IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1660 of 2004 AJAY KUMAR SINHA, SON OF LATE KRISHNA KUMAR SINHA, RESIDENT OF MOHALLA BABU BAZAR, ARRAH, P.S. SADAR TOWN, ARRAH, DISTRICT BHOJPUR (ARRAH) AT PRESENT POSTED AS INSPECTOR, B.R.G.B-H.O. ARA, BHOJPUR ROHTAS GRAMIN BANK. …. PETITIONER. Versus 1. BHOJPUR ROHTAS GRAMIN BANK ( A GOVERNMENT OF INDIA UNDERTAKING), SOUTH RAMNA ROAD, ARRAH THROUGH ITS CHAIRMAN; 2. CHAIRMAN, BHOJPUR ROHTAS GRAMIN BANK, SOUTH RAMNA ROAD, ARRAH; 3. GENERAL MANAGER, BHOJPUR ROHTAS GRAMIN BANK, SOUTH RAMNA ROAD, ARRAH; 4. SENIOR MANAGER, PERSONNEL & TRAINING, BHOJPUR ROHTAS GRAMIN BANK, SOUTH RAMNA ROAD, ARRAH. …. RESPONDENTS. with CWJC No.1845 of 2004 ANUP KUMAR SRIVASTAVA, SON OF LATE UMA SHANKAR SRIVASTAVA RESIDENT OF EAST GATE OF JAIN COLLEGE, KATIRA, P.S. NAWADAH ARA, DIST. BHOJPUR AT PRESENT POSTED AS OFFICER, BHOJPUR ROHTAS GRAMIN BANK, AREA OFFICE, SASARAM, DISTRICT ROHTAS. ………. PETITIONER. Versus 1. BHOJPUR ROHTAS GRAMIN BANK (A GOVERNMENT OF INDIA UNDERTAKING), SOUTH RAMNA ROAD, ARRAH THROUGH ITS CHAIRMAN; 2. CHAIRMAN, BHOJPUR ROHTAS GRAMIN BANK, SOUTH RAMNA ROAD, ARRAH; 3. GENERAL MANAGER, BHOJPUR ROHTAS GRAMIN BANK, SOUTH RAMNA ROAD, ARRAH; 4. SENIOR MANAGER, PERSONNEL & TRAINING, BHOJPUR ROHTAS GRAMIN BANK, SOUTH RAMNA ROAD, ARRAH. … RESPONDENTS. with CWJC No.1919 of 2004 MANJULIKA SRIVASTAVA W/O SRI ANUP KUMAR SRIVASTAVA RESIDENT OF EAST GATE OF H.D. JAIN COLLEGE, KATIRA, P.S. NAWADAH, TOWN AND DISTRICT ARRAH, DIST. BHOJPUR AT PRESENT POSTED AS OFFICER, BHOJPUR ROHTAS GRAMIN BANK, H.O. ARRAH. …. PETITIONER. Versus 2 1. BHOJPUR ROHTAS GRAMIN BANK (A GOVERNMENT OF INDIA UNDERTAKING), SOUTH RAMNA ROAD, ARRAH THROUGH ITS CHAIRMAN; 2. CHAIRMAN, BHOJPUR ROHTAS GRAMIN BANK, SOUTH RAMNA ROAD, ARRAH; 3. GENERAL MANAGER, BHOJPUR ROHTAS GRAMIN BANK, SOUTH RAMNA ROAD, ARRAH; 4. SENIOR MANAGER, PERSONNEL & TRAINING, BHOJPUR ROHTAS GRAMIN BANK, SOUTH RAMNA ROAD, ARRAH. … RESPONDENTS. with CWJC No.1922 of 2004 MAHABIR PRASAD SINGH,SON OF LATE RAM DAYAL SINGH, RESIDENT OF VILLAGE DURAUNDHA, P.S. ARRAH MUFFASIL, DIST. BHOJPUR AT PRESENT POSTED AS BRANCH MANAGER, BHOJPUR ROHTAS GRAMIN BANK, BRANCH OFFICE, GARA, DIST. KAIMUR. … PETITIONER. Versus 1. BHOJPUR ROHTAS GRAMIN BANK (A GOVERNMENT OF INDIA UNDERTAKING), SOUTH RAMNA ROAD, ARRAH THROUGH ITS CHAIRMAN; 2. CHAIRMAN, BHOJPUR ROHTAS GRAMIN BANK, SOUTH RAMNA ROAD, ARRAH; 3. GENERAL MANAGER, BHOJPUR ROHTAS GRAMIN BANK, SOUTH RAMNA ROAD, ARRAH; 4. SENIOR MANAGER, PERSONNEL & TRAINING, BHOJPUR ROHTAS GRAMIN BANK, SOUTH RAMNA ROAD, ARRAH. … RESPONDENTS. For the Petitioners: Mr. Ajay Kumar Sinha, Advocate. For the Bank: Mr. R.R.Upadhyaya, Advocate. ----------- 5. 26.11.2010. Heard learned counsel for the petitioners as also the counsel for Bhojpur Rohtas Gramin Bank (hereinafter referred to as the „Bank‟). 2. Petitioners in these four writ petitions are serving on the post of Officers Scale-I in the different branches of the Bank. They have filed these petitions questioning the validity of the circular letter dated 19.1.2004, Annexure-3, whereunder the Bank has provided that the 3 Officers of Scale-I, who have been punished after 31.3.1998 under Rule 30(1)(a) of the Service Regulation,1980 or Rule 38(I)(a)(i) of the Service Regulation, 2000 shall not be considered for promotion on the post of Scale-II. It is submitted on behalf of the petitioners that contents of the circular letter dated 19.1.2004, Annexure-3 is contrary to the provisions of Regional Rural Banks (Appointment & Promotion of Officers & Other Employees) Rules, 1998 (hereinafter referred to as the „Rules‟). It is further submitted by the counsel for the petitioners that circular letter dated 19.1.2004, Annexure-3 tantamount to supplanting the eligibility clause of the Rules. In support of the contention that the impugned circular letter dated 19.1.2004, Annexure- 3 supplants the eligibility clause of the Rules, learned counsel has relied on the judgment of the Hon‟ble Supreme Court in the case of Sant Ram Sharma, Appellant Versus State of Rajasthan and others, Respondents, reported in AIR 1967 Supreme Court, page 1910. To buttress, the aforesaid submission, learned counsel invited my attention to the eligibility clause of the Rules for promotion on the post of Officer Scale-II which is extracted below: “2. (a) Name of post : Scale II Officer (b) Classification : Group “A” (c) Source of appointment : 100% by promotion (d) Whether promotion to be : Promotion shall be made on the basis of seniority-cum-merit. 