IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9064 of 2001 RAM NARAYAN CHOUDHARY, son of Sri Mahendra Choudhary, presently posted in Accounts Section at Head office, Bhagalpur Banka Kshetriya Gramin Bank, Radha Rani Sinha Road, Bhagalpur 2. Samuel Besra, son of Late John Besra, Presently posted as Assistant Manager, Bhagalpur Main Branch, Bhagalpur Banka Kshetriya Gramin Bank, Bhagalpur 3. Braj Madhav Kumar son of Late Yadav Chandra Mehra, presently posted in the Accounts Section, in Head Office, Bhagalpur Banka Kshetriya Gramin bank,Bhagalpur. 4. Lalit Narayan Mishra, son of Sri T.N. Mishra, presently posted in the Head Office of Bhagalpur Bank, a Kshetriya Gramin Bank, Radha Rani Sinha Road, Bhagalpur 5. Rakesh Kumar, son of Sri Janardan Singh, presently posted in Loan and Advance Section, Head Office, Bhagalpur, Banka Kshetriya Gramin Bank, Bhagalpur. 6. Shailendra Kumar, son Sri Jangi Singh, presently posted in Head Office, Bhagalpur Banka Kshetriya Gramin Bank, Radha Rani Sinha Road, Adampur, Bhagalpur 7. Ravi Bhushan Verma son of Sri Ram Jatan Prasad Verma, presently posted in Bhagalpur Banka Kshetriya Gramin Bank, Extension Counter, Bhikanpur, Bhagalpur 8. Ashok Kumar Paswan, son of Sri Kedar Paswan, presently posted as Assistant Manager, Bhagalpur Banka Kshetriya Gramin Bank, Banka Branch, Banka. 9. Rajeev Ranjan son of Sri Bijoy Shankar Prasad, presently posted as Manager, Bhagalpur Banka Kshetriya Gramin Bank, Sultanganj Branch, Sultanganj, Distt. Bhagalpur. 10. Sanjay Kumar Pandey, son of Sri N.N. Pandey, presently posted as Assistant Manager, Bhagalpur Bank Kshetriya Gramin Bank, Nathnagar Branch, Bhagalpur......... Petitionrs Versus 1. THE Bihar Kshetriya Gramin Bank having its 2. Head Office at Bhagat Singh, Chowk, Munger, through its Chairman. 3. The Board of Directors, the Bihar Kshetriya Gramin Bank havingHead Office at Bhagat Singh Chowk, Munger 4. The Chairman, the Bihar Kshetriya Gramin Bank having - 2 - 5. Mr. Sujit, son of Sri Bhola Prasad Rana, presently posted asManager, Bhagalpur Banka Kshetriya Gramin Bank, 6. Shambhuganj Branch, Banka 7. Mr. Samir Kumar, son of Dr. Srideo Mandal, presently posted as Manager, Bhagalpur Bank Kshetriya Gramin Bank, Banka Branch, Banka, 8. Mahendra Badal, son Sri Satish Chandra Rai, presently posted as Manager, Bhagalpur Bank Kshetriya Gramin Bank, Main Branch, Bhagalpur. 9. Praveen Kumar Jha, son of Basuki Nath Jha, presently posted as Manager, Bhagalpur Banka Kshetriya Gramin Bank, Panj bara Branch, Distt. Banka, 10. Ravindra Singh Jain, son of Late Raj Singh Jain, presently posted as Manager, Bhagalpur Banka Kshetriya Gramin Bank, Nathnagar Branch, Nathnagar, Distt. Bhagalpur 11. Suyas Jayaswal, son of Sri Shambhu Nath Jaiswal, presently posted as Manager, Bhagalpur Banka Kshetriya Gramin Bank, Amarpur Branch, Amarpur, Distt. Banka 12. Rana Ranbir Singh, son of Sri Rana Prasad Singh, presently posted as Manager, Bhagalpur Banka Kshetriya Gramin Bank, Punsia Branch, Banaka. 13. Vikash Kumar Bhagat, son of Sri Mahabir Prasad Bhagat, presently posted as Manager, Bhagalpur Banka Kshetriya Gramin Bank, Tilakpur Branch, Tilakpur, Sultanganj, Distt. Bhagalpur 14. Jyoti Singh Jain, son of Late Raj Singh Jain, presently posted as Manager, Bhagalpur Banka Kshetriya Gramin Bank, Bounsi Branch, Distt. Banka. 15. Pramod Kumar Jaiswal, son of Sri Krishna Nand Choudhary, presently posted as Manager, Bhagalpur Bank Kshetriya Gramin Branch, Naugachia Branch, Naugachia, Distt. Bhagalpur. 16. Ram Khelawan Prasad, son of Fagu Das, Branch Manager, Bhagalpur Banka Kshetriya Gramin Bank, Jagdishpur Branch, Bhagalpur ..................................Respondents. CWJC No.11176 of 2001 SUNIL KUMAR VERMA, son of Jdhar Prasad, resident of Bhagalpur Banka Kshetriya Gramin Bank, Sabour, Bhagalpur, Distt. Bhagalpur. 2. Shashi Kant Pandey, son of late Ramashish Pandey, resident of Biro Mistri Lane, Chhati Khaiyarpur, Bhagalpur, Distt. Bhagalpur. 3. Rajesh Kumar Verma, Son of late S.K.Verma, Resident of Mohalla- Purani Sarai, P.S. Nathnagar, District- Bhagalpur. 4. Rajeev Ranjan, son of Shri C.D.N. Verma, Resident of Mohalla- Lalbagh, P.S. Tilkamanjhi, District- Bhagalpur... Petitioners. Versus - 3 - 1. The Bhagalpur Banka Kshetriya Gramin Bank, through its Chairman, Head Office, Bhagalpur. 2. The Board of Directors, Bhagalpur Banka Kshetriya Gramin Bank, through its Chairman. 