IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 OP.No. 26585 of 2001(M) ----------------------- PETITIONER(S): --------------- P.C. JOSE, AGED 47, S/O. LATE CHACKO P.J., PANNIAMACKAL HOUSE, CHEMBANTHOTTY, P.O. CHEMBANTHOTTY, KANNUR DIST. BY ADV. SRI.K.S.MADHUSOODANAN SRI.V.N.RAMESAN NAMBISAN SRI.M.V.AMARESAN RESPONDENT(S): --------------- 1. THE NORTH GRAMIN BANK, REP. BY CHAIRMAN, HEAD OFFICE, P.B.NO. 59, HEAD OFFICE, KANNUR. 2. GENERAL MANAGER, NORTH GRAMIN BANK, P.B.NO.59, HEAD OFFICE, KANNUR. ADV. SRI.M.P.RAMACHANDRAN NAIR (SR.) SRI.DEVAN RAMACHANDRAN SRI.M.THAMBAN FOR ADDL.R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/12/2008, ALONG WITH OP NO. 26636 OF 2001 & OP NO. 33736 OF 2001 THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 26585/2001. ---------------------------------------------------------------- EXT.P1 TRUE COPY OF CIRCULAR DT. 17-5-2001. EXT.P2 RELEVANT PORTION OF REGIONAL RURAL BANK (APPOINTMENT AND PROMOTION OF OFFICERS AND OTHER EMPLOYEES) RULES, 1998. EXT.P3 CIRCULAR DT. 11-8-2001. EXT.P4 CIRCULAR DT. 1-9-2001. EXT.P5 CERTIFICATE AWARDED TO PETITIONER. EXT.P6 LETTER DT. 16-9-1998. EXT.P7 CIRCULAR DT. 23-5-2003. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R1(a) ORDER DT. 17-9-1994. EXT.R1(b) ORDER DT. 28-9-1988. EXT.R1(c) CIRCULAR DT. 28-10-1999. EXT.R1(d) CIRCULAR DT. 15-3-1997. EXT.R1(e) CONSOLIDATION LIST OF CANDIDATES APPEARED FOR INTERVIEW. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. Nos. 26585, 26636 & 33736 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th December, 2008. J U D G M E N T In all these cases, the petitioners are Middle Management Grade Scale I Officers of the North Malabar Gramin Bank, who aspire for promotion to the next higher post of Middle Management Grade Scale II Officer. A process of promotion was undertaken in accordance with the circular dated 11-8-2001, as per which selection is to be based on written test, interview and the performance appraisal reports of the candidates. A minimum benchmark/minimum mark of 50% of the total marks in the written test, interview and performance appraisal, for which total marks of 60, 20 and 20 have been fixed, has been prescribed and those who attain that minimum benchmark was given promotion in accordance with their seniority in so far as the method of promotion is “seniority-cum-merit”. All the petitioners participated in the selection process, but were excluded because they did not score the 50% minimum marks. The petitioner in O.P.No. 26636/2001, although found a place in the list, was not given promotion because as per seniority and the number of vacancies available, he could not be promoted. The petitioners contend that promotion has been made on the basis of a circular dated 17-5-2001, which is at variance with the Regional Rural Bank (Appointment and promotion of Officers and Other Employees) Rules, 1998. The Circular and the Rules are produced as Exts.P1 and P2 in O.P.No. 26585/2001. They would contend that as per the Rules, the number of candidates considered for promotion from Officer Scale I to Scale II shall be restricted to four times the number of vacancies available for promotion. In this case, there were eight vacancies and going by the Rule, only 32 persons should have been considered, but, much more than 32 were considered for promotion. The second is that the Rules do not postulate fixation of a minimum benchmark O.P. No. 26585/2001 etc. -: 2 :- which has been done in Ext. P1 circular. 2. The Bank would contend that essentially there is no substantial difference between the Circular and the Rules. Regarding the first objection of the petitioners, the contention of the Bank is that all persons who scored the minimum benchmark have been included in the list and were promoted on the basis of their seniority. Therefore, by including more persons in the selection process, the petitioners were not in any way prejudiced in so far as all persons who scored the minimum mark were considered for promotion in accordance with their seniority position. The second contention is controverted with the answer that the only way Ext. P2 Rules could be applied on the principle of seniority-cum-merit is by fixing a benchmark for the total marks in the test, interview and performance appraisal and to give promotion to those persons who have attained the benchmark in accordance with their seniority. Counsel for the Bank relies on the decisions of the Supreme Court in B.V. Sivaiah & Ors. v. K. Addanki Babu & Ors., (1998) 6 SCC 720 and Union of India & Ors. v. Lt. Gen. Rajendra Singh Kadyan & Anr., (2000) 6 SCC 698, to contend that the apex court also approved of fixation of a minimum mark in the selection process on the basis of seniority-cum- merit. 3. I have considered the rival contentions in detail. 4. The general principles for effecting promotions by seniority- cum-merit in a promotion process has been laid down by the Supreme Court in Sivaiah's case (supra). In paragraph 17 of that decision, the Supreme Court held thus: “17. On behalf of the promoted officers, it was urged that for the purpose of promotion on the basis of seniority-cum-merit, O.P. No. 26585/2001 etc. -: 3 :- seniority means the length of service and that among officers who were appointed on the same date and have the same length of service, seniority can have no bearing and promotion has to be made on a comparative assessment of merit of such officers. We are unable to agree. While applying the principle of seniority- cum-merit for the purpose of promotion, what is required to be considered is the inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the select list for appointment. