IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 WA.No. 2667 of 2007 ---------------------------------- AGAINST THE JUDGEMENT IN WPC.29249/2005 Dated 18/09/2007 .................... APPELLANT/PETITIONER IN W.P: K.VIJAYAN (426), CLERK-CUM-CASHIER, SOUTH MALABAR GRAMIN BANK, TUVVUR BRANCH, MALAPPURAM. BY ADV. SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU) RESPONDENTS/RESPONDENTS: 1. THE SOUTH MALABAR GRAMIN BANK, REP. BY ITS CHAIRMAN, HEAD OFFICE, MALAPPURAM. 2. THE STAFF SELECTION COMMITTEE, REP. BY THE CHAIRMAN, SOUTH MALABAR GRAMIN BANK, HEAD OFFICE, MALAPPURAM. 3. THE UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS AND BANKING DIVISION, NEW DELHI. 4. M/.SREEDHARAN (720), OFFICER SCALE I, SOUTH MALABAR GRAMIN BANK, VILANGAD BRANCH, VELLIYODE P.O., KOZHIKODE - 673 506. 5. K.VELAYUDHAN (771), OFFICER SCALE I, SOUTH MALABAR GRAMIN BANK, KARULAI BRANCH, KARULAI P.O., MALAPPURAM - 679 344. 6. V.M.PREMARAJAN (736), OFFICER SCALE I, SOUTH MALABAR GRAMIN BANK, PALAKKAD MAIN BRANCH, T.B.ROAD, PALAKKAD- 678 014. 7. K.K.VELAYUDHAN (904), OFFICER SCALE I, SOUTH MALABAR GRAMIN BANK, PUZHAKKATTIRI BRANCH, PUZHAKKATTIRI P.O., MALAPPURAM-679321. 8. K.GANGADHARAN (951), OFFICER SCALE I SOUTH MALABAR GRAMIN BANK, VAZHAVATTA BRANCH, VAZHAVATTA P.O., WAYANAD 673 122. BY SRI.P.PARAMESWARAN NAIR, ASG FOR R3 SRI.U.K.RAMAKRISHNAN (SR.) FOR R1,2 SMT.P.VIJAYAMMA FOR R1,2 SMT.UMA GOPINATH FOR R1,2 SMT.LATHA PRABHAKARAN FOR R7 SMT.S.KARTHIKA FOR R1 & 2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- W.A.No.2667 of 2007 --------------------------------- JUDGMENT Koshy, J. The appellant is working as a Clerk-cum-Cashier in the South Malabar Gramin Bank. He is a member of the Scheduled Caste. He is working in the Bank from 1.12.1979 onwards. He is fully qualified for being promoted to the post of Officer Scale I cadre. The qualifications and method of appointment to that post is prescribed in the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1998 issued by the Central Government (Exhibit P1). The above post shall be filled up by promotion from among the employees holding Group B posts on the basis of seniority- cum-merit. 2. As per Exhibit P1 Rules, all eligible candidates are liable to be considered for promotion and selection process is mentioned as WA 2667/07 2 follows: “(j) Selection Process of Promotees The selection shall be on the basis of performance in the written test, interview and five years performance Appraisal Reports as per the division of marks given below: (A) Written Test 70 marks (B) Interview 20 marks (C) Performance Appraisal Reports 10 marks Total Marks 100 marks (A) Written Test (70 marks) The candidate shall be required to appear for written test comprising test in English and test in Banking Law, Practice and Procedures including working procedures in the Regional Rural Bank concerned. 70 marks allotted to written test shall be further divided as under English 35 marks Banking Law Practice and Procedure 35 marks Total marks 70 marks WA 2667/07 3 A list of only those candidates who secure a minimum of 40% marks each in English, Banking Law, Practice and Procedures shall be prepared. The Bank, thereafter shall prepare the list of selected candidates in the order of seniority to the extent of two hundred per cent of the vacancies for promotion for the purpose of calling for interview. (B) Interview (20 marks) There shall be no minimum qualifying marks in the interview. (C) Assessment of Performance Appraisal Report The Performance Appraisal Reports for the preceding three years of the concerned employees, shall be considered.” The above Rules provide that for the written test there should be 40% marks each in English, Banking Law, Practice and Procedures. The above Promotion Rules were later amended by Exhibit P3 dated 6.12.2004, wherein, it is provided that for Scheduled Caste and Scheduled Tribe candidates the minimum mark required is only 35%, as they were WA 2667/07 4 given relaxation of 5% in the minimum qualifying marks for the written test. The appellant/ petitioner applied for the post. Thirty five vacancies were notified, of which, six vacancies were reserved for Scheduled Caste candidates and total seventy six candidates became successful in the written test. Appellant was Serial No.29 in the order of seniority and among the Scheduled Caste candidates, he was No.2. On 20.6.2005, the Staff Selection Committee decided to fix cut off marks (bench mark) at 59 out of 100 for general candidates and 55 out of 100 for Scheduled Caste/ Scheduled Tribe candidates. The total percentage of marks obtained by the appellant/petitioner was only 41.96%. Since the appellant did not obtain the above total cut off marks fixed by the Selection Committee on the previous day of the interview, he was not selected. It is true that six other candidates were selected, out of which five were his juniors. Therefore, he challenged Exhibit P5 promotion order making the Bank, Selection WA 2667/07 5 Committee, Government and all the selected candidates from the reserved categories as parties and filed the writ petition. The learned single Judge found that the Selection Committee has no power to fix the cut off marks. But, however, since six candidates selected from the Scheduled Caste category has got more marks than the appellant, they were found to be meritorious and refused to interfere in the selection and appointment. Against the said finding this writ appeal is filed. 3. In Exhibit P1 Rules it was specifically stated that mode of selection is on the basis of seniority-cum-merit. Only minimum qualifying marks was prescribed for the written test and it was specifically stated that there shall be no minimum qualifying marks for the interview. Admittedly, the appellant has got minimum marks in the written test. He was senior and the case of the appellant is that since he passed the written test and if there was no minimum marks for the interview as per Exhibits P1 and P3, he should have been selected WA 2667/07 6 and promoted instead of his juniors being promoted unless he was found unfit in the interview and those juniors will get an opportunity to be promoted in the subsequent years. 