W-^' ^&y % SN THE HON'BLE HIGH COURT OF CHHATTiSGARH AT BILASPUR WR1T PETITION N0.2576^2^6 VUAY NARAYAN MiSHRA, Sfo Late Shri Jagat Narayan Mishra, Age about 53 Years, Occupation - Sen/ice, Posted at Branch - Baloda Ba}ar. Raipur Kshefriya gramin Bank, Rfo Jagat Kung, 27 Kholi, Bilaspur (C.G.) to f\.R.^ VERSUS ^^4-^n Ms.SharroHs 3. Asstt. roi ihal India Chtaflisgarb CHHATTJSGARH RAIPUR GRAMJN BANKJhrough its Chainrsan, Head Office at RecreationaJ marg, Choubey Cofony, Ra;pur(C.G.) UNilONOFJNDJA, Jhrough rts Secretary, Minisfry of Finance, D^artment of Economic affairs, Banking Division, New Delhf. JJTENDRA KUMAR SHUKLA, Area Manager, Area office, Bilaspur Raipur Ksehiya Gramin Bank, Shanker Nagar. Dsitt: Rafpur (C.G.) WRIT PET1TION U/A226/227 OF THE CONSTITUTION OF JNDJA. A HIGH COURT OF CHHATTISGARH, BILASPUR Division Bench: Hon'ble Shri Satlsh K. Agnihotri & Hon'ble Shri Manindra Mohan Shrivastava, JJ. Writ Petition No. 2576 of 2006 PETITIONER Vijay NEirayan Mishra Versus RESPONDENTS: Chhattisgarh Raipur Bank 8s others Gramin Order for consideration Sd)- ManindraMohan Shrivastava Judge - ~-- -^_/2/2010 Hon'ble Shri Satish K. Agnihotri, J. J Q^t^t- Sd/- Satish K. Agnihotri Judge /7/2/201.0 Post for pronouncement of Order /^ .2-2010 Sd/- Manindra Mohan Shrivastava Judge HIGH COURT OF CHHATTISGARH : BILASPUR Division Bench: Hon'ble Shri Satish K. Agnihotri & Hon'ble Shri Manindra Mohan Shrivastava, JJ. Writ Petition No. 2576 of 2006 PETITIONER Vijay Narayan Mishra Versus RESPONDENTS: Chhattisgarh Raipur Grainin Bank 8s others Writ Petitionunder Article 226/227 ofthe Constitution oflndia Present: ShriYogesh Pandey, counsel for the petitioner. Shri Pramod Verma, Sr. Advocate with Shri SumitVerma, counsel for respondent No.l/Bank. Shri Anand Varma, standing counsel for respondent No.2. Shri Arvind Dubey, counsel for respondent No.3. ORDER (Passed on (^February, 2010) Per Manindra Mohan Shrivastava, J. 1. The petitioner, an officer in the Middle Management Scale-II in Bilaspur - Raipur Kshetriya Gramin Bank has approached this Court assailing acdon of respondent No. 1, whereby 3rd respondent allegedly petidoner s junior has been promoted to the next higher raanagerial post of Middle Management Scale - III in the Bank vide order dated 21.7.2005 (Annexure P-9), in supersession of the petitioner, who has not been prornoted. During the pendency of petition, petitioner has now been promoted to the post of Middle Management Scale-III vide order dated 23.5.2009 (Annexure P-13) brought on record by way of amendment. The sequel of events that gave rise to the petitioner's grievance and led him to file this petition are as under- The petitioner at the time offiling petition was working in the cadre of Middle Management Scale II in Bilaspur Raipur Kshetriya Graimin Bank, a Regional Bank established under the Regional Rural Banks (Appointment & Promotion of Officers SB other Employees) Rules, 1998 (henceforth "the Rules of 1998) and posted as Branch Manager, Branch-Baloda Bazar. He was placed at serial No.4 in the said seniority list (Annexure P-1). The senior most officer Mr. Vivek Yashvant Joglekar has resigned from the Bank services, thus, the effective position of the petitioner in seniority list is 3 as compared to that of 3rd respondent, effectively at serial No.5 in the said list. 2.. The Bank, in which the petitioner is working, has been established under the Regional Rural Banks Act, 1976. In exercise of powers conferred by Section 29 of the Regional Rural Banks Act, 1976 (21 of 1976) (henceforth "the Act of 1976) read with Section 17 thereof and in supersession of the Regional Rural Banks (Appointment 85 Promotion of Officers 85 other Employees) Rules, 1988 (henceforth the Rules of 1988), the Central Govemment after consultation with the National Banks and specified . sponsored BankS framed rules governing the terms and conditions of the officer and employees working in the Regional Rural Banks. Rule 13 of the Rules of 1988 specifies different categoiy of posts. Rules 6 thereof provides that all vacancies determined under Rule 5 by the Board shall be filled up y^^. "^ /& „-_" I1 il 1 ^ '^^^2^^ j^J '••'Bt-.^ B -. .