THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition Nos.7863 of 2005 & 1253 of 2006 COMMON JUDGMENT: The petitioner joined the service of the State Bank of Hyderabad, as a Clerk, in the year 1997. He was re-designated as Head Cashier, and at present, he is working at Vilasagar Branch of Karimnagar District. He states that ever since his appointment, he has taken initiative in the respective Branches, and was instrumental, in his own way, in promoting the business of the Branches, in which he worked. Reference is made to certificate of appreciation, issued by the Bank on 16- 08-2001. The post, superior is the one, held by the petitioner, is Junior Management Grade Scale-I Officer. Out of every hundred posts of this category, 20 are to be filled by way of direct recruitment (Group-C); 55 posts by promotion of employees, who have completed eight years of service in the feeder category, between the age group of 40 and 55 years (Group-A); and 25 posts by way of promotion of employees, who have completed four years of service, but are not above 40 years (Group-B), provided they are matriculates with C.A.I.I.B., or Graduates with part-I of C.A.I.I.B. Promotion of posts of Groups-B and C is on the basis of performance of candidates in the written test (80 marks), and interview (20 marks). The petitioner became eligible to apply for promotion in the year 2002 under Group-B. On the basis of marks secured by him, he was called for interview, but was not selected. The same thing occurred for the subsequent years, 2003 and 2004 also. He filed W.P.No.7863 of 2005, stating that he was denied promotion on the basis of uncommunicated confidential reports, and prayed for appropriate relief in this regard. Petitioner appeared in the examination, conducted in the year 2005 also. When the same result ensued as in the previous years, he filed W.P.No.1253 of 2006, for similar relief. Petitioner submits that, in spite of his good performance in the written test and interviews, for successive years, he was denied promotion without any basis. He contends that when he made a detailed representation, dated 04-02-2005, narrating his grievances, the only response given by the respondents, through their letter dated 25-02-2005, is to the effect that there is no system of appeal, for promotion from Clerical to Officer Cadre, in the Bank. He complains that the respondents did not act in an objective and transparent manner, in the matter of effecting promotions. Respondents filed separate counter-affidavits in the two writ petitions. The eligibility of the petitioner, to seek promotion under Group-B, is not denied. It is stated that though the petitioner became eligible for interview, on the basis of his performance in the written examinations, during the years 2002, 2003, 2004 and 2005, he could not be promoted, as he did not secure minimum marks in the interview. As regards the selections for the year 2006, it is stated that the petitioner did not secure minimum marks in the written test. The allegation of the petitioner, that the promotion was denied on account of non-forwarding of confidential reports; is denied. Disputing the claim of the petitioner, about his satisfactory record, the respondents made a reference to memo dated 26-03-2002, said to have been issued on account of his misbehaviour with the Branch Manager. Ultimately, it is summed up that the petitioner was not promoted, only on account of the fact that he was not successful in the interview. Sri Jalli Kanakaiah, learned counsel for the petitioner, submits that the petitioner was denied promotion for no fault of his, and the meritorious performance in the written test and interview, for successive years was rendered futile. He contends that while scores of candidates, who secured less number of marks in the written test, than the petitioner; were promoted by boosting their marks in the interview, the petitioner was pushed down, by awarding disproportionate marks, by the succession selection committees. Learned counsel further submits that the specific contention of the respondents, in their counter-affidavits, filed separately in two writ petitions, that the petitioner did not secure “minimum marks” in the interview, would, in fact, disclose their mind. He contends that when the Rules do not stipulate minimum marks in the interview, denial of promotion to the petitioner, on that ground, cannot be sustained in law. He submits that a firm determination on the part of the respondents, at the behest of one officer or the other, to deny promotion, at any cost, is apparent, and prays for appropriate relief. Sri Addepalli Suryanarayana, learned counsel for the respondents, on the other hand, submits that the promotions are effected from every channel in the relevant recruitment year, with utmost objectivity and transparency. He contends that though it is a fact that the petitioner secured fairly good marks in the written test in several years, he could not fare well in the interview, and the total marks, secured by him, did not take him, up to the level of selection. It is also submitted that the marks, secured by the candidates in the written test, are not revealed to the Interview Board, and the allegation of the petitioner, that he was illegally denied promotion; is without any basis. Appointment to the posts of Junior Management Grade Scale-I Officer in the respondents-Banks is different methods. To the extent of 20% of the vacancies, it is by way of direct recruitment. 