4. Recently, the Apex Court considered the matter in Hemani Malhotra v. High Court of Delhi ((2008) 7 SCC 11) and held that the Selection Committee has no power to fix cut off marks after the written test and the cut off marks should be prescribed before the commencement of the selection procedure. Considering the various previous decisions of the Supreme Court, it was held as follows in paragraph 15 of the said judgment: “There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection WA 2667/07 7 process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce test was illegal.” How the principle of seniority-cum-merit has to be made applicable has been considered by a three member Bench of the Honourable Supreme Court in B.V.Sivaiah v. K.Addanki Babu ((1998) 6 SCC 720). In paragraphs 25 and 26 of the said judgment, the Supreme Court considered an identical selection in a Grameena Bank, wherein the contention of the Bank was that the officers who have secured higher marks can only be ultimately promoted and the principle of seniority-cum-merit was not accepted by the Apex WA 2667/07 8 Court and the Apex Court set aside those selections as mode of selection was contrary to the principle of 'seniority-cum-merit' as laid down in the Rules and the decision of the High Court was upheld by the Supreme Court. In paragraphs 17 and 18, the Apex Court observed as follows: “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 WA 2667/07 9 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. 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.” The Apex Court in paragraph 32 held as follows: “We have heard the learned counsel for the appellants. It is not disputed that the selection WA 2667/07 10 was made on the basis of marks assigned on the basis of interview by the Selection Committee and those who secured the highest marks were selected. The selection process adopted for the purpose of promotion to the post of Area Managers/Senior Managers was thus not in consonance with the principle of “seniority-cum-merit” and the promotions were not made in accordance with the Rules. Civil appeal arising out of Special Leave Petitions (C)Nos.17780-81 of 1997, are, therefore, liable to be dismissed.” The above principle is reiterated by the Apex Court in Hari Govind Yadav v. Rewa Sidhi Gramin Bank (AIR 2006 SCW 2822). 5. When promotions are made on the basis of seniority-cum-merit, it is true that the Service Rules can provide for minimum cut off marks at each stage of the selection process. In this case, for WA 2667/07 11 the written test alone minimum marks were prescribed in the Rules. It was also specifically stated that no cut off marks are there for the interview. The appellant has secured more than the minimum marks in the written test. Thereafter, no cut off marks can be prescribed for the interview. The Selection Committee cannot select candidates on the basis of comparative merit after the interview ignoring the seniority. Merely because those who got higher marks after the selection were duly selected on the basis of the seniority will not save the situation. Such a procedure could have been adopted if promotions are made on merit-cum- suitability basis with due regard to seniority and not in a case where promotions are to be effected on the basis of seniority-cum-merit. If the method of promotion is on the basis of seniority-cum-merit principle, comparative merit of all eligible candidates can be assessed. Such process is adopted with regard to the selection posts. The Apex Court in Union of India v. Lt.Gen. Rajendra Singh Kadyan WA 2667/07 12 ((2000) 6 SCC 698) held as follows: “Wherever 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 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.” The Selection Committee cannot prescribe cut off marks after the selection process started and in any event, against Exhibits P1 and P3 Rules, wherein it was specifically stated that no cut off marks will be there for the interview. If cut off WA 2667/07 13 marks were prescribed in the Rules, the position would have been different. We also note that the appellant has got more than 40% marks. In these circumstances, the appellant ought to have been selected. There are only six vacancies for the Scheduled Caste categories. The eighth respondent is the junior most candidate among the selected candidates. All the contesting respondents passed the written test. The appellant has also passed the written test. Therefore, the junior most has to go if the appellant is selected. The junior most can appear in the next selection process, as he is very junior, whereas the appellant has already attained the age of 56 years. We make it clear that since the appellant/petitioner has filed the appeal and contested the matter up to this stage, only he will be entitled to get the benefit arising from this judgment, as others have not filed any appeal. Closed matters cannot be re-opened at this distance of time. But, the appellant was fighting his case from day one till this day. With regard to WA 2667/07 14 equitable reliefs, we make it clear that the appellant will be entitled to notional promotion only from the date when others were promoted from the date of Exhibit P5 (22.7.2005). But the appellant will be entitled to actual pay on the promoted post only from 1.10.2008. We also make it clear that any higher wages paid on the promoted post to the eighth respondent shall not be recovered from him and due weightage and service benefits other than pay should be given to the appellant as if he was promoted with effect from 22.7.2005. The writ appeal is allowed with the above reliefs. (J.B.Koshy, Judge) 18th September, 2008 (K.P.Balachandran, Judge) tkv