule to Rules 1998, it is provided that the Selection shall be on the basis of Performance in the Written Test, Interview and Performance Appraisal Reports for preceding five years as the division of marks given below; (A) Written Marks 60 Marks (B) Interview 20 Marks 4 (C) Performance Appraisal Reports 20 Marks It is further provided that the Candidates is required to appear for Written Test comprising of two parts of each carrying maximum 30 marks and the candidates who secure 40% marks in each part shall be called for interview. In Interview, there shall be no minimum qualifying marks for promotion. The Performance Appraisal Reports for the preceding five years shall be considered for the purpose of awarding marks for promotion.” From the aforesaid extracted portion of the counter affidavit, it is apparent that under the 1998 rules, even in order to comply with the procedure of “seniority-cum- merit”, the Bank had postulated the requirement of qualifying a written test. Only those, who had qualified the written test by achieving the prescribed standards, would be eligible to be invited for an interview. Besides the marks assigned for the written test and the interview, marks were assigned on the basis of “appraisal reports”. The aforesaid exercise conducted by the selection committee would result in assigning marks to all the candidates, (who were evaluated for written test, interview and performance appraisal). The only question that has to be determined in the present controversy is, whether all candidates who had participated in the interview, were liable to be declared selected under the principle of “seniority-cum-merit”, or whether, it was open to the respondent Bank to lay down a “benchmark” so as to determine the “minimum requisite merit” acceptable to the Bank for promotion to JMGS-II. According to the learned counsel for the petitioner under the rules regulating promotion from the JMGS-I to the JMGS-II, seniority is more significant/important than merit, and as such, the former of the aforesaid two options should be involved. Keeping in mind the law declared by the Supreme Court 5 in the two judgments relied upon by the learned counsel for the petitioner, it is open to the employer while affecting promotions under the principle of “seniority- cum-merit” to lay down a “basic minimum requisite merit”, or a “benchmark”, so as to ensure that those being promoted satisfy the standard acceptable for promotion. The manner in which the “minimum requisite merit” had been laid down for promotion from JMGS-I to JMGS-II emerges from the averments contained in paragraph 17 of the counter affidavit filed by the Bank. Paragraph 17 is accordingly being extracted hereunder:- “(17) That on 15.7.2001, the Selection Committee recommended to the Board of the Bank to fix Minimum Qualifying Marks/Bench Mark of 50 out of total 100 marks for final selection under Seniority-Cum-Merit Criteria. The Selection Committee decided to further recommend to grant relaxation of 6 marks in overall marks, for SC/ST candidates and 44 marks were recommended to be the Bench Mark/minimum eligibility for SCs./STs candidates to get promotion. No relaxation was recommended to be granted for marks obtained in interview and EPAR for SC/ST candidates. A copy of the Recommendation dated 15.7.2001 of the Selection Committee is filed and annexed as ANNEXURE CA-7 of the Counter Affidavit.” During the course of hearing, the primary contention advanced at the hands of the learned counsel for the petitioner was, that 44 marks postulated to determine the “minimum requisite merit” was determined by the selection committee midstream the process of selection. It is, therefore, the contention of the learned counsel for the petitioner, that the entire process of selection must be deemed to have been vitiated on account of the fact that the selection committee having determined the cut of percentage, would have been aware of the relative merit of the rival candidates, so as to be in position to retain 6 the candidates sought to be favoured, and to oust others like the petitioner. We have considered the submission advanced by the learned counsel for the petitioner. First and foremost, there can be no doubt from the pleadings that the “cut of percentage of marks” was laid down by the selection committee. But then, the same was undisputedly approved by the Board of Directors of the Bank. It is not as if the selection committee had taken a final decision. The determination of the Selection Committee to fix 44 as the “cut of percentage” as the “minimum requisite merit” (for SC/ST candidates) could have been varied one way or the other by the competent authority, namely the Board of Directors of the respondent bank. The Board of Directors factually approved the “cut of marks” (the benchmark for SC/ST candidates) determined by the selection committee. In the background of the aforesaid factual position, we must determine another contention advanced by the learned counsel for the petitioner (as has already been noticed hereinabove) that the determination of “minimum requisite merit” should have preceded the process of selection. It