80% of the vacancies are to be filled by way of promotion, but under two categories. 55% of the vacancies are to be filled by promotion of eligible employees of the Bank in the age group of 36 to 55 years, on the basis of their performance in the written test and interview. This is called Group-A. 25% of the vacancies are earmarked for promotion of the employees of the Bank, below the age of 40 years, called Group-B. Separate written test and interviews are held for this category of candidates. The petitioner was eligible to participate in the selections, under Group-B. The journey of the petitioner, to reach the destination of Junior Management Grade Scale-I, under Group-B, started in the year 2002. Year after year, the petitioner was successful in the written tests, up to 2005, but not lucky in interviews. In the year 2006, he secured 31 marks in the written test. He was not called for interview, on the ground that he did not qualify in the written test. The area of scrutiny by the Courts, in the matter of selections of this nature, is very limited. Rarely an occasion arises for the Court, to doubt the accuracy of the marks, awarded in the written test, or interview. It is also recognized that the performance of a candidate need not be similar in written test and interview. The percentage of marks secured by a candidate in these components is bound to vary, and hardly any consistency exists, in this regard. While the candidates, who secured fairly good marks in the written test, may not fare well in the interview. It is only when the marks secured in the written test are very high, that the award of even minimum marks in the interview, may not tell upon the result. Where, however, the marks secured in the written test are not so high, the Agency or Authority, that interviews the candidates, would be in a position to tilt the balance. One important aspect to be noted here is that, if the Rules prescribe minimum marks in the interview, a candidate cannot be selected unless he secures the minimum marks in the interview, notwithstanding his high percentage of marks in the written test. Because of this serious consequences, one must be sure about the concerned Rule. In the instant case, the respondents took a specific plea to the effect that non-selection of the petitioner was on account of his failure to secure “minimum marks in the interview”. In both the counter-affidavits, the following sentence is repeated. “Para-3: It is true that the petitioner became eligible for interview during the years 2002, 2003, 2004 and 2005, but he could not be promoted, as he could not secure minimum marks in the interview.” It is not uncommon that candidates, who undergo the selection process make a grievance, when those who secured less number of marks in the written test, than them are selected, and they are not selected. In matters of this nature, the Courts would simply verify the marks at the relevant levels and leave it, at that, unless mala fides are attributed and proved. Where, however, a candidate is denied selection, consecutively for several terms, despite his superior marks in written test, eyebrows naturally raise. That exactly happened in this case. The pleadings were silent, as to the number of marks secured by the petitioner, in each year of selection. After hearing the parties at some length, this Court issued a direction to the respondents, on 12-03-2008, to furnish the following information: a) The marks secured by the petitioner in the written test for the years 2002 to 2006. b) The marks secured by the petitioner in the interview for the corresponding examinations. c) The number of marks secured by the last candidate selected for each year, together with break up of written test and interview. d) The Rules, if any, which insist that a candidate must secure minimum number of marks in the interview. In compliance with the same, the respondents furnished the following information: “Marks obtained by Sri R.V.V. Prasada Rao (petitioner) in the written test and interview are as under: 2002 2003 2004 2005 2006 Written Test 42 46 37 39 31 Interview 7 6 11 12 *-- Total 49 52 48 51 *Since he did not qualify in written test during 2006 he was not called for the interview for promotion. The marks allotted to the last selected candidate who was promoted for those years are given below. 2002 2003 2004 2005 Written Test 46 37 37 35 Interview 8 17 15 19 Total 54 54 52 54 Minimum stipulated marks for written test are 40 out of 100 and minimum marks for interview are 5 out of 20. Copies of Head Office Circular No.PER/1994- 95/39 dated 10-08-1994 and EC Memorandum No.ECM-SBH/2000/771 (Item No.D- 17) Meeting dated 08-08-2000 showing the minimum marks to be obtained in the written test and interview are enclosed. The confidential reports of the candidates are not forwarded by Regional Office but the synopsis of the confidential reports only is submitted and the same is placed before the interview committee”. The above information was supplemented by the lists, for the years 2002 to 2005. It is relevant to mention that for the year 2002, nothing abnormal has taken place in the selection, and almost each of the 147 candidates, selected under Group-B, have secured 42 or more marks in the written test. The only exception is, of one candidate, by name, Mr.B.Nagarajan, who secured 39 marks in the written test, but was awarded 17 marks in the interview. The selections for the year 2003 are, however, startling. Out of the 75 selected candidates, 55 