4 made on seniority basis or seniority- cum-merit basis. (e) Eligibility : Officers holding post for eight years as an officer on regular basis in the Regional Rural Bank shall be considered for promotion in scale II post in that Bank: Provided that no officer shall be considered for promotion unless he has been confirmed in the feeder grade post : Provided further that the Board may, with the prior approval of National Bank, relax the qualifying service for a period not exceeding two years, if eligible officers are not available. Note: (I) The Officers eligible for promotion to the post of Area Managers/Senior Managers/Officers Scale II on or before publication of this notification, shall continue to be considered for promotion to Scale II Officer post. (II)The service of the incumbents, who are holding the post eligible for promotion before publication of this notification, shall continue to be counted for the purpose of promotion to the Scale II Officer post. (f) Mode of Selection : The selection of the candidates 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 on officer in Scale-I/Field Supervisor.” 3. With reference to the aforesaid eligibility clause and the mode of selection provided in Sub-clause (e)+(f) learned counsel for the petitioner submitted that those of the Officers of the Scale-I, who have completed eight years 5 of service in the said scale are eligible for being considered for promotion on the post of Scale-II provided them succeed in the written test, interview and assessment of Performance Appraisal Reports for the preceding five years. It is further submitted by the learned counsel that as per the mode of selection provided for promotion on the post of Officer Scale- II even those, who have been punished with censure, reprimand and other punishment of stoppage of increment may be with cumulative effect are required to be considered for promotion on the post of Officer Scale-II. While considering the Performance Appraisal Reports, the punishment imposed on them during the period of eligibility i.e. preceding five years or prior thereto may be taken into note and negative marks for such punishment be allotted to them as per the norm but they cannot be denied consideration by the selection as committee blocked as such denial of consideration may tantamount to violating the eligibility criteria provided under the Rules. In this connection, learned counsel for the petitioners has also relied on the circular dated 3.12.1999, Annexure-5 of the National Bank of Agriculture and Rural Development, whereunder it has been clarified that reprimand and other punishment imposed on the officer may be taken into account by the selection committee while considering the officer for promotion but while making such consideration, he cannot 6 be absolutely debarred from being considered for promotion on the ground that he has been punished earlier. 4. Learned counsel for the Bank with reference to the counter affidavit and the instructions contained in letter dated 27.2.1999, Annexure-B submitted that the punishment imposed during the last five years is only to be taken into account as the promotion has to be made on the basis of seniority-cum-merit meaning thereby that promotion is to be made taking into account seniority with due consideration to minimum merit/fitness prescribed. While prescribing the fitness punishment imposed during the last five years i.e. the period of appraisal can always be taken into account for depriving the Officer of promotion. 5. Having heard counsel for the parties and having perused the eligibility criteria as provided under the promotion Rules, it is quite evident that those of the Officers of Scale-I who have put in eight years of service are eligible for being considered for promotion on the post of Scale-II. In order to earn such promotion, they have to participate in the selection process comprising of written test, interview and Performance Appraisal of the last five years. While conducting Performance Appraisal, the selection committee is obliged to consider the punishment imposed on the Officer during his service carrier may be for a period of five years which is the period fixed for Performance Appraisal. While 7 making the Performance Appraisal, the selection committee is to take into account the punishment imposed on the Officer but in my view the Officer cannot be debarred for being considered only on the ground that he has been punished with censure, reprimand or stoppage of increment. For such punishment, the selection committee may award the Officer negative marks and take into account the negative marks into consideration for grant/refusal of promotion to the Officer and with such modification in paragraph-2 of circular letter 01/2004, dated 19.1.2004, Annexure-3, these writ petitions are disposed of directing the Bank to consider the case of these petitioners in accordance with law in the light of my observation above. In case, petitioners are found fit for promotion, they shall be given such promotion with effect from the due date. It goes without saying that those who have been placed under suspension, their case shall be considered for promotion in the light of the present order but the consideration made shall be kept in the sealed cover which shall be opened after they are cleared of the charges for which they have been placed under suspension. IBRAR/- ( V. N. Sinha, J.)