3. The Chairman, Bhagalpur Banka Kshetriya Gramin Bank. 4. The Manager, H.R.D.M.P.A.B., BhagaLpur, Banka Kshetriya Gramin Bank............... Respondents ------------ C.W.J.C. No 9064 of 2001 Advocates for the petitioners:-: Mr. Rajendra Prasad Singh, Sr. Advocate, Mr. Purushottam Kr. Jha, Mr. Chakrapani Adcocate for Respondent :- Mr. R.N. Mukhopadhya Advocates for the private Respondents:- Mr. Rajendra Prasad Singh, Sr. Advocate & Mr. Dhruba Mukherjee, Advocate C.W.J.C. No. 11176 of 2001 Advocate for the petitioner :- Mr. Alok Kumar Sinha and Mr. Raj Rashmi Sinha. Advocate for the Respondents :- Mr. R.N. Mukhopadhya --------- 15 19-2-2009 This judgment shall govern both the writ petitions as matter in issue is same. Petitioners have prayed for quashing of a notification dated 8-11-2000 issued by the respondent bank whereby many persons junior to the writ petitioners have been promoted from Officer Scale-I to Officer Scale-II. Petitioners have also prayed for directing the - 4 - respondents to grant promotion to them also with effect from the date their juniors were promoted by the notification dated 8-11-2000. For the sake of convenience the reference to various annexures and relevant facts has been made on the basis of records of C.W.J.C. No. 9064 of 2001. The impugned notification granting promotion to ten persons in general category and one person in S.C. category dated 8- 11-2000 is annexure-9 to this writ petition. In the other writ petition the challenge is to the formal letter of promotion dated 14-11-2000 (Annexure-10) whereby the successful 11 officers were formally notified to have been promoted . The case of the petitioners is that as per the policy decision of Government of India dated 29th July, 1998 contained in annexure-2 all the posts in Officer Scale II ( O.S.II ) are to be filled up by promotion from O.S.I on the basis of Rules of seniority-cum-merit. The selection process as prescribed in the said annexure requires selection on the basis of performance in written test of 60 marks, interview of 20 marks and performance appraisal report of 20 marks. In the written test 40 per cent marks has been prescribed as qualifying mark for being called for interview. There is no qualifying marks either for interview or for performance appraisal report. The petitioners have shown that they qualified in the written test and were called for interview but thereafter the authorities of the bank did not prescribe any cut off marks so as to select persons above the cut off marks on the rule of seniority-cum-merit basis and instead they made an aggregate of total marks of written, interview and performance - 5 - appraisal report and selected officers for promotion to O.S. II only on the basis of merit. Reliance was placed by learned counsel for the petitioners upon a Full Bench judgment of this Court in the case of Ranchi Kshetriya Gramin Bank Vrs. D.P. Singh @ Dina Nath ;Prasad Singh reported in 2000(1) PLJR 251 and a judgment of the Supreme Court in the case of Hari Govind Yadav Vrs. Rewa Sidhi, Gramin Bank reported in (2006) 6 SCC 145 to submit that the law of promotion as per seniority -cum-merit has been well explained to mean that after evaluating the eligible candidates in all respects they should not be selected strictly as per their marks rather a cut off marks should be fixed keeping in mind the minimum merit required for the promotional post and all the candidates above the qualifying marks must be treated eligible for promotion and should be allowed promotion on the basis of their inter se seniority. In the facts of the case it is found that the respondent authority committed a mistake in not following the aforesaid requirement of providing a minimum cut off marks in the aggregate and thereby they violated the rule of seniority-cum-merit. On behalf of respondent bank and its officials as well as private respondents, it has been contended that in view of aforesaid principle of seniority-cum-merit the bank has no doubt subsequently issued fresh modalities for promotion of officers for the subsequent years which has been annexed as part of Annexure-14, a circular bearing 16/2003 dated 24-6-2003 and as per said modalities for - 6 - promotion, the minimum standard by way of cut off marks for the general category candidates has been fixed as 40 marks and for the reserved category ( SC/ST) as 35 marks out of total of 100 marks. However, it was submitted that by annexure-3 dated 15-11-1999 the respondent-bank issued a circular bearing no. 27/99 relating to promotion of Officers from Scale-I to Scale-II category and the modalities of promotion was enclosed with that circular which shows that no such cut off marks as minimum eligibility marks for promotion was provided in respect of final aggregate of 100 marks. On that basis it has been argued that the petitioners participated in the selection process for promotion after knowing the modalities enclosed as annexure-3 and hence after being unsuccessful in the selection process, they cannot be permitted to challenge the modality. In support of such plea of estoppel respondents have relied upon a judgment of the Apex Court in the case of Union of India and others Vrs. Vinodh Kumar ( 2007) 8 SCC 100. For the same purpose reliance was also placed upon a judgment of the Apex Court in the case of Trivedi Himanshu GhanshyambhaiVrs. Ahmedabad Municipal Corporation and others reported in 2008(1) PLJR.