candidates, who have secured less number of marks, than the petitioner, were selected, by boosting their marks in the interview. The petitioner was the only candidate, who secured 46 marks in the written test, but was denied selection. It is not out of place to mention, that a candidate, by name, T. Madhava Rao, who secured 35 marks in the written test, was awarded 19 marks in the interview, whereas the petitioner, who secured 46 in the written test, was awarded 6 marks by the selection committee. When we come to the selections of 2004, in Group-B, the same thing is repeated, may be, to a different degree. The Interview Board awarded 100% marks to 7 candidates, and 99% marks (19 marks) to about 20 candidates, out of 47 selected candidates. The award of marks was so liberal, that even a candidate with 35 marks in the written test was awarded 19 marks in the interview, and some with 32 in the written test, were awarded marks between 17 and 19. The petitioner, was, however, awarded just 11 marks. The results of the year 2005, if at all anything, would only remove the doubt, as to the objectivity, rather lack of it, in the selection process. The petitioner secured 39 marks in the written test, but was awarded only 12 marks in the interview. The last selected candidate, though secured 35 marks in the written test, was awarded 19 marks in the interview. It needs to be mentioned that two other candidates were awarded 19 marks, are those who secured 48 and 51 marks, in the written test. The petitioner was not called for interview, in the selections of 2006, on the ground that he did not qualify in the written test. It has already been pointed out that the scope of interference by the Courts, in the selection process, is very limited. After examining the record and hearing the matter, in detail, this Court felt that the petitioner was subjected to injustice, either wantonly or unwittingly, and the Court cannot remain as a silent spectator. The mind of the Court was expressed to the respondents, through reasoned orders, passed from time to time, and a direction was issued on 02-04-2008 to the respondents, to reconsider the process of selection, that took place in the year 2005, with reference to the petitioner. The respondents have constituted an Interview Committee, once again on 26-05-2008. This time, the petitioner was awarded 10 marks, i.e. 2 marks less than what he secured in the original selection, in 2005. Two questions arise for consideration in the background, mentioned above. The first is about the concept of ‘minimum marks in the interview’, and the second is about the ‘relevance of confidential reports’. It has already been pointed out that the respondents took consistent plea, in their two counter-affidavits, that the petitioner was not promoted, since he did not secure “minimum marks in the interview”. The promotions are based upon a policy, formulated on 30-07-1975, and it was supplemented through an agreement dated 10-01- 1980. The petitioner filed a copy of the same. The policy does not stipulate any minimum marks, either for written test, or for the interview. What all it says is, that, as between written test and interview, the allocation shall be 80% for the written test, and 20% for the interview. The paragraph relating to selection of candidates, under Group-B, reads as under: “GROUP ‘B’: employees who have completed 4 years of service, but are not above 35 years of age are eligible, provided they are Matriculates with CAIIB or Graduates with Part-I of CAIIB. Promotions shall take place on the basis of performance through a written test and interview. All the eligible employees, who have given consent letters, shall be called for the written test and they can appear for a maximum of 5 times consecutively. The ratio between the written test and the interview marks will be 4:1 (80% for written test and 20% for interview). The number of successful candidates called for the interview will be 1-1/2 (one and a half) times of the number of notified vacancies”. While the petitioner was not selected for the years 2002 to 2005, on the ground that he did not secure minimum marks in the interview, he was not called for interview, in the year 2006, on the ground that he did not secure minimum marks in the written test. To be more clear and definite in this regard, this Court directed the respondents to indicate the basis for minimum marks in the interview. The answer given by them, has already been extracted in the previous paragraphs. It is to the effect that a candidate must secure 5, out of 20 marks, in the interview. Though this stand is contrary to the promotion policy, the fact remains that the marks, secured by the petitioner, in the interviews, for the years 2002 to 2005, exceeded 5. The denial of opportunity for the petitioner in the year 2006 suffers from the same vice, since the policy does not stipulate minimum marks in the written test. Therefore, the stand taken by the respondents is contrary to the record and the promotion policy. Now comes the second question, viz., ‘relevance of confidential reports’. The petitioner took a specific plea, in both the writ petitions, that his confidential reports were not forwarded to the Interview Committee and thereby, a fair appreciation of his personality was denied. In the counter affidavit filed in W.P.No.1253 of 2006, the respondents stated as under: “…The contention of the petitioner that the marks in the interview will be awarded based on the confidential reports