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion on the basis of seniority-cum-merit, seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service.” Again, in paragraph 37, it was held thus: “37. During the course of hearing of the appeal, the learned counsel for the respondent-Bank has placed before us the relevant documents relating to the impugned selection and promotion. On a perusal of the said documents, we find that 50 marks out of the total of 100 marks were prescribed as the minimum qualifying marks for interview and only those who had obtained the qualifying marks in interview were selected for promotion on the basis of seniority. It was, therefore, a case where a minimum standard was prescribed for assessing the merit of the candidates and those who fulfilled the said minimum standard were selected for promotion on the basis of seniority. In the circumstances, it cannot be said that the selection has not been made in accordance with the principle of “seniority-cum- merit”. We are, therefore, unable to uphold the impugned judgment of the High Court. The appeal has to be allowed and the impugned judgment of the High Court dated 7-2-1997 passed by the learned Single Judge of the High Court has to be set aside and the promotion of the appellant on the post of Area/Senior Manager under order dated 8-4-1993 has to be affirmed.” In Lt. Gen. Rajendra Singh's case (supra), in paragraph 12, the Supreme Court stated thus: O.P. No. 26585/2001 etc. -: 4 :- “12. Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to the 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 or 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-seniority 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.” 5. Going by the above decisions, fixation of a benchmark for the purpose of consideration for promotion in accordance with seniority is an accepted principle. Here, in this case, going by the Rules, the selection process for promotion is to be on the basis of performance in the written test, interview and performance appraisal report for preceding five years. A minimum mark of 40% is prescribed in the written test. For applying the marks scored in the written test, interview and performance appraisal for promotion, the only way is by fixing a benchmark for the total marks scored by the candidate. That has been fixed as 50% in Ext. P1 Circular. Going by the Supreme Court decisions on the subject, I do not think that fixation of such a benchmark violates Ext. P2 Rules in that regard. In this case, what the Bank has done was to add the marks of those who have passed the written test with minimum 40 marks to the marks for interview and performance appraisal and to include those who have scored the 50% benchmark in the list of candidates to be promoted in accordance with their seniority. That does not in any way run counter to Ext. P2 Rules. If the contention of the petitioners are to be accepted, then all persons who pass the written test have to be considered for promotion in accordance with seniority irrespective of O.P. No. 26585/2001 etc. -: 5 :- the marks scored in the interview and the performance appraisal. The Rules themselves contemplate selection on the basis of the total marks scored in the written test, interview and performance appraisal. The only way to achieve this object in the Rules is to fix a minimum out of the total marks as the basis for the selection for promotion in accordance with seniority. That being so, I do not find any merit in the second contention of the petitioners. 6. As regards the first contention that contrary to the Rules in selection more than four times the number of vacancies available for promotion candidates have been considered for promotion, I am of opinion that the petitioners are not in any way prejudiced by the same. All persons who are in the zone of consideration have been allowed to participate in the written test, interview and performance appraisal and any person who has scored the minimum benchmark of 50% was considered for promotion in accordance with the seniority. By limiting the number of candidates to be considered for selection to four times the number of vacancies, the petitioners would not have in any way been benefitted in so far as they did not score the benchmark of 50%. Even if only 32 persons had been considered, that would not have helped the petitioners to get promotion. That being so, I do not find any merit in the first contention also. 7. The petitioner in O.P.No. 26636/2001 raises an additional contention to the effect that he being the only scheduled caste candidate available among the candidates who secured the minimum karks of 50%, he should have been promoted. His contention is that in Ext. P3 although it has been stated that there is no reservation in promotion from Officer Scale I to II, Scheduled Caste/Scheduled Tribe officers who are senior enough in the zone of consideration so as to O.P. No. 26585/2001 etc. -: 6 :- be within the number of vacancies for which the select list has to be drawn up, should be included in that list provided he is not considered unfit for promotion. According to the petitioner, since the petitioner is not unfit for consideration, he should have been promoted to one of the vacancies. 8. I am not satisfied that that is what is contemplated by the abovesaid stipulation in Ext. P3. The petitioner has been allowed to participate written test, interview and performance appraisal as requested by Ext. P3. He has scored minimum 50% benchmark and was included in the list as rank no. 15. But, since there were only eight vacancies, he could not get promotion in the order of seniority. That is perfectly in accordance with Ext. P3, since in Ext. P3, it is made clear that there is no reservation in promotion. Therefore, I do not find any merit in the additional contention of the petitioner in O.P.No. 26636/2001 also. In the above circumstances, I do not find any merit in the original petitions and accordingly, they are dismissed. Sd/- S. Siri Jagan, Judge. Tds/