•^t!y '^SiSS^^' <2^Q\ by proniodon or direct recruitment in accordance with the provisions contained in these rules and IIIrd Schedule appended to the rules. IIIrd Schedule appended to the rules provides for appointment to different categories of officers and other employees to group "A°, "B" & "C" posts whether by direct recruitment or by promotion. According to the petitioner, under the rules, the posts of Middle Management Class-III are to be filled- up by way of promotion froni eligible Middle Management Class-II Officers applying category of seniority-cum-merit. \ ,:- ^ :- 3. Case of the petitioner is that while he was working as Middle Management Scale-II Officer, Bank cireulated a Staff Circular dated 6 January 1997 (Annexure P-3) which contained guidelines with regard to preparation of self appraisal report. A format for self appraisal report was also issued by the Bank. Respondent-Bank issued Staff Circular No.31/2004-05 dated 5.3.2005 (Annexure P-5) by which Bank declared its policy regardin^ promotion on 3 posts of officer in the cadre of Middle Management Scale-III post based on Government policy dated 29.7.1998 and the sancdon of . Sponsor Bank approved in its meeting dated 20th August 2004 of its Board of Directors. Interview call letter (Annexure P-6) was issued by the Bank to the petitioner to appear at Head Office on 17th March, 2005 which was later on cancelled vide letter dated 16.3.2005 (Annexure P-7). Again another call letter dated 13.7.2005 (Annexure P-8) was issued requiring the petitioner to appear in the interview at the Head Office scheduled on 21st July, 2005. 4.. Petitioner appeared and participated in the interview held on 21.7.2005, results of which were declared on that very day vide Staff Circular dated 21.7.2005 (Annexure P-9). The said Circular/letter declared that the Board of Directors of the Bank has accepted recommendations of the Selection Cornmittee and decided to promote 3 persons namely S.K. Mardikar, M. Ramprasad 85 J.K. Shukla in the Middle Management Scale-III posts. According to the petitioner, while S.K. Mardikar 85 Ramprasad are senior tc; the petitioner, J.K. Shukla is junior to him as reflected from seniority list (Annexure P-1) dated 9.6.1997. Apprehending that his non inclusion in the list of promotion was on account of application of minimuni merit requirements criteria as contained in the circular dated 5th March, 2005 (Annexure P-5), leading to his supersession, p^titioner ventilated his grievance by submitting a representation to the Board of Directors. In response thereof, he was informed that as the criteria for promotion was approved by the Board of Directors and the recommendations of the Selection Committee were also approved by the Board of Directors, there was no justification to submit appeal to the Board of directors. 5. Learned counsel for the petitioner seeks to assail non-promotion of the petitioner and his supersession on account of promotion of 3rd respondent on the ground that entire process of selection is vitiated as the same is '. based on the criteria specified in Staff Circular No. 31/04-05 dated 5U1 March, 2005 (Annexure P-5) which is ultra vires the statutory scheme of promotion engrafted in Rules 1998. Learned counsel for the petitioner submits that in the matter of promotion frora the Middle Management Scale II post to Middle Management Scale - III post, statuary scheme of the Rules of 1998 are contained in Clause -I of Schedule -III which provides that the criteria for promotion shall be seniority-cuni-merit. The mode and manner of assessment has also been provided in Clause (j) thereof, according to which selection shall be made on the basis of performance in the interyiew and performance of appraisal report for preceding 5 years. Out of total niarks of 100, 75 inarks have been allotted for performance appraisal ''(.^. \1;. ..^gi^SBfe^.... r'i'^^ "'•• T /^/^.^ •^yjj '<:> t~a—^"// '•A^ V.^ report, whereas 25 marks have been allotted for interview with a further stipulation that the minimum qualifying marks in the interview are 50 per cent. 6. The contention of learned counsel for the petitioner is that the criteria of promotion as laid down in the administrative circular dated 5th March 2005 (Annexure P-5) by which overall minimum merit requirements/ minimum qualifying marks have been provided as 90 per cent of the total 100 marks has the effect of altering/amending the statutory prescription contained in the Rules of 1998 by altering the eligibility criteria. His submission is that if requirement of obtaining 90 per cent of the total marks is prescribed as minimum qualifying marks for promotion, it would infringe the statutory scheme prescribing minimum eligibility criteria of obtaining at least 50 per cent, out of 25 marks allotted for interview. This prescription, according to the learned counsel for the petitioner, is illegal and in excess of authority, as by way of administrative instructions, statutory rules could not be altered. 