HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.14632 OF 2000 ORDER: The relief sought for in this Writ Petition is to declare the action of the first respondent in promoting the second respondent as clerk from the post of messenger, though he was junior to the petitioner, as arbitrary and illegal. The petitioner seeks to have the promotion orders issued in favour of the second respondent set aside, and for a direction to the first respondent, to promote him as clerk from the post of messenger with effect from the date promotion orders were issued in favour of the second respondent i.e. 07.07.2000. Facts, in brief, are that the petitioner joined the service of the first respondent in the year 1987 as a part-time messenger. His services were regularized as a full-time messenger in the year 1990. He claims to be senior to the second respondent and submits that, while his name stood at Sl.No.3 in the seniority list, the second respondent was shown at Sl.No.12. He filed a copy of the said list before this Court the correctness of which is disputed by the respondents. The petitioner would further assert that, by proceedings dated 16.03.2000, the first respondent had communicated the seniority list which showed that the petitioner was at Sl.No.3 amongst the messengers, and the second respondent, Sri M.Gangadhar, was at Sl.No.12. The first respondent issued Circular dated 14.03.2000 prescribing the promotion policy including promotion from the post of messengers to that of clerks-cum-cashiers. The said circular, which was communicated to all the employees of the first respondent, prescribed the selection process for promotion to be made on the basis of seniority-cum-merit. The eligibility/qualifications prescribed was that promotions should be effected from employees holding the post of messengers on a full- time regular basis for a period of eight years, and who had passed 8th class. The mode of selection prescribed was that selection should be made by the Committee on the basis of written test and interview, and the incumbent to the post of clerks-cum-typists should pass the skill test in typing speed for direct recruitment. The process of selection was stipulated to be on the basis of the performance in the written test and interview. While 80 marks were allotted to the written test, 20 marks were allotted to interview. Out of 80 marks allotted for the written test, 40 marks were allotted for english and 40 marks for arithematic. The Circular further provided that a list of candidates, who secured a minimum of 40% marks, each in english and arithemetic, would be prepared, and only such candidates would be called for interview. The Circular made it clear that “there shall be no minimum qualifying marks in the interview”. It is evident from the said circular that the basis for selection to the post of clerks-cum- cashiers was seniority-cum-merit and, while minimum marks were prescribed for written test, no minimum marks were prescribed for interview. In their counter affidavit, the first respondent would submit that the petitioner had secured 33 marks in the written test, and the second respondent had secured 40.5 marks i.e. both had secured the minimum prescribed 40% marks in the written test, and were eligible to be called for interview. However, while the petitioner is said to have secured 10 marks in the interview, the second respondent is said to have secured 12.5 marks and, since the aggregate marks of 53% secured by the second respondent was found to be higher than the aggregate marks secured by the petitioner of 43%, the second respondent was promoted and not the petitioner herein. The first respondent would further assert that the marks secured by the petitioner in the interview was below the bench mark prescribed by the Selection Committee for interview. The mode and manner of promotion to various posts in Regional Rural Banks, and the scope and purport of the expression ‘seniority-cum-merit’, fell for consideration in B.V.Sivaiah v. K. Addanki Babu[1]. The Supreme Court held that the criterion of ‘seniority-cum-merit’, in the matter of promotion, postulated 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 was not required to be made. The Supreme Court further observed that, for assessing the minimum necessary merit, the competent authority could lay down the minimum standard that was required; prescribe the mode of assessment of merit of the employees who were eligible for consideration for promotion; such assessment could be made by assigning marks on the basis of appraisal of performance on the basis of the service record and interview; and prescribing the minimum marks would entitle a person to be promoted on the basis of ‘seniority-cum-merit’. The test to be applied in the cases of promotion, on the criterion of ‘seniority-cum-merit’, is whether the first respondent had prescribed the minimum merit required for a candidate to be considered for promotion to a higher post; and whether the candidate had secured the minimum merit as prescribed. On securing the minimum marks