could neither have been “midstream”, or after the “completion” of the process of selection. In order to substantiate the injustice that would be caused in the aforesaid two eventualities, it is submitted that if the “minimum requisite required merit” is determined by the selection committee during the process of selection, it would obviously be in a position to fix the same in order to suit the convenience of a favoured candidate. Likewise if it was open to the respondents to lay down the “cut of marks” after the culmination of the process of selection, they could easily determine the same with reference to a 7 similar favoured candidate. Although these submissions seem to be attractive on first blush, we are satisfied that there is no merit therein. In our view, a similar allegation could be levelled even in case the selection criteria had been fixed prior to the initiation of the process of selection. In such an eventuality, it could easily have been said, that keeping in mind the selection criteria, the chosen/selected candidates had been favoured, as the selection criteria was known prior to the selection process itself. The laying down of the “cut of marks”, in our view, can not be assailed on the basis of a contention akin to one raised by the learned counsel for the petitioner, unless the same is coupled the allegations of express malafide against the selection committee or the appointing authority, as well as, the chosen candidates. Insofar as the pleadings of the present controversy are concerned, nothing has been brought to our notice, on the basis whereof it can be assumed, that even the faintest allegation was made at the hands of the petitioner against the selection committee or a selected candidate. Thus viewed, we are satisfied that the selection process cannot be deemed to be vitiated merely because the cut of percentage of marks was determined by the selection committee. Finding himself in the predicament of the conclusion drawn by us, learned counsel for the petitioner, as a matter of last resort contended, that by fixing 44 as the “cut of percentage”, the authorities had changed the selection process from the principle of “seniority-cum-merit” envisaged under the Rules, to that of “merit-cum-seniority”. The instant contention advanced by the learned counsel for the petitioner stands completely annulled from the factual position depicted in 8 paragraph 21 of the counter affidavit. Paragraph 21 of the counter affidavit is being extracted hereunder :- “________________________________________________ Thaneshwar 10.00 9.25 11.75 10 41.00 Prasad M.C. Arya 09.50 11.50 15.00 12 48.00 K.R. Arya 09.00 11.25 14.00 15 19.25 __________________________________________________” At the top of the chart is the petitioner. Despite his being senior to all other Scheduled Caste candidates, he was not found suitable for the promotion under the principle of “seniority-cum-merit” because he did not achieve the “minimum requisite merit” i.e. the cut of marks (44 for SC/ST candidates). Next junior to him M.C. Arya made the grade, inasmuch as, he was awarded a total of 48 marks. The next person junior to him K.R. Arya was awarded 49.25 marks. Merely because K.R. Arya had more marks than M.C. Arya, K.R. Arya was not granted promotion over M.C. Arya, although M.C. Arya had a lower aggregate of 48. The principle of “seniority-cum- merit”, is enunciated in the judgments relied upon by the learned counsel for the petitioner, the same must be deemed to have been faithfully complied with, by giving preference to M.C. Arya in the matter of promotion over K.R. Arya, because M.C. Arya was senior, even though, K.R. Arya acquired a higher aggregate than M.C. Arya in the selection process. In the facts and circumstances noticed hereinabove, we are of the view that the petitioner having not attained the minimum requisite merit stipulated by the respondent-bank for promotion to the cadre of JMGS-II, could not have been promoted to the JMGS-II inspite of his higher position in the seniority list, even under the principle of “seniority-cum-merit”. For promotion even under the principle of “seniority-cum-merit”, one must 9 essentially be graded in a manner, so as to achieve the prescribed “benchmark”. Out of those who achieve the “benchmark” the senior shall have the preferential right of promotion under the rule of “seniority-cum-merit”. The petitioner having failed to achieve the “benchmark” could not claim promotion. We were also informed that the petitioner had died during the pendency of the instant writ petition. Despite the aforesaid, we had been called upon to determine the controversy, for the reason that in case the petitioner had been found eligible for promotion under the principle of “seniority-cum-merit”, denial of such promotion would have resulted in the release of monetary benefits to his legal heirs. Since, we have already concluded hereinabove, that the petitioner could not claim promotion from JMGS-I to JMGS-II, it is apparent that the legal heirs of the petitioner will not be entitled to any monetary benefits. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J) 24.2.2010 Rathour