7. The second limb of his submissions is that the administrative policy contained in Circular dated 5th March 2005, by providing 90 per cent marks as minimum qualifying marks is inconsistent with the statutory criteria of promotion based on seniority-cum-merit. Submission has been elaborated by stressing that prescription of such high minimum qualifying marks virtually changes the very criteria of seniority-cum-merit to merit- cum-seniority. Learned counsel for the petitioner further submits that even if an officer scores full 75 marks in assessment of performance of appraisal report, unless he gets 15 marks he would not attain minimum qualifying marks criteria, meaning thereby that under any circumstance, an officer is required to obtain at least 15 marks in interview in order to become eligible for promotion. In his submission this violates and goes against the statutoiy prescription of obtaining. minimum 50 per cent marks in interview. In order to persuade this Court, he advances submission by submitting that in such case even if the officer gests 50 per cent niarks i.e. 12.5 % of total 25 marks allotted for interview, he could not become eligible for promotion on account of he failing to achieve 90 per cent of the total marks. This according to the pedtioner demonstrates that the policy dated 5.3.2005 prescribing 90 per cent marks of the total marks as minimuin qualifying criteria has the effect of altering/modifying statutory rules and is inconsistent with the present statutory scheme of mode and'manner of assessment and miniraum eligibility criteria in the matter of promotion from Middle Management Class-II post to Middle Management Class-III post. 8. Learned counsel for the petitioner in order to persuade this Court to accept his submission has referred to following authorities: AIR 1967 SC 1910 (Sant Ram Sharma Vs. State ofRajasthan and ors.), AIR 2001 SC 1769 (Dr. Raiendra Sineh Vs. State of Punjab & ors.l. 1991 (1) SCC 212 (Shrilekha Vidvarthi Vs. State of U.P & ors), 1994 (210) ITR 129 (SC) (Kerala Financial Corporation Vs. Commissloner of Income Tax ), AIR 1981 SC 818 (Swadeshi Cotton Mills Vs. Union of India), AIR 1954 SC 340 (Kiran Sineh and Ors. Vs. Chaman Pasman & Ors.l, 2008 AIR SCW 1412(Chief Eneineer. Hvdel Proiect SB Ors. Vs. Ravinder Nath & Ors.) & 2010 AIR SCW 341 (Raiendra Kumar Srivastava & Ors. Vs. Samyut Kshetriya Gramin Bank SB orsl 9. Supporting Bank policy dated 5.3.2005 prescribing 90 per cent ofthe total marks as minimum qualifying marks, proceedings of selection for the purpose of promotion and supersession of the petitioner by order dated 21.7.2005, learned senior counsel for the respondent-Bank referring to the stand taken in their return has submitted that in prescribing 90 per cent of the total marks as the niinimum qualifying marks for the purpose of promotion to Middle Manageraent Scale III post, neither the rules has been violated nor it any manner alters or amends the relevant provisions contained in Rules of 1998 in the matter of promotion from Middle Management Scale -II post to Middle Management Scale -III post. It has been contended that the Bank is fully within its authority to lay down as to what would be the rninimum qualifying marks while considering cases of promotion by applying criteria of seniority- cum -merit. He contends that the Rules of 1998, though pardculariy laid down the statutory policy of promotion by prescribing as to what would be the criteria for promotion, are silent and nowhere prescribe as to what would be minimum qualifying marks while applying criteria of seniority- cum-merit. Merely because percentage of minimum qualifying marks is on higher side it would not lead to the conclusion that it alters or amends the rules or does any violence to the laid down criteria of seniority cuin merit. Supporting the action of respondent- Bank, he further submits that the Rule Making Authority has left it to the discretion of the Regional Rural Banks to prescribe the appropriate minimum qualifying marks in the matter of promotion from one post fo other depending upon the requirements of the Banking Institutions. 10. Further submission of learned counsel for the respondent Bank is that statutoiy requirement of obtaining minimum 50 marks in interview is not in any manner altered or violated by prescribing 90 per cent marks as minimurri qualifying criteria. It is contended that the rules require that in order to become eligible for promotion one has to obtain at least 50 per cent marks i.e. 12.5 % of marks out of the total 25 marks allotted for interview. This does not however mean that it would confer right to be promoted once such minimum inarks in the interview was obtained by a particular candidate. According to leamed counsel for the respondent- Bank, the Bank earmarked 3 posts of Middle Management Grade -III post which are highest ministerial post at the Bank level to be filled-up by way of promotion provided the eligible officers of the lower feeder post obtain minimuin qualifying marks in the process of selection. If by application of such minimum qualifying marks criteria, a candidate is required to obtain higher marks in interview so as to achieve total 90 per cent ruarks, in his submission, it could not be said to be in any manner inconsistent with the requirement of minimum eligibility