(SC) 193. On facts the aforesaid two judgments are clearly distinguishable because they related to recruitment and not to matter of promotion. At the stage of recruitment the candidates take part in the selection process as per procedure laid down and known to them and hence in a catena of judgments it has been held that after participating in the selection process and being un-successful, the - 7 - norms and rules of selection cannot be challenged by the un- successful candidates. In the present case norms laid down by the Central Government as apparent from Annexure-2 was clear and it required the authorities to follow the procedure which did not violate the rule of seniority-cum- merit. Even the modalities contained in annexure-3 are part of a circular letter addressed not to the candidates but to all the branches and various departments of the Bank. Having considered the aforesaid plea of estoppel this Court is of the view that such a plea is not attracted in the present case which relates only to promotion. In the matter of promotion the employees depend upon the authorities for fairness in procedure and it is not possible for them not to participate in the selection process without risking disciplinary action. Now the issue before this Court is whether to interfere with the promotion granted to the private respondents as far back as in the year 2000 when admittedly further promotions have also taken place in which admittedly some of the petitioners have also been promoted to O.S. II. It is admitted at the bar that only four persons out of the petitioners in the first writ petition, i.e. petitioner no.2,Samuel Besra, petitioner no.3, Braj Madhav Kumar, petitioner no.7 Ravi Bhushan Verma and petitioner No.9, Rajeev Ranjan son of Shri Bijoy Shankar Prasad have still not been promoted to O.S. II. Similarly out of four petitioners in the second writ petition only petitioner no.1,Sunil Kumar Verma and petitioner no.4 Rajeev Ranjan son of Sri C.D.N. Verma have not received promotion to O.S. II. - 8 - On considering the effect of interfering with the promotion granted to respondents in the year 2000 at this stage when further promotions have taken place in the organization it is not deemed just and proper to quash the promotion granted to the private respondents. However, in order to do justice to the petitioners it was necessary to find out whether there is any real impediment in the way of the respondent-bank in considering their cases also for promotion only notionally with effect from the date the private respondents were promoted without strict compliance with the Rules of seniority-cum- merit. From the submissions it appears that the Bank is more concerned with the liability which may fall upon it if consequential monetary benefits have to be paid to the petitioners on account of promotion from an earlier date. The counsel for the petitioners has submitted that petitioners will be satisfied if they are given promotion with effect from the date the private respondents were so promoted in O.S. II without any monetary benefits but they should be given seniority as per their earlier seniority and notional promotion so that their pay etc. can be calculated notionally with monetary benefits only from the date of actual promotions onwards. Since six petitioners have already been promoted to O.S.II in the year 2004, in respect of such petitioners the respondent bank is directed to give them notional benefit of seniority with effect from the date the private respondents were promoted. So far as the remaining six petitioners who are still in O.S.I category are concerned, their cases are directed to be re-considered by the respondent bank for - 9 - Naresh promoting them from the date the private respondents were promoted but without any monetary benefits for their past period. Such notional promotion should be granted to them from due date without monetary benefits only if no serious objectionable material is found to exist in their Character Roll for the relevant period i.e up to 2000 when the private respondents were considered and promoted. It is made clear that such exercise must be completed by the respondent bank within a period of three months from today. It is once again made clear that as the petitioners have expressed their willingness to accept notional promotion from due date, they shall not demand any monetary benefits for the earlier period and monetary benefits shall be given to them only after the date of their actual promotions but calculations shall be made treating them notionally to have been promoted from due date for the purpose of their fixation of pay etc. The notional promotion shall also be counted towards their seniority. Both the writ petitions are allowed. An intervention application by one officer in O.S.I category appears to have been filed in this case to be added as a petitioner on 23-12-2008. The prayer for being added as petitioner after a long delay is not acceptable. The same is. Therefore, rejected. ( Shiva Kirti Singh,J) - 10 -