prescribed, a senior would be entitled for promotion even though he was found less meritorious than his junior. A comparative assessment of inter-se merit of all the candidates, who are called for selection, is not permissible in cases where promotion is effected on the basis of ‘seniority-cum- merit’. As noted hereinabove, the Circular issued by the first respondent prescribed the minimum qualifying marks of 40% in the written test, and clearly stipulated that there would be no minimum qualifying marks for interview. It is evident, therefore, that minimum qualifying marks had been prescribed only for the written test and not for the interview. Since the petitioner secured the minimum marks prescribed for qualifying in the written examination of 40%, he ought to have been promoted, irrespective of the marks secured by him in the interview, over juniors to him in the post of messengers. While Sri S.Udayachala Rao, Learned Standing Counsel for the first respondent, would assert that the petitioner’s claim of being senior to the second respondent is without basis, Sri Nandigam Krishna Rao, Learned Counsel for the petitioner, would place before this Court a copy of the proceedings dated 16.03.2000, which was referred to in the affidavit, as being the seniority list. It is clear therefrom that the first respondent, vide circular dated 16.03.2000, had prescribed the seniority list of clerks-cum-cashiers and messengers. The said circular noted that the Board of Directors of the first respondent, in its meeting held on 25.02.2000, had approved the seniority list of clerks-cum- cashiers and messengers of the bank; the said seniority list was prepared as per the guidelines contained in the Staff Service Regulations and the clarification issued by NABARD from time to time. While the petitioner’s name was shown at Sl.No.3 in the seniority list of messengers, the name of the second respondent was reflected at Sl.No.12. It is evident, therefore, that the petitioner was senior to the second respondent and, since he secured the minimum prescribed merit in the written examination and, as no minimum qualifying marks were prescribed for interview, he was entitled to be promoted to the post of clerk-cum- cashier before the second respondent was so promoted. Sri S.Udayachala Rao, Learned Standing Counsel for the first respondent, would contend that the Selection Committee had prescribed the bench mark for interview. As noted hereinabove, Circular No.PER/99-2000/17 dated 14.03.2000 was issued prescribing the promotional policy from the cadre of messengers to the clerical cadre. The said Circular issued by the first respondent on 14.03.2000 refers to the Government of India notification dated 29.07.1988 whereby the Regional Rural Banks Appointment and Promotion of Officers and other Employees Rules, 1988, were issued. The said Circular dated 14.03.2000, which are the guidelines for promotion from the cadre of messenger to the clerical cadre, stipulated that there shall be no minimum marks in the interview, and as the employees were informed of the procedure prescribed in the said Circular, the first respondent cannot now be heard to contend that, while the Circular stipulated that there would be no minimum qualifying marks for the interview, the Selection Committee had provided for minimum marks. Since the Circular, which forms the basis for selection to the post of clerks-cum-cashiers from the post of messengers, had been notified to all the employees concerned, it is the conditions stipulated therein which would govern the selection procedure, and not any procedure adopted by the Selection Committee contrary thereto. Reliance placed by Sri S.Udayachala Rao, Learned Standing Counsel for the first respondent, on the judgment of the Division Bench of this Court, in W.A.No.440 of 2006 dated 21.03.2006, is misplaced. The Division Bench, in the aforesaid judgment, observed that the principles, as laid down by the Learned Single Judge while disposing of the Writ Petition, could as well be made applicable from the next year onwards. In the present case, this Court has not prescribed any guidelines nor has it followed the guidelines issued by the Learned Single Judge in the order under appeal in W.A.No.440 of 2006. In the case on hand, the selection process has been faulted only for the reason that it does not accord with the criterion of ‘seniority-cum-merit’ and, as laid down by the Supreme Court in B.V.Sivaiah1, it falls foul of the promotional policy enunciated by the first respondent in its Circular No.PER/99-2000/17, dated 14.03.2000. Sri S.Udayachala Rao, Learned Standing Counsel for the first respondent, would submit that the petitioner was also subsequently promoted. If that be so, the first respondent shall give effect to the orders now passed by this Court, and rearrange the seniority of the petitioner vis-à-vis the second respondent, in accordance with law. The Writ Petition is, accordingly, allowed. However, in the circumstances, without costs. RAMESH RANGANATHAN, J Date:05.08.2010 usd [1] AIR 1998 SC 2565