criteria. He further submits that the criteria of seniority-cum-merit is also not altered or amended but the criteria remains the same i.e. seniority-cuin-merit and variance in the 'v minimum qualifying marks whether it be on lower or on higher side would not result in giving up the criteria of seniority cum inerit in the matter of promotion in the present case. 11. Learned counsel for the respondent-Bank submits that in any case the petition is liable to be dismissed on account of fact that the petitioner was fully aware of the policy dated 5.3.2005 and the requirement of obtaining in minimum quailing raarks stipulated therein, but he did not raise any objection and participated in the process of selection by appearing in the interview. It is only when the petitioner found that after selection his junior was promoted that the petitioner took somersault and filed instant petition ^s^1'1^. 'yy^ x 1 ^v^ y "'a&s' ^>., '•^""^ s •^' challenging the criteria of selection. As the petitioner participated in the process of selection without raising any objection to the procedure and criteria of selection, he could not challenge the criteria/procedure after he found himself unsuccessful. It has been contended that in the peculiar circumstances of the case, the petition ought not to be entertained on inerits and is liable to be dismissed only on this ground, as the discretionaiy jurisdiction of the writ court under Article 226 of the Constitution of India could not be invoked by such class of persons. ''i.2. Leamed counsel for respondent No.3, whose promotion is under challenge in this petition, advances submission that the petitioner having participated in the process of selection is estopped from challenging the procedure/criteria of selection upon he being found unsuccessful. It is argued that in view of order dated 17.11.2006 (Annexure R-3/1) passed in W.P. No.3942/1989, 3rd respondent is senior to the petitioner. According to him, in view of the aforesaid order of the Court, one who joined earlier would be senior. Since respondent No.Sjoined on 24.11.1977 on the post of , Branch Manager, whereas petitioner joined on 29.11.1977, petitioner could not claim to be senior. On this submission, it is stressed that the entire basis of petitioner's grievance that he being senior, junior has been promoted by applying criteria of merit-cum-seniority, falls to the ground. On the aspect of prescribing 90 per cent of total marks as minimum qualifying marks, the submissions advanced by the Bank are supported by submitting that it does not violate the criteria of seniority-cum-merit nor could be said to be inconsistent with requireraents of obtaining 50 per cent marks in interview. •' .^I.".-' '>"•'..'.; t. ^;!"^ /y^\ ^ ^^^ 10 13. We have given our anxious consideration to rival contentions made by the parties before us and perused the records. 14. In order to appreciate various grounds of challenge to the policy dated 5.3.2005 and consequent action of respondent -Bank in selecting 3rd respondent for promotion in supersession of the petitioner, it would be appropriate to first analyse the relevant statutory provisiohs reladng to promotion as engrafted in Regional Rural Banks (Appointment & Promotion of Officer and Other Eaiployees) Rules, 1988. \ 15. Respondent -Bank has been established under Regional Rural Banks Act, 1976 Jn exercise of powers conferred under Section 29 of the Act of 1976, the Central Govemment which is competent to make rules, earlier promulgated Regional Rural Banks (Appointment 85 Promotion of Officer and Other Employees) Rules, 1988. Later on, the Central Government in supersession of the eariier rules promulgated rules which are now known as Regional Rural Banks (Appointment & Promotion of Officer and Other Employees) Rules, 1998. The post of officers and other employees in each Rural Bank have been classified in three groups i.e. group "A", "B" & "C". Power has been conferred on the Board of Directors of each Regional Rural Bank to create posts in consultation with its Sponsor Bank. Further the Board, may in consultation with its Sponsor Bank, determine the number of vacancies in each category of posts to be filled-up keeping in view the guidelines issued by the Central Government from time to time. Rules 6 of the Rules of 1998 envisages that all vacancies determined under Rule 5 with the Board shall be filled-up by promotion or by direct recruitment in accordance with the provisions contained in the rules and Schedule III appended to the rules. ^-..