is incorrect, as it would be on the basis of performance in the interview as well as confidential reports…” From this, it becomes clear that though not the sole basis, confidential reports would certainly constitute an important factor in the interview. It is admitted in the counter-affidavit that the confidential reports of the petitioner were ready, but were not forwarded to the interview committee. It is stated that, only the gist of the confidentials was forwarded by the Controlling Authority. In the counter-affidavit filed in W.P.No.7863 of 2005, it is mentioned that it is only the gist of confidential reports, that would be examined by the Interview Committee. When the confidential reports are relevant factor, the concerned agency must assess the same. An intermediary authority can play its own role, positive or negative, in the matter of preparing “the gist” of the confidential reports. The fact, that the petitioner was not selected in five consecutive selections, would certainly point out, that the actual picture of the performance of the petitioner was not presented before the Committee. Therefore, the stand of the respondents is, either inconsistent, or contrary to the policy, prescribed by themselves. The injury suffered by the petitioner is evident and clear. He was wronged and prudence demands that a wronged person must be remedied. Basic tenets of Justice are common in all systems except for minor variation on certain aspects. One of the tenets of ‘Dharma’ is that no one should take anything which genuinely belongs to others. In Justinian’s Corpus Luris Civilis, Justice is defined as “the constant and perpetual will, to render to everyone that to which he is entitled”. Cicero defined Justice as “the disposition of the human mind to render to everyone his due”. It has been demonstrated that the petitioner was denied what was due to him. Difficulty some times arises, in the matter of granting the relief, if the remedy is not provided for by the enacted law. But they should not feel helpless, given the clamour to do justice. Courts do come across with the situations of this nature. To quote from ‘Dias on Jurisprudence[1]’; “…The drive behind doing ‘justice according to law’ is provided by values, which constitute what Holmes J described as ‘the inarticulate major premise of judicial reasoning’; ‘inarticulate’ because there is seldom an openavowal of their influence. Yet, although courts have frequently disclaimed to dispense justice pure and simple, there are occasions when they do and say so. ‘If I thought that injustice has been done to him’ said Lindley LJ ‘I should have found some method, I have no doubt, of getting rid of the technical objection. Justice may also help to decide between alternative rules or interpretations. As Lord Reid said ‘If a decision in one sense will on the whole lead to much more just and reasonable results, that appears to me to be a strong argument in its favour. Where there is no authority, the decision may well rest on justice”. Even where precedents, or enacted law is clear in their purport, Courts tend to stretch or shrink them, if needed, to do justice. Take for instance, the consequences of a void marriage. Hardly any doubt exists in relation to them. In Dodworth v Dale[2], the issue was, about the allowed deduction of income tax of a couple. When their marriage was declared null and void, the assessment was sought to be re-opened. The Court, however, held that since the couple was, in fact, married, till it was declared void, the assessment cannot be re-opened. In contrast, a disqualification incurred by a widow under a testament, on account of her remarriage, prohibited under the Will, was set at naught, on the ground that the marriage itself was void. (See Re Dewhirst, Flower v. Dewhirst [1948] All E.R. 47). Instances can be multiplied, where the Courts did find a way, once they felt that there exists a necessity to undo the injustice caused to a party. In the instant case, the injustice caused to the petitioner, in the matter of denying promotion to him is manifest, if not glaring. One after the other, excuses were pressed into service, obviously, with the confidence, that Courts would not interfere with the selection process, even if a candidate was denied selection deliberately. However, it must be remembered, that the Court would not remain as silent spectators, nor can it get entangled in a web of self-imposed restraint. Strictly speaking, the whole selection process for various years has to be set at naught, in view of the irregularities noticed by this Court. That, however, would result in serious dislocation of the work of the respondents, and would impinge on the rights of the number of candidates. Though the petitioner was wrongly denied promotion for several years, this Court is of the view that much glaring was the one for 2005, and a direction to clear his selection for the year 2005, would meet the ends of justice. Hence, the writ petitions are allowed, declaring that the petitioner was wrongfully denied promotion for several years, and directing that, he shall be deemed to have secured the requisite marks, for promotion, under Group-B, of Junior Management Grade Scale-I, for the year 2005, and he shall be placed at the end of the list of selected candidates, for that year. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt. 03-07-2008. Note: L.R. copy to be marked. (B/O) KO* [1] Dias on Jurisprudence Fifth Edition Ch.10. P.194 [2] [1936] 2 ALL E.R. 440