•f^SS6 11 16. Schedule III appended to the rules provides for mode and methodology of assessraent of officer as also lays down the criteria for promotion from one to the other cadre of posts specified therein. Posts in the cadre of Scale-III officer has been classified as group "A" post to be filled up 100 per cent by way of promotion. It also prescribes that promotion shall be made on the basis of seniority-cum-merit. Officer holding post in Scale-II for 7 years on regular basis in the regional rural bank shall eligible for being considered for promotion to Scale -III post in that Bank . Provided that no officer shall be considered for promotion unless he has been confirmed in feeder grade post. Rules conferred on the Board, power relax, with prior approval of the National Bank, the qualifying service for a period not exceeding two years if eligible officer are not available. 17. Provisions contained in Schedule III further provided that the selection of the candidate shall be made by the Committee on the basis of interview and assessment of performance appraisal reports for the preceding 5 years as an officer in Scale-II post. The Selection Committee comprises of the Chairman of the concerned Regional Rural Bank, a Director nominated by the Sponsor Bank 8s a Director norainated by the National Bank. The Chairman of the concerned Regional Rural Bank acts as Chairman of the Selection Committee. Clause (h) of the Schedule III provides that for the purpose of reckoning minimum eligibility in terms of number of years of service, it shall be reckoned as on the 1st April of year in which the vacancies are expected to arise or has actually arisen. Clause (i) provides that number of candidates to be considered for promotion from officers Scale -II to Officer Scale -III shall be restricted to three times the number of vacancies available for promotion. It has been provided that the selection shall be on the basis of perforinance in the interview and performance 12 appraisal reports for preceding 5 years. A total of 100 raarks have been prescribed for the purpose of assessing the suitability, out of which 75 marks have been allotted towards performance appraisal reports, whereas 25 marks have been allotted for interview. Important and relevant for the present case, it has been specifically provided that the mininium qualifyins marks in the interview are 50 per cent. 18. The aforesaid statutory scheme ofpromotion to be made froin Scale-II post to Scale III post lays down two important features ainongst others which are relevant for adjudication of controversy involved in the pedtion they are- A- Promotion shall be made on the basis of seniority-cum-merit. B- The minimum qualifying marks in the interview are 50 per cent of the total marks allotted for interview. In so far as seniority-cum-merit basis criteria. in the matter of promotion is concerned, in the case of State of Kerala and another Vs. N.M. Thoma and others. 1976 (21 SCC 310, Constitution Bench of Suprerae Court observed as under: "38 The principle of equality is applicable to employment at all stages and in all respects, namely, initial recruitment, promotion, retireinent, payment of pension and gratuity. With regard to promotion the normal principles are either n-ierit-cum-seniority or seniority-cuin-merit. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority......... In fact, the rules governing promotion of officers of Regional Rural Banks with particular reference to the meaning of the criteria of seniority- 13 cun-i-merit were subject matter of consideration by the Supreme Court in the case of B. V. Sivaiah and others Vs. Addanki Babu and others, AIR 1998 SC 2565. The Regional Rural Banks (Appointment and Promotion of Officer and Others Employees) Rules of 1988 which were repealed by the Rules of 1998 with which we are now dealing, contained similar provisions relating to criteria of promotion. Supreme Court while interpreting similar criteria of seniority-cum-merit in the matter of promotion of Area Managers/ Senior Managers ofthe Regional Rural Banks held as under" "18 We thus arrive at the conclusion that the criterion of 'seniority-cum-merit' in the matter ofpromotion postulates that given the minimum necessary merit requisite for efficiency of administration the senior, even though less meritorious, shall have priority and acomparative 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 rnarks which would entitle a person to be promoted on the basis of seniority-cum-inerit." 19. In subsequent decision in the case of Union of India 8s ors. Vs. Lt. Gen. Rajendra Sineh Kadvan and another, 2000 (6) SCC 698 which also related to an issue with regard to interpretation and true import of criteria of seniority -cum-merit in the matter of promotion, principle laid down in the case of B.V. Sivaiah & Ors. (supra) were reiterated in following words "12. 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 .^-t ^^f-®; y" ^ //ss^ ''% gi».1 ^t' jj i^ 14 fitness in all respects. Seniority cura merit postulates the requireraent of certain minim.um merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement